Licence Appeal Tribunal File Number: 22-008110/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:
Romaine Ramrup
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lynne Vicars
APPEARANCES:
For the Applicant:
Marc Golding, Paralegal
For the Respondent:
Tefiney E. Scarlett, Paralegal
HEARD: In Writing
OVERVIEW
1Romaine Rampup, the applicant, was involved in an accident on December 9, 2019, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was denied the treatment in dispute on the basis that she sustained predominantly minor injuries that are treatable within the MIG.
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 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by A & B Medical Assessments in a treatment plan/OCF-18 (“plan”) submitted July 31, 2020?
iii. Is the applicant entitled to $2,230.58 for chiropractic treatment, proposed by 2121587 Ontario Inc. in a plan submitted August 26, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not demonstrated that her removal from the MIG is warranted. Given the parties agreement that the MIG limits have been exhausted, no additional medical or rehabilitation benefits are payable by Aviva.
5The application is dismissed.
ANALYSIS
The applicant has not demonstrated that her removal from the MIG is warranted
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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden is on the applicant to prove, on a balance of probabilities, that her injuries fall outside the MIG.
7The applicant submits that she should be removed from the MIG on two grounds, chronic pain and psychological impairments.
8The applicant relies on:
i. the OCF-3 Disability Certificate completed by Kashvi Patel, Physiotherapist on December 16, 2019 (“OCF-3”); and
ii. the psychological assessment report of Dr. Bita Sharifzadeh, Ph.D., Supervising Psychologist of the Life Clinic prepared September 7, 2020.
9In response, the respondent points to:
i. the absence of any notations in the clinical notes and records of the applicant’s family doctor, Dr. Parvinder Singh, linking the applicant’s visits/complaints to the accident, beyond the applicant’s office visit 4-days post-accident; and
ii. the IE report of Dr. Ijaz Chaudhry, MD, CCFP dated October 19, 2020.
10I find the applicant has not satisfied her burden to prove that her removal from the MIG is warranted.
Chronic Pain
11Regarding the applicant’s claim of chronic pain, I find she has not established this impairment. Although the Injury and Sequela Information listed on the OCF-3 includes the words “other sleep disorders and post-traumatic stress disorder” there is no contemporaneous medical evidence supporting these findings. Furthermore, Mr. Patel opined on the OCF-3 that the disability information he provided with respect to the applicant’s inability to carry on a normal life and perform housekeeping and home maintenance tasks would last for between 9-12 weeks. There was no medical evidence provided by the applicant of chronic pain arising from the accident and no medical evidence of any continuing functional impairment.
12In addition to the applicant having failed to provide compelling medical evidence supporting entitlement, I assign significant weight to Dr. Chaudhry’s IE report because his conclusions are based on objective observations of the applicant’s musculoskeletal condition and her reported pain. For example, in Dr. Chaudhry’s report, the applicant was observed to have a normal range of motion of the cervical spine, with some reported discomfort reported by the applicant. However, when Dr. Chaudhry employed distraction-based techniques, he was “able to observe normal rhythm with no reported symptoms”. I find that the applicant exaggerated or imagined her pain as evidenced by the fact that when distracted she did not report any pain. I attribute significant weight to Dr. Chaudhry’s medical opinion that the claimant has suffered soft tissue injuries that are consistent with “minor injuries” as defined by the Schedule.
13I find the applicant is not entitled to be removed from the MIG on the grounds of chronic pain.
Psychological Impairments
14Regarding the applicant’s claim of psychological impairments, I find she has not established this impairment. There is no reliable evidence before the Tribunal that the applicant suffers from psychological impairments. Dr. Sharifzadeh’s report is based on the self reported statements made by the applicant and the report includes a caveat that she cannot vouch for the veracity or completeness of the information she relies on. The lack of any contemporaneous medical documentation supporting the applicant’s self reporting to Dr. Sharifzadeh together with the doctor’s caveat, causes me to give little weight to the report.
15On the other hand, Dr. Singh’s notations on December 10, 2019 include “pain and stiffness of neck, shoulders and back, with headaches and dizziness. Hurts to move neck or back, pain goes down both arms and legs.” There is no notation by Dr. Singh indicating any complaint by the applicant of any psychological impairment. There is a referral to physiotherapy but no referral to a psychologist or psychiatrist. The applicant has not pointed to any clinical notes and records of any treating practitioner indicating she has complained of or exhibited any psychological impairment. The applicant has failed to prove on a balance of probabilities that she has suffered any psychological impairment arising from the accident.
16I find the applicant is not entitled to be removed from the MIG on the grounds of psychological impairments.
17Based on the above, I find that the applicant has failed to prove on a balance of probabilities that her injuries fall outside the MIG.
The Treatment Plans
18It is not necessary to review the treatment plans in dispute to determine whether the disputed plans are reasonable and necessary, as I have found the applicant’s injuries fall within the MIG. She is, therefore, left within the treatment and funding limits of the MIG. Since the MIG limit has been exhausted, the OCF-18’s are not payable.
Interest
19Since there are no overdue benefits payable, there is no interest owing under s. 51 of the Schedule.
ORDER
20I find that:
i. The applicant has failed to demonstrate that removal from the MIG is warranted;
ii. Based on the MIG finding it is not necessary to determine if the disputed treatment plans are reasonable and necessary; and
iii. No interest is owing.
Released: September 27, 2024
__________________________
Lynne Vicars
Adjudicator