Licence Appeal Tribunal Decision
Licence Appeal Tribunal File Number: 23-006927/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:
Sarena Chhorn
Applicant
and
Wawanesa Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nikisha Evans
APPEARANCES:
For the Applicant:
Maria Bihnam, Paralegal
For the Respondent:
Sonya Reid, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Sarena Chhorn, the applicant, was involved in an automobile accident on February 21, 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, Wawanesa 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 $2,026.55 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted June 24, 2021?
iii. Is the applicant entitled to $1,417.70 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted August 25, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. I find that the applicant related impairments warrants removal from the MIG.
ii. The applicant is entitled to $2,026.55 for chiropractic treatment, proposed in the treatment plan submitted June 24, 2021;
iii. The applicant is entitled to $1,417.70 for chiropractic treatment, proposed in the treatment plan submitted August 25, 2021; and
iv. The applicant is entitled to applicable interest.
ANALYSIS
The applicant is removed from the MIG
4I find that the applicant has met her onus to prove that 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) 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.”
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) 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.
7The applicant submits that the following factors remove her from the MIG:
i. her chronic pain as a result of the accident; and
ii. her psychological impairments.
8To this end, she relies on the OCF-3 Disability Certificate, clinical notes and records and treatment records of Dr. Tong, her family physician, Mackenzie Medical clinical notes and records, the OCF-18 by Dr. Cindy Jakeer, chiropractor and the OCF-18 by Mary Konstantareas, psychotherapist.
9The respondent submits that the applicant has not met her burden to prove that she suffers from more than minor injuries, that she has developed a chronic pain condition or that she has sustained psychological impairment from the accident.
a. Removal from the MIG based on chronic pain
10I find that the applicant has demonstrated that she suffers from a chronic pain condition that warrants removal from the MIG.
11Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being.
12The applicant submits that prior to the accident, she did not suffer from any physical or psychological impairments. Further, the applicant stated that she was not involved in any previous motor vehicle accidents. She reported that she was in good health. It was only after the accident she began to experience chronic pain in her foot, ankle, shin and back.
13Further, the applicant submitted that she informed her doctor about experiencing pain with prolonged standing, sitting and she experienced pain at night preventing her from sleeping. She submitted that she took melatonin 3mg to assist with sleep, along with the cyclobenzaprine and ibuprofen to manage the pain.
14The applicant submits that she has chronic pain with functional limitations. She relies upon the clinical notes and records (“CNRs”) of her family physician Dr. Tong, which document her ongoing complaints post-accident. She also relies upon Dr. Bardissi’s report dated November 5, 2021, advising the that the thoracic and lumber back pain is chronic.
15The respondent submits that the applicant has not discharged her burden to prove that her injuries fall outside the MIG. The respondent relies on Walsh v Aviva, 2022 CanLII 75164 (ON LAT) to support that the applicant did not provide medical evidence to determine that her functionality is impaired and that the chronic pain is the cause of her impairments.
16I find that the applicant has provided sufficient evidence to support her claim that she suffers from a chronic pain condition with functional impairment as a result of the accident.
17I disagree with the respondent, and I am persuaded by the applicant’s submissions and evidence. In reaching my conclusions, I have placed significant weight on the CNRs of the family physician. The applicant continued to see her family doctor, regularly following the accident with ongoing physical complaints of pain in her foot, ankle, shin, leg and back. She further complained regarding her functional limitations due to the pain, limited range of motion, inability to stand for long periods, and pain in her back preventing her from sleeping. The applicant was placed on modified work by her employer as a result of her functional limitation. I find these CNRs support the conclusions made by Dr. Tong and Dr. Bardissi along with the chiropractors’ reports.
18Accordingly, I am satisfied on a balance of probabilities that the applicant has satisfied the criteria for removal from the MIG. As I have found the applicant’s chronic pain condition warrants removal from the MIG, I have not addressed the applicant’s claims that her psychological injuries also justify her removal from the MIG.
The applicant is entitled to the treatment plans for a chiropractic treatment
19I find that the applicant is entitled to the treatment plans for chiropractic treatment.
20To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.
21The applicant claims entitlement to $2,026.55 for chiropractic treatment, proposed by Mackenzie Medical Rehabilitation, in a treatment plan submitted June 24, 2021. Also, the applicant claims entitlement to $1,417.70 for chiropractic treatment proposed by Mackenzie Medical Rehabilitation in a treatment plan submitted August 25, 2021.
22The respondent submits that the applicant has not led any evidence, either by way of a medical report or opinion, to establish that the treatment plans in dispute are reasonable and necessary. The respondent did not direct me to evidence to dispute the unreasonable and unnecessariness if the treatment plans. Along that same line, the applicant submitted the respondent did not send the applicant to an insurer examination to determine whether the OCF-18s were reasonable or necessary.
23I find that the applicant has provided sufficient medical evidence to show that the treatment plans for chiropractic treatment are reasonable and necessary. I find that the CNRs of the family doctor supports the need for chiropractic treatments as the applicant repeatedly informed her doctor of the ongoing pain she was experiencing. The applicant submitted CNRs from chiropractors Patricia Porco and Cindy Jakeer documenting reduction in pain with the chiropractic treatments. Clinical notes and records from the family doctor advised that the applicant continue with chiropractic treatment to reduce the pain. She further reported to the chiropractors that the chiropractic treatments she received after the accident reduced the pain. The applicant submitted that she continued with treatment out of pocket to help alleviate the pain, I further agree with the applicant that the CNRs of a treating practitioner who regularly assesses the applicant should be given significant weight.
24For the reasons set out above, I find the applicant has proven on a balance of probabilities that she is entitled to the treatment plans for chiropractic treatments dated June 24, 2021 and August 25, 2021.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable on the treatment plans in dispute.
ORDER
26For these reasons outlined above, I find:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to $2,026.55 for chiropractic treatment, proposed in treatment plan submitted June 24, 2021;
iii. The applicant is entitled to $1,417.70 for chiropractic treatment, proposed in treatment plan submitted August 25, 2021; and
iv. The applicant is entitled to applicable interest.
Released: April 25, 2025
Nikisha Evans
Adjudicator