Licence Appeal Tribunal File Number: 24-001869/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:
Novia Daley
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Applicant: Bianca Pirrotta-Iaccino, Paralegal
For the Respondent: Carman Lee, Counsel
HEARD: By way of written submissions
OVERVIEW
1Novia Daley, the applicant, was involved in an automobile accident on June 11, 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.
2The applicant submits she was stopped at a stop sign in a parking lot and upon making a right turn, she had to swerve to avoid colliding with a pedestrian which resulted in her vehicle’s front passenger side hitting a wall.
ISSUES
3The issues in dispute are:
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?
Is the applicant entitled to $3,244.58 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 (“plan”) dated October 12, 2022?
Is the applicant entitled to $2,912.56 for chiropractic services, proposed by Alma Rehab Inc. in a plan dated January 18, 2023?
Is the applicant entitled to $2,397.75 for a chronic pain assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated October 10, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant withdrew issue 2 as listed in the case conference report and order released July 4, 2024, regarding a psychological assessment.
RESULT
5I find that:
i. The applicant remains within the MIG;
ii. As the applicant is subject to the MIG, it is not necessary to consider whether the treatment plans are reasonable and necessary; and
iii. As there are no overdue benefits, the applicant is not entitled to interest.
ANALYSIS
The applicant remains in the MIG
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 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.
8The applicant submits that she should be removed from the MIG because of her pre-existing condition and chronic pain as a result of the accident.
The applicant has not proven she suffers from a pre-existing condition precluding recovery if held within the MIG
9The applicant points to a pre-existing medical condition of severe bilateral osteoarthritis noted by her family doctor, Dr. Peter Jones, on February 8, 2020. The respondent also referred to this doctor’s note regarding bilateral osteoarthritis, but notes that it only was only referring specifically to the applicant’s knees.
10Dr. Jones’s notes on June 21, 2022 describe the applicant telling him she was in an accident 10 days prior and was advised by the tow man to attend a physiotherapy rehab centre and that she now “feels good”.
11A further visit to Dr. Jones on June 28, 2022 to provide him the report from Alma Rehab, includes the applicant commenting that she finds treatment helping and she suggested a prescription for Vimovo.
12I agree with the respondent that the existence of a pre-existing condition alone does not remove someone from the MIG unless there is compelling evidence that such a condition would prevent maximal recovery if the MIG was maintained.
13The first parts of the test for removal from the MIG due to a pre-existing injury outlined in s. 18(2) of the Schedule is to show a documented pre-existing injury. The evidence establishes the applicant had severe bilateral osteoarthritis, but I agree with the respondent that Dr, Jones was specifically noting this for the applicant’s knees. I am not satisfied that this diagnosis relates to other body parts.
14The other part of the test in s. 18(2) is to establish that the injury will prevent the applicant from achieving maximal recovery if she is subject to the MIG limit.
15I find the applicant has not been able to establish a link between her knee condition in 2020 and her recovery from the accident. The OCF-3 does not mention the applicant had any issues with her knees before nor as a result of the accident.
16As a result, I find the applicant has not proven, on a balance of probabilities, that she suffers from a pre-existing condition precluding recovery if held within the MIG.
The applicant has not proven she suffers from chronic pain as a result of the accident.
17The applicant submits that she should be removed from the MIG as she suffers from chronic pain.
18An OCF-3 was completed by Roger Singh, chiropractor at Alma Rehab on June 17, 2022 noting injuries and sequela as a result of the accident as follows:
i. Acute pain
ii. Whiplash associated with complaint of neck pain with musculoskeletal signs
iii. Injury of muscle and tendon at neck level
iv. Sprain and strain of thoracic spine
v. Sprain and strain shoulder joint
vi. Sprain and strain of lumbar spine
vii. Sprain and strain of sacroiliac joint
viii. Sprain and strain of hip
ix. Disorders of initiating and maintaining sleep
x. Stress
xi. Tension-type headache
xii. Nervousness
xiii. Problems related to physical environment
xiv. Problems related to other psychosocial circumstances
xv. Problems related to lifestyle
19In support for this position, the applicant also relies on:
June 15, 2022 to August 30, 2022 treatment records from Alma Rehab Clinic indicating her injuries have some improvements.
A November 11, 2022 s. 44 musculoskeletal assessment performed by Dr. James Kenneth Stewart, family physician, which describes the applicant saying that the treatment has been helpful but that she has ongoing lower back and right shoulder pain and requires some assistance with her pre-accident activities of daily living but remains independent in her personal care tasks.
An August 30, 2022 chiropractic re-assessment at Alma Rehab Clinic indicating the applicant complains of thoracic and lumbar spine pain, shoulder pain and reduced range of motion.
August 30, 2022 to October 21, 2022 treatment records from Alma Rehab Clinic indicating that her injuries have had some improvement since the last assessment.
An October 12, 2022 chiropractic re-assessment at Alma Rehab Clinic indicating the applicant complains of thoracic and lumbar spine pain, shoulder pain, reduced range of motion and reduced ability to move.
October 19, 2022 to January 13, 2023 treatment records from Alma Rehab Clinic indicating that her injuries have had some improvement since the last assessment.
A January 18, 2023 chiropractic reassessment at Alma Rehab Clinic indicating the applicant complains of thoracic and lumbar spine pain, shoulder pain, reduced range of motion and reduced ability to move.
January 18, 2023 to February 15, 2023 treatment records from Alma Rehab Clinic indicating that her injuries have had some improvement since the last assessment.
March 16, 2024 clinical notes of Dr. Jones indicating that the applicant has ongoing shoulder and low back issues.
July 13, 2024 clinical notes of Dr. Jones indicating that the applicant informed him of stress and anxiety pertaining to her accident.
October 20, 2024 clinical notes of Dr. Jones indicating that the applicant has ongoing pain to lower back and hip area.
20The applicant points to C.G. vs. The Guarantee Company of North America, 2020 CanLII 63599 (ONLAT) at para. 37 where the Tribunal found that chronic pain is a condition that persists for three to six months and that a formal diagnosis of chronic pain is not required to remove an applicant from the MIG.
21The applicant submits that she has not received a formal diagnosis of chronic pain but that her injuries have become chronic in nature and that the ongoing medical records shed light as to the applicant’s injuries having become chronic in nature.
22The respondent submits that the applicant’s current injuries are more likely to be linked to the subsequent motor vehicle accident of October 26, 2023 (the “2023 accident”) than the accident at issue.
23The respondent also notes that the applicant did not comply with the Tribunal order to produce an OHIP summary and prescription summary from 1 year pre-accident to the date of the case conference and asks the Tribunal to make an adverse inference in that regard. The applicant did not address this point in her submissions.
24I do agree with the respondent that defying a Tribunal order, especially without explanation, must be considered. I find that the lack of providing the OHIP summary and prescription summaries could allow the applicant to hide relevant evidence that contradicts her evidence and position. Especially since there was a 2023 accident, and the applicant’s position relies on post-2023 accident evidence, I will draw an adverse inference from the lack of this evidence being provided, especially when most of the evidence relied upon is based on self-reports and reports of the treatment provider. I therefore conclude that the documents that have not been provided would likely have been unfavourable to the applicant’s case.
25The respondent also relies on the following:
A November 11, 2022 s. 44 musculoskeletal assessment performed by Dr. James Kenneth Stewart, family physician, which describes the applicant as having at most a WAD I-II cervical spine sprain/strain and a thoracolumbar spine sprain/strain which keeps her within the MIG, and two paper review reports confirming his initial conclusions regarding the MIG.
October 27, 2023 clinical notes of Dr. Jones indicating that the applicant was involved in another car accident the previous day and was experiencing back and shoulder pain and muscle spasms.
October 28, 2023 clinical notes of Dr. Jones indicating that the applicant had ongoing complains of low back and neck pain, worse with sitting, making her unable to work.
November 9, 2023 clinical notes of Dr. Jones indicating that the applicant got her pain relief prescriptions re-filled.
November 15, 2023 clinical notes of Dr. Jones indicating that the applicant complained of low back pain from the accident and wanted to take time off from work as her job entailed standing for long periods of time so she was struggling.
November 27, 2023 s. 44 assessment with Dr. David Mula. While this assessment was related to the 2022 accident, the assessment happened one month after the 2023 accident. The applicant indicated to the assessor that she woke up one morning and could not get up so she was going to be off work for 4 months on short-term disability. There is no mention of the 2023 accident.
November 27, 2024 s. 44 physician assessment report of Dr. David Mula concluded the applicant suffered from myofascial strain of the right shoulder and lumbosacral spine which were soft tissue injuries falling under the MIG.
26The respondent argues that the applicant went back to work two days after the subject accident yet took time off work after the 2023 accident.
27From my review, the clinical notes and records of Alma Rehab Clinic relied upon by the applicant are primarily generic reports with checklists from the chiropractic treatment provider which provide little insight and do not establish chronic pain. The more significant part of the evidence of the applicant suffering a higher degree of pain are in Dr. Jones’ notes and are in the month following the 2023 accident. The applicant did not address the 2023 accident in her submissions and only briefly in her reply. The applicant therefore comes short of establishing on a balance of probabilities of a link of chronic pain to injuries from the 2022 accident.
28I agree with the applicant and the jurisprudence that a formal diagnosis of chronic pain is not required to establish chronic pain, but I also agree with the respondent that chronic pain must be accompanied by some functional impairment or disability and be of a severity that causes suffering and distress as per V.G. and Aviva Insurance Canada, Re, 2019 CarswellOnt 4364. In this case I have not been pointed to or directed to evidence of functional impairment or disability.
29I find that the applicant’s medical evidence does not establish chronic pain that has resulted in a functional impairment. The treating physician for the applicant is her family doctor, and her CNRs do not have any mention of accident-related pain after the appointment four days following the accident where she mentioned a shoulder injury but that she was getting better, except for a 2024 note stating she has ongoing shoulder issues.
30While the notes from Alma Rehab Clinic discuss her treatment for pain and note improvements between June 2022 and February 2023, I do not find that they prove a functional impairment or disability nor that they conclude she suffers from chronic pain.
31I find there is a significant gap in reports of accident-related pain to the applicant’s family doctor between the subject accident and the 2023 accident, and of referrals to specialists in that period for chronic pain or for prescription medication.
32The gaps in documents provided by the applicant in not complying with the Tribunal order on productions also impacts me being able to see the applicant’s impairments in the years after the subject accident.
33As a result, I find the appellant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional impairment as a result of the accident that warrants removal from the MIG.
The treatment plans
34As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.
ORDER
36For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. No interest is payable;
iv. The application is dismissed.
Released: February 17, 2026
Geneviève Painchaud
Vice-Chair