Licence Appeal Tribunal File Number: 22-006874/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:
Rukhsana Butt
Applicant
and
Allstate Insurance
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Ilia Estrah, Counsel
For the Respondent:
Kristen Slaney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rukhsana Butt, the applicant, was involved in an automobile accident on December 12, 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, Allstate Insurance Company of Canada, 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: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre, as follows:
i. $3,795.50, in a treatment plan/OCF-18 (“plan”) submitted January 11, 2021 and denied January 27, 2021;
ii. $2,026.55, in a plan submitted May 7, 2021 and denied May 20, 2021;
iii. $1,417.70, in a plan submitted June 18, 2021 and denied July 5, 2021; and
iv. $2,635.40, in a plan submitted December 20, 2021 and denied December 22, 2021?
iii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by A & B Medical Assessments in a plan submitted December 6, 2021 and denied December 9, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven that their injuries warrant removal from the MIG.
4The applicant is not entitled to any of the disputed treatment plans and no interest is payable.
ANALYSIS
The applicant has not proven injuries which fall outside the MIG
5I find that the applicant’s injuries sustained in the accident were predominantly minor in nature.
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”.
7In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
The applicant does not suffer from a pre-existing condition which justifies removal from the MIG under s. 18(2)
8I find that the applicant does not suffer from a pre-existing condition which prevents maximal medical recovery within the MIG limits.
9The applicant submits that they suffer from chronic knee pain which has been aggravated by the accident. They highlight the clinical notes and records of Dr. Jawaid Mughal, the applicant’s family physician. I agree with the applicant that Dr. Mughal has documented the pre-existing condition of “chronic knee pain”.
10The respondent points to a s. 44 assessment conducted by Dr. Ato Sekyi-Otu, orthopaedic surgeon on February 9, 2022. Dr. Sekyi-Out found that the applicant has achieved maximal medical recovery.
11I note that the test to determine whether an applicant can be removed from the MIG under s. 18(2) is a two-part test. The applicant has satisfied the first part of that test. There is a documented medical history which demonstrates the applicant suffers from chronic pain.
12However, there has been no evidence submitted by the applicant addressing the second part of the test. Under 18(2) of the Schedule it is not enough to simply have a pre-existing condition. One must also provide compelling medical evidence that the pre-existing condition precludes maximal medical recovery within the confines of the MIG.
13There has been no evidence adduced that addresses the second part of the test. Therefore, I find that the applicant has not proven, on the balance of probabilities, that they suffer from a pre-existing condition which warrants removal from the MIG as per s. 18(2).
The applicant did not suffer from a concussion in the accident
14I find that the applicant did not suffer a concussion in the accident.
15It is well settled that a concussion is an injury which falls outside of the MIG.
16The applicant submits that Dr. Mughal diagnosed the applicant with a concussion in his clinical notes on December 17, 2020 and January 15, 2021.
17The respondent submits that there is no evidence of a diagnosed concussion.
18The mentions of a concussion in both clinical notes highlighted by the applicant refer to injuries sustained in a previous accident. When describing the subject accident, in these highlighted notes, Dr. Mughal does not mention that the applicant struck their head or had any symptoms relating to a concussion from this accident.
19The applicant has provided no further evidence of a concussion from this accident.
20Therefore, I find that the applicant has not proven that their concussion was caused by the accident on December 12, 2020.
21I find that the applicant remains within the MIG.
The applicant has not proven chronic pain as a result of the accident
22I find that the applicant does not suffer chronic pain as a result of this accident.
23The applicant points to a knee injection provided by Dr. Harith Abbas, orthopaedic surgeon, as evidence that they suffer from chronic pain as a result of the accident.
24When reviewing the report written by Dr. Abbas, he notes that the applicant suffers from a severe case of osteoarthritis in their right knee. This is a pre-existing condition which has previously been treated by injection pre-accident.
25I am not convinced, on a balance of probabilities, that the applicant’s chronic pain is a result of the subject accident. Dr. Mughal, in his first clinical note, seven days post-accident, noted that the applicant suffers from chronic knee pain as a pre-existing condition.
26There has not been any evidence presented that suggests the chronic pain was caused as a result of the subject accident.
27Therefore, I find that the applicant has not met their burden of proving chronic pain, with a functional impairment, that would remove them from the MIG.
The applicant is not entitled to any of the disputed treatment plans
28As I have found that the applicant has failed to prove that their accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans..
Interest
29As there are no benefits overdue, no interest is payable.
ORDER
30For the reasons above, I find that:
i. The applicant’s injuries are minor in nature;
ii. The applicant is not entitled to the disputed treatment plans;
iii. No interest is payable; and
iv. This application is dismissed
Released: July 10, 2024
Julian DiBattista
Vice-Chair