The applicant, Vanessa Vasudevan, was injured in a motor vehicle collision on February 20, 2017. She was 15 years old at the time.
The applicant applied to her automobile insurer, Economical Insurance, for accident benefits. She applied to the Licence Appeal Tribunal (the “LAT”) when a number of treatment plans and her claim for Non-Earner Benefits (“NEBs”) were denied.
Preliminary Issue – Two Year Limitation Period
Economical raised a preliminary issue, arguing that the applicant’s claim for two treatment plans and NEBs was statute barred as she failed to start an application within two years of being denied. The applicant argued that the limitation period should not begin to run until she reached the age of majority, as she was a minor at the time of the collision.
The LAT concluded that the applicant sustained minor injuries and that since the Minor Injury Guideline (“MIG”) funding had been exhausted, she was not entitled to payment of the denied treatment plans. The applicant withdrew her claim for NEBs, but the adjudicator completed a limited analysis anyway.
Preliminary Issue: The Denial of the Non-Earner Benefit
The insurer sent a letter dated March 8, 2017, acknowledging receipt of a Disability Certificate (“OCF-3”). In this letter, the insurer unequivocally denied the application for NEBs. The applicant made no submissions challenging the sufficiency of the respondent notice of denial and no submissions regarding entitlement to NEBs as she withdrew it as an issue in dispute.
The adjudicator concluded that as per Aquino v. Aviva Insurance Company, 2020 CanLII 80314, the provisions of the Limitations Act, 2002, apply solely to judicial proceedings and the LAT lacks the authority to extend limitation periods for minors since the applicant was a minor at the time of the respondent denial. The applicant did not point to any section of the Statutory Accident Benefits Schedule (“SABS”) or any other legislation that would allow the LAT to import the Limitation Act’s requirements regarding minors into the SABS.
The claim for NEBs was dismissed as it was statute barred due to her failure to dispute the benefit within the prescribed two-year limitation period under section 56 of the SABS.
Issues in Dispute
The core issues in dispute dealt with whether the applicant sustained “minor injuries” within the meaning of the SABS, whether she was entitled to payment of several denied benefits, whether she was entitled to payment of a special award for unreasonably withheld or delayed payments of benefits and whether she was entitled to interest on any overdue payment of benefits.
Result
The LAT concluded that the applicant did not meet her burden of proof to demonstrate, on a balance of probabilities, that she sustained an injury that would entitle her to benefits beyond the $3,500 Minor Injury Guide (“MIG”) limit. The MIG funding had been exhausting, so the remaining issues were moot.
The Minor Injury Guideline
The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the SABS which includes sprains, strains, whiplash associated disorders, contusion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.
If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.”
In the event that the applicant’s injuries fall within the definition of minor injuries, the applicant can be removed from the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:
- She has a pre-existing medical condition;
- The pre-existing medical condition was documented by a health practitioner before the accident; and
- The person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3500 limit under the MIG.
An insured could also be removed from the MIG if they sustained a chronic pain injury in the collision. The LAT has adopted the American Medical Association (“AMA”) Guide as an interpretive tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides state that at least three of the following criteria must be present for a diagnosis of chronic pain syndrome to be established:
- Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
- Excessive dependence on health care providers, spouse, or family;
- Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
- Withdrawal from social milieu, including work, recreation, or other social contacts;
- Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and;
- Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
The applicant’s documented injuries following the collision fell within the definition of “minor injury”.
The applicant argued that she sustained a chronic pain injury with associated functional limitations and a psychological injury. She provided insufficient evidence of any functional limitations or psychological injury caused by the collision. In the three years following the collision, she did not mention any collision-related symptoms. She then complained of pain when she stands for long periods of time. She was not prescribed any medications nor was her complaint further investigated with imaging.
During a s. 44 Insurer examination with physiatrist Dr. Raymond Zabieliauskas, the applicant confirmed that she did not have any pre-existing injuries, no previous musculoskeletal problems, no previous surgeries and was not involved in any previous motor vehicle collisions.
Similarly, the applicant claimed that there was a psychological component to her injuries. She attended a s. 44 Psychology Insurer Examination. She had no pre-existing psychiatric diagnoses and tested within the normal range on anxiety, depression, somatic preoccupations and post-traumatic stress scales, indicating that she did not meet the criteria for a DSM-5 diagnoses. She did not complain of low mood or psychological effects to her family doctor until three years after the accident, when she described feeling anxious when driving.
The LAT agreed that chronic pain with functional limitations or a psychological condition could remove her from the MIG. However, there was insufficient evidence of either.
Conclusion
Since the MIG funding was exhausting and the LAT found that the applicant was limited to MIG funding, her claims for denied treatment plans, interest and a special award were moot. The application was dismissed.
