Licence Appeal Tribunal File Number: 23-004110/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:
Jeannette Uko
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Matthew Frontini
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jeanette Uko, the applicant, was involved in an automobile accident on October 5, 2020, 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, Cooperators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent’s submissions raised a preliminary issue in respect of a treatment plan, dated February 9, 2021, for a psychological assessment that is in dispute. The respondent asserts that the applicant is barred from raising this issue because more than two years had passed since the respondent denied this treatment plan before the applicant commenced this application. As such, the respondent’s position is that applicant is barred from having this treatment plan adjudicated pursuant to s. 56 of the Schedule.
3The applicant did not make any submissions in respect of this preliminary issue, despite having the opportunity to do so in reply.
4In considering the respondent’s arguments, I note that this preliminary issue is not listed on the Case Conference Report and Order (“CCRO”) dated December 19, 2023. There is also no indication that the respondent sought to amend the CCRO to have this preliminary issue added as an issue to be decided by the Tribunal at this written hearing.
5Given that this preliminary issue is not properly before me, I decline to consider the respondent’s arguments.
ISSUES
6The 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 $3,733.58 for chiropractic services, proposed by Safe Space Rehabilitation Centre – Life Point Medical in a treatment plan/OCF-18 (“plan”) dated March 2, 2021?
iii. Is the applicant entitled to $3,020.36 for chiropractic services, proposed by Safe Space Rehabilitation Centre – Life Point Medical in a treatment plan dated November 12, 2021?
iv. Is the applicant entitled to $2,907.36 for chiropractic services, proposed by Safe Space Rehabilitation Centre – Life Point Medical in a treatment plan dated May 2, 2022?
v. Is the applicant entitled to $3,383.99 for chiropractic services, proposed by Safe Space Rehabilitation Centre – Life Point Medical in a treatment plan dated January 23, 2023?
vi. Is the applicant entitled to $2,000.00 for a Psychological Assessment, proposed by Safe Space Rehabilitation Centre – Life Point Medical in a treatment plan dated February 9, 2021?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the disputed treatment plans;
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;
iv. The applicant is not entitled to an award under s. 10 of O. Reg 664; and
v. The application is dismissed.
ANALYSIS
The applicant is not removed from the MIG
8The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.
9Section 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.”
10An 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 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
11In this case, the applicant claims to suffer from psychological injuries and chronic pain. The applicant submits these injuries are outside the MIG. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.
The applicant has not established that she suffers a psychological injury
12The applicant has not established on a balance of probabilities that she suffers a psychological injury as a result of the accident.
13The applicant primarily relies on the psychological rehabilitation screening report of Dr. Svetlana Gabidulina, psychologist, dated November 17, 2020, arising from a “pre-screening” carried out on November 6, 2020. Dr. Gabidulina’s pre-screening process included a clinical interview and the administration of a single psychometric test, the Automobile Anxiety Inventory. Dr. Gabidulina provided provisional DSM-5 diagnoses of Situational (isolated) Phobias, moderate (automobile anxiety) and Depressive Episode, moderate.
14The applicant also relies on a Disability Certificate (“OCF-3”), dated October 26, 2020, prepared by Dr. Marko Pavacic, chiropractor. The OCF-3 lists “sleep disorder, unspecified” and “anxiety disorder, unspecified” among other physical injuries.
15The respondent argues that the applicant has not discharged her evidentiary burden to establish that she suffers a psychological injury. The respondent notes that the only evidence the applicant relies on is Dr. Gabidulina’s screening report, which it contends is insufficient due to the lack of detail on the screening process, lack of discussion of the psychometric testing results and any validity measures, as well as a lack of corroborating evidence. The respondent also argues that the OCF-3 does not satisfy the applicant’s burden, as it was prepared less than a month after the accident. Further, the respondent contends that Dr. Pavacic, as a chiropractor, is not qualified to render psychological diagnoses.
16I am not persuaded by Dr. Gabidulina’s screening report that the applicant suffers from a psychological injury as a result of the accident. At its highest, the report makes “provisional” diagnoses, which imply that further information or assessment is needed to confirm a diagnosis. Such provisional diagnoses do not establish that an applicant has a psychological injury in and of themselves. Dr. Gabidulina’s screening report also references sleep disturbances, flashbacks, nightmares, sensitivity to noise, changes to mood and ability to concentrate reported by the applicant. However, the applicant has not identified any corroborating evidence in support of these complaints.
17I also do not accept that the OCF-3 establishes that applicant sustained a psychological injury as a result of the accident. Given the lack of any corroborating evidence of the applicant making any psychological complaints or seeking treatment, I find that the applicant has not satisfied her evidentiary burden. Furthermore, the OCF-3’s author, a chiropractor, is not qualified to make psychological diagnoses.
18Based on the evidence and submissions before me, I find that the applicant has not established on a balance of probabilities that she suffers a psychological injury as a result of the accident warranting removal from the MIG.
The applicant has not established that she suffers chronic pain warranting removal from the MIG
19I find that the applicant has not established on a balance of probabilities that she suffers chronic pain warranting removal from the MIG.
20An insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to have pain over an extended duration of time – it must be accompanied by functional impairment.
21In support of her position that she sustained pain with a functional impairment, the applicant primarily relies on 6 sets of clinical notes of records attached at Tab 7 of her submissions. These clinical notes and records comprise imaging that was ordered by Dr. Swee-Wee Teow, while the remainder comprise follow-up forms prepared by Dr. Pavacic.
22To start, this imaging does not establish that the applicant suffered anything other than minor injuries as a result of the accident. Imaging of her spine and head in October of 2020 did not reveal any fractures or abnormalities and only degenerative changes of the spine. Ultrasound imaging in October 2021 identified a partial-thickness tear in the right shoulder that had not been seen previously when compared to February 2021 ultrasound. While it was referenced in the October 2021 ultrasound report, the February 2021 ultrasound report is not before me. Finally, an MRI of the right shoulder in January 2022 for the purpose of “rul[ing] out rotator cuff tear” did not identify a tear and concluded the rotator cuff was intact.
23Considering the imaging, the only injury that was potentially identified was a partial-thickness tear in the ultrasound of October 2021. Although the February 2021 ultrasound is not before me, the October 2021 ultrasound results mention the February 2021 ultrasound as not having detected this tear. Both ultrasounds took place after the subject accident of October 5, 2020. Subsequently, this tear was not confirmed by the January 2022 MRI.
24The applicant also submits that this imaging is evidence of “the need for ongoing and targeted chiropractic treatment to manage chronic shoulder pain and manage joint function.” The applicant’s submission is not supported by the evidence. None of the imaging or other documents referred to states that there is chronic shoulder pain, joint dysfunction or that chiropractic treatment is indicated. These are the applicant’s submissions, but submissions (i.e. arguments) are not evidence.
25In terms of functional impairment, Dr. Pavacic’s follow-up forms, dated October 2021 and April 2021, list some limitations in carrying and sitting. However, neither of these forms mention the accident and there is no other corroborating evidence with reports of either persistent pain or functional impairments.
26The respondent argues that the applicant has not established that she suffers from chronic pain warranting removal from the MIG. The respondent bases its submissions on the assertion that the applicant has not demonstrated that she meets any of the six criteria from the AMA Guides 6th edition (“AMA Guides”) for a diagnosis of chronic pain. While acknowledging that the AMA Guides are not binding on the Tribunal, the respondent argues that, because none of these criteria are met in this case, the applicant has not established that she should be removed from the MIG on the basis of chronic pain.
27I agree with the respondent that a diagnosis of chronic pain based on the AMA Guides will warrant the removal of an insured from the MIG. Such a finding is sufficient, but not necessary, to be removed from the MIG.
28Once again, the Tribunal has accepted that an applicant may be removed from the MIG based on persistent reports pain beyond the time expected for the sequalae of minor injuries, accompanied by functional impairment. In this case, I find that the applicant has not established on a balance of probabilities that she suffers functional impairments from persistent pain resulting from the accident. She has not shown removal from the MIG is warranted on this basis.
29I find that the evidence tendered by the applicant does not establish on a balance of probabilities that she suffers chronic pain warranting removal from the MIG. There is a dearth of reported complaints of ongoing pain in the evidence provided. Furthermore, the few references to pain are not clearly connected to the accident. As noted above, based on the ultrasound imaging, the applicant appears to have sustained a shoulder injury sometime between February 2021 and October 2021. There is no evidence that this injury is connected to the accident in October 2020. Similarly, the two records that applicant relies on in support of a functional impairment do not reference the motor vehicle accident.
30Based on the evidence and submissions before me, I find that the applicant has not established on a balance of probabilities that she suffers chronic pain as a result of the accident warranting removal from the MIG.
The applicant is not entitled to the treatment plans in dispute
31As I have found that the applicant is not removed from the MIG, I do not need to consider whether the disputed treatment plans are reasonable and necessary. The CCRO indicates that the MIG limits have been exhausted.
Interest
32As I have found that the applicant is not entitled to any overdue payments, she is not entitled to interest.
Award
33The 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.
34The applicant makes general submissions that the respondent has consistently and unjustifiably delay relief to which the applicant is entitled. Given my finding that there are no benefits owing (and by extension, no benefits were unreasonably withheld or delayed) to the applicant, there is no basis for an award.
ORDER
35I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the disputed treatment plans;
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;
iv. The applicant is not entitled to an award under s. 10 of O. Reg 664 ; and
v. The application is dismissed.
Released: April 24, 2025
__________________________
Matthew Frontini
Adjudicator