Citation: Cramer v. Co-operators General Insurance Company, 2024 ONLAT 22-009489/AABS

Licence Appeal Tribunal File Number: 22-009489/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:

Sarah-Ann Cramer

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Jennifer Kelly, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD: In Writing

Click here to enter a date.

OVERVIEW

1Sarah-Ann Cramer, the applicant, was involved in an automobile accident on September 15, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

Non-Compliance with the Case Conference Report and Order

2The respondent took issue with the applicant’s failure to comply with the Tribunal’s Case Conference Report and Order (“CCRO”) heard May 15, 2023, that required all documents to be served no later than August 11, 2023. The applicant served a treatment summary letter dated September 7, 2023, from Silver Birch Counselling, on the respondent on December 20, 2023. The respondent seeks to exclude the letter, submitting that the late disclosure is contrary to the CCRO and has prejudiced the respondent from fully evaluating the new evidence.

3In this matter, the applicant filed no reply submissions and therefore failed to address the respondent’s request to exclude the treatment summary letter. The applicant neither sought any relief in the initial hearing submissions nor brought a motion before the Tribunal. In effect, the applicant has provided me with no information or explanation as to the reason for the late disclosure.

4In reviewing the evidence, I find that the applicant failed to comply with the CCRO. I find that non-compliance with a Tribunal order falls directly within the ambit of Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, (“Rules”). I am not persuaded by the submissions of the respondent that the late submission result in prejudice. The letter was provided to the respondent approximately 3 weeks prior to the applicant filing written submissions with the Tribunal. The respondent’s request for exclusion of the letter is denied. However, I will consider the late disclosure in weighing the evidence.

ISSUES

5The 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 $706.00 for chiropractic treatment, proposed by Timmins Chiropractic Clinic in a treatment plan dated September 23, 2021?

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

RESULT

6I find that:

i. The applicant’s injuries are predominantly 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;

iii. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

7The 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.”

8Section 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.

9An 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.

10It 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 chronic pain and psychological injuries, which are not included in the definition of a minor injury. 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. The MIG has not been exhausted with $42.02 remaining. I agree with the respondent.

The applicant does not suffer chronic pain that warrant removal from the MIG

11I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

12In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from her soft tissue injuries.

13The applicant submits that as a result of the accident she has developed chronic pain to her back and neck. To support her position, the applicant relies on a letter to the respondent from Dr. Steven Lax, family physician, dated November 18, 2021. In the letter Dr. Lax states that the applicant did sustain an impairment that was not predominately minor. The applicant also relies on the clinical notes and records (“CNRs”) of Ms. Danya Desjardins, osteopath, dated June 10, 2022 that references chronic mid to low back pain.

14The respondent submits that the applicant did not provide evidence to support a chronic pain diagnose or severe functionality. The respondent relines on a letter to the respondent from Dr. Lax, dated October 14, 2021, that confirmed he was unable to comment on the applicant’s injuries as he had not assessed the applicant in relation to the accident. I put little weight on the letters of Dr. Lax. I find that although the letters were prepared one month apart, the statements are at odds. The respondent notes that this letter was sent more than a year after the accident and confirms that the applicant did not visit her family doctor for accident-related issues during that time.

15The respondent makes submissions based on the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”). The AMA Guides are not binding on the Tribunal. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when three or more of the six criteria are satisfied. The respondent submits, and I agree, that the evidence does not establish a dependence upon prescription drugs or healthcare providers (as evidenced by Dr. Lax’s statement that he had not assessed the applicant in a long time); physical deconditioning; social withdrawal; a failure to restore pre-injury functioning; or diagnosis of a psychological impairment.

16I am not persuaded by the submissions of the applicant that she suffers from chronic pain. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that she suffers from functionally disabling pain. I find that not only has the applicant not been diagnosed with chronic pain syndrome by a physician as a result of the accident, but the applicant has also not provided evidence from health care providers, referrals to specialists, or prescriptions sufficient to meet her burden. Furthermore, there is insufficient evidence presented by the applicant of severity of her impairments or any reduction in functionality.

17As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident.

The applicant did not suffer psychological injuries that warrant removal from the MIG

18I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.

19An 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.

20To be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

21The applicant submits she has sustained psychological impairments as a result of the accident. In support of her claim, the applicant relies on the treatment summary letter of Ms. Kelly Pearce, social worker, from Silver Birch Counselling, dated September 7, 2023. The letter captures the applicant’s feelings of frustration and anger but does not provide a psychological diagnosis.

22The respondent submits that the applicant has not met her onus to show that she has a psychological impairment. It is the respondent’s position that there is no mention of any psychological symptoms in the medical evidence submitted.

23In reviewing the evidence, I am not persuaded that the applicant has met her burden to prove that she suffers a psychological impairment as a result of the accident. There is no evidence before me of a formal psychological diagnosis, nor has the applicant provided any corroborating medical evidence from any health care providers that reference a psychological complaint. I am not persuaded by the treatment summary letter as it does not provide a diagnosis and it merely captures the applicant’s self-reports, and not objective clinical findings. Therefore, even if I had not discounted the weight of this item of evidence on account of its late disclosure, it still would not have demonstrated psychological impairment. Furthermore, there is no evidence that the applicant was referred to a psychologist.

24As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

25The applicant is not entitled to the disputed treatment plan because I have found that the applicant has sustained a minor injury and is subject to the MIG. As a result, an analysis on whether the treatment plan is reasonable and necessary is not required.

Interest

26Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

27The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the 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.

iv. The application is dismissed.