Licence Appeal Tribunal File Number: 23-003433/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:
Joanne Heukshorst-Hatch
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dominique Setton
APPEARANCES:
For the Applicant:
Carlos A Ortiz, Paralegal
For the Respondent:
Annie Padhani, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Joanne Heukshorst-Hatch, the applicant, was involved in an automobile accident on February 25, 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, TD General Insurance 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:
i. Are the applicant’s injuries predominantly minor as defined in section 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 $850.00 for physiotherapy services, proposed by Active Health Institute in a treatment plan submitted September 7, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor and the applicant is subject to the MIG.
4As the applicant is subject to the MIG, I do not need to consider whether the treatment plan proposed is reasonable and necessary. The parties agreed that the MIG was exhausted at the date of the case conference.
5The applicant is not entitled to interest on any overdue benefits as no benefits are due.
ANALYSIS
Are the applicant’s injuries predominantly minor?
6I find the applicant has failed to meet her onus, as she has failed to show that she should be removed from the MIG.
7Section 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”.
8An insured can 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.
9The applicant complained in the police report that she felt pain after the accident, because her head and shoulder struck the back of her seat and she felt pain travelling from right to left, in her neck. She visited her family doctor, Dr. Evans, on February 26, and March 1, 2019, complaining of the neck pain, migraines, and low back pain. He recommended physiotherapy and massage, and she was advised to take off work for four weeks.
10The applicant has provided a lot of information in her submissions about her medical condition and symptoms but her submissions on the MIG are very limited. It appears from the applicant’s submissions that she believes she should be removed from the MIG due to chronic pain with a functional impairment caused by the accident. She submits she has inflammatory conditions which have persisted in the years since the accident. She submits that these conditions are not referenced in the MIG. She also references pre-existing temporomandibular joint disorder (TMJ) in her jaw. She has provided evidence from her family doctor, Dr. Evans, as well as medical records from Active Health Institute.
11The respondent on the other hand, submits that the applicant should not be removed from the MIG, arguing she has not met her onus to establish she should be removed on the basis of a pre-existing condition, chronic pain with a functional impairment or a psychological condition. The respondent cites the evidence of the family doctor, Dr. Evans, whom she visited after the accident on February 26, 2019. Dr. Evans noted that she complained of pain to her lower back and left shoulder, as well as pain radiating to her right leg. She was referred to physiotherapy and massage treatment, which the respondent submits is standard treatment for a minor accident. On her return to her family doctor on March 5, 2019, the doctor noted back pain. On March 11, 2019, she attended her family doctor’s office, where back stiffness was addressed but it was noted to be improving at this point, and there were no notes regarding any accident-related complaints.
12Dr. Evans notes that the applicant has some pre-existing conditions to her knees, and neck and back, as well as seasonal affective disorder, episodes of depression, and she has a history of attention deficit disorder and mild dyslexia. Nevertheless, on her visit of March 11, 2019, her family doctor completed the Disability certificate, noting the low back pain and neck pain, and anticipated one to four weeks of disability.
Pre-existing condition
13I find that the applicant has not established she should be removed from the MIG due to a pre-existing condition.
14The applicant notes TMJ complaints in their submissions.
15My understanding of the applicant’s submissions, from page 4, is that the TMJ was a problem that started in 1992 with an infection due to a tooth abscess and that she received “significant medical care, including root canal and crown replacement to treat it. Ms. Heukshorst never had to see a specialist for TMJ issues, even when wearing braces.”
16The respondent notes that complaints of TMJ appear in the physiotherapy notes dated December 10, 2022, almost two years after the accident, and there is no medical evidence that shows that the TMJ issues are directly related to the accident. The applicant makes no arguments about a pre-existing condition related to the TMJ. There is no compelling medical evidence indicating that the condition precludes her recovery within the MIG. As a result, she doesn’t meet the test even if the TMJ is a pre-existing condition.
17The respondent also finds there is no compelling medical evidence of a pre-existing medical condition that would prevent maximal recovery from the minor injury. The applicant was assessed by the respondent’s assessor, Dr. Zhao, a general practitioner, on August 13, 2020, concerning whether MIG applied. Dr. Zhao found that there was “no objective musculoskeletal impairment on her physical examination.” He further concluded no compelling evidence of a pre-existing medical condition that would prevent maximal recovery from the minor injury.
18I find that the applicant has not met the test in s. 18(2) for removal from the MIG. Although she references TMJ in her submissions, she has not made submissions about how her TMJ would prevent recovery within the MIG. Further, the medical evidence before me does not include an opinion from a medical practitioner indicating that her TMJ precludes recovery within the MIG. Therefore, on a balance of probabilities, I find the applicant has not established she should be removed from the MIG due to a pre-existing condition.
Chronic Pain
19I find the applicant has failed to show that she has chronic pain with functional impairment.
20I find that the applicant appears to submit that that the pain she suffered after the accident was chronic pain because it was very intense, that the pain was unbearable, and so severe she could not go to the gym, where before the accident she went two to three hours a week or walk her dog for the former one to three hours, she could only walk him for 30 minutes. Additionally, just sitting or lying down had become very painful and she required cortisone injections.
21The respondent notes that on March 11, 2010, when she returned to see her family doctor, and referred to back stiffness she noted it was improving.
22I find that the applicant has not established that she has chronic pain with a functional impairment that warrants removal from the MIG. I find that the applicant has not pointed to evidence of chronic pain in the medical evidence. The applicant has not submitted evidence about how the pain affects her functioning. Further, I find that Dr. Gary Gerber the respondent’s psychological assessor notes that the applicant stated she drives, sleeps seven to eight hours, gardens, and that the applicant was starting to paint her house. I find that this is not consistent with a finding that she has any chronic pain that affects her day-to-day activities, because undertaking to paint one’s home is a very energetic and difficult task. This illustrates that chronic pain does not interfere in her usual daily activities.
23I find on a balance of probabilities that the applicant has not established that she has chronic pain with a functional impairment that warrants removal from the MIG.
24As the applicant’s injuries are within the MIG, I do not need to consider if the treatment plan proposed is reasonable and necessary.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there is no benefit payable, there is no interest applicable.
Award
26The applicant sought an award under s. 10 of Reg. 664. As there are no overdue benefits to be paid and no evidence of unreasonable withholding or delay of benefits, there is no award payable.
ORDER
27I find:
i. The applicant’s injuries predominantly minor and within the MIG.
ii. As the applicant’s injuries are within the MIG, I do not need to consider if the treatment plan proposed is reasonable and necessary.
iii. The applicant is not entitled to interest or an award.
iv. The application is dismissed.
Released: March 5, 2025
Dominique Setton
Adjudicator