Fridays With Rogers Partners

At our weekly meeting, Athina Ionita discussed a decision of the Ontario Licence Appeal Tribunal decision, D.G. v. Co-operators General Insurance Company, 2020 CanLII 61461 (ON LAT). The case considered whether the applicant’s injuries fall outside of the Minor Injury Guideline (MIG).

Facts

The applicant was rear-ended by a TTC bus at the intersection of Bathurst Ave. and Baycrest Ave. in Toronto. The applicant claims she suffered physical injuries, psychological injuries, a sleeping disorder and headaches because of the accident. Further, she claims that her injuries resulted in a referral to a mental health and addiction assessment.

For these reasons, the applicant argues that her injuries fall outside of the MIG.

Decision

The adjudicator rejected the applicant’s arguments and evidence, finding that the applicant was within the MIG.

Analysis

The adjudicator considers a number of pieces of evidence with respect to the applicant’s physical injuries including a MVA assessment form, her OCF-3, the submitted OCF-24 and an ultrasound. The adjudicator finds that the injuries described in the MVA assessment and the OCF-3 form generally fall under the MIG. Further, the “MIG” checkbox on the MVA assessment form was ticked.

Although there was one report (an OCF 24) that states that “additional intervention beyond the MIG is required” the applicant provided no clinical notes or records to support this, and so the adjudicator assigns this little weight.

Moreover, the adjudicator did not give weight to an ultrasound that showed both a “focal tendinosis” and an “interstitial tear”. The focal tendinosis is consistent with chronic pain, whereas an interstitial tear would fall under the MIG. Because the adjudicator could not reconcile these findings, she found that the ultrasound is inconclusive.

The adjudicator then addressed the applicant’s purported psychological injuries. With respect to the sleeping disorders, the adjudicator finds that there is not enough objective evidence supporting this.

On a Neck and Pain Disability Assessment, the applicant noted that her sleep was a 2/5, with 5 indicating that the patient has substantial difficulty with the item in question.

In an Occupational Therapy consult, the therapist noted that the applicant has difficulty falling and staying asleep in addition to waking up tired.

Together, the adjudicator concludes that the evidence is insufficient to establish that she has a sleep disorder. Even if the evidence was sufficient to establish a sleep disorder, the adjudicator was unclear how a sleep disorder would remove her from the MIG.

The evidence to support the applicant’s headaches was also given little weight. The MVA initial assessment report that describes the headaches as a “chronic post-traumatic headache”, was completed by a physiotherapist and kinesiologist, which the adjudicator stated are not the best medical professionals to make this diagnosis.

The Headache Disability Index Report, also submitted in support of the applicant’s position, is entirely self-reported and thus bears little weight.

Further, the adjudicator refers to a psychological questionnaire and mental health and addiction referral, assigning little weight to these as well. The BDI-II (Beck’s Depression Inventory) questionnaire submitted by the applicant was not administered by a psychologist or other licensed professional and was entirely based on self-reporting.

The referral referenced by the applicant was not made by a medical or rehab professional and instead was made by a social worker.

The applicant also relies on a treatment plan made by the social worker in support of the referral, however, it is unsigned by both the applicant and the social worker, as is required by the Schedule.

Conclusion

The applicant’s case fails because she lacked evidence to substantiate her claims. The evidence needs to be clear. The ultrasound indicating both a minor injury and chronic pain was deemed inconclusive and was given little weight.

Evidence based solely on self-assessment, again, was given little weigh. In this case, these were assessments such as the BDI-II that was self-administered and the Headache Disability Report.

Also, conclusions drawn in the supporting assessments need to be made by the appropriate health professional. A kinesiologist’s and physiotherapist’s diagnosis of a post-traumatic chronic headache will carry little weight since they are not the proper professionals to make such a determination.