Citation: Hinds-Douglas v. Economical Insurance Company, 2024 ONLAT 22-006720/AABS

Licence Appeal Tribunal File Number: 22-006720/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:

Tanmarie Hinds-Douglas

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Dayana Soto Santana, Paralegal

For the Respondent:

Lisa Armstrong, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Tanmarie Hinds-Douglas, the applicant, was involved in an automobile accident on August 6, 2021, and sought medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent, Economical Insurance Company denied the treatment and assessments in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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 limit and in the MIG? Note: The parties agree that the MIG limits have not been exhausted and their submissions shall identify the amounts remaining.

ii. Is the applicant entitled to $3,051.28 for chiropractic services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated August 16, 2021?

iii. Is the applicant entitled to $2,712.33 for chiropractic services, proposed by 101 Physio in a plan dated December 8, 2021?

iv. Is the applicant entitled to $2,549.52 for chiropractic services, proposed by 101 Physio in a plan dated February 28, 2022, denied by the respondent on March 31, 2022?

v. Is the applicant entitled to $2,460.00 for psychological services, proposed by 101 Assessments in a plan dated October 13, 2021, denied by the respondent on November 12, 2021?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated September 7, 2021?

vii. Is the applicant entitled to $2,460.00 for a neuropsychological assessment, proposed by 101 Assessments in a plan dated December 21, 2021?

viii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessments in a plan dated January 20, 2022?

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

RESULT

4The applicant has failed to demonstrate that removal from the MIG is warranted. The medical evidence does not establish that her accident-related injuries fall outside the MIG. The parties agree that $999.08 remains under the MIG limits. It is not necessary to consider whether the plans for chiropractic services, psychological services, psychological assessment, neuropsychological assessment and orthopaedic assessment are reasonable and necessary. As a result, there is no entitlement to interest.

5The application is dismissed.

ANALYSIS

The applicant has failed to demonstrate that she suffers from accident-related injuries that warrant removal from the MIG

6Section 18 (1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that she should be removed from the MIG based on the following accident-related physical and psychological injuries:

a. her diagnosis of chronic pain;

b. her concussion and migraine headaches;

c. her diagnosis of posttraumatic stress disorder; and;

d. her psychological impairments.

8To this end, the applicant relies on her Disability Certificate (OCF-3), the reports of Dr. Talia Troiser, psychologist and Dr. Konstantinos Papazoglou, psychologist, various clinical notes of family physician, Dr. Peter Dobson and treatment records.

9The applicant relies on the OCF-3 dated August 18, 2021 completed by chiropractor, Dr. Wayne Coghlan, which indicates she suffers from sprain and strain of the neck, back and shoulder, patellofemoral disorder, headache and altered emotional state. Dr. Dobson notes that the applicant’s neck and back pain resolved by November 9, 2021 and she returned to housekeeping tasks by December, 2021.

10The applicant submits that she should be removed from the MIG on account of her accident-related chronic pain and psychological impairments. The applicant does not refer to any pre-existing conditions that would prevent her from maximum recovery under the MIG limit. The applicant submits that she was diagnosed with a concussion, migraine headaches and posttraumatic stress disorder as a result of the accident. However, the applicant has not provided any supporting medical evidence of a diagnosis of concussion, migraine headaches, posttraumatic stress disorder or chronic pain.

11The applicant seeks removal from the MIG on the basis of her chronic pain. The clinical notes and records of her treating physicians do not mention any complaints of chronic pain or functional limitations as a result of the accident. There is no medical evidence to contradict that the applicant sustained uncomplicated soft tissue injuries with no residual functional impairment. The applicant has not demonstrated that her accident-related injuries fall outside the MIG.

12The applicant also seeks removal from the MIG on psychological grounds. There is no medical evidence from her doctor describing an accident-related psychological condition. In report dated June 9, 2022, Dr. Troister found that the applicant does not have a learning disability or psychological difficulties. Although, in report dated October 12, 2021, Dr. K. Papazoglou diagnoses adjustment disorder and specific phobia, there is no corroborating medical evidence in support of these findings. There is no evidence that the applicant has not returned to her pre-accident level of functioning. She has returned to university, part-time work as a cashier at a retail store and driving. The report of Dr. Papzoglou is contradicted by the clinic notes and Dr. Dobson’s notes which indicate the applicant has returned to her pre-accident activities.

13In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the clinical notes of the treating clinic and family physician. The respondent submits that the applicant did not report any psychological symptoms to her treating physician, Dr. Dobson. Her doctor has not diagnosed chronic pain, concussion, migraine headaches, posttraumatic stress disorder or any psychological condition as a result of the accident. The respondent relies on a s.44 psychological report dated April 19, 2023, of Mr. Mehdi Lotfalizadeh who found no psychological impairment as a result of the accident. The respondent also relies on s.44 medical report dated April 19, 2023, by Dr. Mohamed Lamine indicating the applicant’s soft tissue injuries have resolved.

14Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any chronic pain or psychological diagnosis.

Are the treatment plans payable?

15I find that the treatment plans in dispute are not payable.

16Here, the applicant seeks payment for plans in the amounts of $3,051.28, $2,712.33 and $2,549.52 for chiropractic services at 101 Physio and a plan in the amount of $2,460.00 for a psychological services and psychological, neuropsychological and orthopaedic assessments at 101 Assessments.

17Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on removal from the MIG or the plans for chiropractic services and psychological services and assessment, no benefits are owing and interest does not apply.

ORDER

19The applicant has failed to demonstrate that removal from the MIG is warranted. There is no medical evidence in support of an accident-related psychological injury or chronic pain diagnosis.

Therefore, it is not necessary to consider whether the plans for chiropractic services and psychological services and assessments are reasonable and necessary and interest does not apply. The application is dismissed.