Licence Appeal Tribunal File Number: 22-006356/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:

Shannon Chan

Applicant

and

Intact Insurance Company

Respondent

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Lawrence Calenti, Counsel

For the Respondent: Amir Fazel, Counsel

HEARD: In Writing

1Shannon Chan, the applicant, was involved in an automobile accident on January 28, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 limit?

ii. Is the applicant entitled to $3,494.03 for chiropractic services from North Toronto Rehab proposed by Mr. Ian Kai, chiropractor, in a treatment plan dated January 28, 2022?

iii. Is the applicant entitled to $1,495.05 for chiropractic services from North Toronto Rehab proposed by Mr. Kair, in a treatment plan dated August 13, 2022?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute; and

iii. The applicant is not entitled to interest.

ANALYSIS

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from a psychological condition and a pre-existing condition that prevents her from maximum recovery within the MIG. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG, which has already been exhausted. I agree with the respondent.

Psychological injuries

8An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

9In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

10I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

11The applicant relies on the April 14, 2023, psychological assessment report prepared by Dr. Godwin Lau, psychologist. Dr. Lau diagnosed the applicant with chronic adjustment disorder with depressed mood, however Dr. Lau does not opine that the accident caused the condition. The applicant advised Dr. Lau that she was open to mental health intervention.

12The respondent relies on the November 8, 2022, section 44 psychological assessment of Dr. Kelly McCutcheon, psychologist. During the assessment the applicant reported that she did not need psychological treatment. Dr. McCutcheon opined that the applicant did not suffer from a diagnosable psychological condition, as her mild symptoms were not of a severity to warrant a formal diagnosis.

13The clinical notes and records (“CNRs”) of Dr. Ceta Leung, family physician reveal that the applicant was prescribed an antidepressant after a previous accident in 2012, and noted that the applicant had been using Mitrazapine (Remeron) regularly leading up to the 2022 accident, to help with sleep. Dr. Leung’s most recent clinical note dated July 23, 2022, indicates that the applicant denies any depressive mood or anxiety.

14After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG. I find that the psychological assessment prepared by Dr. McCutcheon is more credible and accurate assessment of the applicant’s psychological condition compared to the opinion of Dr. Lau. Dr. McCutcheon’s opinion is corroborated and consistent with the CNRs of Dr. Leung.

15For the above reasons, the applicant has not met her onus to prove on a balance of probabilities that her psychological impairments warrant treatment beyond the MIG.

Pre-existing injuries

16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

17The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

18I find that the applicant has not provided me with persuasive evidence to demonstrate that she has a pre-existing condition that justifies removal from the MIG.

19The applicant submits that she has residual pain in her neck, shoulder, back and insomnia symptoms prior to the accident which warrants removal from the MIG. It is the applicant’s position that her pre-existing pain caused by the 2012 accident was re-aggravated and poses a barrier to her recovery.

20The applicant did not rely on CNRs of any medical professionals. The applicant relies on the OCF-3, dated March 17, 2022, of Dr. Leung, that lists the applicant’s injuries as minor sprain and strains. The applicant submits that she opted not to discuss any ongoing pain with her family physician as she believed Dr. Leung could not assist. Furthermore, the applicant submits that she attended Life Health Massage two to five times a year prior to the accident for massages and physiotherapy treatment due to her ongoing pain.

21The respondent relies on the Musculoskeletal Assessment dated October 4, 2022, and the GP MIG Assessment dated November 8, 2022, of Dr. Pankaj Bansal, family practioner. Dr. Bansal opined that the applicant sustained uncomplicated self-resolving soft tissue type injuries to her left wrist, neck and back, which were minor. Furthermore, Dr. Bansal provided that the applicant did not report a pre-existing medical condition that would contribute to her current medical status in relation to the accident, and that would prevent her from achieving maximal recovery from accident-related injuries.

22I find that the applicant did not provide evidence that she had a pre-existing medical condition that was documented by a health practioner before the accident. I am persuaded by the medical evidence of Dr. Leung who opined that the applicant sustained soft tissue strain and sprains and made no reference in the CNRs to a pre-existing condition. Furthermore, I am persuaded by the consistent medical evidence of Dr. Bansal, who opined the applicant suffered soft tissue type injuries and did not present a pre-existing medical condition. As a result, I find that the applicant did not provide persuasive evidence that she suffers from a documented pre-existing condition would prevent her from achieving maximal recovery from the minor injury if subject to the MIG.

TREATMENT PLANS

23The applicant is not entitled to the disputed treatment plans because I have found that the applicant is subject to the MIG, and the MIG has been exhausted. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

24Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

25The applicant is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plan in dispute; and

iii. The applicant is not entitled to interest.

Released: July 24, 2024

__________________________

Monica Ciriello

Vice-Chair

Chan v. Intact Insurance, 2024 CanLII 69896

Case Summary