Licence Appeal Tribunal File Number: 22-007292/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:
Teresa Matthews
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Kieffer Norton
APPEARANCES:
For the Applicant: Neisha Moses, Paralegal
For the Respondent: Bruce Chambers, Counsel
HEARD: By way of written submissions
OVERVIEW
1Theresa Matthews, the applicant, was involved in an automobile accident on July 27, 2017, 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.
ISSUES
2The 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?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Prime Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated June 4, 2021?
iii. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Prime Healthcare Inc. in a plan dated June 26, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries fall within the Minor Injury Guideline. The applicant is entitled to treatment up to the MIG limits. The applicant is not entitled to interest or an award. The application is dismissed.
ANALYSIS
The Minor Injury Guideline
4Section 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. 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.”.
5An insured 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 that their injuries warrant removal from the MIG.
6I find the applicant has not demonstrated on a balance of probabilities that her injuries fall outside of the MIG.
7I find that the applicant’s submissions do not provide specific rationale for why the applicant should be removed from the MIG. The submissions raise the possibility of chronic pain, psychological injury and also reference a fracture of the right wrist that was discovered in a CT scan on August 16, 2019.
8The respondent’s submissions are that the applicant has not suffered any injury that would warrant removal from the MIG as result of the 2017 accident. They also submit that there is no compelling evidence from a health care practitioner that A has a pre-existing condition that would prevent the applicant from achieving maximal recovery for her accident related impairments.
9I find that the applicants’ submissions and the clinical notes and records do not establish that her injuries would fall outside the MIG because they have not shown that their injuries were a direct result of the 2017 accident. The evidence indicates that Dr. Rowley noted in his clinical notes and records on July 31, 2017 that there was no major injury as a result of the July 27, 2017 accident. The clinical notes and records of Dr. Rowley also show that the applicant suffered injuries in a previous accident in 2014, including an injury to the right wrist. Therefore, it appears that many of the applicant’s physical injuries are as a result of that accident. Dr. Rowley’s clinical notes and records do not provide any notes that show on a balance of probabilities that the applicant’s injuries are directly attributable to the 2017 accident.
10I conclude that the applicant did not suffer injuries that warrant removal from the MIG. The applicant has not provided any medical evidence that shows any injuries that warrant removal from the MIG as a result of the 2017 accident.
Psychological Injury
11The applicant submits that they are suffering from anxiety, loss of sleep and fear of driving as a result of the 2017 accident. They rely on the pre-screening reports of Dr. Jacqueline Brunshaw, Psychologist, dated May 19, 2021 in favor of this position. Dr. Brunshaw opines that Teresa requires a comprehensive psychological assessment to gain a better understanding of the adverse changes that have occurred in her life since the accident.
12The respondent submits that the medical opinion of Dr. Brunshaw is invalid as it does not contain any reference to the applicant’s history of depression, injuries sustained in the 2014 accident or the applicant’s complaints of anxiety and sleep problems following the 2014 accident.
13I find that while the report of Dr. Brunshaw does show that the applicant is suffering from some level of psychological impairment, it does not specifically attribute the applicant’s psychological injury to the 2017 accident. As such, given the applicant significant medical history and prior accident, it becomes difficult to make a finding in favor of the applicant that their psychological impairments began as a result of the 2017 accident and thus warrant removal from the MIG.
Chronic Pain
14The applicant submits that they are suffering from chronic pain as a result of the 2017 accident.
15The applicant alludes to a chronic pain determination by Dr. Chen, where in his Independent Physiatry examination opined that the applicant partake in a multidisciplinary chronic pain management program. Dr. Chen opined that the multitude of injuries the applicant sustained had led to pain development, chronic pain and that these issues were unresolved.
16The applicant also submits the OCF-18 of Dr. Hefford dated May 19, 2021 that opines that the applicant had not achieved maximal medical improvement and that her injuries constituted chronic pain.
17The respondent’s position is that the reports of Dr. Chen, Dr. Hefford and Dr. Fung did not give accurate information with regards to their medical history, specifically her MVA from 2014. The respondent also submits that the treatment plan is not reasonable or necessary because it does not explain specifically why treatment outside of the MIG is necessary.
18I find that the applicant has not established that she suffers from chronic pain as a result of the 2017 accident.
19I agree with the respondent that applicant’s submissions of the reports of Dr. Chen, Dr. Hefford and Dr. Fung do not contain any reference to the 2014 motor vehicle accident, and that they do not make any reference to the possibility that the applicant’s injuries originated at that time.
20I find that the clinical notes and records of Dr. Rowley clearly show injury sustained as a result of the 2014 accident. The applicant has not provided submissions that specifically attribute that she has developed chronic pain as a result of the 2017 accident. I therefore am unable to come to the conclusion that the applicant’s injuries are a result of the 2017 accident, especially given that the clinical notes and records of Dr. Rowley indicate that there was no major injury.
21As the applicant remains within the MIG and its $3,500.00 limit on treatment, she is not entitled to the OCF-18’s in dispute.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits therefore no interest is owing.
Award
23The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
24I find that the respondent has not unreasonably held or delayed the payments of any benefits because no benefit was owed to the applicant.
ORDER
25I 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 entitled to benefits up to the MIG limits; and
iii. The applicant is not entitled to interest or an award.
iv. The application is dismissed.
Released: February 18, 2025
Kieffer Norton
Adjudicator