Licence Appeal Tribunal File Number: 23-013060/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:
Mirella Rroku
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Naman Nanda, Counsel
For the Respondent: Evan Argentino, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Mirella Rroku, the applicant, was involved in an automobile accident on January 16, 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 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 limit?
ii. Is the applicant entitled to $4,257.50 for psychological services, proposed by Elite Specialist Group Inc. in a treatment plan dated October 3, 2023?
iii. Is the applicant entitled to $2,460.00 for a Psychological Assessment, proposed by Elite Specialist Group Inc. in a treatment plan dated January 8, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
BACKGROUND
3On or about January 16, 2022, the applicant was the seat-belted operator of a vehicle traveling in the left turning lane at or near the intersection of Weston Road and Chancellor Drive, in the City of Vaughan, in the Province of Ontario, when the applicant’s vehicle collided with a third-party vehicle.
4On January 19, 2022, the applicant attended the emergency room at Mackenzie Health due to the subject accident. The applicant reported pain in her neck and chest areas. On February 9, 2022, the applicant again attended the emergency room at Mackenzie Health. It was noted that the applicant was involved in the subject accident and suffered bruising to her chest. The applicant complained of burning, swelling and redness to her right breast. Ultrasound imaging of right breast showed hematoma.
5The respondent characterized the applicant’s injuries as being a predominantly minor injury and subjected her to the MIG and the $3,500.00 funding limit on treatment for a minor injury. The applicant submits that she should not be subject to the MIG due to psychological injuries and developed chronic pain.
6Additionally, although the applicant returned to work following the accident, she submits that her accident-related injuries later prevented her from working and has not returned to her pre- accident activities.
7The respondent disagrees and submits that the applicant has failed to meet her onus to demonstrate that her accident-related injuries are not captured within the minor injury definition. I agree with the respondent.
RESULT
8The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.
9The applicant is not entitled to any of the disputed treatment plans.
10There is no interest granted because no benefits are payable.
ANALYSIS
Minor Injury Guideline (MIG)
11Section 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.”
12An 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.
The applicant does not suffer from a psychological injury.
13I find that the applicant is not removed from the MIG on a psychological basis.
14The applicant relies on the clinical notes and records (CNR’s) of her family doctor, Dr. Jessica Bajwa, from January 16, 2019, until April 26, 2024. The applicant also relies on the CNR’s of Dr. Ashley Narula, chiropractor, who completed a disability certificate on December 28, 2022 with injuries described as strain in the thorax level, abdomen, lower back, pelvis, and rotator cuff of shoulder; sprain and strain of sacroiliac joint, wrist, and hip; chest pain and breathing; headache; anxiety disorder, unspecified; state of emotional shock and stress, unspecified; disorders of initiating and maintaining sleep (insomnia); and contusion of breast as a result of the accident. The applicant further relies on hospital records from Mackenzie Health dated August 9, 2024, and Psychological Report by Dr. Brunshaw, psychologist dated September 25, 2023, who diagnosed the applicant with an adjustment disorder with Anxiety; Major Depressive Disorder, single episode; Specific Phobia, situational type.
15The respondent relies on the insurer’s assessment report by Dr. T. Dumitrascu, psychologist, dated May 10, 2023, Physiatry IE of Dr. Rajka Soric, dated March 28, 2023; the Psychological IE of Dr. Dumitrascu, dated May 10, 2023, and the CNR’s of Mackenzie Health dated January 31, 2023.
16In considering these reports and evidence, I find the applicant has not sustained a psychological injury as a result of the accident and is subject to the MIG and the funding limit it provides.
Reasons:
17I find that the applicant does not suffer from a psychological injury.
18I find that Dr. Ashley Narula noted that as a result of the accident, the applicant suffered with anxiety disorder, unspecified; state of emotional shock and stress, unspecified; and disorders of initiating and maintaining sleep. I note that Dr. Narula is a chiropractor and is not qualified to diagnose a patient with an anxiety related disorder.
19As I review the CNR’s of Dr. Bajwa, the applicant’s family physician, there is not one entry were the applicant mentioned a psychological complaint. If the applicant did suffer any emotional or physiological concern, the applicant might have contacted her family doctor sometime after the accident. There is no evidence that she contacted her family doctor on any psychological complaint.
20Dr. Brunshaw conducted physiological tests that in her opinion confirm a diagnosis of adjustment disorder with Anxiety; Major Depressive Disorder, single episode; specific phobia, however this assessment was done three months after seeing the s.44 assessor, Dr. Dumitrascu, who found that the applicant did not suffer from a DSM-5 disorder. Dr. Dumitrascu performed identical psychological tests to Dr. Brunshaw. Dr. Dumitrascu conducted a paper review on October 18, 2023, of the s.25 assessment of Dr. Brunshaw dated September 25, 2023. Dr. Dumitrascu noted that there are discrepancies between the subjective reports of the applicant being as follows: that she continued working and performing her regular duties at work; she continued performing her regular housekeeping tasks, and had no difficulties with her self-care activities; she had no post- accident changes in her emotional functioning.
21Accordingly, I find that the applicant has not established accident-related psychological issues. I note that Dr. Dumitrascu’s findings are supported by the fact that the applicant did not complain of any psychological issues to her family physician. The only complaint that the respondent cites is the shortness of breath when the respondent attended the Mackenzie Health Centre where Dr. Tung treated her for a panic attack and gave her 1 mg. of Ativan on February 9, 2024 some two years after the accident.
22I prefer the report of Dr. Dumitrascu over Dr. Brunshaw’s because Dr. Dumitrascu noted that there were discrepancies between the subjective reports of the applicant, being as follows that she continues working and performing her regular duties at work, the applicant continued performing her regular housekeeping tasks, and had no difficulties with her self-care activities; she had no post- accident changes in her emotional functioning. Dr Dumitrascu also reviewed the report of Dr. Brunshaw’s. and he concluded that the applicant’s self-reported complaints had no material basis.
23For the reasons above, and on a balance of probabilities, I find that the applicant has not met her onus in establishing a psychological injury that would warrant her removal from the MIG.
The applicant does not suffer from a chronic pain injury.
24I find the applicant does not suffer from accident-related chronic pain.
25The applicant relies on the December 28, 2022, Disability Certificate prepared by Dr. Ashley Narula, chiropractor, who noted that the applicant suffered with injury of the muscle and tendon of head, neck level, thorax level, abdomen, lower back, pelvis, and rotator cuff of shoulder; sprain and strain of sacroiliac joint, wrist, and hip; chest and breathing and headache. The Disability Certificate states that applicant continues to experience ongoing limitations with ADLs, household chores and some self-care. The applicant reported daily headaches, blurry vision. On January 19, 2022, the applicant attended the emergency room at Mackenzie Health Hospital for pain in her neck and chest. The pain was rated at 9/10. On February 9, 2022, the applicant again attended the emergency room at Mackenzie Health. It was noted the applicant was involved in an accident and suffered bruising to her chest. The applicant complained of burning, swelling and redness to her right breast.
26The respondent relies on Dr. Rajka Soric’s March 28, 2023 s.44 Insurer’s Physiatry Report. The respondent also states that when she became a patient with Dr. Bajwa in April 2023, she did not report any issues, except chronic left shoulder pain. The applicant continued to follow-up for non-accident-related issues in 2023.
27The respondent states that the applicant underwent a physiatry examination with Dr. Rajka Soric, physiatrist, in March 2023. The applicant reported that she had a lump on her right breast that required investigating, however she did not report any pain complaints about her right breast to Dr. Soric. Instead, she complained of headaches, neck pain and intermittent soreness on her lumbosacral spine. Dr. Soric diagnosed the applicant with minor soft tissue injuries. Dr. Soric concluded that such injuries fall within the MIG.
Reasons:
28I concur with the respondent that the applicant does not suffer from a chronic pain injury. The applicant did report of pain in her right-side of her breast after the accident, however it was a hematoma where a mammogram confirmed the diagnoses. I heard no evidence from the applicant that the hematoma, or any other physical complaints of pain was caused by the accident. The applicant was instructed by Dr. Bajwa in April 2023, that if her complaints of chest pain and neck pain worsened, then she should follow-up with the hospital or other medical professionals. I find that the applicant did not follow-up with any medical professionals about her right breast pain. I also find the applicant attended nine months later at Mackenzie Health for a non-accident-related issue and there was no mention of her right breast pain.
29I am also persuaded by Dr. Soric’s physiatry report which states that the applicant reported that she had a lump on her right breast that required investigation after the accident, however she did not report any pain complaints in respect to her right breast to Dr. Soric at the time of his assessment. Instead, the applicant complained of headaches, neck pain and intermittent soreness on her lumbosacral spine. Dr. Soric diagnosed the applicant with minor soft tissue injuries from the accident and concluded that such injuries fall within the MIG.
30I also find that the applicant has no further accident-related complaints until January 18, 2024, two years after the accident. At this time, she subjectively reported having chronic right breast pain and that that the applicant has gained weight, however Dr. Bajwa did not diagnose her with chronic pain.
31I find that there is no contemporaneous medical evidence directed to me that would lead me to conclude that the applicant should be removed from the MIG for a chronic pain injury.
32The applicant has not met her onus, and on a balance of probabilities, I find that the applicant’s injuries fall under the MIG.
36As I have determined that the applicant is still remaining in the MIG, it is not necessary for me to conduct an analysis of the treatment plans.
Interest
37No interest applies as there is no benefits payable.
ORDER
38On the totality of the evidence, I find that:
i. The applicant is not removed from the MIG on the basis of a psychological or a chronic pain injury.
ii. The applicant is not entitled to any of the treatment plans in dispute.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: July 18, 2025
Roderick Walker
Adjudicator