Licence Appeal Tribunal File Number: 23-007003/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:
Nadine Brooks Hemmings
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
James Schmidt, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Nadine Brooks Hemmings, the applicant, was involved in an automobile accident on February 25,2020 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 Wawanesa Mutual Insurance Company, respondent, 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 26, 2020, to date and ongoing?
iii. Is the applicant entitled to the treatment and assessment proposed by E Clinic United Healing, as follows:
a. $1,920.53 for a psychological assessment, in a treatment plan/OCF- 18 (“treatment plan”) dated March 12, 2021; and (ii) $3,963.64 for psychological treatment, in a treatment plan dated April 16, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to the $3,500.00 MIG funding limit.
The applicant is not entitled to NEB.
As I have found the applicant is subject to the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary.
As there are not benefits owing, the applicant is not entitled to interest.
The applicant is not entitled to an award.
The application is dismissed.
ANALYSIS
The applicant is not removed from the MIG
4I find that the applicant has not met her onus to prove on a balance of probabilities her accident-related impairments warrant removal from the MIG.
5Section 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.”
6An 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 functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
7The applicant submits that she suffers from chronic pain and a psychological impairment that warrant the applicant’s removal from the MIG. The respondent submits that the applicant has not met her onus to prove that her injuries are not predominately minor and that they cannot be treated within the confines of the MIG.
a) Chronic Pain
8I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident such that she is removed from the MIG on this basis.
9The applicant relies on a Disability Certificate (OCF-3), completed by Dr. Bohdan Osoba, Chiropractor of Mediwise Healthcare Centre on July 29, 2020. In the injury and sequelae Information section, the following was noted: myalgia, muscle strain, pain in joint, headache, pain in thoracic spine, pain and strain in thoracic spine, injury of muscle and tendon at thorax level, other headache syndromes, injury of muscle and tendon at neck level, disorders of initiating and maintaining sleep (insomnias), sprain and strain of shoulder joint, pain in limb, sprain and strain of acromioclavicular joint, nervousness, malaise and fatigue, sprain and strain of cervical spine, state of emotional shock and stress unspecified, dizziness and giddiness. The anticipated duration of disability was listed as nine to 12 weeks.
10The applicant submitted four OCF-18’s in this case. The first treatment plan is prepared by Dr. Kuldip Rakkar, Physician on December 7, 2020, outlines the physical and psychological complaints. The second treatment plan is dated March 3, 2021, again identifies several psychological and physical complaints related to her accident The third treatment plan submitted on March 9, 2021, and completed by Dr. Harinder Mrahar, focuses on the psychological impact the applicant has experienced since the accident. The applicant reported ongoing physical and emotional difficulties. The last treatment plan deals with psychological assessment, completed by Dr. Mrahar, on April 12, 2021, was conducted to evaluate the psychological and functional impairments resulting from the accident.
11The respondent relies on the insurer’s examination reports (IEs) of Dr. C. Boulias, M.D., Ph.D., FRCPC, Physiatrist and Dr. Karen Spivak, Ph.D., C. Psych. Psychologist, to determine the psychological and physical injuries of the applicant for the purposes of the MIG and the disputed treatment plans.
12I find that the applicant has not established that she experiencing ongoing chronic pain. The applicant submits various treatment and assessment plans (“OCF-18s”) prepared by Dr. Kuldip Rakkar, Physician, that indicate the applicant suffered from strains and sprains of muscle pain in the joints, headache, pain thoracic spine, pain and strain in thoracic spine, injury of muscle and tendon at thorax level, other headache syndromes, injury of muscle and tendon at neck level, disorders of initiating and maintaining sleep insomnia sprain and strain of shoulder joint, pain in limb, sprain and strain of acromioclavicular joint, nervousness, malaise, fatigue and sprain and strain of cervical spine.
13Moreover, I find the evidence before me shows that while the applicant sought treatment for her accident-related injuries, the medical evidence does not support a finding that she has chronic pain with a functional impairment because there are limited references to pain of a chronic nature. For example, there were no medical records from a family doctor in this case that would support a finding of chronic pain, or any s. 25 assessments that would direct me to find that the applicant suffers from a chronic pain impairment as a basis for removal from the MIG.
14There were also limited progress reports or log notes submitted by Dr. Kuldip Rakkar, Physician, who examined the applicant, or any referral from him indicating the applicant has more than minor pain. There was insufficient evidence that Bohdan Osoba, Chiropractor of Mediwise Healthcare Centre, had conducted any physical examination of the applicant for his completion of the OCF-18s.
15For these reasons, I give the OCF-18s and the recommendations within very little weight. For example, the OCF-18 dated March 3, 2021 indicated that the applicant suffers from psychological and physical difficulties, shock, insomnia, and fear avoidance, however it is recommended for her treatment to be physiotherapy, exercise program and a yoga and meditation relaxation exercises.
16Even if I were to accept that the applicant’s view that her pain in thoracic spine, injury of muscle and tendon at thorax level, other headache syndromes, sprain and strain of cervical spine are accident related, I am not persuaded that the applicant has met her burden to prove that she is experiencing chronic pain because of the accident.
17Further, I am not persuaded that the applicant demonstrated that her injuries had a detrimental impact on her functionality. While the OCF-3 prepared by Dr. Bohadan Osoba, for Mediwise Heathcare Centre indicates that the applicant has no inability to carry out a normal life, I am not persuaded by this answer as to a finding of chronic pain. Also, on the OCF-3 indicates that the applicant is having difficulty with work and household chores but is not sufficiently detailed to explain the extent of the difficulties. The applicant has not directed me to any evidence that she complained of any functional limitations to any family doctor, nor has the applicant identified how the pain affects her function. Absent from any supporting medical or other evidence, or detailed explanation of functional impairment, the self-reports of the applicant of her injuries are not sufficient evidence to warrant a finding of chronic pain with functional impairment.
18For these reasons, I find on a balance of probabilities that the applicant has not established that she has chronic pain that warrants removal from the MIG.
b) Psychological impairment
19I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment that would remove her from the MIG.
20The applicant submits that she has sustained a psychological injury as a result of the accident. The applicant relies on the treatment plans of Dr. Harinder Mrahar, Psychologisit, dated March 3, 2021, March 9, 2021, and on April 12, 2021, which identify adjustment, mood, and sleep disorders and recommend a psychological assessment and psychotherapy.
21The applicant also relies on the disability certificate (OCF-3) dated July 29, 2020, prepared by Dr. Bohadan Osoba, Chiropractor, for Mediwise Heathcare Centre which identifies that the applicant complained of various psychological conditions including anxiety disorders and sleep disturbances.
22The respondent submits that the applicant has not met her evidentiary burden to prove that the applicant suffers from a psychological impairment. The respondent relies on the IE of Dr. Karen Spivak, Ph.D., C., psychologist, June 22, 2021.
23I assign more weight to the IE because Dr. Spivak reviewed the applicant’s medical records, and conducted a 2 ½ hour examination, which included an interview and psychometric testing. Dr. Spivak opined that the applicant had “no indication of psychological impairment or need for treatment.”
24Additionally, the applicant has not directed me to any evidence to establish that she has complained of symptoms of a psychological impairment to any physician or treatment provider since the accident, and the IE reveals that the applicant told Dr. Spivak that she did not see a need for mental health intervention for himself.
25For these reasons, I find that the applicant has not meet her onus to prove on a balance of probabilities that she sustained a psychological injury that would remove her from the MIG.
Is the applicant entitled to a NEB?
26The test for entitlement for NEB is set out within section 12(1) of the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) of the Schedule states that a person suffers a complete inability to carry on a normal life because of an accident if the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
27The applicant is seeking a NEB of $185.00 per week from March 26, 2020, and ongoing.
28I find in the applicants’ submissions that the applicant has not made submissions or tendered evidence capable of establishing her entitlement to a NEB, namely how she has a complete inability to carry on a normal life as a result of the accident. I therefore state that the applicant has not met her burden of proof that she is entitled to NEB.
29As I have found that the applicant is subject to the MIG, it is not necessary for me to consider if the disputed treatment plans are reasonable and necessary.
Interest
30As there are no benefits owning to the applicant, there is no interest.
ORDER
31I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to NEB.
iii. The applicant is not entitled to any of the disputed treatment plans nor interest.
iv. The applicant is not entitled to an award.
v. The application is dismissed.
Released: April 30, 2025
Roderick D. Walker
Adjudicator