Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-004920/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:
Maria Jarvis
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Neil Levine
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Cindy S.Y. Leung, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Maria Jarvis, the applicant, was involved in an automobile accident on April 30, 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 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? Note: The parties agree the MIG limits have not been exhausted and there is $602.64 remaining as of the date of the case conference.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 30, 2021, to April 30, 2023?
iii. Is the applicant entitled to $87.19 ($1,136.55 less $1,049.36 approved) for chiropractic services, proposed by E Clinic United Healing in a treatment plan/OCF-18 (“plan”) submitted July 14, 2021, and partially denied July 19, 2021?
iv. Is the applicant entitled to $1,920.53 for a psychological assessment, proposed by E Clinic United Healing in a plan submitted August 4, 2021, and denied September 24, 2021?
v. Is the applicant entitled to $3,195.84 for chiropractic services, proposed by E Clinic United Healing in a plan submitted August 4, 2021, and denied October 27, 2021?
vi. Is the applicant entitled to $4,314.20 for psychological services, proposed by E Clinic United Healing in a plan submitted October 8, 2021, and denied November 5, 2021?
vii. Is the applicant entitled to $3,083.96 for chiropractic services, proposed by E Clinic United Healing in a plan submitted November 10, 2021, and denied November 10, 2021?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the evidence before me and for the reasons that follow, I find that the applicant’s injuries are predominantly minor and therefore she should not be removed from the MIG.
4The applicant is not entitled to the non-earner benefit claimed.
5The applicant is not entitled to the treatment plans claimed.
6The applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline
7The applicant must prove on the balance of probabilities that her injuries were not predominantly minor and exceed the definition of minor injury under the Schedule, or that her pre-accident conditions preclude a recovery if kept within the MIG.
8Section (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) of the Schedule 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.” An insured “may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule, or under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition preclude recovery if the insured person is kept within the confines of the MIG.” The Tribunal has also determined that chronic pain with functional impairment or a psychological condition have been found to also exceed the definition of minor injury.
9The burden is on the applicant to show, on a balance of probabilities, that her injury falls outside of the MIG.
Evidence: Minor Injury Guideline
10The applicant has not shown that she should be removed from the MIG on the basis of her pre-existing conditions, psychological conditions or chronic pain.
11The applicant submitted that on May 1, 2021, the day following the accident, she visited her family doctor, Dr. Manu Dhillon, reporting head and neck pain. X-rays ordered by Dr. Dhillon on May 3, 2021 revealed age-related degenerative symptoms including chronic lumbar spine degenerative disc disease, and cervical spine moderate degenerative disc disease with axial spondylarthritis. No traumatic injuries as a result of the accident were revealed.
12On May 11, 2021 the applicant was assessed by Dr. Bohdan Osoba, a chiropractor. She reported shoulder pain, neck pain, upper and lower back pain, bilateral hip pain, headaches, nervousness, fatigue, restlessness, insomnia, anxiety and stress. His examination noted lumbar, thoracic and cervical sprain/strain, tension headaches, bilateral shoulder and hip sprain/strain. On July 12, 2021, she was examined by Dr. Osoba and reported similar symptoms, and on November 1, 2021, again reported similar symptoms to chiropractor Lisa Scrase, DC. These records indicate sequelae related to the accident but are not, in and of themselves, an indication that the applicant has injuries that are outside the MIG.
13The applicant relies on clinical notes and records from Dr. Manu Dhillon, Dr. Bohdan Osoba, DC and Dr. Lisa Scrase, DC. The applicant also relies on a psychological assessment report by Dr. Harinder Mrahar (September 19, 2021).
14The respondent relies on three s. 44 assessments: a physician assessment and paper review by Dr. Ijaz Chaudhry, a general practitioner (July 12, 2021); a s. 44 occupational therapy in-home assessment by Jag Dhirayain (July 13, 2021), an occupational therapist; and a psychological assessment by psychologist Dr. Amena Syed (September 8, 2021). The physician assessment and paper review by Dr. Chaudhry (July 12, 2021) noted back pain but no neck pain, and the applicant’s neck was within normal range of motion limits. The diagnosis was a sprain/strain, and thus within the MIG.
Psychological Condition
15A psychological assessment by Dr. Harinder Mrahar (September 19, 2021) reported disrupted sleep patterns and testing that showed moderate depression and moderate anxiety, and some post-traumatic stress symptoms. None of these reported issues indicate a diagnosable psychological condition that would rise to a level that would remove the applicant from the MIG, but rather are sequelae to the pain she experienced as a result of the accident. This assessment also noted that the applicant’s emotional and psychological problems were consistent with an ICD-10 diagnosis of adjustment disorder (with mixed anxiety and depressed mood).
16The psychological assessment by Dr. Syed (September 8, 2021) concluded that the applicant’s issues were more physical than psychological, with pain as an antecedent to the psychological symptoms. A subsequent assessment on November 4, 2021 by Dr. Syed reached the same conclusions, that there was no accident-related psychological impairment that would meet any DSM-5 criteria.
17CNRs from Dr. Osoba (July 26, 2021) immediately following the accident show sleep issues caused by pain. However, there is a lack of CNRs to show that this condition continued after the accident, leading to the conclusion that the applicant’s sleep difficulties were, on the balance of probability, sequelae to the accident. For example, an earlier assessment by physician Ijaz Chaudhry (July 12, 2021), says that the applicant reported no changes to her sleep patterns since the accident – in contrast to the CNRs from Dr. Osoba.
18Finally, the applicant has no CNRs from her family doctor in the years following the accident – 2022 and 2023 – that show the worsening of any psychological conditions that would have required referral to a psychiatrist or psychologist.
19From a psychological perspective, there has been no evidence submitted that show ongoing conditions or impairments resulting from the accident which have resulting in a diagnosable psychological condition. There is only one psychological assessment, that of Dr. Mrahar, that opines a psychological illness or condition as a result of the accident, and this is moderate and has no corroborating proof subsequent to the diagnosis. The other assessments by Dr. Chaudhry and Dr. Syed and CNRs from the applicant’s doctors do not show any psychological conditions.
Pre Existing Conditions
20The respondent submitted that the applicant has a number of documented pre-existing conditions including ankylosing spondylitis, degenerative disk disease, degenerative sacroiliitis, weight management, low back pain, left knee injury and osteoarthritis in the left knee and both wrists. She went on ODSP/long term disability in 2011. She saw Dr. Vandana Ahluwalia, a rheumatologist, in 2018, three years prior to the accident, and again in 2020 to manage her pre-existing arthritis and ankylosing spondylitis conditions.
21The OT in-home assessment (July 13, 2021) by the occupational therapist, Jag Dhirayain, is credible and thorough. It concluded that the applicant had no issues with activities of daily living including bathing, reaching and cleaning. The assessment noted back pain, shoulder pain and limited range of motion. The applicant, however, was independent in transferring, standing and walking within her home with modifications and assistance from her family. There was no evidence of any significant functional impairment.
22The respondent asserts that the applicant’s pre-existing conditions of arthritis and ankylosing spondylitis are the factors most responsible for the applicant’s limitations and pain and have therefore not prevented her from achieving maximal recovery under the MIG.
23There was no compelling medical evidence presented by the applicant (or in the applicant’s CNRs) to show that her pre-existing conditions have prevented her from achieving a maximal recovery if kept within the MIG. The applicant has not met her onus.
Chronic Pain
24While not binding on the Tribunal, the AMA Guides are often used as criteria to assess chronic pain syndrome. These criteria summarized are: the use of prescription drugs beyond the recommended duration, excessive dependence on health care providers or family, secondary physical deconditioning due to disuse, withdrawal from social milieu including work or social contacts, 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 development of psychosocial sequelae after the incident (AMA Guides, 6th ed. 2024).
25It is important to note that a formal diagnosis of chronic pain is not required to be removed from the MIG, but it is required that the applicant show evidence. In this respect, the Tribunal has adopted the AMA Guides criteria as an interpretive tool for evaluating chronic pain with functional impairment claims in the absence of a formal diagnosis. The applicant has not shown evidence that she exhibits any of the criteria set out in the AMA Guides.
26There is not enough evidence presented by the applicant to show that she is suffering from any more than sprains and strains associated with her accident. The applicant did not report any accident-related complaints to her family physician, Dr. Dhillon, after her appointment with him on May 1, 2021 through February 6, 2024. There are CNRs from her rheumatologist, Dr. Ahluwalia, about her ankylosing spondylitis, and there is a bone scan and X-ray from September 13 and 14, 2022 that shows degenerative disease and arthritis as causing the applicant’s back pain and degenerative disc disease. These conditions do not result from the accident and are the cause of the applicant’s pain according to Dr. Ahluwalia.
MIG: Conclusions
27On a balance of probabilities, there has not been sufficient proof submitted by the applicant that pre-existing conditions have limited her maximal recovery under the MIG, nor has there been proof submitted that the applicant has any chronic pain or functional limitations as a result of the accident, and no psychological diagnosis to indicate psychological conditions as a result of the accident.
28Dr. Ijaz Chaudry, in a report submitted by the applicant, in fact opines that “there is no evidence of any objective neurological or radicular pathology related to the subject MVA. I am of the opinion, strictly from a musculoskeletal perspective, that the claimant has suffered soft tissue injuries that do not result in a complete inability to carry on a normal life.”
29I find that the respondent’s s. 44 reports, especially, were quite conclusive in determining that the applicant’s injuries were minor in nature and therefore the applicant should remain under the MIG.
30Any pain the applicant has experienced is likely from the applicant’s ankylosing spondylitis and arthritis, according to rheumatologist Dr. Ahluwalia. Furthermore, the applicant has shown no evidence that she is functionally impaired from the injuries that have resulted from the accident, her claimed chronic pain, or from any psychological conditions.
Non-Earner Benefit
31I find that the applicant has not proven on a balance of probabilities that she is entitled to an NEB, as she has not proven she suffers from a complete inability to carry on a normal life as a result of the accident.
32Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
33The applicant cited no evidence (save for some references to pre-accident activities in a psychological report) and made no submissions in support of her claim to a NEB. Neither party cited the Heath factors.
34Therefore, I cannot assess whether any impairment the applicant suffers from prevents her from engaging in substantially all of her pre-accident activities because I do not have sufficient evidence of her pre-accident activities. It is impossible to engage in the required comparative analysis.
35The applicant has not shown sufficient evidence to prove that she has an inability to carry on a normal life. From a qualitative perspective, there is not enough evidence to prove, on a balance of probabilities, that the applicant suffers from a complete inability to carry on a normal life.
36The applicant remains within the MIG and accordingly the treatment plans in dispute are not payable. An analysis into whether the treatment plans in dispute are reasonable and necessary is not required.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are payable and no interest applies.
ORDER
38I find that the applicant:
i. Remains within the MIG. The applicant is entitled to any remaining amount left under the MIG limit.
ii. Is not entitled to a non-earner benefit.
iii. Is not entitled to the treatment plans in dispute.
iv. Is not entitled to interest.
39The application is dismissed.
Released: March 19, 2025
Neil Levine
Vice-Chair