Why AB claimant won’t receive additional benefits

An applicant citing pain and other issues did not meet the burden of proof for an insurer to provide benefits beyond the minimum injuries guideline (MIG), adjudicator Janet Roswell wrote in a July 28, 2023 Licence Appeal Tribunal decision (Jabbour v. Economical Insurance Company, 2023 ONLAT 21-002589/AABS).

The applicant, Yara Jabbour, was in an automobile accident on Aug. 4, 2018, and stated police, ambulance, and emergency services personnel did not arrive on the scene following the accident. A family member transported her from the accident site. The car was taken to a collision centre.

The tribunal documents noted the applicant attended a physiotherapy appointment on Aug. 23, 2018, and that the first post-accident appointment with her family physician, Dr. Rachita Gurtu, took place on Sept. 25, 2018 – during which she reported accident-related back pain. The decision said Jabbour next saw her family physician on Nov. 7, 2018 and did not mention accident-related injuries.

“The applicant did not describe back pain to her family physician Dr. Gurtu again until Jul. 4, 2019, almost one year following the accident,” the adjudicator’s decision said. “The applicant did not describe any psychological impairments after the accident or fear avoidance behaviour to Dr. Gurtu. There is no record in the clinical notes and records taken by Dr. Gurtu or subsequently by Dr. Mohamed Khzam of psychological impairment being mentioned by the applicant to her family physician.”

During a Jun. 4, 2019 insurer’s examination medical evaluation, the “applicant described to Dr. Mile Stefanac that at the time of the accident she had no immediate symptoms, and she was capable of exiting the vehicle of her own volition. The applicant also told Dr.Mile Stefanac that she did not develop pain in her neck, shoulder, and lower back area until three weeks following the accident.”

At that time, the tribunal documents said Jabbour told the doctor, “Since the accident, she continues performing her daily living activities independently without assistance. [She also said] she resumed driving after the accident, and she reported no limitations performing personal care and household maintenance activities. She did not describe that her functionality was in any way limited following the accident by pain or otherwise.”

Later, on Oct. 15, 2021, the applicant had an x-ray of her pelvis/lumbar spine and SI joint to investigate reported back pain. According to tribunal documents, it “showed no compression fracture; that her soft tissues were within normal limits and her vertebral and intervertebral disc spaces were maintained and that there was normal alignment of her lumbar spine.”

The related diagnostic report said “no cause of pain was identified,” and that a further x-ray on Oct. 1, 2022, “showed the lumbar spine well-maintained and minimal mild early degenerative disc disease, which is the result of the aging process as opposed to being an accident-related injury.”

In her dismissal of the application, the adjudicator said Jabbour hadn’t met the burden of proof to demonstrate entitlement to treatment beyond the $3,500 MIG.

Roswell determined “the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.”

Feature image by iStock.com/sabthai