Licence Appeal Tribunal File Number: 24-000101/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:
Shannon Plourde
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Christopher Yan
APPEARANCES:
For the Applicant:
Ivy So, Paralegal
For the Respondent:
Kevin So, Counsel
HEARD by Videoconference:
October 28, 2024
OVERVIEW
1Shannon Plourde, the applicant, was involved in an automobile accident on August 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, Belair Insurance Company Inc., 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 a non-earner benefit of $185.00 per week from September 6, 2022, to date and ongoing?
iii. Is the applicant entitled to $4,344.68 for chiropractic services, proposed by Total Wellness Clinic in a treatment plan/OCF-18 (“plan”) dated May 25, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has established that she suffers from chronic pain with functional impairment that warrants removal from the MIG.
4The applicant, however, is not entitled to a non-earner benefit, the disputed plan, or interest.
ANALYSIS
Applicability of the 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 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 submits that her accident-related impairments extend beyond soft tissue injuries and meet the criteria for chronic pain. She explains that she was already taking Tylenol-3 and Amitriptyline for migraines before the accident, but following the August 9, 2022, collision, these medications were no longer sufficient to manage her pain. As a result, she was prescribed Percocet and has used it consistently from shortly after the accident to the most recent dates in her prescription records. The applicant points to her medical visits with her family doctor, Dr. El Sabawy, as well as her treating neurologist, Dr. Temple, to show continuous complaints of back pain and a need for stronger medication.
8In support of her position, the applicant relies on Tribunal decisions such as 17-00835 v. Aviva, 2018 CanLII 83520, which recognize that chronic pain, when supported by appropriate medical evidence, may warrant removal from the MIG. The applicant also refers to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“AMA Guides”) and notes that the Tribunal has referenced them in cases such as 16-000438 v. The Personal Insurance, 2017 CanLII 59515 (ON LAT) as a useful interpretive tool for assessing chronic pain syndrome. The applicant submits that she meets each of the six criteria in the AMA Guides for chronic pain syndrome, as discussed below.
9The applicant further points to MRI studies of her thoracic and lumbar spine dated February 13, 2024. According to these reports, she has disc bulges, severe foraminal narrowing, and nerve impingement. She submits that these findings support her complaints of back pain and are consistent with a chronic pain condition. She states that the MRI was ordered in response to her ongoing reports of pain to her family doctor. The MRI report itself references whiplash, back pain, and decreased range of motion, and the applicant notes that, in a clinical note dated February 28, 2024, Dr. El Sabawy discussed these MRI findings in the context of her whiplash from the accident.
10Finally, the applicant relies on an orthopedic surgeon’s report dated July 11, 2024, in which Dr. Getahun diagnoses the applicant with chronic pain syndrome. The applicant submits that, in applying the AMA Guides, Dr. Getahun concludes she meets all six chronic pain criteria: (1) prolonged use of prescription medication (Percocet), (2) excessive reliance on family members to complete household chores, (3) secondary deconditioning in her spine and right shoulder due to disuse and fear-avoidance, (4) withdrawal from social and recreational activities, (5) an inability to restore her pre-accident level of function despite nearly two years since the accident, and (6) development of psychosocial sequelae.
11The respondent submits that the applicant’s injuries remain predominantly soft tissue in nature and fall squarely within the MIG. The respondent points to a general practitioner’s report from Dr. Tu and a psychologist’s report from Dr. Day, both of which, in the respondent’s view, fail to support a diagnosis of chronic pain syndrome or any psychological injury. The respondent further argues that the MRI findings are not explicitly linked to the accident by any medical practitioner and that disc bulges and degenerative changes can pre-date or be unrelated to trauma.
12The respondent also takes issue with the applicant’s reliance on Dr. Getahun’s application of the AMA Guides. It argues that there is insufficient evidence to show “prolonged use” of Percocet because the family doctor’s records do not specify the recommended duration or necessity of ongoing use. Similarly, the respondent denies any “excessive” dependence on family, pointing to the applicant’s testimony that she can still complete certain household chores and help her husband during his recovery. The respondent disputes the alleged physical deconditioning and points to her ongoing ability to walk her dog and engage in some recreational activities. Finally, the respondent points to a psychological assessment in evidence (prepared by Dr. Day) which concludes that there is no accident-related psychological impairment. The respondent submits that this contradicts any suggestion of psychosocial sequelae.
13Based on the evidence, I find that the applicant’s impairments warrant removal from the MIG because she suffers from chronic pain with associated functional impairment.
14Although no medical opinion explicitly states that the MRI findings are caused solely by the accident, I am satisfied on a balance of probabilities that the accident materially contributed to her impairments. The applicant’s continuous reports of back pain began only after the collision, and these complaints prompted her family doctor to order MRIs in November 2022 and July 2023. I note that the MRI was ordered in relation to the applicant’s accident complaints; moreover, her doctor’s clinical note references the MRI results in the same paragraph discussing the applicant’s whiplash. In my view, this creates a sufficient nexus to conclude that the MRI findings are causally related to the accident. The MRI reveals disc bulges, severe foraminal narrowing, and nerve impingement, which, when read together with her lower back pain and whiplash complaints, corroborate her position that her injuries exceed the scope of minor soft tissue impairments.
15The applicant’s testimony and the clinical notes of Dr. El Sabawy and Dr. Temple confirm that her back pain persisted from shortly after the accident through to the most recent records. The applicant submits that she now relies on her sons to help walk the dog and cannot independently handle heavier housekeeping tasks. She also describes a reduced ability to socialize and participate in recreational activities. These reports of functional limitations are noted in her medical records and align with the conclusions of Dr. Getahun, who observes physical deconditioning and fear-avoidance behaviors. While the applicant can still complete some light activities, her evidence suggests that the more strenuous tasks, which were once part of her routine, now require some assistance. I accept that this reflects a meaningful change from her pre-accident level of functioning.
16Turning to the AMA Guides criteria, the applicant relies on the opinion of Dr. Getahun, who details why her use of Percocet, reliance on family assistance, physical deconditioning, and lack of full recovery supports a diagnosis of chronic pain syndrome. The respondent argues that the absence of any specified “time limit” on the applicant’s Percocet prescription undermines the idea that her use is “prolonged.” However, I prefer the applicant’s evidence, and in particular, I accept Dr. Getahun’s finding that the applicant’s ongoing prescription and continuous use of Percocet for more than a year satisfy this criterion. I also do not accept the respondent’s submission that the applicant has no meaningful dependence on family or physical deconditioning. The applicant credibly testified that her mobility and stamina are significantly reduced compared to her pre-accident status. Although she manages some tasks, it does not negate the broader evidence of her limitations.
17The respondent also relies on Dr. Day’s psychological assessment, which concludes that the applicant does not meet the criteria for a psychological impairment. However, Dr. Getahun opines that the applicant satisfies the AMA Guides criterion for psychosocial sequelae, citing her diagnosis of mental and behavioral impairments, including anxiety, fear, avoidance, depression, and nonorganic illness behaviors. While I do not make a finding on whether the applicant has a psychological impairment, I consider Dr. Getahun’s overall analysis, particularly his conclusion that she meets at least three of the six AMA Guides criteria, to establish a diagnosis of chronic pain syndrome. In my view, Dr. Day’s report does not displace the weight of the broader medical evidence, which supports a chronic pain diagnosis. Accordingly, I find the applicant’s evidence and Dr. Getahun’s conclusions more persuasive in determining that she suffers from chronic pain that warrants removal from the MIG.
18Overall, I accept the applicant’s evidence that she meets at least three of the six chronic pain criteria outlined in the AMA Guides. Specifically, she satisfies the criteria for prolonged prescription medication use, reliance on family, physical deconditioning, withdrawal from social and recreational activities, and failure to restore pre-injury function. The applicant has been prescribed and continuously uses Percocet for pain management, relies on family assistance for household tasks, and has demonstrated reduced mobility and stamina. Additionally, her medical records and testimony indicate that she socializes less frequently and remains unable to return to her pre-accident level of function nearly two years after the accident. Although satisfying these criteria is not strictly necessary for removal from the MIG, they reinforce the seriousness of her impairments. I prefer the applicant’s submissions and evidence over the respondent’s because they are more consistent with the continuous medical documentation, her treating physician’s notes, and her orthopedic surgeon’s assessment of her functional limitations since the accident.
19For all the reasons set out above, I find that the applicant has proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and, therefore, is removed from the MIG.
Non-Earner Benefit (“NEB”)
20I find that the applicant has not established entitlement to a NEB.
21Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
22The applicant submits that her chronic pain, exacerbated migraines, and physical impairments have resulted in a complete inability to carry on a normal life. She argues that she can no longer meaningfully engage in her pre-accident routine, including walking her dog, performing household chores, socializing, and seeking employment. The applicant relies on her testimony, medical records, and Dr. Getahun’s report, which concludes that her impairments prevent her from engaging in substantially all of her pre-accident activities.
23The respondent submits that the applicant continues to engage in many of her pre-accident activities, albeit with some modifications or reduced frequency, and therefore does not meet the stringent NEB test under s. 12. It points to assessments by Dr. Tu, Dr. Day, and occupational therapist Ms. Michelangelo, who all found that the applicant retains functional capacity across various domains. The respondent emphasizes that no treating doctor has advised the applicant to cease any of her activities entirely. The respondent also highlights that, according to various assessor reports, the applicant continues to maintain contact with friends, is independent with self-care, drives a rental vehicle, goes grocery shopping, and engages in hobbies such as “diamond art.” The respondent notes the applicant’s own testimony that she stopped playing darts due to COVID-19, not her accident-related impairments.
24The applicant’s pre-accident routine included walking her dog regularly, socializing weekly, performing household chores, taking short trips, and actively seeking employment. These activities were central to her life and formed a significant part of her daily routine. Post-accident, the applicant reports chronic pain and physical limitations that affect her ability to engage in these activities. She testified that she rarely walks her dog and requires assistance when she does, she socializes far less frequently, and is limited to light household tasks due to a 10-pound lifting restriction. She further states that her impairments have prevented her from returning to work, despite her ongoing efforts to seek employment.
25I accept that the applicant has suffered functional impairments and that her life has been adversely affected by the accident. However, the Heath test for NEBs is stringent: it requires evidence of a continuous inability to engage in substantially all pre-accident activities. Pain and impairments alone, no matter how genuine, do not automatically meet this threshold. Rather, the question is whether the applicant is practically prevented from performing the majority of her normal activities. Based on the evidence before me, I find that the applicant has not satisfied this high standard.
26While I accepted much of Dr. Getahun’s analysis concerning chronic pain (particularly the diagnosis under the AMA Guides), I do not find his discussion of NEB entitlement to be as persuasive. His report states that the applicant has been unable to return to her usual activities of daily living from both a qualitative and quantitative perspective, including socializing and performing household tasks. However, this conclusion lacks a detailed assessment of the extent and degree to which the applicant remains able to engage in these activities, and it does not fully explore whether she is continuously prevented from engaging in substantially all of her pre-accident activities, as required by the NEB test. In contrast, Dr. Tu and Dr. Day’s reports, and in particular, the detailed comparison by occupational therapist Ms. Michelangelo, provide a more structured pre- and post-accident comparison. Together, the respondent’s reports document some of the applicant’s post-accident impairments, but also highlight the applicant’s retained functional capacity in some of these pre-accident tasks, noting her ability to perform many everyday tasks, socialize to some extent, drive, grocery shop, and maintain certain recreational hobbies. In my view, the absence of a fulsome breakdown of the applicant’s retained abilities in Dr. Getahun’s analysis limits its usefulness in assessing NEB entitlement.
27The applicant’s continued engagement in certain hobbies such as diamond art, and her admission that she stopped playing darts primarily because of COVID-19, support the conclusion that she has retained a significant portion of her functional capacity. Her attempts to apply for work post-accident, including for physically demanding warehouse roles, further suggest that she is not continuously prevented from engaging in substantially all of her usual activities.
28I acknowledge that the applicant’s determination to seek employment and remain active, despite her pain, is commendable. However, the evidence shows that while the quality or frequency of her pre-accident activities may have changed, she is still able to engage in many of them to a meaningful degree. Heath requires more than a reduction or disruption in the enjoyment of activities; it requires a complete inability to perform substantially all pre-accident activities, which has not been established on a balance of probabilities.
29For all the reasons set out above, the applicant is not entitled to a non-earner benefit.
Chiropractic Treatment Plan
30I find that the applicant has not demonstrated entitlement to the treatment plan in dispute.
31To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
32The treatment plan seeks to address the applicant’s impairments by focusing on pain reduction, increased range of motion, and an increase in strength, as well as improving strength, endurance, flexibility, muscle tone, power, and coordination. The stated functional goals of the plan include helping the applicant return to activities of normal living, increasing functional abilities, managing activities of daily living (ADLs), and becoming more active.
33The OCF-18 was not formally marked as an exhibit at the time of closing submissions. The respondent submits that because the disputed treatment plan (the OCF-18) was not formally marked as an exhibit at the hearing, the OCF-18 should therefore not be considered by the Tribunal. However, I do not accept this submission. The OCF-18 was included in the applicant’s hearing brief, was properly served on the respondent, and was explicitly identified in the issues list. The respondent had full notice of the case the applicant had to meet, and the respondent had the opportunity to respond. In fact, the respondent made submissions on the OCF-18 during the hearing and in its closing arguments. The only procedural deficiency here is that the document was not formally marked as an exhibit.
34In my view, declining to consider the OCF-18 solely on this procedural ground would be contrary to the consumer protection mandate of the Schedule. The applicant is not raising any new arguments or evidence now, nor is the Tribunal being asked to consider something the respondent was not already aware of and able to address. Given that the treatment plan was before the Tribunal, that the respondent understood the case the applicant had to meet, I find there is no procedural unfairness in considering the OCF-18. To do otherwise would prioritize a technical deficiency over a substantive determination of the applicant’s entitlement, which would run counter to the remedial and consumer protection purposes of the accident benefits regime.
35Turning to the merits, the applicant argues that the disputed plan was denied solely on the basis of the MIG and that if her impairments are no longer classified as minor, the plan should be approved.
36The respondent argues that removal from the MIG does not automatically entitle the applicant to this plan. It submits that the applicant must still show how the proposed chiropractic treatments are reasonable and necessary. It further submits that the applicant has made no substantive arguments linking the proposed services to her functional goals or explaining how these services are likely to improve her accident-related impairments. The respondent points out that there are no recommendations in the clinical notes and records, whether from the family doctor or specialists like Dr. Getahun, specifically supporting additional chiropractic therapy.
37I agree with the respondent that the applicant has not met her burden of proof. The applicant did not make any substantive submissions addressing whether the proposed treatment plan is reasonable and necessary under the Schedule. While the applicant briefly testified that she believed the therapy benefited her, she did not provide any detailed submissions or evidence regarding the specific treatment goals, how the proposed services would address her accident-related impairments, or whether the cost of achieving those goals is reasonable. The absence of any argument or medical evidence directly supporting the necessity of this particular treatment plan leaves me unable to conclude that it meets the requirements of sections 15 and 16 of the Schedule. Simply relying on her removal from the MIG is insufficient to establish entitlement to the plan, even if the plan was initially denied on the basis of the MIG.
38On balance, I find that the applicant has not demonstrated that the plan is reasonable or necessary. Accordingly, she is not entitled to payment for the treatment plan, and no benefits or interest are payable under the Schedule.
ORDER
39The applicant has met her burden to demonstrate that her injuries warrant removal from the $3,500.00 limit under the MIG.
40The applicant is not entitled to a non-earner benefit of $185.00 per week.
41The applicant is not entitled to the treatment plan in the amount of $4,344.68 or interest.
Released: February 6, 2025
Christopher Yan
Adjudicator