Licence Appeal Tribunal File Number: 24-012790/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:
Moonsook Seo
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Kevin Yarde
APPEARANCES:
For the Applicant: Marc Golding, Paralegal
For the Respondent: Omar Sewhdat, Counsel
HEARD: In Writing
OVERVIEW
1Moonsook Seo, the applicant, was involved in an automobile accident on September 8, 2020, 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 as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agreed the MIG limits have not been exhausted.
ii. Is the applicant entitled to $2,457.43 for chiropractic services, proposed by Toronto Healthcare Clinic in a treatment plan submitted October 6, 2020?
iii. Is the applicant entitled to $1,130.85 for chiropractic services, proposed by Toronto Healthcare Clinic in a treatment plan submitted October 6, 2020?
iv. Is the applicant entitled to $2,486.00 for chiropractic services, proposed by Toronto Healthcare Clinic in a treatment plan submitted October 6, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG treatment limits.
4The applicant is not entitled to the treatment plans in dispute.
5As there are no overdue benefits, the applicant is not entitled to interest.
ANALYSIS
The MIG.
6Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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 person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.
8The applicant argues that she should be removed from the MIG because she had a pre-existing medical condition which would prevent her from achieving maximum medical recovery if kept in the MIG. In particular, she had a pre-existing partial paralysis of both legs from contracting polio in South Korea at just three years of age. Also, the applicant had a fall after turning 50 which led to a severe fracture, and she began to employ the use of crutches to get around. The applicant submits that she required the use of a wheelchair to ambulate after the subject accident. The applicant relies on a disability certificate (“OCF-3”) completed by Jong Han Oh, chiropractor, dated September 22, 2020, which lists various impairments, the clinical notes and records (“CNRs”) of her family doctor, Dr. Matthew Kim, and diagnostic imaging. She also submits that the insurer’s examination (“IE”) report of Dr. Eric Silver, MD, dated June 15, 2023, erred in his findings which warrants removal from the MIG.
9The respondent argues that the applicant’s accident-related impairments fall within the MIG. It acknowledges that there is medical evidence that supports that the applicant had a pre-existing medical condition. However, it contends that she has not provided compelling evidence of a treating health practitioner that this pre-existing condition would prevent her from achieving maximum medical recovery if kept in the MIG. It also maintains that the CNRs of the applicant’s family doctor and treating clinic do not establish that the applicant’s pre-existing impairment was exacerbated by the accident. It relies on the IEs of Dr. Silver who determined that the applicant sustained a minor injury from a physical perspective.
Pre-existing Condition
10I find the applicant is not removed from the MIG because of a pre-existing condition for the following reasons.
11First, although I agree with the applicant that there is evidence that she had a pre-existing medical condition in the form of partial paralysis of both legs due to polio and a severe fracture from a fall, I find she has not submitted compelling evidence from a treating practitioner that states that this pre-existing medical condition would prevent her from achieving maximum medical recovery within the MIG, as required by s. 18(2). The applicant relies on a CNR of her family doctor Dr. Kim dated February 2, 2021, where he reported severe right hip and thigh pain. I find this one entry in the family doctor’s post-accident CNRs insufficient to support that her pre-accident medical condition supports MIG removal. The applicant attended her family doctor’s office soon after the accident on September 10, 2020, where the only noted documentation was a complaint of neck pain, reduced range of motion and pain on palpation. Further, she had several other appointments with Dr. Kim for several ongoing medical issues where Dr. Kim records nothing accident related.
12I find that the CNRs of the family doctor and treating clinic are not compelling medical evidence that establishes that the applicant’s pre-existing condition would prevent her from achieving maximum medical recovery within the MIG.
13Secondly, I find the OCF-3 of Jong Han Oh, chiropractor dated September 22, 2020, which the applicant relies on as unhelpful. Mr. Oh purports to diagnose multiple physical injuries, sprains and strains to the upper trapezius, restricted left shoulder ROM due to rotator cuffs strain, post-traumatic tensional headache and lumbar myofascial strain/sprain with facet irritation. The respondent argues that a chiropractor is not medically qualified to provide a medical diagnosis. Indeed, the applicant has not been referred to a medical specialist for anything accident related.
14While I note that Dr. Kim confirmed that the applicant had a chronic history of hip pain and paralysis of both legs, the doctor does not indicate to what extent this injury was exacerbated by the accident or that it would prevent her from achieving maximum medical recovery if the applicant is kept within the MIG.
15Third, in the IE musculoskeletal health report of Dr. Silver, the applicant reported that she had right hip and thigh pain and very occasional discomfort (but not pain) in her right finger and that other accident-related complaints have fully resolved. This casts further doubt that her pre-existing injury was exacerbated by the accident. The applicant chose not to file reply to submissions to address these arguments. Consequently, I was provided with no rebuttal to the respondent’s challenges to the medical evidence or the applicant’s position on removal from the MIG pursuant to s. 18(2).
16Finally, Dr. Silver’s IE concluded that the applicant sustained a soft tissue injury to her neck, left shoulder and back as a result of the subject accident. The doctor’s physical examination opined that the applicant’s accident-related injuries have resolved and that her right hip/lower extremity complaint is not attributable to the accident. Despite this the doctor opined that these injuries could be treated in the MIG. Contrary to the applicant’s submissions, I find that Dr. Silver’s reports do not support the applicant’s position. Further, I find the applicant has provided insufficient evidence to refute Dr. Silver’s opinion.
17Although I acknowledge that the applicant had a pre-existing impairment to her hips and legs, what I find lacking is compelling medical evidence from a treating practitioner supporting that it would prevent recovery if she were treated within the MIG. This is the test that must be met for MIG removal as per s. 18(2) of the Schedule.
18For the above reasons, the applicant has not met her onus in proving on a balance of probabilities that she should be removed from the MIG due to any pre-existing condition.
19As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, I find that interest does not apply pursuant to s. 51 of the Schedule.
ORDER
21I find that:
i. The applicant’s injuries are predominantly minor and 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. The applicant is not entitled to interest.
Released: May 11, 2026
Kevin Yarde
Adjudicator