Cave v. Jevco Insurance Company, 2025 CanLII 99883

Licence Appeal Tribunal

Citation: Cave v. Jevco Insurance Company, 2025 ONLAT 23-012573/AABS

Licence Appeal Tribunal File Number: 23-012573/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:

Racquia Cave

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR: Gary Harvey

APPEARANCES:

For the Applicant: Adam Moftah, Counsel

For the Respondent: Thomas Petrella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Racquia Cave, the applicant, was involved in an automobile accident on March 29, 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, Jevco 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? Notes the parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $113.71 ($1,289.02 less $1,175.31 approved) for chiropractic services, proposed by Revive Health Centres in a treatment plan/OCF-18 (“plan”) dated October 26, 2021?

iii. Is the applicant entitled to $1,598.36 for physiotherapy services, proposed by Revive Health Centres in a plan dated May 19, 2022?

iv. Is the applicant entitled to $1,423.76 for physiotherapy services, proposed by Revive Health Centres in a plan dated August 19, 2022?

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

RESULT

3I find that the applicant has not met her onus on proving that her accident-related impairments or pre-accident conditions warrant removal from the Minor Injury Guideline (“MIG”).

4It is not necessary for me to consider the reasonableness or necessity of the disputed treatment plans.

5The applicant is not entitled to interest.

ANALYSIS

The Minor Injury Guideline

6I find that the applicant is subject to 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.”

8An 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.

9The applicant submits that despite not attending Insurer’s Examinations (“IE”) in 2021 and 2022, that the medical records support sufficient impairment from the subject accident to warrant removal from the MIG.

Does the applicant’s post-concussion syndrome warrant removal from the MIG?

10The applicant relies on the medical notes from Dr. Asa Chu, Family Physician, dated November 28, 2023, where Dr. Chu noted that the applicant has post-concussion syndrome, post-accident. Dr. Chu’s notes from October 3, 2023, indicate that the applicant is still having some insomnia and daily headaches, that she failed to attend for a CT scan and to resend the CT head request. No CT scans were submitted for consideration. She is taking Amitriptyline and Tylenol for the symptoms and has sought accommodations at school for her ability to complete classes. It is noted in the medical notes that referrals to neurology and psychotherapy are contemplated however no indication that they were completed.

11Upon review of the submissions of the applicant and the clinical notes and records submitted that date back to July 14, 2023, where the accident took place on March 29, 2021, I find there are no medical records for consideration to indicate what, if any, condition the applicant suffered from prior to the accident along with the first 28 months post-accident.

12The first medical note that indicates post-concussion syndrome is from November 28, 2023, by Dr. Chu, where the accident occurred on March 29, 2021. Dr. Chu also noted to resend the CT head request as the applicant missed her appointment along with considering a neurological referral. There are no submissions to indicate that either were ever conducted. Therefore, the applicant’s evidence does not persuade me that the post-concussion syndrome that she suffers from is accident related due to the lack of causal connection between the accident and the applicant’s post-concussion syndrome.

13The respondent submits that the applicant sustained uncomplicated soft tissue sprain/strain injuries and has failed to lead any material evidence that her injuries are of sufficient severity warranting removal from the MIG or requiring further treatment. The applicant failed to attend nine IEs so they can only rely on one IE, being a s. 44 Physician Assessment completed by Dr. Charanjit Sandhu, Occupational Medicine Physician, on October 5, 2022. Dr. Sandhu concluded that the applicant suffered soft tissue injuries that fall within the MIG and that further physiotherapy was deemed not reasonable and necessary. The respondent also submits that the applicant has never seen a neurologist as suggested by Dr. Sandhu and her Family Physician in over three years since the accident.

14I find the applicant has not proven that she should be removed from the MIG on the basis on post-concussion syndrome because her evidence does not persuade me that this condition is accident related.

Does the applicant’s dysthymic mood warrant removal from the MIG?

15The applicant relies on the medical notes from Dr. Chu dated October 3, 2023, and November 28, 2023, where she noted that the applicant has dysthymic mood since the accident. She is taking Amitriptyline and Tylenol for the symptoms and has sought accommodations at school for her ability to complete classes. Dr. Chu notes that referrals to neurology and psychotherapy are contemplated however none of the records indicate that either were completed.

16The first medical note indicates some dysthymic mood is on October 3, 2023, by Dr. Chu, where the accident occurred on March 29, 2021. Dr. Chu also noted the applicant’s psychological state as being currently euthymic. The medical notes of Dr. Chu on November 28, 2023, indicate dysthymic mood for the applicant and then on January 19, 2024, Dr. Chu noted that the applicant’s moods are generally better overall. This January 2024 note is the most recent of the medical notes contained in the applicant’s submission.

17The respondent submits that the applicant sustained uncomplicated soft tissue sprain/strain injuries and has failed to lead any material evidence that her injuries are of sufficient severity warranting removal from the MIG or requiring further treatment. The applicant failed to attend nine IEs so they can only rely on one IE s. 44 Physician Assessment completed by Dr. Sandhu, Occupational Medicine Physician on October 5, 2022. Dr. Sandhu concluded that the applicant suffered soft tissue injuries that fall within the MIG and that further physiotherapy was deemed not reasonable and necessary. The respondent also submits that the applicant has never seen a neurologist as suggested by Dr. Sandhu and her Family Physician in over three years since the accident.

18I find that the applicant has not met her burden of proving that her impairments require treatment beyond the MIG on the basis of injuries as a result of the accident and the medical records submitted for consideration pertaining to dysthymic mood. It is difficult to correlate the dysthymic mood to the accident as the first medical notes where the condition is indicated is some two and half year’s post accident.

Does the applicant have a pre-existing condition warranting removal from the MIG?

19I find that the applicant does not have a pre-existing condition that warrants removal from the MIG. Dr. Chu notes that the applicant suffered from some psychological sequalae as a result of the accident but had recovered by January 19, 2024.

20The applicant appears to argue she suffered from a pre-existing condition of dysthymic mood disorder; however, of the evidence submitted by the applicant, the medical note dated October 3, 2023, is the first time that Dr. Chu noted that the applicant was having some dysthymic mood since the accident. On the same date, Dr. Chu also notes that the applicant’s current psychological state as euthymic. Dr. Chu’s medical notes dated January 19, 2024, indicate that the applicant’s moods are generally better overall.

21No pre-accident medical records were submitted by the applicant for consideration and the furthest back the clinical notes and records submitted go back for consideration is July 14, 2023. The accident took place on March 29, 2021.

22The respondent argues that the applicant is solely relying on two family doctor notes from over two years post accident to argue for MIG removal and that there is no suggestion that treatment outside of the MIG or further treatment is reasonable and necessary.

23I find that the applicant has not submitted any medical records pre-accident for consideration and as a result I do not find that the applicant has proven that they should be removed from the MIG based on a pre-existing condition. The onus lies with the applicant to establish that a pre-existing condition would preclude maximal recovery. Since the applicant failed to submit any medical records pre-accident for consideration, I find that she has failed to meet her onus.

Does the applicant have a psychological impairment warranting removal from the MIG?

24I find that the applicant does not a psychological impairment warranting removal from the MIG.

25On October 3, 2023, Dr. Chu notes in the medical records that the applicant has some dysthymic mood since the accident in 2021 but also notes currently the applicant’s psych is euthymic. Then Dr. Chu notes from another visit on November 28, 2023, that the applicant from a psychological perspective is: “mood anxious/dysthymic.” In the next and most recent medical record contained in the applicant’s submission from January 19, 2024, Dr. Chu notes that the applicant’s moods are generally better overall.

26The respondent argues that the only objective s. 44 assessment on file confirms that the applicant’s injuries are within the MIG. The respondent submits that the only s. 44 Physician Assessment that they can rely on as the applicant failed to attend nine IEs, is that of Dr. Sandhu on October 5, 2022, where he confirms that the applicant’s injuries fall within the MIG.

27I find that there is a lack of evidence to support the applicant suffering from a psychological impairment as a result of the accident. The most recent note from a doctor’s visit contained in the applicant’s submission indicates that Dr. Chu noted that the applicant’s moods are generally better, and no further treatment was noted or recommended.

28As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

29As I have found that the applicant is not entitled to treatment beyond the MIG. I find that it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.

ORDER

31For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether the treatment plans are reasonable and necessary.

ii. No interest is payable.

iii. The application is dismissed.