Licence Appeal Tribunal File Number: 23-010982/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:
Carmen Jarvis
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Aleah Thomas, Counsel
HEARD: By way of written submissions
OVERVIEW
1Carmen Jarvis, the applicant, was involved in an automobile accident on April 30, 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, Pembridge 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 (“MIG”) limit?
ii. Is the applicant entitled to $3,963.64 for psychological services, proposed by E Clinic Healing in a treatment plan, dated February 10, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are “minor injuries” as defined in the Schedule. The applicant is not entitled to the disputed treatment plan for psychological services or interest. I dismiss the application.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
4I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
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.
7In this matter, the applicant submits that she is removed from the MIG because of her physical and psychological impairments.
a) Physical Injuries
8I find that the applicant has not demonstrated that she suffers from physical injuries that would warrant removal from the MIG.
9The applicant submits that she should be removed from the MIG based on her physical injuries, specifically pain in her neck, shoulders, lower back and arms and chronic pain. She submits that on the day after the accident, on May 1, 2021, she sought medical attention from her family physician, Dr. Manu Dhillon, who performed a physical examination and referred her for x-rays, which revealed moderate inflammation in her back. She then commenced physiotherapy sessions which provided some relief during the treatment sessions, but her pain would quickly return when she engaged in daily activities or work. To support her position, the applicant relies upon the clinical notes and records (“CNRs”) of Dr. Dhillon and the Disability Certificate, prepared by Dr. Bohdan Osoba, chiropractor, dated May 21, 2021.
10The respondent submits that the applicant has failed to adduce objective medical evidence to support that her injuries should be removed from the MIG based on chronic pain with functional impairment caused by the accident. The respondent submits that the applicant’s family doctor assessed her with minor, soft-tissue accident-related injuries which was confirmed by the diagnostic imaging. The respondent argues that the applicant has failed to provide any compelling, contemporaneous medical evidence to support a finding that she meets any of the six criteria under the American Medical Association Guides (“AMA Guides”), to substantiate her chronic pain claim.
11I 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 CNRs setting out the treatment 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, and insufficient evidence that she suffers a functional impairment. My reasoning is based upon the following findings.
12Firstly, the applicant has provided limited records from Dr. Dhillon, family physician. Upon review of the CNRs of Dr. Dhillon, the CNR dated May 1, 2021, notes complaints of pain in her neck and back for which he recommended an x-ray and physiotherapy. There is no discussion about any accompanying functional limitations. The x-ray of her cervical spine and thoracic spine were normal. I find that there are no further records documenting her ongoing complaints until almost three years later on January 8, 2024, when she reports ongoing back pain, chest and rib pain. The x-ray report of her chest and ribs, dated January 8, 2024, was negative.
13Secondly, the Disability Certificate, prepared by Dr. Osoba, dated May 21, 2021, lists the applicant’s injuries as pain in her thoracic spine, cervical spine and lumbar spine, elbow and headaches. The injuries listed, however, are all injuries that fall within the Schedule’s definition of minor. There is no mention of chronic pain. While Dr. Osoba indicates that the applicant suffers a substantial inability to perform the essential tasks of her pre-accident employment, caregiving and housekeeping, no particulars are provided about the applicant’s functional limitations with respect to her pre-accident employment or activities of daily living. Dr. Osoba notes that she has returned to work and disability is indicated for 9-12 weeks.
14Thirdly, despite the applicant stating that she attended for physiotherapy treatment following the accident, she has not provided any CNRs from Mediwise Healthcare Centre, setting out the treatment that she received there or documenting her ongoing complaints.
15Finally, I agree with the respondent that the applicant does not meet 3 out of 6 criteria for chronic pain, as outlined in the AMA Guides. The applicant has not provided any prescription summaries, nor indication that she is dependent on prescription drugs or other substances. The applicant is not excessively dependent on health care providers or family and exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. The applicant continues to work at her pre-accident employment in full functional capacity.
16For the reasons set out above, I find that the applicant has not proved on a balance of probabilities that she suffers from physical injuries that would warrant removal from the MIG.
b) Psychological Condition
17I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition that would warrant removal from the MIG.
18The applicant submits that she suffers a psychological impairment as a result of the accident. She relies upon the psychological assessment report of Dr. Harinder Mrahar, psychologist, dated November 9, 2021, where she was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. Psychological treatment was recommended. She further relies upon the Application for Accident Benefits, dated May 4, 2021, and the Disability Certificate, prepared Dr. Bohdan Osoba, chiropractor, dated May 21, 2021.
19The respondent submits that the applicant has failed to adduce any compelling, independent medical evidence which proves on a balance of probabilities that the applicant suffered a psychological impairment as a result of the accident. The respondent submits that the CNRS of Dr. Dhillon, family physician, make no reference to any psychological issues. The respondent further submits that the Disability Certificate, dated May 4, 2021, was completed by a chiropractor, who is not qualified to render psychological diagnoses, or recommend psychological services. The respondent relies upon the Tribunal decisions in Carriero v. Wawanesa Insurance, 2022 CanLII 8662 (ON LAT) (“Carriero”), and Bowen v. Aviva Insurance Company, 2021 CanLII 48177 (ON LAT) (“Bowen”), where the adjudicators found that the applicants had failed to meet their burdens of proving that they suffered a psychological impairment, due to lack of documented issues.
20I find that the applicant has provided insufficient evidence to support that she suffers from a psychological condition that would remove her from the MIG. Apart from Dr. Mrahar’s report, the applicant has not provided corroborating evidence or CNRs that mention or reference her psychological complaints after the accident. I also find that Dr. Mrahar has relied significantly on the applicant’s self-report and there is a lack of supporting medical documentation.
21I further find that upon review of the CNRs of Dr. Dhillon, family doctor, there is no mention of psychological complaints. I find that while the Disability Certificate lists “nervousness”, and “state of emotional shock and distress”, these are not psychological conditions that would warrant removal from the MIG. I further agree that Dr. Osoba is a chiropractor and not qualified to assess psychological impairments. In addition, while the applicant relies upon the Application for Accident Benefits to support her psychological impairments, I find that this is not a medical document completed by a medical practitioner, and was a form completed on the applicant’s behalf by her legal counsel.
22Finally, while the applicant argues that the respondent did not provide any independent medical assessments to support its position, I find that the onus is on the applicant to prove that her injuries fall outside of the MIG. I find that the respondent is not required by the Schedule to send the applicant for an assessment where it concludes that the medical documentation supports that the applicant’s injuries are in the MIG.
23For the reasons set out above, I find that the applicant has not proved on a balance of probabilities that she suffers from a psychological condition that would warrant removal from the MIG.
The applicant is not entitled to the disputed treatment plan
24As the applicant continues to be within the MIG, the applicant is not entitled to the treatment plan in dispute recommending psychological services.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant continues to be within the MIG and there is no overdue payment of benefits, there is no interest payable.
ORDER
26For the reasons stated 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 psychological services;
iii. The applicant is not entitled to interest; and
iv. The application is dismissed.
Released: May 2, 2025
Melanie Malach
Adjudicator