Citation: Whyte v. Economical Insurance, 2024 ONLAT 21-012137/AABS

Licence Appeal Tribunal File Number: 21-012137/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:

Tania Whyte

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Lawrence H. Calenti, Counsel

For the Respondent:

Lisa Armstrong, Counsel

HEARD: In Writing

June 4, 2024

OVERVIEW

1Ms. Tania Whyte (hereinafter referred to as the Applicant), was involved in an automobile accident on October 20, 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, BelairDirect, 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?

ii. Is the applicant entitled to a medical benefit in the amount of $1,463.94 (the amount left unpaid after MIG limit exhausted) for Physiotherapy Services recommended by North Toronto Rehabilitation submitted on June 2, 2021.

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

RESULT

3I find that:

i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG. As such, it is unnecessary to consider whether the treatment plans in dispute are reasonable and necessary. As no benefits are owing, no interest is payable. The application is dismissed.

ANALYSIS

The Minor Injury Guideline (“MIG”)

4Section 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.”

5An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

6The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from the MIG due to a pre-existing injury sustained at work the day prior to the motor vehicle accident.

7The respondent argues that the applicant should not be removed from the MIG, as she has not substantiated any pre-existing injury, and the injuries sustained in the motor vehicle accident are minor in nature as defined in the Schedule.

The applicant remains within the MIG

8I find that the applicant has not met her onus to demonstrate that her accident-related impairments warrant removal from the MIG.

9The applicant submits that the accident exacerbated a pre-existing injury she sustained at work prior to the motor vehicle accident. This injury happened at work on October 19, 2020 and is listed as an upper back and left shoulder blade injury. This injury led the applicant to go home for the day due to severe pain. In review of the submitted evidence, the applicant does not direct me to compelling medical evidence that substantiates a pre-existing injury that precludes her recovery within the MIG in order to satisfy the requirements for removal from the MIG under s. 18(2).

10A paragraph outlining the Respondent’s position on the issue and its evidence is required here for additional context.

11The clinical notes and records (“CNRs”) of Dr. Paul Nijmeh mention both the work-related injury and the motor vehicle accident. The applicant visited Dr. Nijmeh two days after the accident (October 22, 2020) but did not register a complaint about the motor vehicle accident on that visit. Instead, the visit was focused on the applicants work injury. In a broader review of the CNRs. Both the workplace injury and the motor vehicle accident are mentioned. The note in the CNR diagnosis the injuries as soft tissue and prescribes Tylenol and physio. Subsequent notes in the CNR seem focused on the workplace injury. No medical diagnostic testing was undertaken to establish an injury that would be beyond sprain or strain or to substantial any level of severity of the workplace accident. As such, I am not satisfied that the applicant has the burden of proof in that substantiating a pre-existing injury that precludes her recovery within the MIG in order to satisfy the requirements for removal from the MIG under s. 18(2)..

12In addition, the s. 44 examination report by Dr. Ahmad Belfon, dated August 18, 2021, concludes that the applicant suffered uncomplicated soft tissue injuries. During the examination, the workplace injury was mentioned by the applicant, but she did not speak to the severity of the injury, she stated that she felt pain in her mid-back, underneath her left shoulder blade. The physical examination performed showed normal physical presentation with no abnormalities.

13A letter completed by Dr. Paul Nijmeh at the request of the applicant’s lawyer was completed on January 4, 2023. In review of the file, it lacks depth of medical analysis to substantiate that the injuries sustained from the motor vehicle accident are beyond sprain and strain injuries that fall under the Minor Injury Guideline. No diagnosis was provided, or insight into how the Doctor got to the determinations included in the letter.

14The two submitted OCF-18s by Dr. Ian Kai, Chiropractor, mention that the applicant had a pre-existing work injury and was on WSIB at the time of the injury. Based on a review of the submitted evidence, I see nothing that supports that claim. As the work injury and accident happened on consecutive days, there was no time for the applicant to have gone through the process to apply for WSIB at the time of the accident-related injury. The process to start the WSIB claim was on October 22, 2020, as per the CNRs of Dr. Nijmeh. That process clearly started two days after the applicant’s motor vehicle accident.

15Accordingly, the applicant has not presented evidence that substantiates a pre-existing injury that precludes her recovery within the MIG, as required by s. 18(2) of the Schedule. Accordingly, I find that she is subject to treatment within the MIG.

The Treatment Plans

16As I have found the applicant to remain within the MIG, I find that it is not necessary to review the treatment plans in dispute to determine if they are reasonable and necessary.

ORDER

17The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG. It is unnecessary to consider whether the disputed treatment plans are reasonable and necessary. As no benefits are owing, no interest is payable. The application is dismissed.