Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 136
FSCO A14-010070
BETWEEN:
ANGEL GANAL
Applicant
and
COSECO INSURANCE CO./ HB GROUP/DIRECT PROTECT
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: June 18, 19, 20 and July 20, 2016, at the offices of the Financial Services Commission of Ontario in Toronto
Appearances: Loreto Scarola and Joseph Corriero for Mr. Ganal Daniel Himelfarb for Coseco Insurance Co./HB Group/Direct Protect
Issues:
The Applicant, Angel Ganal, was injured in a motor vehicle accident on October 2, 2013. He applied for and received some statutory accident benefits from Coseco Insurance Co./ HB Group/Direct Protect (“Coseco”), payable under the Schedule.1 Coseco determined that Mr. Ganal’s injuries fell within the Minor Injury Guideline and on that basis declined payment of additional medical benefits beyond $3500. The parties were unable to resolve their disputes through mediation, and Mr. Ganal applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Ganal entitled to a medical benefit of $3173.26 for a chiropractic and massage treatment plan?
Is Mr. Ganal entitled to a medical benefit of $2830.26 for a mental health therapy treatment plan?
Is Mr. Ganal entitled to $2486 for the cost of an orthopedic assessment?
Is Mr. Ganal entitled to a special award?
Is Mr. Ganal entitled to interest on any amounts outstanding?
Are the parties entitled to their expenses of the arbitration?
Result:
Mr. Ganal is not entitled to a medical benefit of $3173.26 for a chiropractic and massage treatment plan.
Mr. Ganal is not entitled to a medical benefit of $2830.26 for a mental health therapy treatment plan.
Mr. Ganal is not entitled to $2486 for the cost of an orthopedic assessment.
Mr. Ganal is not entitled to a special award.
Mr. Ganal is not entitled to interest as no amounts are outstanding.
Coseco is entitled to its reasonable expenses of the arbitration.
EVIDENCE AND ANALYSIS:
Coseco has paid medical benefits to Mr. Ganal up to the $3500 monetary limit indicated in the Minor Injury Guideline (MIG). Mr. Ganal seeks treatment and assessment expenses beyond the MIG limit. Therefore, in order to be successful in this arbitration, Mr. Ganal must prove that the injuries he sustained in the accident are not predominantly minor injuries2 so that he can be entitled to medical benefits that surpass $3500.
The Minor Injury Guideline (MIG) Test
The Schedule provides that an insured can receive no more than $3500 towards medical and rehabilitation expenses, including assessments, if they sustain an injury that is predominantly a minor injury.3
A minor injury is defined 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.4
The relevant questions in this case are:
(i) Did Mr. Ganal sustain anything other than a minor injury in the accident?
(ii) Even if he did, was his injury predominantly a minor injury?
Mr. Ganal argues that he is suffering from a multi-dimensional injury that encompasses several disorders including chronic pain, post-traumatic stress, adjustment disorder, anxiety, depression, driving phobia, headaches, radiculopathy, central stenosis and foraminal narrowing. Because his injuries are multi-dimensional and because he has symptoms of post-traumatic stress and adjustment disorder, they cannot be minor injuries within the MIG.
Coseco argues that it is not credible that Mr. Ganal suffers the chronic pain and psychological conditions he alleges because (i) there are limited objective signs to explain his pain; and, (ii) his testimony in respect of his conditions cannot be believed because he is not a reliable historian.
I assessed Ms. Ganal’s credibility by comparing the documented complaints of chronic pain, anxiety and psychological issues with the medical evidence and the evidence of his function. There is very little evidence of disability. There may be pain but the evidence of the pain is not persuasive. I found that Mr. Ganal is not a reliable historian because of the manner in which he answered certain questions. When asked whether something was possible he answered, “I don’t remember”. He repeated the same symptoms over and over. In addition, he did not call a single lay witness to corroborate his limited function at home, at work and in his relationships.
Are Mr. Ganal’s injuries minor injuries as contemplated by the Schedule?
Physical injuries
Mr. Ganal’s family doctor, Dr. Lim, completed the first disability certificate in the case on November 20, 20135 and was required to indicate the injury and sequelae that are the direct result of the accident. Dr. Lim noted that Mr. Ganal sustained a series of strains and contusions and post-traumatic stress.
These initial diagnoses of strains and contusions are caught within the definition of minor injury. The post-traumatic stress diagnosis is more appropriately analyzed within the context of Mr. Ganal’s psychological complaints and is dealt with below.
Mr. Ganal argues however that he has developed chronic pain that interferes with his employment and family, social and recreational activities. The question for me to determine is whether this chronic pain is a clinically associated sequelae to his physical injuries and then whether it is, nevertheless, a predominantly minor injury.
The existence of persistent or chronic pain in and of itself does not necessarily put an insured outside the MIG description because pain could be a clinically associated sequelae to the minor, physical or soft tissue injuries. In the case of chronic pain, the onus is on an applicant to show that it is an injury or condition separate and apart from the minor injury. For several reasons, I find that Mr. Ganal has not proved that his chronic pain does not arise from the minor injuries he sustained. The two factors that inform my conclusions on this issue are (i) the credibility of the evidence related to the chronic pain complaints and (ii) the evidence related to Mr. Ganal’s functional limitations.
First, I find that the preponderance of the evidence suggests that Mr. Ganal exaggerated the severity and chronicity of the pain in general. He made regular pain complaints to Dr. Lim and to many of the medical assessors who opined on his case. He also testified to persistent pain. Yet there is other evidence that the pain had been resolving with treatment. For example, he testified at the hearing that he has not improved since the accident and yet reported to Dr. Mills that he had a 50% improvement both physically and psychologically. The records of Pro-Physiotherapy,6 (“Pro-Physio”) where Mr. Ganal was treated, showed that he had improved 50% in May 2014. Further, in March 2014, he told Dr. Oshidari, Coseco’s physiatrist, that the pain improved with treatment and he made no reports of radiation or tingling.
In addition, while Dr. Lim prescribed medication to control pain he consistently reported, there is little evidence that Mr. Ganal ever used pain medication with regularity. In testimony, Mr. Ganal could not remember whether he started using medication in May 2014 or March 2015. The prescription summary7 indicates he filled a first prescription in April 2014. Then it appears that after a refill in May 2014, no prescription pain medication was obtained until March 2015. This fact is corroborated by his failure to mention the use of pain medication to Dr. Roussev, the neurologist Dr. Lim referred him to in September 2014. Mr. Ganal’s physiotherapy at Pro-Physio also ended in May 2014. Pro-Physio recommended further treatment yet no further physiotherapy was claimed and apparently there is still $1300 left in the MIG account. Mr. Ganal did not make further claims for physical therapy until 14 months after the accident (and after his case had already come to arbitration).
Most significantly, while Mr. Ganal’s reports of serious functional limitations led medical assessors to conclude he had a profound condition, the preponderance of the evidence was that his function was only minimally limited by pain.
For example, Mr. Ganal reported to Dr. Dwyer8 in February 2014 that he had persistent pain and radiation, headaches, difficulty sleeping, depression, anxiety, and returned to two jobs on modified duties with an inability to lift heavy items. Dr. Dwyer concluded that Mr. Ganal has chronic pain syndrome and not a predominantly minor injury and warns that Mr. Ganal will have continued long-term functional impairments without aggressive treatment for chronic pain.
The same can be said of his consultation with Dr. Zatzman in July 20149 where Mr. Ganal reported to Dr. Zatzman that he is frustrated with his constant state of pain and disability. Dr. Zatzman recorded Mr. Ganal’s reports of constant throbbing headaches twice per week were suggestive of post-traumatic tension headaches which are likely contributing to his ongoing psychological problems including stress and anxiety. Dr. Zatzman states that it would be prudent for Mr. Ganal to receive appropriate treatment for his post-traumatic stress symptoms in light of his limitations arising from the incident of concern.
A consideration of Mr. Ganal’s testimony however reveals that he is doing essentially all that he did before the accident. He was back at his full time job two days after the accident and returned to his part time work 3 days later. Mr. Ganal has consistently worked 55 hours per week since the accident. Further, despite his reports to the assessors and his family doctor that led them to believe that his job had been modified by his employer, there have been no formal modifications to his usual full time tasks.
Mr. Ganal also has only some minimal limitations to his other previous activities. He testified that he was back doing most of his household tasks by November 2013 and that he has cut out heavy snow removal and does grass cutting with modifications. He continues to go shopping, go to church, and travel. He continues to drive, though sometimes with apprehension or nervousness.
When cross examined about his testimony related to daily function, Mr. Ganal asserted that his activities have not changed mostly because he is a stoic and hardworking guy. I find that the diagnosis identified by assessors such as Drs. Dwyer and Zatzman pre-supposes some significant limitation to his function. With the admission that most of his function remained the same after the accident, I find that these diagnoses are unreliable.
Finally, there is also evidence that Mr. Ganal’s pain may be due to other degenerative conditions rather than the accident. Dr. Lim testified that he referred Mr. Ganal to Dr. Roussev, neurologist, in July 2014 because the pain complaints continued and he worried that something else was causing the problem. Dr. Roussev found central stenosis and foraminal narrowing. The MRI of September 2014 showed multiple degenerative disc disease, bulging disc and mild facet joint hypertrophy. Dr. Lim called them degenerative changes and osteoarthritis from aging. Dr. Roussev noted that Mr. Ganal’s complaints of numbness were intermittent and there was no conclusive evidence of nerve compression.
There are no physical injuries that take Mr. Ganal out of the MIG. The existence of chronic pain itself is insufficient to take him out of the MIG because overall the evidence about his persistent pain indicates that it is likely a clinically associated sequelae of his soft tissue injuries or even possibly a degenerative or age-related disease. Given his exaggerated reports about physical limitation which are not supported by his oral testimony, I am not satisfied that he has developed a chronic pain condition that is serious and debilitating and separate and apart from the minor injuries he suffered in the accident.
Psychological issues
The preponderance of the evidence also indicates that any psychological problems experienced by Mr. Ganal are clinically insignificant and more likely than not clinically associated sequelae of his minor injuries.
The initial psychological symptoms reported by Mr. Ganal and recognized by Dr. Lim in the first disability certificate are anxiety, nightmares, and nervousness while driving . Dr. Lim testified that the post-traumatic stress was based on Dr. Lim’s observations of Mr. Ganal’s elevated blood pressure and expressed anxiety10 about the accident. Dr. Lim testified that it was an expected reaction to a car accident.
Dr. Lim testified that Mr. Ganal’s reports of waking up at night frequently with worries about the accident indicated that Mr. Ganal kept thinking about the accident. Dr. Lim opined that where symptoms such as these persisted past six months, the patient might need to see someone about it. However, Dr. Lim did not pursue a psychological or psychiatric referral for over two years. Eventually in May 2016, Dr. Lim provided a referral to a GP who does exclusively psychotherapy.
In terms of treatment, initially, Dr. Lim only recommended physiotherapy for the soft tissue injuries (in which Mr. Ganal engaged from December 2013 to May 2014). With respect to the psychological symptoms, Dr. Lim testified that he felt it sufficient that he provide “supportive psychotherapy” in the family clinic setting. Dr. Lim testified that it was not as though Mr. Ganal had depression or a serious mental illness; they talked of his stress and anxiety. Further, Dr. Lim did not prescribe any drug therapy for Mr. Ganal’s reported anxiety and depression.
Dr. Lim’s approach to treating Mr. Ganal’s psychological symptoms conforms to the conclusions of some of the medical assessors who opined that Mr. Ganal did not have significant psychological problems.
Dr. Woods, registered psychologist, assessed Mr. Ganal in late May 2014.11 He found Mr. Ganal’s validity scores were good and that he was making no obvious attempts to deceive. Dr. Woods testified that Mr. Ganal had reasonable complaints of a person who had been in such an accident, but Dr. Woods did not find clinically significant symptoms. He noted some mild depression and that Mr. Ganal was at the low end of the range for moderate anxiety. He found that Mr. Ganal’s perception of pain was not superfluous to the pain he was experiencing. He also testified that perception of pain consistent with the injuries does not bear on a psychological condition. Dr. Woods did not make a psychological diagnosis because he saw insufficient impairment. He opined that Mr. Ganal was within the normal limits and his symptoms were not clinically significant. He also testified that complaints of persistent pain over 7 months could be consistent with somatic symptom disorder and could also be consistent with someone with actual physical injuries. His impression was that Mr. Ganal felt he needed physical therapy and other support regarding his concern for his job capabilities.
Dr. Hines, psychiatrist, considered Dr. Pilowsky’s treatment plan12 by looking at Dr. Woods’ and Dr. Mills’ reports. He based his medical opinion on the clinical interview conducted in September 2015. His opinion from a psychiatric perspective was that Mr. Ganal had no impairments.
On the other hand, Dr. Mills, in his report13 of June 2014, made the following diagnoses: Adjustment disorder, mixed anxiety and depressed mood; specific phobia, situational type (motor vehicles); and, somatic symptom disorder with predominant pain, mild, persistent. Dr. Mills opines that these very diagnoses take Mr. Ganal beyond the MIG because they are not merely clinically associated sequelae to the physical injuries.
Dr. Mills’ medical opinion was the only one of a clinically significant condition. Even still, Dr. Mills admitted under cross examination that the diagnosis of adjustment disorder is not a “heavy hitter” so the symptoms and condition may not be clinically significant. Further, Dr. Mills testified that the somatic symptom disorder essentially replaces chronic pain disorder though the main aspect of somatization in Mr. Ganal’s case is pain. Moreover, Dr. Mills’ report focuses on Mr. Ganal’s reported serious limitations to his function. This fact alone decreases the reliability of Dr. Mills’ opinion given the other evidence before me of Mr. Ganal’s minor changes in function. When it is considered in the context of the other identified corollaries to Dr. Mills’ opinion, I am not satisfied that it can be given any meaningful weight.
I find little fault with the diagnoses of Drs. Woods and Hines that Mr. Ganal’s psychological issues are clinically insignificant in this case. I find that Dr. Mills is reaching to make the diagnosis of “adjustment disorder” because there is very little evidence that Mr. Ganal has failed to adjust since the accident and that the somatic symptom disorder or chronic pain disorder is likely a clinically associated sequelae to the physical injuries.
Conclusion
I find that Mr. Ganal’s injury is a predominantly minor injury based on the preponderance of the medical evidence and based upon Mr. Ganal’s evidence of the injuries’ limited impact on his activities of daily living and his function.
Most of the medical evidence related to his psychological conditions suggests they are not clinically significant and likely associated to the physical injuries he sustained in the accident. The pain of which he complains, while persistent, has not limited his function significantly if at all, has not required increasing amounts of medication to control and overall appears to be clinically associated sequelae to the physical injuries he sustained in the accident.
EXPENSES:
Coseco is entitled to its reasonable expenses of the arbitration. If the parties cannot agree on expenses, they may deliver written submissions by June 12, 2017.
May 12, 2017
Rosemary Muzzi Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 136
FSCO A14-010070
BETWEEN:
ANGEL GANAL
Applicant
and
COSECO INSURANCE CO./ HB GROUP/DIRECT PROTECT
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Mr. Ganal’s claims are dismissed.
Coseco is entitled to its reasonable expenses.
May 12, 2017
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- The Schedule, Section 18
- Section 18(1)
- Schedule, Section 3(1)
- Exhibit 8
- Exhibit 9
- Exhibit 6
- Exhibit 7
- Exhibit 21
- Exhibit 4, Clinical Notes and Records of Dr. Lim, note dated October 4, 2013
- Exhibit 14
- Exhibit 15
- Exhibit 5