Gear v. Economical Insurance Company, 2024 CanLII 69880
Licence Appeal Tribunal File Number: 22-006166/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:
Chantal Gear
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Natalia Poliakova, Paralegal
For the Respondent:
Louise A Kanary, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Chantal M Gear, the applicant, was involved in an automobile accident on September 17, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 Minor Injury Guideline (“MIG”) limit? Note: No submissions have been made to identify the amount remaining under the MIG limit.
ii. Is the applicant entitled to $2,597.87 for a psychological assessment proposed by Dr. A. Shapiro, submitted March 11, 2022 and denied March 24, 2022?
iii. Is the applicant entitled to $2,880.37 for chronic pain assessment proposed by Dima Rozen, submitted March 28, 2022 and denied April 13, 2022?
iv. Is the applicant entitled to $3,606.23 for chiropractic and massage therapy treatments proposed by Na Ryung Kim, submitted March 16, 2022 and denied March 24, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven injuries sustained in the accident warrant removal from the MIG.
4As there are no benefits owing, no interest is payable.
ANALYSIS
The applicant’s injuries fall within the MIG
5I find that the applicant has not proven injuries which would warrant removal from the MIG.
6An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.
7The applicant submits they should be removed from the MIG on the basis of chronic pain syndrome with a functional impairment. In support of this, they present a report completed by Dr. Joseph Wong, physiatrist, who conducted an assessment on April 21, 2023. Dr. Wong diagnosed the applicant with chronic pain.
8However, Dr. Wong has not identified a functional impairment as a result of chronic pain diagnoses. He has listed functional activities self-reported by the applicant and has not tied them to the physical examination which he conducted.
9The respondent submits that a diagnosis of chronic pain syndrome with a functional impairment is not supported by the contemporaneous medical records of Dr. Simone Banh, the applicant’s family physician. The respondent further submits a s. 44 physiatry assessment conducted by Dr. Saad Naaman on July 21, 2022. In his report, Dr. Naaman found that the applicant suffered soft tissue injuries in the accident which should have resolved within 10-12 weeks of treatment. Dr. Naaman also stated in his report that the applicant had returned to work following the accident with no restrictions.
10Complete clinical notes and records have been submitted from the applicant’s family physician, Dr. Banh, covering the period of September 1, 2017 to March 2, 2022. The applicant was first seen by Dr. Banh on September 21, 2020, four days following the accident. The applicant presented with right low back and hip pain. The applicant then referenced the accident in a counselling session with Ms. Massina Micoli, RSW, on October 5, 2020.
11In the numerous documented visits with Dr. Banh over the next six months, injuries sustained in the accident were not mentioned.
12On April 14, 2021, the applicant presented to Dr. Banh with rib pain. The applicant presented again with rib pain on June 16, 2021 and September 23, 2021.
13There is no further mention of rib pain, despite several visits to Dr. Banh, between September 23, 2021 and March 2, 2022 when the clinical notes and records terminate.
14The clinical notes and records of Dr. Banh do not support a diagnosis of chronic pain syndrome.
15I also note that after the initial counselling session, there was no further mention of the accident or accident-related injuries in notes documenting any of the applicant’s subsequent counselling sessions.
16I give weight to the findings of Dr. Naaman, as his s. 44 assessment aligns with the contemporaneous clinical notes and records documented by the applicant’s family physician. Dr. Naaman notes that the applicant has returned to work without restrictions. He also notes that the physical examination of the applicant did not reveal any objective findings of ongoing impairment related to the accident.
17The fact that the applicant has returned to work without restrictions demonstrates that there is not a functional impairment as it relates to the applicant’s duties of employment.
18The applicant has not presented evidence of functional impairment due to the accident and, even if I find that she suffers from chronic pain, without a finding of functional impairment, she will remain subject to the MIG.
19Therefore, I find that the applicant has not proven her injuries warrant removal from the MIG.
The applicant is entitled to the remaining balance on the MIG
20Having determined that the applicant remains within the MIG, an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The applicant is entitled to funds for treatment up to the $3,500.00 limit of the MIG.
Interest
21As there are no benefits owing, the applicant is not entitled to interest.
ORDER
22I find that:
i. The applicant sustained a predominantly minor injury as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. The applicant is not entitled to interest.
iii. This application is dismissed.
Released: July 22, 2024
Julian DiBattista
Vice-Chair