Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-012756/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:
Anasuya Bhima
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Kenneth Nixon
APPEARANCES:
For the Applicant: Michelle C. McLeod, Counsel
For the Respondent: Veronica Gorrell, Counsel
HEARD: In Writing
OVERVIEW
1Anasuya Bhima, the applicant, was involved in an automobile accident on July 15, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2The respondent, Economical Insurance Company, denied the treatment in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline ("MIG").
ISSUES
3The issues in dispute are:
i. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to $1,954.30 for Physiotherapy treatment, proposed by Kitchener Physiotherapy & Wellness in a OCF-18 treatment plan submitted on June 20, 2023, and denied on July 5, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not proven on a balance of probabilities that her accident-related impairment(s) warrant removal from the MIG.
5As the applicant is in the MIG, it is not necessary for me to consider if the treatment plan in dispute is reasonable and necessary.
6I find that the applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the injured person 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."
8An injured person 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 from any accident-related minor injury 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.
The applicant has not established injuries that warrant removal from the MIG
9I find that the applicant has failed to provide sufficient medical evidence to establish that she suffers from accident-related psychological impairments as a result of the accident.
10The applicant argues she should be removed from the MIG on the basis of a psychological impairment.
11The applicant submits she has suffered stress and anxiety as a result of the accident, especially when travelling in a vehicle. She also submits that following the accident, she started experiencing headaches.
12The applicant relies on the reports of Physiotherapist Krunali Patel of Kitchener Physiotherapy & Wellness and Dr. Bichay (family doctor). Physiotherapist Krunali Patel listed the applicant's injuries as dizziness & giddiness, post concession syndrome, radiculopathy in her lumbar region, sprain and strain of left knee and WAD 2 and recommended a physiotherapy treatment program. She also relies on information contained in the OCF-3 which lists "post concussion syndrome" as one of the applicant's injuries from the subject accident.
13As a physiotherapist, making a psychological diagnosis is not within Ms. Patel's scope of practice. I also did not find that the reports of Ms. Patel indicate that a psychological impairment existed as a result of the accident which would warrant being removed the MIG. I therefore find Ms. Patel's evidence to be of little persuasive value.
14As for Dr. Bichay, despite multiple post-accident consultations regarding various health concerns, which include headaches and anxiety, I do not see specific reports relating to post concussion syndrome. Further there is no reference in the St. Mary Hospital records that the applicant was ever diagnosed with a concussion as a result of the subject accident.
15The respondent submits that the family doctors' clinical notes and records indicate that the first complaint of headaches was 11 months post-accident, and I was not made aware of any argument as to why the passage of time would explain the connection of headaches to the accident.
16Section .44 assessor Dr. Mark D'Souza's report dated September 6, 2023, indicates that the applicant suffers from lower back pain and concluded that the applicant sustained a contusion to her right knee and at most a WAD 1 cervicothoracic sprain/strain injury and opined that her injuries meet the SABS definition of a Minor Injury under MIG. Dr. D'Souza also states the that the applicant had recovered but had a new onset of pain in April 2023. Dr. D'Souza concluded that the applicant has no need for any medical or therapeutic management in relation to the accident and accordingly concludes that the plan is not reasonable and necessary from the musculoskeletal perspective. Dr. D'Souza's report makes no mention of psychological impairments or complaints other than some anxiety around driving which is normal following an accident. The submissions of the applicant are noted regarding the absence of psychological questions; however, while applicants are not in charge of shaping the medical assessment or determining its scope, they do carry a certain responsibility to advocate their concerns.
17The records of St. Mary's hospital of July 16, 2022, indicate the issues as strain of neck muscle and strain of knee with no mention of complaints of diagnosis of psychological issues.
18I found the original report of St. Mary's Hospital diagnosing the issues as "strain of neck muscle and strain of knee" which are clearly outlined in Section 3(1) which 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." This diagnosis was clearly agreed to by Dr. D' Souza who stated that 'the injuries were minor and that therapeutic management in relation to the accident is not reasonable or necessary".
19I find that the applicant has not met the onus to prove that as a result of psychological accident-related issues that the applicant should be removed from the MIG.
20As I have found the applicant to be within the MIG, it is not necessary for me to consider the reasonableness and necessity of the treatment plan in dispute.
Interest
21As there are no benefits payable, interest is not applicable.
ORDER
22I find that:
i. The applicant remains subject to the MIG.
ii. As the applicant is in the MIG, it is not necessary for me to consider if the treatment plan in dispute is reasonable and necessary.
iii. Interest is not applicable.
Released: July 16, 2025
Kenneth Nixon
Adjudicator