Citation: Young v. Intact Insurance Company, 2024 ONLAT 22-009799/AABS

Licence Appeal Tribunal File Number: 22-009799/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:

Mary Young

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Lawrence Berg, Counsel

For the Respondent: Samara Maharaj, Counsel

HEARD: In Writing

OVERVIEW

1Mary Young, the applicant, was involved in an automobile accident on October 22, 2021, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

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 and Order (“CCRO”) dated April 27, 2023, that required all documents to be served no later than June 26, 2023. The applicant served her updated OHIP summary on November 29, 2023 and the clinical notes and records (“CNRs”) of Dr. Michael Fan, family physician, on December 4, 2023. The respondent submits that upon review of the updated OHIP summary the respondent learnt that the applicant met with Dr. Nuraini Olufowobi, family physician, which prompted the respondent to request further CNRs. The applicant provided the CNRs of Dr. Olufowobi, on December 15, 2023. The respondent submits that the applicant’s disregard for the CCRO timeline warrants an adverse inference.

3Upon reply, the applicant submits that she takes issue with the respondent’s allegations. Further, the applicant submits that she provided all documents within a timely fashion and there was no prejudice to the respondent.

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 that the applicant’s late documents result in prejudice. However, I will consider the late disclosure when weighing the evidence in the decision.

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 $1,312.00 for chiropractic treatment recommended by Village Chiropractic, in a treatment plan dated September 29, 2022?

iii. Is the applicant entitled to $2,486.00 for a psychological assessment by Hailu Lockyer, as recommended by Village Chiropractic, in a treatment plan dated October 11, 2022?

iv. 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; and

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.

11I find that the applicant has not met her evidentiary burden of proving that she should be removed from the MIG. The MIG submissions did not clarify the applicant’s theory of the case. I have inferred that the applicant’s position is that she should be removed from the MIG based on physical, psychological and pre-existing injuries. However, I find that the applicant has not met her evidentiary burden of proving she should be removed from the MIG.

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

12I find that the applicant has not provided sufficient evidence to demonstrate that her physical impairments justify treatment beyond the MIG.

13The applicant provides limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant submits that following the accident she had injuries to her neck and left shoulder, which was further confirmed by the CNRs of Mr. John Noble, chiropractor. The applicant also relies on the section 25 report dated May 19, 2022, of Dr. Fathi Abuzgaya, orthopedic surgeon, who opined ongoing chiropractic treatment with Mr. Noble.

14The respondent relies on diagnostic imaging of the applicant’s chest from Scarborough Centenary Hospital, dated October 22, 2021 which revealed normal findings. The applicant had an ultrasound and x-ray of her left shoulder dated December 1, 2021, which revealed no fractures but “some calcific tendonitis”. The CNRs of Dr. Olufowobi are absent of any refence to the accident, or any ongoing physical impairments. Lastly, the respondent relies on the section 44 physician report of Dr. Charanjit Sandhu, internal medicine specialist, dated April 14, 2023. Dr. Sandhu diagnosed the applicant with sprain and strain injuries and opined that the applicant sustained injuries within the MIG.

15After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. This is no prescription medication, medical referrals or reference in Dr. Olufowobi’s CNRs. I prefer the medical evidence of Dr. Sandhu, which is consistent with the diagnostic imaging. This supports a finding that the applicant sustained minor soft tissue injuries which fall squarely within the section 3 definition of a minor injury under the Schedule.

16As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.

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

17I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.

18An 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.

19To 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.

20The applicant does not produce any evidence to justify her alleged psychological impairments. The applicant only submits that she has been seen and treated by Ms. Hailu Lockyer, psychotherapist. It is trite that the Tribunal does not have a duty to sift through evidence in order to make the case for the applicant, to do so risks the Tribunal inappropriately acting as an advocate for a party instead of a neutral arbiter in a dispute.

21The 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. The respondent relies on the section 44 psychological report of Dr. Marc Mandel, psychologist, date April 6, 2023. Dr. Mandel’s in-person assessment included a review of objective evidence and psychometric testing. Dr. Mandel opined that there is a lack of objective information to support a DSM-5 diagnosis and further opined that the applicant’s psychological injuries were within the MIG.

22After reviewing the evidence, I find that that the applicant did not provide arguments or analysis guiding me through the evidence on which she relies. The applicant did not provide any persuasive evidence to show that she suffers from a psychological impairment that would remove her from the MIG. There is no evidence of complaints of accident-related psychological injuries in the CNRs of her family physician. I find that Dr. Mandel is the only medical physician to address the applicant’s accident-related psychological impairments and I am persuaded by his opinion that there is no evidence of a psychological diagnosis sustained as a result of the accident.

23As a result, I find that the applicant has not satisfied her 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.

The applicant did not suffer pre-existing injuries that warrant removal from the MIG

24Section 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.

25The 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.

26The applicant submits that the accident exacerbated the pre-existing injuries to her neck and left shoulder which were caused by previous motor vehicle accidents. Furthermore, the applicant relies on the section 25 report of Dr. Abuzgaya to submit her ongoing injuries were significantly exacerbated as a result of the accident. The applicant does not identify what the ongoing injuries are. I find that the applicant failed to make any arguments or analysis guiding me through the evidence on which she relies.

27The respondent relies on the medical evidence of Dr. Mandel who opined that the applicant did not report any pre-existing physical conditions, and Dr. Sandhu who opined that there was no evidence of a psychological pre-existing condition.

28I am persuaded by the consistent medical evidence of Dr. Mandel and Dr. Sandhu who opine no evidence of a pre-existing condition. I also note that there is no reference in the CNRs of the applicant’s family physician to a pre-existing condition. When compared to the totality of the medical evidence, I am not persuaded by the brief reference of ongoing injuries by Dr. Abuzgaya.

29As a result, I find that the applicant did not provide persuasive evidence that she suffers from a documented pre-existing condition that would prevent her from achieving maximal recovery from her injuries by being subject to the MIG.

30The 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 and the treatment plans proposed are outside of the MIG. As a result, an analysis on whether the treatment plan is reasonable and necessary is not required.

Interest

31Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

32The 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.