Licence Appeal Tribunal File Number: 23-010314/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:
Donnet Forrester
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Sunjay Mistry, Paralegal
HEARD: By Way of Written Submissions
OVERVIEW
1Donnet Forrester, the applicant, was involved in an automobile accident on October 4, 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 Economical Mutual Insurance Company, respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue(s) 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 $518.65 for chiropractic services, proposed by Sridhar Krishnaswami of Parkside Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted May 19, 2022, and denied June 13, 2022?
iii. Is the applicant entitled to $1,319.03 for physiotherapy treatment, proposed by Parkside Physiotherapy and Rehabilitation Centre in a plan submitted December 18, 2023, and denied January 4, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominately minor and therefore subject to the treatment within the monetary limits of the MIG.
4The applicant is not entitled to the treatment plans in dispute, or interest.
ANALYSIS
The Minor Injury Guideline (“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 injury or 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 argues that she should be removed from the MIG because of her accident-related chronic pain, and also because she has pre-existing conditions which would preclude her maximal recovery if she were confined to the MIG.
Does the applicant have a chronic pain that would warrant removal from the MIG?
8I find that the applicant has not demonstrated that she has a chronic pain that would remove her from the MIG.
9The applicant relies on the Clinical Notes and Records (“CNRs”) of her family doctor, Dr. Jaspreet Pereira and the CNRs of Parkside Physiotherapy & Rehabilitation Center (“Parkside Physio”) from October 14, 2021, to May 26, 2022. The applicant also relies on the OCF-18 dated February 1, 2022, prepared by Physiotherapist Sridhar Krishnaswai of Parkside Physio.
10Also, the applicant cited these cases in support of removal of the MIG: Scarlett v. Belair Insurance Company, 2015 ONSC 3635, Pastore v. Aviva Canada Inc., 2012 ONCA 642 and Fortune v. T.D. Insurance, 2024 Canlii 10564 (ON LAT).
11The applicant submits that her injuries from the accident including the persistent pain in the neck, back, and head, and non-radiating mid-sternal chest pain.
12The applicant submits that on the OCF-18, the injuries and sequelae section indicates that the applicant has suffered whiplash, [WAD2], neck pain muscle strain and sprain and strain of lumbar spine and sprain and strain of the shoulder joint rotator cuff. The applicant submits that her symptoms had not significantly improved despite previous treatments, with persistent issues related to the rotator cuff injury and muscle tension in the upper trapezius and cervical regions. The proposed treatment plan recommended a combination of physiotherapy, IFC, joint mobilizations, and strengthening exercises, along with continued home exercises. The physiotherapist emphasized that more intensive and long-term therapy would be necessary to address the applicant's chronic symptoms and restore functionality.
13Further, the applicant relies on the CNRs from Parkside Physiotherapy and Rehabilitation Centre highlighted the ongoing physical challenges the applicant has faced following two motor vehicle accidents, particularly the second accident on October 4, 2021. The applicant submits that persistent chronic pain, minimal improvement despite months of therapy, and functional limitations.
14The applicant also submits that she continued to report severe pain and functional limitations. She experienced weakness, tingling, and pain in both hands, which added neurological symptoms to the ongoing musculoskeletal issues. The applicant submits that these additional symptoms further complicated the rehabilitation process and delayed progress. Despite adhering to the prescribed exercise regimen and therapy sessions.
15The respondent submits that the applicant has not proven that the applicant has a chronic pain impairment and that she should remain in the MIG.
16The respondent states on October 17, 2021, the applicant was involved in a subsequent motor vehicle accident. Although she initially stated there were no injuries, she later discovered bruises on her legs. The applicant also reported feeling mentally drained, poor focus and concentration, paresthesia to right hand, headaches, left SI joint pain, buttock pain, and imbalance when walking.
17On November 9, 2021, she reported going to see a doctor for her shoulder pain at Etobicoke General Hospital. She was consulted by Dr. Manoj Bhargava, an orthopedic surgeon she saw the year prior regarding the shoulder injury sustained in the 2020 accident. She advised that potential surgery and interventional shoulder treatments were discussed. The applicant also reported feeling pain in right hand and numbness in her hands. As a result, she did not wish to return to her place of employment.
18On January 28, 2022, the applicant returned from her trip to Guyana. She reported looking forward to returning to school to become a Personal Support Worker. The applicant also noted that her right shoulder is still bothersome and that she is waiting for a corticosteroid injection to her shoulder.
19On February 23, 2022, the applicant complained of some neck and shoulder pain. She had full range of motion but felt stiffness at times. During a follow up visit to her doctor on March 8, 2022, where the doctor noted lower pelvic pain and was encouraged to lose weight again. On June 2, 2022, she reported feet edema, which worsens at night or when she sits/stands for prolonged periods. The applicant was again encouraged to lose weight. At this time the applicant was also off work for mental stress due to deaths in the family and back pain. She specifically attributed the back pain as a result of the slip and fall which occurred while she was at work.
20I find that in the CNRs of the family doctor, Dr. Pereira that on the October 5, 2021, entry noted that the applicant complained about her neck pain and back pain. Dr. Pereira did an examination of the applicant of the cervical spine, lumbar spine and the CXR, and stated that all was normal. Also Dr. Pereira noted that she sat in the exam room during this time without any discomfort and remained there until the exam was over apparently in a comfortable state. Dr. Pereira did not prescribe any pain medication or a referral to a pain management physician for further examination of the applicant’s injuries.
21Also, I find the CNRs from Dr. Pereira reveals minor injuries. Dr. Pereira didn’t at any time diagnose the applicant with chronic pain in respect to all her accident-related complaints. Also, in the OCF-18 prepared by Mr. Krishnaswai dated February 1, 2022, Mr. Krishnaswai did not mention any chronic pain as he made an assessment of [WAD2], neck pain muscle strain and sprain and strain of lumbar spine and sprain and strain of the shoulder joint rotator cuff where I find these injuries are minor and can be treated within the MIG.
22The respondent cites the case of A.G. Heartland Farm Mutual Inc. 2020 Canlii 42675 [ON LAT] as it states a mere mention of chronic pain in any medical reports of the applicant is not sufficient to remove the applicant from the MIG.
23I agree with the respondent that the applicant doesn’t suffer from chronic pain with a functional impairment because. The medical records themselves raise a temporal disconnect between the injuries sustained in the first accident, the slip and fall, and the October 4, 2021, accident. Firstly, there is no evidence that a shoulder injury was sustained in the October 4, 2021, accident. It is well established that the applicant had ongoing issues with right shoulder pain as a result of the accident in February 2020. There is also evidence that the applicant stated to Dr. Pereira on February 10, 2021, that she had a slip and fall resulted in a marked increase in back pain caused at work, not as a result from the accident. Further, I find that CNR’s of Dr. Pereira revealed minor injuries and didn’t at no time diagnose the applicant with a chronic pain.
24For these reasons, I find on a balance of probabilities that the applicant has not established that she suffers from chronic pain with a functional impairment which would merit her removal from the MIG.
Does the applicant have a pre-existing injury that would prevent her from a full recovery and removal from the MIG?
25The applicant submits that she did suffer preexisting injuries before the accident on October 4, 2021.The medical records themselves raise a temporal disconnect between the injuries sustained in the first accident in 2020, the slip and fall at her workplace and this accident on October 4, 2021. Firstly, I find there is no evidence that a shoulder injury was sustained in the accident of 2021. It is well established that the applicant had ongoing issues with her right shoulder pain as a result of the first accident in February 2020. Secondly, there is also evidence to suggest that the slip and fall resulted in a marked increase in back pain where the applicant herself stated in her visit with Dr. Pereira dated January 27, 2021. The applicant only reported neck and paraspinal muscle pain after the October 4, 2021, accident. This is evidenced in the hospital record of Brampton Civic Hospital and the October 4, 2021, visit with her Dr. Pereira. Also, there is no objective medical opinion that indicates the right shoulder was re-injured or aggravated by the October 4, 2021, accident. The applicant has not met her onus and on the balance of probabilities she had a preexisting injury according to the schedule and is not removed from the MIG.
26As I have found that the applicant is not removed from the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
Interest
27No treatment plans are awarded; therefore, no interest applies.
ORDER
28I find on the totality of the evidence:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the monetary limits of the MIG.
ii. It is not necessary to consider if the treatment plans are reasonable and necessary.
iii. No interest applies as no benefits are owing.
iv. The application is dismissed.
Released: May 22, 2025
Roderick Walker
Adjudicator