Licence Appeal Tribunal File Number: 23-001213/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:
Sae Jung Bae
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Jae Hyon Cho, Counsel
For the Respondent:
Stuart Borenovich, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sae Jung Bae, the applicant, was involved in an automobile accident on January 16, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 $1,475.35 for chiropractic and physiotherapy treatment, proposed by Sigma Chiropractic and Rehab Clinic, in a treatment plan dated August 26, 2020?
RESULT
4The applicant’s injuries are “minor injuries” as defined in the Schedule. The applicant is not entitled to the disputed chiropractic and physiotherapy treatment plan.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
5I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 MIG funding limit on treatment, which the parties agree has been exhausted.
6Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
7An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.
8The applicant submits that she suffers from chronic pain as a result of the accident; specifically, she submits that she suffers from chronic pain in her knees and back. To support her position, the applicant relies upon a Disability Certificate, prepared by Mehdi Lotfi, physiotherapist, dated January 20, 2020; an ultrasound report of the applicant’s bilateral knees, dated July 20, 2020; a treatment plan prepared by Dr. Hyemi Ma, chiropractor, dated August 26, 2020; a clinical note of Dr. Jospeh Yuh, family physician, dated March 17, 2021; and the Insurer’s Examination (“IE”) report of Dr. Yuri Marchuk, physiatrist, dated November 30, 2023.
9The respondent submits that the applicant has failed to adduce compelling medical evidence to support that her injuries should be removed from the MIG based on chronic pain. The respondent relies upon the IE report of Dr. Marchuk, physiatrist, dated January 19, 2021, which concluded that the applicant’s injuries were predominantly minor injuries.
10I find that the applicant has provided insufficient medical evidence to support that she suffers from ongoing pain or chronic pain or that she has a corresponding functional impairment as a result of the accident. I further find that the applicant has not provided any clinical notes and records (“CNRs”) setting out the treatment that she received or documenting her ongoing complaints. Post-accident, there is insufficient evidence of a significant decrease in the applicant’s physical abilities or ability to work as a supervisor at Tim Hortons or as a law clerk and insufficient evidence that she suffers a functional impairment. My reasoning is based upon the following findings.
11Firstly, the Disability Certificate, prepared by Mr. Lotfi, physiotherapist, dated January 20, 2020, lists the applicant’s injuries as bilateral knees strain/sprain, bilateral ankles strain/sprain and lumbar spine strain/sprain. The injuries listed, however, are all injuries that fall within the Schedule’s definition of minor. There is no mention of chronic pain. While Mr. Lotfi indicates that the applicant suffers a substantial inability to perform the essential tasks of her pre-accident employment and suffers a complete inability to carry on a normal life, no particulars are provided about the applicant’s functional limitations with respect to her pre-accident employment or activities of daily living.
12Secondly, upon review of the treatment plan, prepared by Dr. Ma, chiropractor, dated August 26, 2020, the treatment plan lists the applicant’s injuries as sprain and strain of bilateral knees, injury to multiple structures of knee, sprain and strain of lumbar spine and pelvis and sprain and strain of sacroiliac joint. Dr. Ma notes under part 8 “activity limitations” that the patient suffers from chronic persistent pain in her knees, worse on the left, which interferes with work performance and her ability to sit for a prolonged period when studying. Dr. Ma notes that due to poor correlation of her symptoms with the ultrasound report, the applicant’s family physician recommended an MRI for a more accurate diagnosis that could explain her ongoing symptoms. I find that Dr. Ma’s conclusory statement about chronic pain falls short of establishing a medical condition that would warrant the applicant to be removed from the MIG on the basis of chronic pain. I further find that despite the applicant being referred for an MRI to provide an accurate diagnosis of her injuries, I find that no MRI report was provided by the applicant.
13Thirdly, the applicant is relying upon a clinical note of Dr. Yuh, family physician, dated March 17, 2021, which states “persistent pain post MVA no numbness weakness or neuropathy but chronic aches and pains discussed symptomatic continue therapy.” I find that other than commenting that the applicant has chronic aches and pain, there is no discussion about any accompanying functional impairments. I find that the only other clinical note of Dr. Yuh provided by the applicant is a clinical note dated January 4, 2021, for an “Rx refill”. I find that no further records of Dr. Yuh were provided and there is no indication that the applicant was seen by Dr. Yuh following her appointment on March 17, 2021 with respect to her ongoing complaints.
14Fourthly, I find the IE report of Dr. Marchuk, physiatrist, dated January 19, 2021, persuasive that the applicant suffered a minor injury and that she has not demonstrated a functional impairment as a result of her ongoing pain. In his report, Dr. Marchuk noted that the applicant reported that she was off work from her job at Tim Horton’s for one week following the accident. She reported to Dr. Marchuk that she did not require assistance on the job and that she did not have any doctor ordered restrictions. She further reported that she was independent with no restrictions for household or home maintenance tasks; she has moderate physical restrictions for activities of daily living; she has mild social and recreational restrictions; she has mild restrictions for self-care tasks; and she can handle medium workloads. Dr. Marchuk diagnosed the applicant with left knee patellofemoral joint dysfunction and concluded that this injury was predominantly a minor injury.
15Finally, I find that the applicant’s reliance on her self-reporting noted in the November 30, 2023 IE Physiatry report of Dr. Marchuk is not evidence that she suffers from chronic pain. In her submissions, the applicant stated that she complained to Dr. Marchuk that she had been experiencing constant left knee pain of moderate intensity since the accident and activities such as walking, using stairs, or bending the knee exacerbated her pain. Dr. Marchuk noted in his report however, that, according to the applicant, she was independent with no restrictions for social activities, self-care tasks, household and home maintenance tasks, and only had mild restrictions for physical and recreational activities. The applicant further reported that she did not require any assistance with her new job as a law clerk. However, despite the applicant’s subjective reports of constant left knee pain, Dr. Marchuk concluded that the applicant’s injuries were minor based on his objective testing and assessment.
16For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.
The applicant is not entitled to the disputed chiropractic and physiotherapy treatment plan
17As the applicant continues to be within the MIG and the MIG limits have been exhausted, the applicant is not entitled to the chiropractic and physiotherapy treatment plan, dated August 26, 2020, in dispute.
ORDER
18For the reasons outlined above, I find:
i. The applicant’s injuries meet the definition of “minor injury” under the Schedule;
ii. The applicant is not entitled to the treatment plan for chiropractic and physiotherapy services; and
iii. The application is dismissed.
Released: January 23, 2025
Melanie Malach
Adjudicator