Rhoden v. Economical Mutual Insurance Company, 2025 CanLII 81411

Citation: Rhoden v. Economical Mutual Insurance Company, 2025 ONLAT 23-010825/AABS

Licence Appeal Tribunal File Number: 23-010825/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:

Karlene Andrea Rhoden

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Fleming

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Sunjay Mistry, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Karlene Andrea Rhoden, the applicant, was involved in an automobile accident on December 5, 2021, 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 Mutual 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 (“MIG”) limit?

ii. Is the applicant entitled to $234.19 ($1,334.19, less $1,100.00 approved) for chiropractic services, proposed by Finchgate Physiotherapy in a treatment plan/OCF-18 (“treatment plan”) submitted March 21, 2022?

iii. Is the applicant entitled to $3,303.33 for physiotherapy services, proposed by Finchgate Physiotherapy in a treatment plan submitted May 30, 2022?

iv. Is the applicant entitled to $2,937.36 for physiotherapy services, proposed by Finchgate Physiotherapy in a treatment plan submitted September 26, 2022?

v. Is the applicant entitled to $2,195.00 for physiotherapy services, proposed by Finchgate Physiotherapy in a treatment plan submitted August 21, 2023?

vi. Is the applicant entitled to $2,537.53 for a psychological assessment, proposed by Q Medical in a treatment plan submitted February 2, 2022?

vii. Is the applicant entitled to $2,495.94 for a chronic pain assessment, proposed by Q Medical in a treatment plan submitted July 5, 2022?

viii. Is the applicant entitled to $3,761.14 for psychological services, proposed by E Clinic United Healing in a treatment plan submitted May 30, 2022?

ix. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant remains in the MIG.

4The applicant is not entitled to the treatment plans in dispute.

5As there are no overdue payments, no interest is payable.

ANALYSIS

Applicability of the MIG

6I find that the applicant has not demonstrated that she should be removed from the MIG.

7Section 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.”

8The applicant may be removed from the MIG if they can establish their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing 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.

9In this matter, the applicant seeks to be removed from the MIG because of her chronic pain and a psychological impairment.

The applicant is not removed from the MIG due to chronic pain

10In support of her claim of chronic pain, the applicant relies on Dr. Sangita Sharma’s chronic pain assessment report, dated August 9, 2022, which concludes that her pain is chronic in nature and cannot be adequately managed within the MIG. The applicant also pointed to medical records indicating persistent symptoms and reports of functional impacts. For instance, clinical notes and records from Dr. Leema Dookhoo, where follow up consultation was done in December 2021 and January 2022, showed ongoing neck, lower back and hip pain with reduced range of motion. Also, clinical notes and records from the Castlemore Family Medical Center conducted in January, February and March 2022, showed persistent symptoms, continued lower back and hip pain and limited mobility.

11The respondent submitted that the applicant’s injuries fall within the MIG, because her accident-related injuries were largely resolved prior to a subsequent fall in October 2022, and that any ongoing pain is the result of this fall or from her pre-existing conditions.

12The key piece of evidence that the applicant relies upon is Dr. Sharma’s chronic pain assessment report, which provides a detailed evaluation of the applicant’s persistent pain issues following the accident. The report documents ongoing complaints of pain, and it concludes that the applicant’s pain is chronic in nature, not adequately managed within the MIG and recommends an expanded multidisciplinary approach to pain management.

13The respondent submitted that Dr. Sharma was not aware of, or did not acknowledge, the applicant’s pre-existing medical conditions. The respondent pointed to pre-existing osteoarthritis and knee conditions documented in an MRI from July 2020, a history of back pain and documented hip bursitis from an MRI conducted in March 2022. The respondent also pointed out that, during Dr. Sharma’s assessment, the applicant reported being 75 to 90% improved with respect to the accident-related physical injuries, and that she takes no medications.

14I find that the applicant has not established that she has chronic pain with a functional impairment that warrants removal from the MIG, because she reported 75 to 90% improvement during the assessment by Dr. Sharma in August 2022, which was 8 months after the accident. Also, I note that she did not pursue recommended, OHIP-funded programs or use standard pain management (e.g., pain medications).

15Furthermore, the applicant was not able to link many of her symptoms to the subject motor vehicle accident. Following this accident, the emergency records from Brampton Civic Hospital, dated December 5, 2021, documented neck, back and hip pain with tenderness and restricted movement. Dr. Dookhoo’s reports from December 2021 and January 2022, showed ongoing neck, lower back and hip pain with reduced range of motion. Also, clinical notes and records from the Castlemore Family Medical Center conducted in January, February and March 2022, showed persistent symptoms, continued lower back and hip pain and limited mobility. There was no report of knee pain post-accident, and, by July 2023, there was improvement in hip pain. Her complaints of knee pain emerged primarily after the subsequent October 2022 fall. In August 2022, according to Dr. Sharma’s report, she reported 75% to 90% improvement.

16A finding of chronic pain requires a finding of functional impairment caused by an applicant’s accident-related pain. I note from Dr. Dookhoo’s report dated August 29, 2022 and the Orthopaedic IE assessment report of Dr. Behzad Taromi, dated January 11, 2023 that the applicant returned to full-time work as a team lead. I also note from Dr. Sharma’s report that she drives independently. Lastly I note from Dr. Sharma’s chronic pain report that the applicant maintains normal daily activities. This level of functional capacity is inconsistent with chronic pain impairments.

17I find that the applicant has not met her burden, on a balance of probabilities, to show that she should be removed from the MIG on the basis of chronic pain with functional impairment.

The applicant is not removed from the MIG due to a psychological impairment

18To support this ground for removal, the applicant relies on Dr. Sharleen McDowall’s psychological assessment report, dated April 14, 2022. The report showed elevated scores on standardized anxiety and depression scales, indicating moderate to severe psychological distress. She also documented significant anxiety and symptoms of nonorganic sleep disorder, difficulties with concentration and heightened irritability, a sense of hopelessness persisting since the accident, and post-traumatic stress symptoms, particularly anxiety when attempting to drive or travel in a vehicle. Dr. McDowall’s report recommends cognitive-behavioural therapy and supportive counselling.

19The applicant also referenced treatment plans from Dragica Fink, dated February 1, 2022, and Dr. Harinder Mrahar, dated July 11, 2022, that documented persistent anxiety and difficulty sleeping, symptoms consistent with trauma-related stress and emotional distress. The applicant also referred to Dr. Sharma’s chronic pain assessment, which mentioned a treatment plan from E Clinic United Healing for psychological services.

20The respondent submitted that Dr. McDowall’s assessment was conducted without review of medical records, and, therefore, it has limited validity because there was no corroborating evidence from the family physician regarding psychological symptoms.

21I find that the applicant has not established removal from the MIG on this ground, because I find her psychological symptoms are considered minor sequelae of her otherwise minor injuries.

22First, Dr. McDowall’s report is not corroborated by the applicant’s treating physicians. The applicant references treatment plans as supporting Dr. McDowall’s psychological assessment, but she does not elaborate on their specific clinical details and findings in submissions, therefore leaving Dr. McDowall’s psychological assessment as the most detailed assessment of psychological findings and symptoms. I note that the applicant did not point to a DSM diagnosis, or to any specific psychological diagnosis.

23I also note that the applicant has not pointed to evidence showing she sought psychological treatment from her family physician, nor has she pointed to documentation of psychological symptoms in clinical notes and records. The applicant also demonstrates a high level of functioning, as she has returned to work as a team lead for 20 or more people and continues to drive. I find these activities are inconsistent with a moderate to severe psychological impairment.

24I find that the applicant has not met her burden to establish, on a balance of probabilities, that she should be removed from the MIG on the basis of a psychological impairment.

25As I have found that the applicant remains in the MIG, there is no need to conduct a reasonable and necessary analysis of the treatment plans.

26If any amount of funding is left under the MIG, the applicant is entitled to that amount.

Interest

27As there are no overdue payments, no interest is payable.

ORDER

28For the reasons set out above, I find that:

i. The applicant has not demonstrated that her injuries warrant removal from the MIG.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. As there are no overdue payments, no interest is payable.

iv. The application is dismissed.