Tribunal File Number: 16-001547/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:

A.S.

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

For the Applicant Rajiv Kapoor

For the Respondent: Christopher Whibbs

Heard In Writing: December 14, 2016

Overview:

1. On April 18, 2011, the applicant was injured in a motor vehicle accident. She applied for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). TD Insurance Meloche Monnex (“TD”) denied payment for two treatment plans on the basis that the applicant’s injuries are predominantly minor injuries as defined in the Schedule and subject to treatment under the provisions of the Minor Injury Guideline. This is not to suggest that the applicant does not suffer from pain. Rather, the Minor Injury Guideline is a payment scheme which caps an insured person’s treatment for minor injuries at $3,500.

2. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for payment of these benefits, applicable interest, and costs.

ISSUES IN DISPUTE

3. The following issues are in dispute before the Tribunal:

1) Is the applicant entitled $2,065 for a psychological assessment, recommended by Dr. Mehdi Lotfalizadeh, in a Treatment Plan dated June 30, 2015?

2) Is the applicant entitled to $3,427.52 for physiotherapy services, recommended by Dr. Mitesh Rajodiya, in a Treatment Plan dated March 7, 2016?

3) Is the applicant entitled to interest on outstanding payments?

4) Is the applicant entitled to costs under Rule 19.1 of the LAT Rules?

RESULT

4. There is a lack of evidence proving that the applicant’s injury is not predominantly minor. As a result, the applicant is subject to the Minor Injury Guideline and not entitled to payment for the two treatment plans in dispute. Given this decision, no interest is owing.

5. The applicant is not entitled to costs because the conduct complained of did not occur within the Tribunal’s proceeding.

Analysis:

Procedural Issues

6. There are two procedural issues to resolve before the substantive issues are analyzed.

7. First, in an Order dated October 28, 2016, the Tribunal set a 10-page limit for the applicant and TD’s respective submissions. This is a written hearing. The applicant’s initial submissions are 13 pages. TD’s response submissions are 21 pages. These figures do not include evidence, which is not bound by a page limit. Both parties have breached the Tribunal’s Order; neither party sought permission to extend the page limit. I expect the parties to follow the Tribunal’s Orders in the future.

8. Second, the Tribunal’s order placed a deadline for each party’s submissions. The applicant submits that TD’s submissions were late. The applicant does not specify the remedy sought for this alleged breach. In any event, I decline to sanction TD. While the order is dated October 28, 2016, it was not delivered to the parties until a later date. TD served its submissions upon the applicant within one week of receiving the order. TD’s conduct is reasonable in the circumstances.

Substantive Issues

9. The Minor Injury Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, and that will prevent the injured person from achieving maximal recovery if benefits are limited to the Minor Injury Guideline cap. The onus is on the applicant to prove that her entitlement to benefits is not subject to the Minor Injury Guideline.

10. The applicant submits that she suffers from chronic pain and psychosocial and psychological impairments, all of which, she further submits, are not predominantly minor injuries.[^1] I am not convinced that these injuries, considered individually or in combination, remove the applicant from the Minor Injury Guideline. Although I consider the evidence and injuries as a whole, for analytical purposes I discuss each injury individually.

Chronic Pain

11. The applicant claims to suffer from chronic pain. The medical evidence provided to support this claim is the following:

• The clinical notes and records of her family doctor, Dr. Damji

• A letter from a medical doctor, Dr. Safakish, in which Dr. Damji is copied

• The clinical notes and records of Trinity Rehabilitation Centre

• A Functional Abilities Evaluation report by Dr. Guy

12. The clinical notes and records of both Trinity Rehabilitation Centre and Dr Damji, and Dr. Safakish’s letter, suggest that the applicant suffers from chronic neck, shoulder, and back pain. To the extent that these suggestions are accurate, there is no explanation of the methodology by which the applicant was tested. I do not know what tests or test results were used to diagnose the applicant with chronic pain.

13. Dr. Guy’s functional abilities evaluation report diagnoses the applicant with symptoms that appear to be chronic in nature. Dr. Guy’s report does not diagnose the applicant with chronic pain syndrome. Moreover, Dr. Guy assessed the applicant on October 5, 2016. This is more than 5 years after the motor vehicle accident. Dr. Guy provides no explanation of how the 5-year gap between the accident and his report affects his conclusions.

14. I conclude that the medical evidence submitted by the applicant is not sufficient.[^2] As noted above, the clinical notes and records and Dr. Safakish’s letter do not explain the tests and test results used to diagnose the applicant with chronic pain. As a result, I am unable to rely on the clinical notes and records and Dr. Safakish’s letter as accurate assessments of chronic pain injuries. Dr. Guy’s report does not add to the analysis either. The failure of Dr. Guy’s report how the 5-year gap between the accident and assessment affects its conclusion makes it unreliable.

15. The applicant submits that she suffers from fibromyalgia. In the applicant’s view, this diagnosis should remove her from the Minor Injury Guideline. In support of this position the applicant has provided a letter from Dr. Safakish, dated July 29, 2013, in which the doctor comments:

[Dr. Safakish and the applicant] had a long conversation regarding the physiopathology of fibromyalgia, the fact that it is a lifelong disease and she cannot expect a cure … the best we can offer is ‘control’ of the disease, and she seems to understand this fact.”

16. The medical evidence of fibromyalgia is too scant to be reliable. Dr. Safakish’s letter is written over two years after the motor vehicle accident. I do not know if the applicant was formally diagnosed with fibromyalgia, how the diagnosis was made, or whether the fibromyalgia was caused by the motor vehicle accident.

Psychosocial and Psychological Impairments

17. The applicant submits that she suffers from impairments related to depression and anxiety as a result of and in relation to the pain caused by the accident. Two medical reports are provided as evidence.

18. The first medical report is the social emotional assessment report of Dr. Pugen. Dr. Pugen is a social worker. His report concludes that strictly from a psychosocial perspective, the applicant presents a level of psychosocial functioning that does not classify as a "minor injury." The report’s conclusion is largely based on the following observations.

Mrs. [S.] endorsed symptoms of anxiety (racing thoughts, feeling fear, hypervigilance, intrusive thoughts/images, nightmares, panic attack symptoms, exaggerated startle response and avoidance) and depression (helplessness, hopelessness, feeling sadness, loss of interest in daily activities, low motivation, low libido, irritability, short temperament and low self-worth).

19. I reject Dr. Pugen’s conclusion. Dr. Pugen’s report does not explain how he tested the applicant and how the results of those tests factored into his conclusion. Without this information, I am unable to determine the reliability of Dr. Pugen’s conclusion. Indeed, the lack of explanation calls into question to veracity of Dr. Pugen’s entire report.

20. The second medical report is the psychological assessment report of Dr. Lotfalizadeh. Dr. Lotfalizadeh supervised a psychological assessment that was conducted on the applicant on September 8, 2016. This assessment occurred almost 5.5-years after the motor vehicle accident. Dr. Lotfalizadeh’s report, dated September 15, 2016, diagnosed the applicant with the following:

• Adjustment Disorder with Mixed Anxiety and Depressed Mood

• Specific Phobia, Situational Type (Driver and Passenger)

• Somatic Symptom Disorder, with predominant pain, Moderate

21. Dr. Lotfalizadeh described the methods by which the applicant was tested and intimated about how those tests results factored into his diagnoses. The testing methods are sound and the conclusions drawn based on the testing results are reasonable. I accept Dr. Lotfalizadeh’s diagnoses.

22. I am unable, however, to accept on a balance of probabilities that the disorders diagnosed by Dr. Lotfalizadeh were caused by the April 18, 2011 motor vehicle accident. The psychological assessment which Dr. Lotfalizadeh supervised was conducted over 5.5-years after the accident. Dr. Damji’s clinical notes and records document other potential causes of the psychological injuries diagnosed in Dr. Lotfalizadeh’s report. A note dated April 2, 2013 describes a provisional diagnosis related to depression that is caused in part by the following “overwhelming issues” in addition to chronic pain from the motor vehicle accident:

• recent marriage

• full-time job

• home duties

• family planning

Clearly, there are multiple causes of the applicant’s psychological impairment, as it exists today. I am unable to conclude that the motor vehicle accident is a materially contributing cause of the applicant’s present psychological impairment.³

23. Dr. West is a psychologist who was retained by TD to conduct an independent medical evaluation of the applicant. In a report dated December 7, 2015, Dr. West found that psychological testing reported levels of depression and anxiety that were significantly elevated. So elevated in fact that depression and anxiety could interfere with the applicant’s recovery and rehabilitation. Notwithstanding this malady, Dr. West concluded that the applicant could be treated within the Minor Injury Guideline. In part, this conclusion was based on Dr. West’s opinion that the applicant is unable to deal with multiple stressors:

Persons with a profile such as [the applicant’s] may feel overwhelmed by problems in their life, and they tend to be very concerned about their pain and focused on seeking pain relief. They tend to see themselves as broadly disabled with respect to work and managing their activities of daily living. They may also be trying to impress upon others the seriousness of their circumstances, and they likely wish that someone would help them.

24. The psychological reports before me, taken together, paint the picture of a person who has multiple stressors in her life, including the pain caused by the accident, and who has a psychological profile that tends to be overwhelmed by multiple stressors. It makes sense to me that the applicant has a psychological impairment. But I am unable to determine whether the accident materially contributed to this impairment. There is no evidence on how or the extent to which the accident contributed to the applicant’s current psychological impairment. I cannot guess. And without this information, I cannot make the logical leap necessary to conclude that the applicant’s current psychological impairments mean that her injuries from the accident are not predominantly minor. I need to make this logical leap in order to find in the applicant’s favour.⁴

25. The applicant’s treatment is subject to the Minor Injury Guideline. She is not entitled to payment for either treatment plan in dispute.

Interest

26. Given my decision, the applicant is not entitled to interest.

Costs

27. The applicant requests costs under Rule 19.1 of the LAT Rules. In the applicant’s view, TD’s denial of the two treatment plans in dispute, in light of the medical information available to it, is “excessive, imprudent and stubborn.” The applicant submits that this constitutes “unreasonable” behaviour within the meaning of Rule 19.1.

28. The impugned conduct did not occur within the Tribunal’s proceeding. This is required for a Rule 19.1 costs order.

Conclusion:

29. The applicant is subject to the Minor Injury Guideline. As a result, the applicant is not entitled to either of the two treatment plans in dispute.

30. Given this decision, no interest is owing.

31. The applicant is not entitled to costs under Rule 19.1.

Released: March 5, 2017

Chris Sewrattan

Adjudicator

Footnotes

1. 3I make no finding on the appropriate test for proving the causation.
2. 4The applicant did not argue that she suffers from a pre-existing injury that entitles her to treatment outside of the Minor Injury Guideline.
3. 1The applicant does not allege that she suffers from an applicable pre-existing injury.
4. 2TD submitted the report of Dr. Safir, an othopaedic surgeon retained by TD to conduct an independent medical evaluation. I have reviewed Dr. Safir’s report and it does not affect my conclusion that the applicant’s medical evidence insufficient.