Licence Appeal Tribunal File Number: 22-004391/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
J.A.H. (A Minor by Their Litigation Guardian, N.G.)
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: Adrianna Klukowska, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1J.A.H. (the minor “applicant”) was involved in a motor vehicle accident on May 16, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TD General Insurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant, through her litigation guardian, N.G., applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
Is the applicant entitled to $282.50 for a psychological pre-screen, proposed by Imperial Assessments in a treatment plan/OCF-18 dated April 23, 2020 and denied May 1, 2020?
Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Imperial Assessments in a treatment plan/OCF-18 dated April 23, 2020 and denied May 1, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”) dated January 30, 2023 that set this matter down for a hearing notes that the parties confirmed that the MIG limit had not been exhausted. In submissions, the respondent confirms that the applicant has consumed $2,717.37 in treatment, leaving $782.63 remaining within the $3,500.00 MIG limit. As the applicant does not dispute this, I accept the respondent’s submissions that the MIG has not been exhausted.
4Based on the submissions of the respondent and a reference to the OCF-18 itself included with the applicant’s submissions, I have changed the submission date of the treatment plan listed as issue #2 above. The plan shows that it was dated April 23, 2020 and submitted to the insurer on April 24, 2020, not dated January 23, 2020 as specified in the CCRO. I have not changed the date of the denial of this plan, as it is correct in the CCRO.
RESULT
5I find that:
i. The applicant has failed to demonstrate that her psychological and physical impairments would not have occurred but for the subject accident.
ii. The applicant has failed to demonstrate that she suffers from either a non-minor injury or the exacerbation of a pre-existing condition as a result of the subject accident that precludes her recovery under the MIG. She remains within the MIG and its $3,500.00 limit on treatment.
iii. The applicant is entitled to benefits up to the amount remaining under the MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is applicable on the incurred and overdue amounts of treatment plans in accordance with s. 51 of the Schedule.
BACKGROUND
6The applicant was seven years old at the time of the subject accident. According to the account provided to her family physician, Dr. Esther Shehata, the applicant was riding as a passenger in the back seat of her mother’s automobile on her way to school when it was rear-ended by another vehicle.
7While the applicant attended school immediately following the accident, she complained of neck pain at the end of that day. Her mother brought the applicant to see Dr. [S] after school. In the clinical notes and records (“CNRs”) of that appointment, Dr. Shehata noted that the applicant had not vomited and had not suffered from headache since the accident, that there was no sign of deformity or skin discolouration, and that the applicant presented a normal range of motion and that her shoulders were normal. Dr. [S] concluded that the applicant was suffering from a neck/muscle sprain, prescribed pain-relief medication and therapeutic gel, and provided a referral to physiotherapy. The physician advised the applicant’s mother to bring her back to the clinic if she did not show signs of improvement.
8Both parties note in submissions that the applicant was involved in a prior motor vehicle accident. She was struck by a vehicle when she was two years old and sustained injuries that resulted in her legs being placed in casts. Further, both parties accept that the applicant has had a history of suffering from headaches dating back to at least 2014.
ANALYSIS
The Minor Injury Guideline (“MIG”)
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
10An insured person may be removed from the MIG if it can be established that his or her accident-related injuries fall outside of the MIG. In addition, an insured person can be removed from the MIG due to a pre-existing condition. This factor, combined with compelling evidence indicating that the condition precludes maximal recovery if kept within the MIG, can result in an insured person being removed from the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has also determined that chronic pain with functional impairment may warrant an insured person’s removal from the MIG, as may a psychological impairment.
11The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
12Here, the applicant submits that she should be removed from the MIG because she suffers from chronic pain, psychological injuries including vehicular anxiety, and the aggravation of her pre-accident impairments including headaches and psychological issues resulting from the previous accident. She relies on the CNRs of Dr. [S]; the CNRs of her other family physician, Dr. [H.U]; a number of letters written to Dr. [U] by Dr. [M.A], pediatrician, from 2018 to 2020; a psychological screening report completed by [V.L], clinical psychologist, dated April 23, 2020; and a neurology report completed by Dr. [C.S], neurologist, dated May 4, 2023 (resulting from an examination on April 5, 2023).
13Additionally, the applicant anticipates a causation challenge and argues in her initial submissions that the accident contributed to both her psychological impairments and headaches. She relies on Monks v. ING Insurance Company of Canada, 2008 ONCA 269. The applicant submits that the proper test for causation here is the “material contribution test” as established in Monks, and not the “but for” test. She further argues that she meets this test, as, in the same fashion as in Monks, “the accident contributed to her injuries in a manner that was outside the de minimis range.”
14The respondent counters that the applicant has not discharged her evidentiary burden in proving that her ongoing health issues would have occurred “but for” the subject accident. It argues that the applicant’s main ongoing issue is suffering from headaches, a condition that pre-dates the subject accident. The respondent relies on the Ontario Divisional Court decision in Sabadash v. State Farm et al., 2019 ONSC 1121, which confirmed at paragraph 31 that the “but for” test is the appropriate causation test to use in the accident-benefits context.
15In the alternative, and if the applicant is found to have met her burden regarding causation, the respondent submits that the applicant has not demonstrated that her injuries fall outside of the MIG. The respondent argues that the applicant has failed to present adequate objective medical evidence to show that she suffers from psychological injuries, the exacerbation of pre-existing injuries, or from chronic pain, conditions that would warrant removal from the MIG.
16I agree with the respondent regarding causation, and further find that the applicant remains within the MIG. My full analysis follows.
Causation
17I find that the applicant has failed to meet her burden with regard to causation.
18In Sabadash, the Divisional Court clarified that the “but for” test is the appropriate causation test to be used in accident benefits matters. As such, I find that this is the appropriate test to be used in this matter, and that the “material contribution test” in Monks as referenced by the applicant is not applicable.
19I am unpersuaded by the applicant’s submissions regarding her post-accident psychological impairments and chronic pain/headaches. She has failed to demonstrate that these impairments or their exacerbation would not have occurred but for the accident.
20First, to address the applicant’s claims of psychological impairment. Medical evidence adduced by the applicant fails to demonstrate that she suffers from psychological issues as a result of the subject accident. Nor does it indicate that any possible psychological issues from the previous accident were exacerbated in the subject accident and preclude her recovery within the MIG.
21I am not convinced by the psychological screening report completed by Ms. [L] on April 23, 2020, as it relies entirely on the self-reporting of the applicant and her mother. While I do not dispute the applicant’s mother’s accounting of how her child reacted to the accident with anxiety, clingy behaviour, sleep problems, and a vehicular phobia—this is the believable result of a young child being involved in two car accidents at a young age, including a serious one as a toddler that resulted in both of her legs being put in casts—these claims are not supported by objective medical evidence.
22The applicant primarily relies on the records of Dr. [A] here, but the pediatrician does not connect the applicant’s claimed psychological issues to either accident. For example, Dr. [A] noted in letters dated February 19, 2019 and May 21, 2019, and in a CNR from a February 4, 2020 appointment, that the applicant reported experiencing car sickness and nausea. She took note of the applicant’s symptoms, specifically writing on February 19, 2019 that the child was getting “sick in the car especially if traveling for more than 30 mins and on the highway” and then again on February 4, 2020 that she was becoming “nauseated…in the car, but can be distracted.” However, Dr. [A] failed to ascribe any specific cause to this car sickness, either due to the exacerbation of previous psychological impairments or psychological impairments that were the direct result of the subject accident, which is required for removal from the MIG.
23As a result of the above, the applicant has not supported her claims that the accident either caused or exacerbated psychological impairments. In my view, there is no established link between her car sickness and the accident that would meet the “but for” causation test.
24Second, to address the applicant’s claims of suffering from headaches that resulted in chronic pain due to either the exacerbation of a previous injury or as a direct result of the subject accident. Again, I am not satisfied that her chronic pain and headaches would not have occurred but for the subject accident.
25The medical evidence reveals that the applicant suffered from headaches long before the subject accident. In the CNRs of Dr. [A] of an appointment on January 20, 2018, the pediatrician wrote that the applicant had been experiencing headaches “for a lot of years.” In the record of an appointment that took place on October 26, 2018, Dr. [U] wrote that the applicant had been complaining of headaches “for few [sic] years.” As a result, the subject accident clearly cannot be cited as the direct cause of these headaches.
26Further, there is little to no evidence to indicate that the applicant’s headaches were worsened by the accident. The CNRs and other medical records before me either note that the applicant was not suffering from headaches post-accident or do not mention the accident in the context of these headaches. As an example, the CNRs of Dr. [S] from the day of the accident indicate a neck sprain as the only injury resulting from the accident. The family physician also specifically wrote that the applicant was not complaining of suffering from headaches (although she did refer the applicant to Dr. [S] for a neurological assessment, addressed below).
27In the record of an October 26, 2018 appointment, Dr. [U] noted a “normal neurological exam: no neuro deficit.” Dr. [U] did not refer the applicant to a neurologist, which indicates that she did not suspect a head injury connected to the applicant’s headaches. Additionally, Dr. [U] failed to mention the subject accident at all. With that said, Dr. [U] did refer the applicant to Dr. [A] for a pediatric assessment, the results of which were chronicled in the letters and CNRs detailed above. Again, the accident is not mentioned by Dr. [A], who also does not cite any specific cause for the applicant’s headaches. The pediatrician assesses her simply as “a child with headaches.”
28Lastly, in his neurological assessment report dated May 4, 2023, Dr. [S] concluded that the applicant’s “severe headaches are consistent with pediatric migraine without aura.” Dr. [S] found no sign of any physical issues that would require neuroimaging. He recommended Advil for severe headaches and advised the applicant to improve hydration, avoid caffeine, and start vitamin B2 and magnesium—all preventative measures to address migraine headaches. While Dr. [S] noted both accidents at the top of his report to reference why the applicant had been referred by Dr. [S], he did not mention them again or tie her headaches to the subject accident.
29For the above reasons, the applicant has not met her burden and shown that the accident either caused or exacerbated her headaches and chronic pain.
30In conclusion, the applicant has failed to demonstrate that she meets the “but for” test for causation regarding either her psychological or physical impairments.
Applicability of the MIG
31In addition to my finding on causation, I also find that the applicant has failed to demonstrate that she suffers from an impairment that is not a minor injury or a pre-existing impairment that was exacerbated by the subject accident. The applicant remains within the MIG and its $3,500.00 limit on treatment.
32Minimal evidence supports the applicant’s claims to suffer from a psychological impairment or headaches/chronic pain as a result of the accident. As I detailed above, the psychological screening report of Ms.[L] was reliant on the self-reporting of the applicant and her mother. Ms.[L]’s conclusion that the accident may have caused these psychological issues is also speculative, as it is not sufficiently corroborated by other medical evidence. As for the applicant’s headaches, the medical evidence proves that these were occurring well before the subject accident.
33Accordingly, the applicant has not met her burden to show that she suffers from an impairment outside of the Schedule’s definition of a minor injury. She remains within the MIG, in accordance with s. 18(1).
34There is also limited evidence backing the applicant’s claim to suffer from the exacerbation of a pre-existing condition to warrant removal from the MIG under s. 18(2) of the Schedule. This involves a two-part test. First, the applicant must establish that she suffers from a documented pre-existing condition that was exacerbated by the subject accident. Second, the applicant must establish that this pre-existing condition precludes her maximal recovery if kept within the MIG.
35Here, I find the applicant has failed to meet either part of the test.
36With regard to the first part of the test, there is no evidence that the applicant suffered from psychological impairments before the accident. As described above, the medical evidence indicates that the applicant suffered from car sickness without any diagnosed cause. Nor is there any evidence that the applicant’s headaches were exacerbated by the accident. Dr. [S], for instance, rules out this factor in his neurological report, focusing entirely on treating the applicant for migraine headaches without referencing a cause or a contributing issue such as the subject accident.
37As for the second part of the test, the applicant has failed to present any argument or evidence to establish that the exacerbation of either her psychological issues or her headaches precludes treatment within the MIG. For example, Ms.[L] recommends a psychological assessment, but fails to comment on how this requires the applicant’s removal from the MIG in order for her to reach maximal medical improvement. If anything, the medical evidence indicates that the applicant did not require psychological treatment outside the MIG, or psychological treatment at all. Psychological issues are not mentioned in the family doctor CNRs, nor do they figure in the report of Dr. [S]. Also, in the record of an appointment with Dr. [S] dated February 7, 2023, the family physician stated that the applicant denied “any symptoms of depression and anxiety.” In all, there is no support for the applicant’s position that she cannot be treated within the MIG for any alleged psychological impairments.
38In accordance with the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
39As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
40However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is applicable on the incurred and overdue amount of treatment plans in accordance with s. 51 of the Schedule.
ORDER
41I find that:
i. The applicant has failed to demonstrate that her psychological and physical impairments would not have occurred but for the subject accident.
ii. The applicant has failed to demonstrate that she suffers from either a non-minor injury or the exacerbation of a pre-existing condition as a result of the subject accident that precludes her recovery under the MIG. She remains within the MIG and its $3,500.00 limit on treatment.
iii. The applicant is entitled to benefits up to the amount remaining under the MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is applicable on the incurred and overdue amounts of treatment plans in accordance with s. 51 of the Schedule.
Released: July 18, 2024
Brett Todd
Vice-Chair