Licence Appeal Tribunal File Number: 23-003131/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:
Rachel Gaabucayan
Applicant
and
Unifund Assurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Dina Mejalli-Willis
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Theomarcus Giannou, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rachel Gaabucayan, the applicant, was involved in an automobile accident on September 27, 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:
i. Are the applicant’s injuries predominately 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 $622.92 for chiropractic services ($2,731.09 less $2,108.17 approved), proposed by Integral Health Group in a treatment plan/OCF-18 (“plan”) dated January 31, 2022?
iii. Is the applicant entitled to $2,389.50 for physiotherapy services, proposed by Integral Health Group in a plan dated February 17, 2022?
iv. Is the applicant entitled to $1,987.07 for chiropractic services ($2,439.70 less $452.63 approved), proposed by Integral Health Group in a plan dated August 24, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG as she sustained minor injuries.
4The applicant is not entitled to treatment under the plans in dispute.
5The applicant is not entitled to interest on any overdue benefits or an award under s. 10 of Reg. 664.
ANALYSIS
Application of the Minor Injury Guideline
6I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from an injury or condition that warrants removal 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 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 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 submits that she should be removed from the MIG based on her accident-related physical injuries, chronic pain and psychological impairment. The respondent disagrees.
The Applicant’s Physical Injuries
10I find that the applicant’s physical injuries do not warrant removal from the MIG.
11The applicant submits that she does not belong in the MIG and relies on her physical symptoms as listed on the Disability Certificate dated September 29, 2021, in the clinical notes and records (“CNRs”) of Integral Health Group and Halton Healthcare, and in the treatment plans dated January 31, 2022, February 17, 2022, and August 24, 2022. The applicant’s reported physical symptoms include upper back pain, neck pain, shoulder pain and sternal pain.
12The respondent submits that the applicant sustained soft tissue strain injuries to her neck, back and shoulder which constitute minor injuries. The respondent relies on the insurer’s examination by Dr. Sharifian, General Physician, dated June 6, 2022, in which the assessor found that the applicant had sustained Whiplash Associated Disorder Type I (“WAD I”) complaints, which had resolved by the date of the assessment.
13I find that the applicant does not address in her submissions why her physical injuries warrant removal from the MIG. Based on the evidence before me, I find that the applicant has been diagnosed with minor injuries. The CNRs submitted by the applicant are current to October 2022, and document pain to the neck, back, shoulder, and sternum. I therefore find that the medical evidence supports a finding of soft tissue injuries, that have predominately resolved, which do not warrant removal of the applicant from the MIG.
14In reaching this conclusion, I have also considered the insurer’s examination of Dr. Sharifian who conducted physical testing of the applicant on May 20, 2022. Dr. Sharifian’s physical testing was unremarkable, full range of motion was noted, and the assessor did not identify any psychogenic additives/embellishments.
15I also find it significant that the applicant reported to Dr. Sharifian that she estimates a 95% improvement relative to her pre-accident status, with intermittent neck stiffness at a 1 on a 0 to 10 pain severity numerical rating scale. The applicant acknowledged that she is working full time as a Nurse, in the same capacity as before the accident. She also reported independence in household chores and in her personal activities of daily living. Dr. Sharifian’s examination is also consistent with the applicant’s Disability Certificate which indicates an anticipated recovery period of 9 to 12 weeks. Therefore, I find that Dr. Sharifian’s examination also reflects that the applicant only suffered minor accident-related physical impairments.
16Accordingly, I find on a balance of probabilities that the applicant’s physical injuries are minor and do not warrant removal from the MIG.
Chronic Pain with Functional Impairments
17I find that the applicant has not established that she should be removed from the MIG on the basis of chronic pain.
18In her submissions, the applicant refers to the Tribunal decision in 17-002907 v Aviva Insurance Company, 2018 CanLII 13153 (ON LAT) regarding the reasonable and necessary nature of a chronic pain assessment, but she does not make submissions or point to any evidence that substantiates that she is suffering from chronic pain with functional impairments. I find it relevant to note that neither the CNRs nor the examination of Dr. Sharifian identify the applicant as suffering from chronic pain with functional limitations.
19As it is the applicant’s onus, I find that the applicant has not met its burden of establishing that she suffers from chronic pain with functional impairments that would warrant removal from the MIG.
The Applicant’s Psychological Symptoms
20I find that the applicant has not established that she should be removed from the MIG on the basis of a psychological condition.
21In her submissions, the applicant refers to the psychological symptoms of irritability and anger, other anxiety disorders, state of emotional shock and stress, insomnia and specific phobias listed on the Disability Certificate dated September 29, 2021, but otherwise does not reference any evidence of a psychological impairment suffered by the applicant.
22The respondent relies on the insurer’s examination by Dr. Saunders, Psychologist, dated June 6. 2022, in which the assessor found that the applicant has mild levels of psychological symptoms that do not meet the clinical criteria for impairment.
23I find that the applicant has not provided any compelling evidence that she suffers from a psychological condition that would warrant her removal from the MIG. The Disability Certificate was completed by Dr. Dhillon, in his capacity as a Chiropractor and, I find that he is not qualified to make such psychological diagnoses.
24I also find Dr. Saunders’ opinion to be convincing, as it is consistent with the medical evidence that otherwise makes no mention of any psychological symptoms but for the Disability Certificate that was completed on the day of the accident.
25Therefore, I find on a balance of probabilities that the applicant has not met her burden of proving that she suffers from a psychological condition that warrants removal from the MIG.
26As I have found that the applicant has suffered minor injuries and is subject to the MIG, I do not need to address the reasonable and necessary nature of the treatment plans in dispute. The parties agree that the MIG limits have been exhausted.
Interest
27As the applicant is not entitled to any payments, no interest is due.
Award
28As there are no overdue payments and the applicant has not established that the respondent unreasonably withheld any payments, I find that the respondent is not liable to pay a s. 10 award.
ORDER
29For the reasons outlined above, I find that:
i. The applicant is subject to the MIG;
ii. The applicant is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest or an award.
30The application is dismissed.
Released: January 17, 2025
Dina Mejalli-Willis
Adjudicator