Citation: Baker v. Economical Insurance Company, 2025 ONLAT 23-006487/AABS

Licence Appeal Tribunal File Number: 23-006487/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:

Christina Baker

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Rupert Needham, Representative

For the Respondent:

Sunjay Mistry, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Christina Baker, the applicant, was involved in an automobile accident on October 22, 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, Economical 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?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Kershner in a treatment plan submitted December 22, 2021?

iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Dr. West in a treatment plan submitted December 22, 2021?

iv. Is the applicant entitled to $3,795.00 for chiropractic and massage therapy services, proposed by Dr. Pereira in a treatment plan submitted November 5, 2021?

v. Is the applicant entitled to $1,878.36 for massage therapy, parking, medication and yoga submitted on an OCF-6 on April 30, 2023?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not established that her accident-related impairments warrant removal from the MIG.

4The applicant is not entitled to the treatment plans in dispute, the OCF-6 or interest.

ANALYSIS

Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

6An insured person 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.

Parties’ positions

7The applicant has not provided written submissions for this hearing. Pursuant to the Case Conference Report and Order (“CCRO”), the applicant’s written submissions and evidence were due by July 10, 2024. On July 30, 2024, the applicant filed with the Tribunal various pieces of medical evidence, OCF forms, a Certificate of Service and a Declaration of Representative. Despite enquiries from the respondent as to whether written submissions would be filed, no submissions (either initial or reply submissions) were provided by the applicant.

8The respondent submits that the applicant has not established that she has sustained any non-minor accident-related impairments. It argues that the applicant has not led any evidence of pre-existing impairments that would affect her recovery within the MIG. Nor has the applicant led any evidence of accident-related psychological impairments. With respect to physical impairments, the respondent submits that the applicant sustained only contusions and sprains and strains, all of which fall within the MIG. Finally, the respondent argues that the applicant has not established accident-related chronic pain, sufficient to remove her from the MIG.

The applicant’s accident-related impairments do not warrant removal from the MIG

9I find that the applicant has not met her burden of proof that she should be removed from the MIG. Without any submissions from the applicant, it is unclear on which ground she is seeking removal. However, even upon review of the medical evidence filed by the applicant, I find that she has not met her onus to prove that she has sustained a non-minor accident-related impairment.

10I agree with the respondent that no evidence has been led of a pre-accident medical history that would affect recovery within the MIG, or that the applicant sustained a psychological impairment as a result of the accident. The evidence filed by the applicant included various OCF forms, correspondence with the respondent, paramedic and hospital records, invoices for treatment and some clinical notes and records (“CNRs”). The evidence does not disclose any reports of psychological symptoms to the applicant’s family physician, psychological diagnoses, referrals for psychological treatment, or any reference to a pre-existing medical condition.

11The medical record also does not establish non-minor physical impairments. The hospital and paramedic records disclose pain and an abrasion on the applicant’s cheek and bruising on her thigh, however, facial CT scans revealed no fractures. The applicant was assessed a month later by her family physician Dr. Vernon Toyonaga who noted the applicant’s reports of swelling in the left arm, leg and shoulder. Dr. Toyonaga found full range of motion in the shoulders, neck, cervical, thoracic and lumbar spine. I agree with the respondent that the applicant’s accident-related injuries include soft tissue strains and sprains, contusions and abrasions, all of which fall within the Minor Injury Guideline.

12Although the applicant did not provide submissions on chronic pain, she has submitted a letter from Dr. Toyonaga dated October 20, 2023 which references chronic pain. In this letter, Dr. Toyonaga notes that the applicant was assessed on October 20, 2023 and that she had chronic upper and lower back pain. However, no additional medical documentation has been provided to support a diagnosis of chronic pain syndrome. The applicant has not provided the CNRs of Dr. Toyonaga for the years in between November 2021 and October 2023 to establish ongoing pain complaints. The applicant also does not direct me to any investigations related to chronic pain or referrals to pain specialists. I agree with the respondent that the single notation of chronic pain in the October 20, 2023 letter without any additional medical documentation supporting ongoing pain complaints, is not compelling evidence of a chronic pain diagnosis.

13Further, I agree with the respondent that it is well-settled that ongoing pain complaints alone are not sufficient to remove a claimant from the MIG. Rather, there must be some evidence of functional impairment due to pain. The applicant has not provided any submissions or directed me to evidence of any functional restrictions due to pain. While initially post-accident the applicant’s chiropractor Dr. Cindy Jakeer wrote a note saying that the applicant could only return to work on modified duties, Dr. Toyonaga subsequently confirmed that the applicant could resume regular duties on November 29, 2021. Without any submissions on this point or compelling evidence of functional impairment due to chronic pain, I find that the applicant has not established grounds for removal from the MIG.

14The respondent has confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing or overdue, the applicant is not entitled to interest.

ORDER

16For the foregoing reasons I find that:

i. The applicant remains within the MIG.

ii. The applicant is not entitled to the treatment plans in dispute, the OCF-6 or interest; and

iii. The application is dismissed.