Marcia Bucknor v. Intact Insurance Company, 2025 CanLII 81400

Licence Appeal Tribunal File Number: 23-007772/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:

Marcia Bucknor

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Yanick Charbonneau

APPEARANCES:

For the Applicant: Ramona Pimentel, Counsel

For the Respondent: Navjot Banipal, Counsel

HEARD: In Writing By Way of Written Submissions

OVERVIEW

1Marcia Bucknor, the applicant, was involved in an automobile accident on February 22, 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 in nature as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 the Minor Injury Guideline limit (“MIG”)?

ii. Is the applicant entitled to $2,702.92 for chiropractic services, proposed by HydroActive Aquatherapy and Rehabilitation in a treatment plan/OCF-18 (“plan”) submitted April 17, 2022?

iii. Is the applicant entitled to $2,756.69 for physiotherapy services, proposed by HydroActive Aquatherapy and Rehabilitation in a plan submitted July 18, 2022?

iv. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by HydroHealth Evaluations in a plan submitted June 11, 2022?

v. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HydroHealth Evaluations in a plan submitted June 9, 2022?

vi. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by HydroHealth Evaluations in a plan submitted November 24, 2022?

vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

viii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s injuries are predominantly minor as defined by the Schedule and subject to the treatment limits of the Minor Injury Guideline (“MIG”).

4Given that the applicant’s injuries do not remove her from the MIG, I do not have to consider whether the treatment plans submitted are reasonable and necessary.

5With no benefits owing, the applicant is not entitled to an award or interest. The application is dismissed.

ANALYSIS

Minor Injury Guideline

6Section 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.”

7An insured may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under s. 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if she is 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.

8The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.

9The applicant submits that her accident-related injuries fall outside of the “minor injury” definition based on two grounds: that she has sustained chronic pain for over two years, which was triggered by or due to the post-traumatic injury from the accident. Further, she submits that she sustained psychological impairments post-accident, which she identifies as frequent mood swings, feelings of sadness, irritability, nervousness, loss of interest and motivation, which are significant psychological factors interfering with her recovery.

Did the applicant develop chronic pain as a result of the accident?

10In my view, the applicant has not established that the ongoing pain she experiences was exacerbated by the accident. I find that there is no evidence of ongoing pain which reaches the required threshold of functional impairment.

11I also find that the applicant did not establish that the pain she suffers from was due to or triggered by the accident.

12To establish chronic pain, it does not suffice to report ongoing pain. Rather, ongoing pain must be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on an individual’s well-being.

13As evidence that her chronic pain was triggered by or due to the accident, the applicant relies upon a diagnosis of scoliosis and mild arthritic pain by Dr. Wang, which, she submits, are linked to ongoing pain to her left knee and leg. The applicant further submits that such pain is corroborated by ongoing complaints to her GP Dr. Paul Wang and to the medical professionals at Humber River Hospital, as evidenced by the Emergency Report and hospital records, and X-ray conducted. She also references her prescription and OHIP summaries, and the Disability Certificate “OCF-3” filed.

14The respondent submits that the applicant does not meet the criteria for chronic pain, because her pain is not debilitating, nor was the applicant functionally disabled as a result of her pain. Further, it argues that the diagnoses of mild scoliosis and arthritic pain are likely related to her medical history of “morbid obesity” and therefore, not causally related to, or triggered by the accident. Further, the respondent asserts that the applicant’s own GP has not diagnosed the applicant with any impairments that are outside of the MIG.

15In support of its position, the respondent relies upon the following s.44 reports: a Musculoskeletal Paper Review Report of Dr. Michael Hanna, dated September 9, 2022; a MIG assessment by Dr. Eric Silver, dated January 18, 2023; and a psychological MIG assessment by Dr. Fabio F. Salerno, dated April 21, 2023. The respondent also references the CNRs filed by the applicant to support its position that that the applicant’s complaints of ongoing pain are not linked to the accident.

16I agree with the respondent. The applicant’s own GP has not diagnosed the applicant with any impairments outside of the MIG. First, although the applicant’s GP diagnosed her arthritis and scoliosis upon examination of a lumber spine X-ray administered on February 25, 2022 ( “the X-ray”), there are no other medical entries related to the accident from her GP or other medical professionals. I find that the applicant’s complaints of ongoing pain and the referral of her GP to pursue physiotherapy treatments do not suffice to establish a correlation between the diagnosis of mild scoliosis and the accident.

17I also find that the applicant’s diagnoses from her GP do not link the scoliosis or arthritis to the accident, nor do they state that her conditions are due to or triggered by the accident.

18While I accept that the applicant suffers from ongoing pain, in my view, the fact that she was diagnosed with mild scoliosis and arthritic pain through X-ray conducted after the accident does not, in and of itself, provide sufficient evidence that the corresponding pain is due to or aggravated by the accident.

19Secondly, I note the diagnostic imaging from the X-ray which states as follows: “Bones, joints and soft tissues appear normal”, that there is “no evidence of arthritis or injury”, although the applicant was found to have “mild left convex thoracolumbar scoliosis”. What this shows, is that the applicant has sustained soft tissue injuries from the accident.

20As to the applicant’s medical history, finally, her GP has stated that she has had a history of “morbid obesity”. To this point, the applicant’s medical history is notable to Hypertension, dyslipidemia, and glucose intolerance. Cardiac and chest pain was also noted, as well as exertional dyspnea. Her GP does diagnose her scoliosis and refers the applicant for physiotherapy, as mentioned previously. However, the applicant did not lead any evidence from her GP, or any other medical professionals, regarding her claim that the accident exacerbated the pain she was likely experiencing prior to the accident.

21In sum, in my view, the applicant has not discharged her onus to prove that her arthritis or scoliosis was exacerbated by the accident such that it is now chronic pain with functional impairment.

22The applicant does state in her submissions that, although she wanted to take time off and focus on her physiotherapy, she was forced to return to work with her accident-related pains. She goes on to state that nothing of her treatments and rehabilitation at home has worked, and she is currently limited in most of her pre-accident activities of daily living.

23Aside from the manifestations of scoliosis found after the accident, and her medical history related to her weight, the applicant did not engage with the American Medical Association’s Guides (“AMA Guides”) criteria to chronic pain. The respondent did, however, raise the AMA in its submissions.

24The Tribunal has often used the AMA’s Guides for chronic pain criteria as an assistive device tool to evaluate chronic pain complaints where there is no diagnosis of chronic pain.

25In applying these AMA Guides criteria, I find that the applicant has not provided evidence that she is dependant on or has abused prescription pain medication, is excessively dependent on health care providers or family, that she has withdrawn from social, work, or recreational activities due to pain, or that she suffers from secondary physical deconditioning due to fear-avoidance of pain. There is no evidence that the applicant has been unable to restore pre-injury function after a period of disability, such that she is incapable to pursue work, family, or recreational needs.

26The applicant returned to work within weeks of the accident after modified duties. I understand that she adapted her exercise regimen and the social activities she has been attending such as a prayer group and singing. This stems from her self-reporting to Dr. Salerno. Other than the applicant’s self-reported functional limitations, that she has been attending these activities less frequently, I find that the applicant has not led any evidence demonstrating functional impairment.

27In sum, I find that the applicant’s ongoing pain is more likely due to the diagnosis of scoliosis and arthritis. However, there is, in the medical records of the applicant, no evidence to support the applicant’s conclusion that her scoliosis and arthritis is likely due or triggered by the accident.

Did the applicant sustain a psychological impairment that would remove her from the MIG?

28I find that the applicant did not sustain any psychological impairments resulting from the accident, that would remove her from the MIG.

29The applicant submits that there is a significant psychological factor interfering with her recovery: She argues that she was unable to return to her previous work or resume her normal life due to the accident, because she is limited in most of her pre-accident activities of a daily living, and she indicated that for all the treatments and rehabilitation at home on her own, nothing has worked.

30The respondent relies upon Dr. Salerno’s examination report dated April 23, 2023, to submit that the applicant did not complain of any psychological impairments or a specific mood disorder during the IE assessment. It further argues there are no entries in the applicant’s GP’s CNRs related to any such psychological impairments, nor has there been any referrals to psychological professionals. Finally, the applicant was not diagnosed with a DSM-V psychological impairment.

31The applicant did not direct me to any diagnosis from her G.P., nor any medical professional regarding a psychological impairment, or mood disorder. Although the applicant has relied solely on the psychological pre-screen from Dr. Steiner, it has been well established that such reports must be supported by objective medical evidence. Although I am sympathetic to the applicant’s arduous journey to achieve a full recovery, on balance, I am not convinced that the applicant has sustained a psychological impairment or mood disorder due to the accident.

32Although the applicant submitted that her pain catastrophizing is a “significant psychological factor interfering with her recovery”, as documented in Dr. Salerno’s report, Dr. Salerno also opined that the applicant “did not describe clinically significant accident-related psychological symptoms” during the clinical interview. I find that this is consistent with the applicants subjective reporting of frequent mood swings, feelings of sadness, irritability, nervousness, loss of interest and motivation.

33Additionally, Dr. Salerno opined that the applicant’s medical records do not show that she has sustained any psychological impairments, and that her mood-related complaints do not qualify as a mood disorder because she suffers “mild and expectable accident-related psychological symptoms”. I do not see any reason to differ from that opinion given the substantial medical records reviewed by Dr. Salerno and notably, the declaration the applicant made to Dr. Salerno that she does not need psychological treatment. Finally, I highlight the fact that the applicant was not referred to a psychologist or a psychiatrist by Dr. Wang.

34Overall, given the lack of evidence of any such impairments in the applicant’s medical records, I find, on a balance of probabilities, that the applicant did not sustain any psychological impairments, resulting from the accident such that removal from the MIG is warranted on this ground.

35Given that the applicant’s injuries do not remove her from the MIG, I do not have to consider whether the treatment plans submitted are reasonable and necessary.

Interest

36I have found that the applicant is not owed the payment of benefits, no interests are payable under section 51(1) of the Schedule.

Award

37Section 10 of Regulation provides that a special award may be granted if the respondent unreasonably withheld or delayed the payment of benefit.

38Given my conclusions that the applicant is not owed any amounts in payment of the treatment plans claimed, the applicant’s claim for a s.10 award claim is dismissed.

ORDER

39For the reasons outlined above, I find that:

i. The applicant’s injuries fall within the MIG.

ii. The applicant is not entitled to the disputed treatment plans.

iii. The respondent is not liable to pay an award under Regulation 664.

iv. The applicant is not entitled to interest.

v. The application is dismissed.