Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-009901/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:
Brandy King
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Nicky Gagnon, Counsel
Submissions for the Respondent: Modasir Rajabali, Counsel
HEARD: By way of written submissions
OVERVIEW
1Brandy King, the applicant, was involved in an automobile accident on June 9, 2022, 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, Intact 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 described 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 $2,400.60 for physiotherapy services, proposed by Aubrey Arnocky in a treatment plan, dated September 30, 2022?
iii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $49.18 per week from May 26, 2023 to ongoing?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3I find that there are inconsistencies and a lack of clarity in the applicant’s submissions with respect to the issue of IRBs. The CCRO lists the issue as “Is the applicant entitled to an income replacement benefit in the amount of $45.60 per week from March 31, 2023 to ongoing?” In considering the issue in dispute, I have relied on the applicant’s request at paragraph 31 of her submissions, where she requests an order from the Tribunal for the respondent to re-instate her IRBs in the amount of $49.18 per week from May 26, 2023 and ongoing. I find that this is also in line with the respondent’s submissions. This is reflected in the issue stated above.
RESULT
4The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
5The applicant is not entitled to the treatment plan dated September 30, 2022.
6The applicant is not entitled to an IRB in the amount of $49.18 per week from May 26, 2023 to ongoing.
7The applicant is not entitled to interest.
PROCEDURAL ISSUE
Denial of request to exclude evidence
8I decline the respondent’s request to exclude the clinical notes and records (“CNRs”) of Dr. Hasspieler, family physician, dated March 21, 2023 and February 12, 2024.
9The respondent submits that the applicant failed to comply with the production order set out in the Case Conference Report and Order (“CCRO”), dated March 25, 2024. The respondent submits that it did not receive the updated CNRs from Dr. Hasspieler dated March 21, 2023 and February 12, 2024 until the applicant’s submissions were received on October 10, 2024. The respondent submits that the late service of records prejudiced its case as it had no time to respond to these records or send them to its assessors for review. The respondent submits that these records ought to be rendered inadmissible by the Tribunal or alternatively given less weight.
10In the applicant’s reply submissions, she submits that the updated records of Dr. Hasspieler were provided to the respondent on April 22, 2024, which was within 45 calendar days following the case conference.
11I find that the email correspondence from the applicant’s counsel to the respondent, dated April 22, 2024, confirms that Dr. Hasspieler’s updated records from January 1, 2023 up to the date of the case conference, were provided to the respondent within the deadline for production set out in the CCRO. Therefore, the respondent’s request to exclude the records is denied.
Denial of request to exclude submissions
12I dismiss the applicant’s request to ignore the respondent’s submissions past page ten of its submissions.
13The applicant submits that the respondent violated the page limit set out in the CCRO which limited the respondent’s submissions to ten pages. The respondent’s submissions are 11 pages in length. The applicant submits that any content past the tenth page is not permitted and should be disregarded by the Tribunal.
14The CCRO sets out that the hearing adjudicator may choose not to consider submissions which exceed the page limits and this is subject to my discretion. Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the ten-page limit set out in the CCRO. Subject to my discretion, I choose to consider all of the respondent’s submissions, for the following reasons.
15I find that the applicant has not claimed any prejudice resulting from the extra one page of submissions. I further find that the last page of the respondent’s submissions is a summary of arguments already stated and does not introduce any new information or arguments. Finally, I find that the respondent made submissions at paragraphs 19 through 24, regarding whether the applicant should be removed from the MIG based on chronic pain. This issue was not raised by the applicant and accordingly, I did not consider those arguments in my decision, thereby eliminating one and a half pages of the respondent’s submissions.
16Therefore, based on the reasoning stated above, I deny the applicant’s request to exclude the eleventh page of the respondent’s submissions.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
17I 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.
18Section 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.”
19An 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. In all cases, the burden of proof lies with the applicant.
20In this matter, the applicant submits that she should be removed from the MIG because she suffered a concussion as a result of the accident. She further submits that she should be removed from the MIG on the basis of her psychological condition.
a. The applicant did not suffer a concussion that would remove her from the MIG
21I find that the applicant has not proven on a balance of probabilities that she suffered a concussion as a result of the accident and therefore she is not removed from the MIG on this basis.
22If established, concussions, fall outside of the MIG because the MIG relates to “minor injuries”, as defined in s. 3(1) of the Schedule. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, she suffered a concussion.
23The applicant submits that she was diagnosed with a concussion following the accident and relies upon the Emergency Department Report from North Bay Regional Health Center, dated June 9, 2022; the Disability Certificate (“OCF-3”) completed by Aubrey Arnocky, of Martel & Mitchell Physiotherapy, dated August 11, 2022; and the Physician Assessment Report, prepared by Dr. Seung-Jun Lee, dated April 17, 2023.
24The respondent submits that the applicant did not suffer a concussion as a result of the accident. The applicant attended the local hospital, North Bay Regional Health Centre, on June 9, 2022 and the Emergency Room doctor wrote:
I written a prescription for massage therapy. She is probably can have whiplash injury. We also talked about concussion as this kind of injury can also cause concussive symptoms. I reviewed some of the symptoms with her.
25The respondent submits that the Emergency Room doctor did not provide a formal diagnosis of a concussion. It submits that this note indicates a discussion of concussion and concussive symptoms, but no diagnosis was given. The respondent further submits that no subsequent practitioner or expert has diagnosed the applicant with a concussion or post-concussive syndrome. In addition, no x-rays or diagnostic imaging was produced to investigate any possible concussion.
26The respondent further submits that the OCF-3 prepared by Ms. Arnocky does not indicate her professional designation. The respondent argues that it is outside the scope of practice for a physiotherapist to diagnose the applicant with a concussion. It also submits that an OCF-3 is not sufficient evidence of the existence of a concussion diagnosis. The respondent relies upon the report of Dr. Lee, dated April 17, 2023, which diagnosed the applicant with WAD I, bilateral shoulder sprain/strain and lumbar myofascial sprain/strain as a result of the accident. Dr. Lee did not diagnose the applicant with a concussion.
27I find that the applicant has not directed me to sufficient medical evidence to establish that she suffered a concussion as a result of the accident. I have reviewed the CNRs of the applicant’s family physician along with all other medical documents submitted. I find that the only document that refers to a concussion diagnosis is the OCF-3 completed by Ms. Arnocky. However, I find that the injuries listed in the OCF-3 are not supported by any corroborating medical evidence, and therefore I have placed limited weight on the OCF-3.
28I do note that there is a letter dated September 13, 2022, prepared by Tristan Tremblay, occupational therapist, which provides a summary of the applicant’s concussion-related deficits and how this relates to her ability to manage work-related tasks. However, the applicant has not directed me to any other medical evidence to support that there was a detailed assessment, corroborating referrals, imaging notes, or treatment records to support a diagnosis of concussion. A letter from an occupational therapist is not sufficient to support a diagnosis of a concussion because an OT cannot diagnose a concussion. I place greater weight on the CNRs of the family physician, who is qualified to make a diagnosis, which make no reference to a concussion. As such, I find that the applicant was never formally diagnosed with a concussion.
29I agree with the respondent that the report from the Emergency Room doctor does not provide a formal diagnosis of a concussion and merely states that concussion symptoms were discussed as a possibility.
30Finally, I find that the report of Dr. Lee, dated April 17, 2023 diagnoses the applicant with musculoskeletal injuries including WAD I, bilateral shoulder sprain/strain and lumbar myofascial sprain/strain. There is no discussion or mention of a concussion.
31For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffered a concussion as a result of the accident and therefore she is not removed from the MIG on this basis.
b. The applicant does not have a psychological condition that would remove her from the MIG
32I 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.
33The applicant submits that she should be removed from the MIG based on her psychological impairments. She submits that the CNRs contain multiple indications of the applicant’s ongoing anxiety as set out in the records from Martel and Mitchell Physiotherapy, dated October 25, 2022, November 29, 2022, January 10, 2023; the updated record of Dr. Hasspieler, family physician, dated March 21, 2023; and the General Surgery Consultation Report, prepared by Dr. Rui Gong, from North Bay Regional Health Centre, dated January 23, 2023. No other submissions were made by the applicant in respect to her removal from the MIG based on her psychological condition.
34The respondent submits that the CNRs from the occupational therapist at Martel and Mitchell Physiotherapy, fall outside the therapist’s scope and expertise to make a psychological diagnosis. It argues that the symptoms reported by the applicant are self-reported symptoms that do not amount to a psychological diagnosis. Regarding the CNR of Dr. Hasspieler, dated March 21, 2023, the respondent submits that he has not conclusively diagnosed the applicant with a psychological impairment as a result of the accident.
35I find that in order to be removed from the MIG based on a psychological condition, the applicant must clearly demonstrate that she suffered more than just psychological sequelae as a result of the accident. I find that the applicant has not met her onus of proving that she suffers a psychological condition as a result of the accident that would remove her from the MIG.
36Upon reviewing the CNRs from Martel and Mitchell Physiotherapy, I note that the entries cited by the applicant are prepared by Tristan Tremblay, occupational therapist. While Ms. Tremblay noted that the applicant’s mood is “very low and anxious”, no further particulars are provided. Similarly, the report from Dr. Gong reference a “history of anxiety and depression”, yet provides no further particulars regarding the applicant’s psychological condition or whether this history is linked to the subject accident. I further note that Dr. Gong is a general surgeon and therefore providing a psychological diagnosis is outside his scope of practice and expertise.
37With respect to the CNR of Dr. Hasspieler, dated March 21, 2023, I find that it refers to the applicant being seen for a depression medication review. Dr. Hasspieler notes that the applicant has depression, anxiety, generalized insomnia, and migraines. There are no other particulars about the applicant’s psychological condition or whether this diagnosis is a result of the subject accident. Similarly, the applicant has not directed me to any earlier CNRs from Dr. Hasspieler that discuss the applicant’s psychological complaints or refer the applicant for psychological treatment. I therefore find, that this CNR from Dr. Hasspieler alone is not sufficient to support that the applicant has an accident-related psychological condition.
38For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident and therefore she is not removed form the MIG on this basis.
The applicant is not entitled to the treatment plan for physiotherapy dated September 20, 2022
39As the applicant remains within the MIG, the applicant is not entitled to the treatment plan recommending physiotherapy, dated September 20, 2022.
40The applicant submits that the MIG limit is not exhausted and that $877.25 remains. The respondent’s submissions do not provide information on how much of the $3,500.00 MIG limit has been exhausted. However, the issue of whether or not the MIG limits are exhausted is not before me. The treatment plan under consideration proposes amounts outside of the remaining funds available in the MIG, such that the parties can determine how to allocate the remaining funds.
The applicant is not entitled to an Income Replacement Benefit
41I find that the applicant is not entitled to an IRB at the rate of $49.18 per week from May 26, 2023 to date and ongoing.
42Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
a. Background
43Prior to the accident, the applicant was employed full-time as a prep technician with Voyageur Aviation Corp. Following the accident, the applicant submits that she was unable to return to her pre-accident employment from June 10, 2022 to June 26, 2022. On June 27, 2022, the applicant claims that she was cleared to return to work on a part-time basis.
44The applicant received IRBs following the accident, although the specific amounts are not indicated in the parties’ submissions. By correspondence dated April 25, 2023, the respondent terminated the applicant’s IRBs as of May 26, 2023, on the basis that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.
b. Parties Positions
45I find that there are several inconsistencies and a lack of clarity in the applicant’s submissions with respect to the issue of IRBs. In the CCRO, the applicant is claiming entitlement to an IRB at the rate of $45.60 per week from March 31, 2023 and ongoing. At paragraph 2 of her submissions, she claims that her IRBs were terminated on May 26, 2024, and she claimed entitlement to an IRB at the rate of $400.00 per week from May 26, 2024 and ongoing. At paragraph 5 of her submissions, she states that the respondent terminated her IRB as of May 26, 2023. At paragraph 31 of her submissions, she requests an order from the Tribunal for the respondent to re-instate her IRBs in the amount of $49.18 per week from May 26, 2023 and ongoing.
46The applicant submits that in 2021, she earned $30,304.98 in employment income, which represents a weekly income of $582.70 and an IRB of $400.00 weekly. Due to her post-accident limitations, she remains unable to work full-time and only earns 85% of her pre-accident income which is $512.54 weekly. The applicant requests that the respondent pay 70% of the difference in wages, which she states is $49.18 per week.
47The applicant relies upon records from Martel and Mitchell Physiotherapy, specifically a letter dated September 13, 2022, and the CNRs dated September 20, 2022 and October 25, 2022, to support that she suffers a substantial inability to perform the essential tasks of her pre-accident employment.
48The respondent submits that the applicant has misunderstood the quantum of an IRB calculation. Firstly, in the CCRO, the applicant disputes IRBs in the amount of $45.60 weekly from March 31, 2023 and ongoing, when the respondent terminated benefits effective May 26, 2023. Secondly, as of June 6, 2024, the post-104-week period applies which would change the test for IRBs from a substantial inability to a complete inability. Thirdly, the respondent submits that the quantum of IRBs is not just based on pre-accident employment income but is also based on post-accident employment income. The respondent submits that it is clear that the applicant continued to receive post-accident income and therefore the total IRB amount owing to the applicant was $0. The respondent submits that the issue before the Tribunal is entitlement to IRBs from May 26, 2023 and ongoing, not the quantum of the IRBs payable.
49The respondent submits that the applicant has not adduced any evidence that she is substantially unable to perform her pre-accident employment duties. The respondent relies upon the s. 44 Insurer Examination (“IE”) report, prepared by Dr. Lee, general practitioner, dated April 17, 2023, which concluded that the applicant did not suffer any ongoing accident-related musculoskeletal impairments that would cause her a substantial inability to perform the essential tasks of her pre-accident employment. The respondent further relies upon the IE Functional Abilities Evaluation and Job Site Analysis Report, prepared by Mr. Michael Drinkwater, physiotherapist, which concluded that the applicant was functionally able to perform her employment duties.
c. The applicant is not entitled to an IRB
50I find that the letter from Martel and Mitchell Physiotherapy, dated September 13, 2022, does not support that the applicant suffers a substantial inability to perform the essential tasks of her employment, as of the termination date of her IRBs on May 26, 2023. The letter was prepared almost nine months before the termination of the applicant’s IRB. It states that by reducing her hours, she would be able to manage her symptoms before gradually increasing her hours. There is no follow up letter or report provided that sets out the applicant’s progress or whether she was able to subsequently increase her hours. Similarly, the CNRs referenced by the applicant dated September 20, 2022 and October 25, 2022, state that she is working part-time but no updates were submitted to show her employment or functional status in the months leading up to the IRB termination. I find that the applicant has provided insufficient medical evidence to support that she continued to suffer a substantial inability as of the termination of her IRBs on May 26, 2023.
51I find that the IE report of Dr. Lee and the Functional Abilities Evaluation Report and Job Site Analysis Reports of Mr. Drinkwater, dated April 17, 2023, do not support the applicant’s entitlement to an IRB. I give weight to the fact that these reports were prepared contemporaneously with the termination of her benefits. I find that both of these assessors conducted an in-person assessment and an objective physical examination of the applicant’s injuries and job site. I find that Dr. Lee’s opinion that the applicant does not suffer a substantial inability to perform the essential tasks of her employment is supported by the lack of medical evidence and his objective physical examination which concluded that she did not have any ongoing accident-related musculoskeletal impairments.
52As I have found the applicant has not met the test for a pre-104 IRB, it follows that she is not entitled to a post-104 IRB as of June 6, 2024.
53For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to an IRB from May 26, 2023 and ongoing.
Interest
54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
55For the reasons set out above, I find,
i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan dated September 30, 2022;
iii. The applicant is not entitled to an IRB in the amount of $49.18 per week from May 26, 2023 to ongoing;
iv. The applicant is not entitled to interest; and
v. The application is dismissed.
Released: June 26, 2025
Melanie Malach
Adjudicator