Citation: Dinall v. Unifund Assurance Company, 2025 ONLAT 24-000646/AABS

Licence Appeal Tribunal File Number: 24-000646/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:

Rema Dinall

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: Christina Campoli, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Rema Dinall, the applicant, was involved in an automobile accident on December 24, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal –Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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 limit and in the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to the following treatment plans proposed by Humber Civic Care Centre Inc. in the amount of: i) $3,024.62 for chiropractic services submitted June 4, 2022; ii) $2,629.85 for chiropractic services submitted August 27, 2022; and, iii) $2,629.85 for chiropractic services submitted January 19, 2023.
3. Is the applicant entitled to treatment plans proposed by Ontario Independent Assessment Centre Inc., as follows: i) $2,350.00 for a chronic pain assessment submitted September 26, 2022; and, ii) $2,350.00 for an orthopaedic assessment submitted November 21, 2022.
4. Is the applicant entitled to interest on any overdue payment of benefits?

3In her written hearing submissions, the applicant withdrew issues 2 (i) and 3 (iii) listed in the Case Conference Report and Order dated June 13, 2024, for a psychological assessment in a plan submitted March 3, 2022, and for a cognitive assessment submitted December 1, 2022. Therefore, I have removed these issues from the listed issues in dispute.

RESULT

4The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. It is not necessary to consider whether the disputed treatment plans are reasonable and necessary. As a result, there is no entitlement to interest.

ANALYSIS

The applicant has not demonstrated on a balance of probabilities that she suffers from accident-related injuries that warrant removal from the MIG

5I find that the applicant has not demonstrated on a balance of probabilities that she suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

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.”

7An insured 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 condition combined with compelling medical evidence stating that the condition precludes recovery 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. In all cases, the burden of proof lies with the applicant.

8The applicant submits that although she has not received a diagnosis of chronic pain from her doctors, she should be removed from the MIG based on her meeting the definition of chronic pain under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”).

9In support of her position that she has chronic pain such that her injuries fall outside of the MIG, the applicant relies on the Disability Certificate (“OCF-3”) dated January 18, 2022, completed by Dr. Dario Mirian, chiropractor listing the applicant’s injuries as sprain/strain of the neck, back, pelvis and knee, headache, anxiety and emotional stress. The applicant also relies on the clinical notes and records (“CNRs”) of Dr. Mounir Noor, family physician and a consultation report dated May 25, 2023, by Dr. Mukh Aheer, orthopaedic specialist, of Athlete’s Care Sports Medicine Centre. It is noted that the OCF-3 does not mention the applicant’s right shoulder, nor did the applicant mention her right shoulder during her initial visits to Brampton Civic Hospital and Dr. Noor after the accident. In Dr. Aheer’s report, the partial tears in the applicant’s right shoulder before the accident are not mentioned.

10While it is not binding on the Tribunal to follow the Guides, the criteria set out in the Guides can be a useful tool in assessing an applicant’s claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. Excessive dependence on health care providers, spouse or family;
3. Secondary physical deconditioning due to disuse and/or fear avoidance of physician activity due to pain;
4. Withdrawal from social milieu, including work, recreation, or other social contracts;
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.

11The applicant submits that she meets 5 of the 6 criteria under the Guides including medication use, dependence on healthcare providers, physical deconditioning, withdrawal from social milieu, and failure to restore pre-injury function. The applicant argues that she continues to take Acetaminophen, Mobicox and Baclofen; she visits her doctor on a monthly basis; she was issued a parking permit; and she was unable to return to the gym or work after the accident.

12The respondent relies on the Insurer’s Examination (“IE”) reports dated July 6, 2022, and April 18, 2023, by Dr. Irina Safir, general practitioner. The respondent submits that Dr. Safir concluded that the applicant sustained sprain and strain type injuries to her neck, back, right shoulder, wrist and knee as a result of the accident. In her addendum report dated April 18, 2023, Dr. Safir noted that the findings of the ultrasounds of the applicant’s right shoulder are the same before and after the accident. For example, both ultrasounds of the applicant’s right shoulder dated March 12, 2019, and February 27, 2023, confirm partial tearing of the subscapularis and supraspinatus tendons.

13The respondent submits that the medical evidence indicates that applicant has only partial tears in her shoulder, which is insufficient to remove her from the definition of a minor injury under the Schedule. The respondent submits that the applicant has pre-existing conditions of hypertension, right shoulder tendonitis and intrasubstance tear, neck and hip pain and headaches.

14The respondent further submits that the applicant has not demonstrated that she has functional impairments pursuant to the Guides to warrant removal from the MIG on the basis of chronic pain. The respondent argues that the applicant prefers not to take medications, she visits her doctor infrequently, she was issued a parking permit for unrelated ankle swelling, and she has returned to her pre-accident housekeeping and social activities. The respondent argues that the applicant was retired at the time of the accident, and she was not doing any part-time work because of the COVID pandemic.

15The evidence suggests that the applicant’s functional abilities are inconsistent with chronic pain with functional impairment. For example, there is evidence that the applicant visited her doctor on a monthly basis both before and after the accident, including for renewal of medications. The CNRs of Dr. Noor indicate that the applicant had pre-existing complaints of headaches, neck and right shoulder pain since 2018, and a prior ultrasound dated March 12, 2019, reveals tendinosis involving the subscapularis and supraspinatus tendons and a prominent intrasubstance tear of the supraspinatus tendon. The applicant did not mention complaints of right shoulder pain until November 8, 2022, nearly eleven months after the accident.

16I find that the frequency of the applicant’s visits to her doctor did not change after the accident and several of her visits involve unrelated complaints of osteoarthritis of her knees, cardiac problems, ankle and foot swelling, and counselling for diet and exercise. On October 16, 2023, Dr. Noor mentions the applicant uses Tylenol for arthritic pain. Further, on November 23, 2023, Dr. Noor prescribed 150 minutes of moderate intensity exercise per week, and there is no mention of a functional impairment for exercise. I find that the applicant stated on her Application for Accident Benefits (“OCF-1”) dated January 13, 2022, that she is retired, and she reported to Lisa Dyment, social worker on February 23, 2022, that she has returned to work for short periods, and driving. Therefore, I find that the applicant does not meet the criteria under the Guides to warrant removal from the MIG on the basis of chronic pain.

17Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from the applicant’s treating physicians with consistent findings in support of an accident-related chronic pain with functional impairment.

18Therefore, I find that the applicant has not met her onus with respect to being removed from the MIG. I find the applicant is subject to the MIG.

The disputed treatment plans

19Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, and the MIG limits are exhausted, it is not necessary to consider whether the plans are reasonable and necessary.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

ORDER

21For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit; ii. The applicant is not entitled to the treatment plans in dispute; iii. The applicant is not entitled to interest; and, iv. The application is dismissed.