Jaswinder Sidhu v. Allstate Insurance, 2024 CanLII 99645

Citation: Sidhu v. Allstate Insurance, 2024 ONLAT 22-007625/AABS

Licence Appeal Tribunal File Number: 22-007625/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:

Jaswinder Sidhu

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Jeremy Magence, Counsel

For the Respondent: Jennifer Griffiths, Counsel

HEARD: By way of written hearing

OVERVIEW

1Ms. Jaswinder K Sidhu (the “applicant”) was involved in an automobile accident on August 20, 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, Allstate Insurance and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

1The 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 (“MIG”) limit?

ii. Is the applicant entitled to $2,525.60 for chiropractic services from Pro Life Wellness proposed in an OCF-18 date March 9, 2021?

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

RESULT

2I find that the applicant’s injuries are minor and she is subject to the MIG. The applicant has not demonstrated that she suffers from chronic pain with a functional impairment or a psychological condition to warrant removal from the MIG.

3As the applicant remains in MIG, she is bound by the MIG funding limits and is not entitled to the OCF-18 in question.

4As no money is owing, no interest is due.

ANALYSIS

The Minor Injury Guideline (“MIG”)

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

6An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

7The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from MIG due to chronic pain with a functional impairment and a psychological condition.

8The respondent argues that the applicant has not met the burden of proof that she suffers chronic pain with a functional impairment or a psychological condition warranting removal from the MIG.

The applicant remains within the MIG.

9I find that the applicant has not met her onus and demonstrated that she suffers from chronic pain with a functional impairment.

10I find that the applicant has not met her onus and demonstrated that she suffers from a psychological condition that warrants her removal from MIG.

Does the applicant suffer from chronic pain?

11I do not find that the applicant suffers from chronic pain with a functional impairment warranting removal from the MIG.

12As set out above, the Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

13The applicant submits that she suffers from chronic pain with a functional impairment due to the motor vehicle accident. The applicant relies on a medical report completed by Dr. Nolan, chiropractor.

14The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that she suffers from chronic pain with a functional impairment.

15Dr. Nolan’s report was completed on May 23, 2023, following an in-person physical examination. In the report, the doctor provides a clinical impression of the applicant that she represents the approximately 5% of patients that do not resolve uncomplicated injuries and has moved on to chronic pain. While this may be Dr. Nolan’s clinical impression, a chiropractor is not able to diagnose chronic pain as it is not within their scope of practice. Additionally, Dr. Nolan does not outline functional impairments that the applicant is suffering other than a reference to help with housekeeping needs.

16Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries she suffered in the accident have led to chronic pain with a functional impairment.

17I was led to this conclusion by the lack of compelling and objective medical evidence that chronic pain with a functional impairment is present in the applicant. Dr. Nolan as a chiropractor is not capable of rendering a chronic pain diagnosis, nor does Dr. Nolan outline the functional limitations currently suffered by the applicant. I was not provided the Clinical Notes and Records of the applicant’s family doctor to get an objective opinion on her health status to understand her conditions better.

18The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from chronic pain with a functional impairment due to the motor vehicle accident in order to be removed from the MIG.

Does the applicant suffer from a psychological condition?

19I do not find that the applicant suffers from a psychological condition warranting removal from the MIG.

20The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

21The applicant submits that he suffers from a psychological condition because of the motor vehicle accident. The applicant relies on a psychological status evaluation report, completed by Ms. Mariani, M.A. on December 20, 2021.

22The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that he suffers a psychological condition.

23The psychological status evaluation report was competed by Ms. Mariani, M.A. on December 20, 2021. This report was based on the applicant’s self-reporting during a clinical interview and contained no psychometric testing data. During the interview the applicant reported to struggling with psychological and emotion difficulties since the accident. Her sleep has been affected and she has not driven since the accident. Additionally, since the accident, the applicant reports increases in irritability, anger, and frustration. The report provides a provisional diagnosis of Adjustment Disorder.

24In review of the evidence, I agree with the respondent that the applicant has not met her burden to prove on a balance of probabilities that she suffers from a psychological condition.

25I was led to this conclusion by the lack of compelling and objective medical evidence that a psychological condition is present. The report by Ms. Mariani does provide a provisional diagnosis. This diagnosis lacked any psychometric testing to substante the provisional diagnosis nor was a full psychological assessment undertaken to conclusively determine the applicant’s current psychological state. As such, I did not find any compelling evidence of any accident-related psychological condition.

26The applicant has not satisfied his onus to prove on a balance of probabilities that she suffers from a psychological condition due to the motor vehicle accident that warrants removal from the MIG.

Conclusion

27For the reasons noted above, I find the applicant’s injuries are predominantly minor and she is subject to the MIG. The applicant has not proven that she suffers chronic pain with a functional impairment, or a psychological condition that would warrant removal from MIG.

The Treatment Plans

28As I have found the applicant to remain within the MIG and is subject to its limits for treatment plans, and as the treatment plan in question is beyond the MIG limits remaining, the applicant is not entitled to payment for either plan.

Interest

29As there are no overdue payments, no interest is due.

ORDER

30I find that:

i. The applicant remains subject to the MIG.

ii. The applicant is not entitled to payment for the disputed treatment plan.

iii. As nothing is owed, no interest is due.

iv. The application is dismissed.