Citation: Inakazu v. Intact Insurance Company, 2025 ONLAT 23-001834/AABS

Licence Appeal Tribunal File Number: 23-001834/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:

Andrea Inakazu

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Janet Clermont, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Andrea Inakazu, the applicant, was involved in an automobile accident on January 7, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The following issues are to be decided:

i. Are the applicant's injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $2,374.40 for chiropractic services, proposed by E Clinic United Healing in a treatment plan submitted May 5, 2021?

iii. Is the applicant entitled to $4,089.95 for psychological services, proposed by E Clinic United Healing in a treatment plan submitted August 20, 2021?

iv. Is the applicant entitled to $1,995.00 for a psychological assessment, proposed by E Clinic United Healing in a treatment plan submitted April 8, 2021?

v. Is the applicant entitled to interest on any overdue payment of benefit?

RESULT

3I find that:

i. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute; and

iii. The applicant is not entitled to interest.

PROCEDURAL ISSUE

4I must first address the clinical notes and records ("CNRs") of the applicant's family physician, Dr. Breton Ung. The respondent submits that Dr. Ung's CNRs are largely illegible and consequently unpersuasive and should be afforded no weight as a result. In support of this request, the respondent relies on Washington v. The Personal, 2024 CanLII 4297. The applicant did not file reply submissions.

5There is a distinction between Washington and the facts before me. Specifically, in Washington the Tribunal ordered the applicant to produce a transcription of the physician's illegible CNRs. By comparison, the case conference report and order ("CCRO") for this matter, dated September 29, 2023, made no such request of the applicant. Despite this, in reviewing the CNRs of Dr. Ung, I agree with the respondent and find that the CNRs are illegible and consequently unpersuasive as I am unable to read the CNR contents. While not required of the applicant, it would have been beneficial to all parties should the applicant have undertaken to transcribe the CNRs.

6The respondent also submits that the applicant failed to produce the records of the psychiatrist referred in subsection 4(b) of the CCRO. The applicant did not file reply submissions. In reviewing the evidence before the Tribunal, I agree with the respondent that the CNRs from the applicant's psychiatrist from January 7, 2021 – September 29, 2023 are missing and the applicant did not comply with the CCRO.

7The Tribunal has the discretion to draw a negative inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control or is equally available to the parties and such evidence is material to the dispute. I find that to date; the respondent did not receive the CNRs from the applicant's psychiatrist, and as such the record may not be relied on.

ANALYSIS

Applicability of the Minor Injury Guideline ("MIG")

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

10An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. While not explicitly outlined, I deduce that the applicant suffers from a pre-existing condition, psychological impairment and physical impairment. The respondent submits that the applicant has failed to establish that her injuries are not predominantly minor and that they can be treated within the confines of the MIG.

The applicant did not suffer physical injuries that warrant removal from the MIG

12I find that the applicant has not provided sufficient evidence to demonstrate that her physical injuries justify treatment beyond the MIG.

13The applicant provides limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant sought medical attention from Dr. Ung, the day after the accident due to pain in her neck, back and shoulders. There are no specifics as to any diagnosis, referrals or prescriptions provided by Dr. Ung, and as noted above, the CNRs are illegible. The applicant also relies on the OCF-3 form completed by Mr. Dan Shepakov, chiropractor, dated February 1, 2021. Mr. Shepakov listed various injuries including, whiplash-associated disorders, neck muscle and tendon injuries, spine strains and sprains. Furthermore, the applicant acknowledges that the medical evidence is limited, but attributes it to COVID-19 pandemic.

14The respondent submits the totality of the medical evidence demonstrates that the applicant's injuries are predominately minor. The respondent highlights that the applicant's physical complaints which are difficult to decipher in Dr. Ung's CNRs were not significant enough to warrant referrals to any specialists. The respondent relies on musculoskeletal assessment by Dr. Eric Silver, general practitioner, dated September 7, 2021. Dr. Silver noted that the applicant's physical examination was "unremarkable", her upper and lower extremity reflexes, strength and symmetry were normal, and her range of motion were full in all directions. Dr. Silver concluded that the applicant sustained uncomplicated soft tissue injuries to her neck, right upper trapezius, upper back and lower back. Dr. Silver opined that her injuries were minor.

15After reviewing the evidence, I agree with the respondent. The applicant did not provide compelling evidence that she suffers physical injuries that would remove her from the MIG. The applicant did not present any prescription medication, medical referrals or diagnosis of a medical professional that her physical injuries justify treatment beyond the MIG. I am persuaded by the evidence of both Mr. Shepakov and Dr. Silver who both reference minor injuries, and Dr. Silver's conclusion that she only suffered soft tissue injuries. While I accept that the applicant did visit Dr. Ung, as demonstrated by the dates of the appointments in both parties' submissions, since the CNRs are illegible it is unclear if these appointments were as a result of the accident.

16As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.

The applicant did not suffer psychological injuries that warrant removal from the MIG

17I find that the applicant has not provided sufficient evidence to demonstrate that her physical impairments justify treatment beyond the MIG.

18An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

19To be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

20The applicant relies on the remote psychological assessment of Dr. Svetlana Gabidulina, psychologist, dated May 3, 2021. Dr. Gabidulina opined that the applicant has psychological impairments including severe depression, moderate to severe anxiety, and marked changes in her daily functioning including financial responsibility and driving. The applicant submits Dr. Gabidulina's recommendation for a comprehensive psychological intervention is beyond the confines of the MIG.

21The respondent relies on the psychological assessment of Dr. Douglas Saunders, psychologist, dated October 8, 2021. After administering a number of psychological tests in-person including the personality assessment inventory, DSM-V Depression Adult Scale and the Multi-Dimensional Anxiety Questionnaire, Dr. Saunders concluded that the applicant had a mild-level of accident-related psychological symptoms that do not meet the clinical criteria for a psychological impairment. Dr. Saunders was provided with additional records, including the CNRs of Dr. Ung, and completed an addendum on February 3, 2022. Dr. Saunders maintained his opinion that the applicant's accident-related diagnosis did not meet the criteria for psychological impairment.

22I am not persuaded by the diagnosis of Dr. Gabidulina, having found that it is not concurrent with other medical evidence and is based on the applicant's self-reports in a virtual forum over WhatsApp. There is no medical evidence presented by the applicant that she received any psychological referrals or prescriptions. I prefer the diagnosis of Dr. Saunders that was completed in person. Furthermore, Dr. Saunders completed an addendum a year after the original diagnosis and concluded that his opinion did not change. After considering the evidence before me, I find that the applicant did not provide persuasive evidence to show that she suffers from a psychological impairment that would remove her from the MIG.

23As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

The applicant did not suffer pre-existing injuries that warrant removal from the MIG

24I find that the applicant has not provided sufficient evidence to demonstrate that her pre-existing injuries justify removal from the MIG.

25Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

26The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

27The applicant submits that she has diabetes, a pre-existing condition which she argues has complicated the recovery process from her physical injuries. The applicant relies on a website called "Wound Care Centres" with a heading "How Diabetes Affects Would Healing." While I accept that the applicant has a pre-existing condition, she did not provide any medical evidence or any persuasive evidence to demonstrate how her diabetes would prevent maximal recovery from the minor injury.

28The respondent relies on Dr. Silver's addendum report, dated February 3, 2022, where the applicant reported having diabetes prior to the accident. Dr. Silver concluded that her pre-existing condition would not have been affected by the accident, nor would her pre-existing condition affect her recovery from her accident-related injuries.

29After reviewing the evidence, I agree with the respondent that any pre-existing condition will not automatically exclude the applicant from the MIG. Although I accept that the applicant has diabetes, I do not find the applicant's website submission compelling. I am persuaded by the conclusion of Dr. Silver, that her pre-existing condition would not affect her recovery.

30As a result, I find that the applicant did not provide compelling evidence that her diabetes will prevent maximal recovery from her injuries by being subject to the MIG.

31The applicant is not entitled to the disputed treatment plan because I have found that the applicant has sustained a minor injury and is subject to the MIG and the treatment plans proposed exceed the MIG limit. As a result, an analysis on whether the treatment plan is reasonable and necessary is not required.

Interest

32As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

33For the reasons outlined above, I find that:

iii. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

iv. The applicant is not entitled to the treatment plans in dispute; and

v. The applicant is not entitled to interest.

vi. The application is dismissed.