Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006988/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:
Margaret Kochel
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Lucy Lee, Counsel
For the Respondent: Yalda Aziz, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Margaret Kochel, the applicant, was involved in an automobile accident on August 16, 2022, 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, Allstate Insurance Company of Canada, 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 (“MIG”) limit?
ii. Is the applicant entitled to $2,146.49 for occupational therapy services, proposed by Kim Amey in a treatment plan/OCF-18 (“plan”), dated December 21, 2022, denied January 6, 2023?
iii. Is the applicant entitled to $3,762.30 for occupational therapy services, proposed by Kim Amey in a plan, dated March 28, 2023?
iv. Is the applicant entitled to $3,891.33 for physiotherapy proposed by Stacia Bates in a plan, dated December 19, 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 remains in the MIG.
4The applicant is not entitled to the treatment plans in dispute.
5No interest is awarded.
6No award is granted.
7The application is dismissed.
PROCEDURAL ISSUES
8The applicant requested that the insurer’s examination (“IE”) report of Dr. Dessouki, Physiatrist and Mr. Hartog, Registered Kinesiologist dated June 13, 2024, be excluded as it was not served on the applicant in compliance with the Tribunal’s case conference report and order (CCRO). It was served on the applicant’s counsel June 28, 2024, at 5 P. M., some fourteen days from when the respondent had possession of the IE’s. Rule 9.2 provides that a party to a hearing must disclose any document it intends to rely upon within the time ordered by the Tribunal. Rule 9.4 states that if a party does not comply with an order, they may not rely upon the document without the Tribunal’s consent. The respondent argued that the reports should be allowed as the applicant served updated clinical notes and records from Dr. MacLean on July 16, 2024.
9I will admit the IE reports of Dr. Dessouki Physiatrist and Mr. Hartog. While I agree that the document was not served in accordance with the deadline provided in the Tribunal’s order, I find that it is relevant to the issues in dispute. Secondly, it was served approximately two months prior to the written hearing date and in advance of the deadline for the applicant’s submissions. In my view, the applicant was not prejudiced as she had time to address it or could have brought a motion for an adjournment if she required more time.
Background
10On August 16, 2022, the applicant was the operator of a motor vehicle, which was rear-ended by a third-party vehicle. The applicant was subsequently transported to London Health Sciences Centre. At the hospital, the triage nurse noted that the applicant had been involved in a low-speed accident, and that her chief complaint was pain in her buttock and neck.
ANALYSIS
MIG
11Section 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.”
12An 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.
13To date, the respondent has paid $119.33 for the applicant’s medical and rehabilitation benefits.
Does the applicant suffer from a physical impairment that would remove her from the MIG?
14I find the evidence relied upon by the applicant supports the finding that her physical impairments fall within the MIG. The applicant submits that the medical evidence establishes that she sustained non minor injuries as a result of the accident.
15For example, the applicant relied on various insurance forms submitted to the respondent in support that her injuries are not minor. The disability certificate (“OCF-3”) dated June 19, 2023, submitted by the family doctor Susan MacLean listed the following impairments: Concussion acquired brain injury sprain of neck left, sided body pain, back and legs and a headache. I note that there are no clinical notes and records to corroborate the diagnoses as listed on the OCF-3. The remainder of the injuries listed on the OCF-3 are soft tissue injuries from the accident.
16In the London Health Care Services initial emergency report, it states that the applicant was suspected to have COVID and she initially declined EMS, then started to have bilaterial buttock pain as well as neck pain. I find that there is no medical entry for a suspected concussion or a brain injury related impairment. The applicant also left the hospital against medical advice and signed the proper forms for release.
17Further, I find an MRI was done on the applicant on or about June 11, 2024, indicating no head trauma to the applicant. The mild dextroconvex curvature of the spine center at L4 sagittal alignment of the lower thoracic canal lumbar spine is normal. Vertebral body height is within normal range, spinal cord signal and calibre is also within limits. The impression was multilevel degenerative change as describe mostly on L4-5 vertebrae.
Does the applicant suffer from a chronic pain impairment that would remove the applicant from the MIG?
18The applicant also submitted various treatment and assessment plans (“OCF-18s”) prepared by Kim Amey, Occupational Therapist of St. Joesph’s Health Centre. She noted that the applicant suffered from concussion, malaise and fatigue, symptoms and signs involving emotional state, headache, cervicalgia, subjective visual disturbance, and other sleep disorder. Moreover, that this pain limited the applicant’s tolerance for sitting, standing, walking, lifting and carrying. I did not find the insurance forms compelling evidence that the applicant suffers from chronic pain or has any functional limitations as no objective evidence was submitted to support such a finding. For example, there were no progress reports or log notes submitted by Ms. Amey. Further, there was insufficient evidence that Kim Amey had conducted any physical examination of the applicant. For these reasons, I give the OCF-18s and the recommendations within very little weight.
19The applicant’s submissions were also inconsistent as she argued that her physical injuries interfered with her ability to carry out her activities of employment. However, the applicant has filed no evidence to show that her life has changed, or she can’t do the activities that she did before the accident.
20I did not find the clinical notes and records (“CNRS”) of the applicant’s family doctor Susan MacLean to be compelling evidence of a non-minor impairment. For example, On August 18, 2022, the applicant consulted with her family doctor, Dr. Susan MacLean. The applicant told Dr. MacLean that she had vomited in the ambulance and was diagnosed with a concussion at the hospital. However, the hospital records do not mention any head injuries or vomiting. Contrary to the applicant’s submissions, she was not diagnosed with a concussion, rather, Dr. MacLean queried whether she had sustained a suspected concussion, but I find no evidence that she specifically diagnosed the applicant with a concussion. On September 2, 2022, she had a follow-up consultation with Dr. MacLean via telephone. On October 24, 2022, she had another telephone consultation with Dr. MacLean, who assessed her with tinnitus. What I found lacking from the applicant’s evidence was a diagnosis of chronic pain or chronic pain syndrome by any medical doctor or expert.
21The respondent relies on the s 44 IE report dated May 23, 2022, of Dr. Sharriff Dessouki, Physiatrist. The purpose of this assessment was to determine whether the applicant’s injuries were minor. Dr. Dessouki found that the applicant’s physical examination was normal, and her range of motion was normal. Dr. Dessouki opined that the applicant sustained the following injuries as a result of the subject accident: musculo-ligamentous injuries of the cervical and lumbar spine uncomplicated. Further, Dr. Dessouki stated that the applicant suffered soft tissue injuries in the accident. There were no findings of bony injury or radiculopathy noted on the clinical assessment. The applicant’s accident-related symptoms are consistent with sprain or strain injuries which would be considered minor in nature as defined in the Schedule.
22Finally, the onus is on the applicant to prove on a balance of probabilities that her injuries are not minor. Even if I were to give the respondent’s IEs little weight, the onus remains on the applicant. The applicant has not met her onus to prove that she sustained impairments because of the accident that would take her out of the MIG.
23For the above-noted reasons, I find the physical impairments sustained by applicant fall within the MIG.
Does the applicant suffer from a psychological impairment which would remove her from the MIG?
24I do not find that the applicant suffered from an accident-related psychological impairment which would remove her from the MIG.
25The applicant did not provide any compelling evidence which supports that she suffers from an accident-related psychological impairment. The applicant states that the physical injuries suffered from the accident caused brain fog and a delay in her cognitive responses. On August 20, 2023, Dr. MacLean states she reported low mood and anxiety, however Dr. MacLean did not refer her for psychological treatment.
26The applicant has not met her onus in proving on a balance of probabilities that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG.
Does the applicant suffer from a pre-existing condition which would prevent her from achieving maximal medical recovery within the MIG?
27The applicant submits that degenerative changes as outlined in the MRI and/or the ongoing issues with her ongoing vascular non-accident-related issues in her right leg will prevent her from achieving maximal recovery from her minor injuries if she remains subject to the MIG. However, Dr. Dessouki also noted no pre-existing medical condition that would prevent the applicant from achieving maximal recovery under the Minor Injury Guideline. There is no other medical evidence before me to suggest the applicant has a pre-existing injury capable of meeting the test in s. 18(2).
28For the above reasons, I find that the applicant suffered a minor injury and is subject to the $3500 limit within the MIG.
29As a result, the applicant remains within the MIG and therefore it is not necessary for me consider the reasonableness and necessity of the disputed treatment plans.
Interest
30No Interest is payable because no payments are overdue.
Award
31The 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.
32The applicant is not entitled to an award because no benefits were unreasonably withheld or delayed.
ORDER
33On the totality of the evidence, I find:
i. The applicant remains in the MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. No interest is awarded.
iv. No award is granted.
v. The application is dismissed.
Released: March 24, 2025
Roderick Walker Adjudicator