Licence Appeal Tribunal File Number: 22-009506/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:
Samantha Holmes-Gillies
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Kenneth Nixon
APPEARANCES:
For the Applicant: Terrence E Munn, Counsel
For the Respondent: Melanie Sousa, Counsel
Written Hearing: Heard by way of written submissions
OVERVIEW
1Samantha Homes-Gilles was involved in an automobile accident on September 15, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent, Aviva Insurance Company, denied the treatment in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable with the Minor Injury Guideline (“MIG”)
ISSUES
3The issue(s) in dispute is/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 Guidelines (‘MIG”) limit?
ii. Is the applicant entitled to $2,594.00 for physiotherapy treatment, proposed by Kanwarjot Singh and Anil Kaushal in a treatment plan submitted on August 20, 2020, and denied on August 31, 2020?
iii. Is the applicant entitled to $200.00 ($1,297.75 less $1,097.75 approved) for chiropractic services proposed by Anil Kaushal in a treatment plan submitted on January 29, 2020, and denied on August 31, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under section 10 of reg. 664 because of unreasonable withheld or delayed payments to the applicant?
RESULT
4I find that the applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG.
5The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision once incurred, as such benefits are deemed reasonable and necessary pursuant to s.40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s.51 of the Schedule.
6The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline (“MIG”)
7The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
8The MIG establishes a treatment framework in section 18(1) of the schedule available to injured person who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9An injured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. However, as stated, the burden of proof lies with the applicant.
The applicant has not established injuries that warrant removal from the MIG.
10The applicant submits that as a result of the accident that they should be removed from the MIG based on the diagnosis by family Dr. Fatehah Bejaei who noted pain and stiffness in her back and shoulders, headaches, muscle pain, neck, and upper back pain. Dr. Bejaei prescribed Naproxen and Baclofen and recommended that the applicant attend for physiotherapy and massage therapy. And, the notes dated August 14, 2023, of Dr. Wong, Physiatry Consultant, who noted that the applicant was currently consuming Advil and Tylenol for her pain and diagnosed the applicant with a myofascial cervical spine injury with referred lumbar spine pain, insomnia and Chronic Pain and the recommendation to participate in a comprehensive chronic pain program to address both physical and psychological concerns.
11I find that the applicant has failed to provide sufficient medical evidence to establish that she suffers from non-minor accident-related injuries.
Physical Impairments
12With respect to the physical impairment issues, I agree with the respondent’s position based on the findings of the Medical IE assessment by Dr. Farhan Siddiqui dated November 12, 2020, where the applicant was diagnosed with a cervical spine/strain with cervicogenic headaches, and a trapezius sprain strain as a result of the accident and opined that her injuries were minor. Dr. Siddiqui assessed the applicant once again in person in July of 2023, and his opinion remained that she suffered uncomplicated soft tissue injuries consistent with the definition of a minor injury. And the Psychological IE assessment of Dr. Ratti who states on October 29, 2020, that the diagnosis is not related to the subject accident and that there is no evidence that psychological factors result in any functional impairments at this time. And again, in July 2023 his opinion remained that she suffered uncomplicated soft tissue injuries consistent with the definition of a minor injury. In addition, the family physician Dr. Bejaei diagnosed one day after the accident a neck shoulder sprain, a minor injury.
13Based on the submissions of both parties, I prefer the opinion and submissions of the respondent whose reports indicate that the injuries are minor, there is insufficient evidence submitted by the applicant and that the applicant failed to demonstrate that she sustained an injury that is not in the minor injury definition outlined in section 3 of the schedule.
14Accordingly, I do not find any compelling evidence demonstrating that the applicant suffered a non-minor injury resulting from the accident.
Chronic Pain
15The applicant’s submissions have stated that the applicant has developed chronic pain warranting removal from the MIG. The applicant submits that Dr. Bejaei prescribed Naproxen and Baclofen the day after the accident, however, there is no indication that the applicant has been taking since. In addition, the submission of Dr. Wong (Physiatrist) who diagnosed the applicant with Chronic Pain however, the applicant was able to control the diagnosed Chronic Pain with over-the-counter pain medication which leads me to believe that the pain was manageable. I have not been directed to any other evidence or entry which would indicate that the applicant meets three of the six test of the criteria used to determine chronic pain.
16The reasonable and necessary analysis under s.15 is not required, as there is no funding outside of the MIG.
Interest
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments were overdue, and interest is payable.
Award
18The applicant sought an award under s. 10 of Reg. 664. Under s. 10. Having concluded that no benefits are payable, it follows that no award is allowed.
ORDER
19I find that:
i. The applicant has failed to establish that her accident-related impairments warrant removal from the MIG.
ii. The application is dismissed.
Released: October 7, 2024
Kenneth Nixon
Adjudicator