B. W. v. Royal SunAlliance Insurance
Tribunal File Number: 16-001517/AABS
Case Name: 16-001517 v Royal SunAlliance Insurance
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:
B. W.
Applicant
and
Royal SunAlliance Insurance
Respondent
DECISION
Adjudicator: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Rajiv Kapoor
Counsel for the Respondent: Christine Galea
Heard in writing on: December 6, 2016
OVERVIEW:
The applicant was injured in an automobile accident on August 29, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').
The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (AABS) (the “Tribunal”).
The parties were unable to resolve their dispute at a case conference held on October 20, 2016, and the matter proceeded to a written hearing. All submissions and evidence were filed with the Tribunal by December 2, 2016. A review of those documents forms the basis of this decision.
ISSUES TO BE DECIDED
- The following are the issues to be decided:
a. Did the applicant sustain predominately minor injuries as defined under the Schedule?
b. Is the applicant entitled to receive a medical benefit in the amount of $1,304.00 for assistive devices, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated August 11, 2015, denied by the respondent on August 25, 2015?
c. Is the applicant entitled to receive a medical benefit in the amount of $1,752.00 for chiropractic treatment, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated August 29, 2015, denied by the respondent on September 12, 2015?
d. Is the applicant entitled to receive a medical benefit in the amount of $1,752.00 for chiropractic treatment, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated August 29, 2015, denied by the respondent on September 12, 2015?
e. Is the applicant entitled to receive a medical benefit in the amount of $1,819.30 for assistive devices, recommended by Assess Medical Diagnostics Inc. in a treatment plan dated January 14, 2016, denied by the respondent on January 27, 2016?
f. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a psychological assessment, recommended by Pain Management and Mental Health Services Ltd. in a treatment plan dated December 2, 2015, denied by the respondent on December 9, 2015?
g. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
- Based on the totality of the evidence before me, there are three questions I must answer.
a. Are the applicant’s injuries predominately minor as defined under the Schedule? I have concluded that they are.
b. Does the applicant have a pre-existing condition that would prevent recovery under the Minor Injury Guideline (“MIG”)? I have concluded that he does not.
c. Did the applicant suffer a psychological impairment as a result of the accident that would take him out of the MIG? I have concluded that he does not.
- Given that I have found the applicant’s injuries are within the MIG I find it unnecessary to consider the reasonableness and necessity of the treatment plans or the issue of interest.
ANALYSIS
Applicability of the Minor Injury Guideline
The MIG 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.
Section 18(2) of the Schedule makes provision for injured persons, who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. 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 MIG cap.
In the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
Injuries Sustained
The only evidence submitted is documentary evidence and I have reviewed and considered all of the documents submitted by the parties.
Since the accident the applicant has received treatment. To date he has used $3,500 in medical and rehabilitation benefits.
A Treatment Confirmation Form dated October 3, 2013, was submitted by Saloni Matiwala of New Care Rehab. This form is used initially for injuries that fall within MIG and provides quick access to the $3,500 in funds without the need for pre-approval from the insurer.
On October 3, 2013, Saloni Matiwala also submitted a Disability Certificate which lists the applicant’s injuries as sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of other unspecified parts of lumbar spine and pelvis and low back pain.
On November 23, 2013 the clinical notes and records of the applicant’s family physician, Dr. Tranqui diagnose the applicant with lumbar strain. The records do not indicate that the applicant’s injuries fall outside the MIG or that there are any barriers to recovery because of a pre-existing injury that cannot be treated within the confines of the MIG.
The clinical notes and records of the Sandalwood Clinic indicates that the applicant has pain in the right side of his lower back with normal hip and lower extremity movement and sensation. The records do not indicate the applicant sustained anything other than minor injuries as a result of the motor vehicle accident.
A second Treatment and Assessment Plan dated November 28, 2013 submitted by Fatima Begum, a physiotherapist, lists the injuries of the applicant as, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of other unspecified parts of lumbar spine and pelvis and low back pain. Part 4 of this form states the injuries fall within the MIG.
The applicant’s treating chiropractor, Dr. Justin Guy completed a Treatment and Assessment Plan dated August 29, 2014, which lists the applicant’s injuries as sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of other unspecified parts of lumbar spine and pelvis and low back pain. The injuries are identical to the Treatment Plan submitted by Fatima Begum from November 28, 2013. Part 4 of the form submitted by Dr. Justin Guy states the applicant’s injuries are now outside of the MIG but he does not provide any evidence in support of this determination
Based on the evidence before me, I find that the applicant sustained predominately minor injuries, as defined under the Schedule, as a result of the motor vehicle accident.
Having found that, I will now consider if there is compelling evidence that the applicant suffered from a pre-existing condition, documented by a healthcare practitioner prior to the accident, and which prevents the applicant from achieving maximal recovery under the MIG.
Pre-existing Conditions
In the applicant’s submissions, he states that he was suffering from severe anxiety, depressive disorder and panic attacks prior to the accident and these diagnosed conditions have been further exacerbated by the accident.
In the applicant’s Examination Under Oath (the “EUO”) dated November 13, 2013, the only reference to a pre-existing injury is to his left shoulder which required surgery and physiotherapy.
On pages 26 and 27 of the EUO the applicant states the shoulder surgery on August 19, 2013 was successful and after the eighteen sessions of physiotherapy ending October 31, 2013, he had no more ongoing shoulder problems.
On page 47 of the EUO, the applicant states that other than pain in his lower left back, he was experiencing no other problems.
The clinical notes and records from Dr. Tranqui and from Dr. Hasan at the Great Lakes Medical Centre indicate the applicant struggled with anxiety issues, depression, sleeping problems and panic attacks prior to the accident. However, I am not directed to any evidence that demonstrates these pre-existing conditions prevent the applicant from achieving maximal recovery within the MIG.
The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate that the pre-existing condition prevents him from achieving maximal recovery within the MIG. The applicant did not point me to any evidence that demonstrates this.
The applicant directed me to a Functional Abilities Evaluation dated July 14, 2015, from Dr. Justin Guy, a practicing chiropractor.
Dr. Guy’s evaluation took place almost two years post-accident and he reports the applicant of having lower back pain, right knee pain and mood and behavioural changes.
Dr. Guy’s summary in the Functional Abilities Evaluation is that “the applicant suffers from functional impairment, injury and disability that would constitute a complete inability to carry on a normal life. The applicant has sustained impairments that continuously prevent him from engaging in essentially all of the activities he engaged in prior to the accident in question.” Dr. Guy arrives at his conclusion from observed performance, clinical observations and self-reported bodily pain symptoms.
Dr. Guy’s summary appears to be in relation to the non-earner benefit which is not an issue in dispute for the purposes of this hearing.
Dr. Guy’s Functional Abilities Evaluation does not show the applicant’s injuries to be outside of the MIG. He does state that the applicant “has experienced increased stress, fatigue and depression since the accident.” However I give little weight to a psychological diagnosis when the report has not stated which tests were done on the applicant to arrive at this conclusion and I do not give much weight to a chiropractor providing a psychological opinion.
With respect to Dr. Justin Guy, the test in section 18 (2) of the SABS and the onus from the Scarlett decision of escaping the MIG has not been satisfied by the applicant or from the Functional Abilities Evaluation.
Psychological Impairment
The applicant submits that his psychological and anxiety related injuries fall outside of the MIG. Joshua Pugen, a Registered Social Worker, in his Social Emotional Evaluation from March 23, 2016, opines that the applicant “exhibits sufficient psychosocial impairment that is a pre-cursor to serious psychological impairment” and then goes on to state that the applicant’s impairments “constitute clinically associated sequelae to his physical pain.”
I find Mr. Pugen’s summary that the applicant has impairments that “constitute clinically associated sequelae to his physical pain” fits the definition of Minor Injury under section 2 of the Schedule.
On December 12, 2015, a Treatment and Assessment Plan was submitted by psychologist Dr. Mehdi Lotfalizadeh listing the same injuries as the Treatment and Assessment Plans from October 3, 2013 by Saloni Matiwala and November 28, 2013 by Fatima Begum, but listing, in addition, the following; mixed anxiety and depressive disorder, specific (isolated) phobias and other chronic pain.
I am presented with conflicting evidence with respect to whether the applicant has suffered a psychological impairment.
Dr. Sherri MacKay, Clinical Psychologist, concludes in her report dated March 22, 2016 that the applicant shows no indication of a psychological impairment that has been exacerbated by the motor vehicle accident or that any psychological factors are affecting recovery from any physical injuries sustained in the accident.
Unlike Dr. Mackay, Dr. Lotfalizadeh does not provide any supporting documentation for these additional injuries, what tests were done, and why they would take the applicant outside of the MIG.
I also find the psychological assessment of Dr. Mackay more persuasive than the opinion of Mr. Pugen. Dr .Mackay is a qualified psychologist practicing in clinical and forensic psychology since 1991. Dr. Mackay also administered the Modified Somatic Perceptions Questionnaire (MSPQ) and the Pain Symptom Ratings-Revised (PSR) tests on the applicant.
Mr. Pugen is a Registered Social Worker licensed to practice under the Ontario College of Social Workers and Social Service Workers and made an assessment based on the applicant’s social interactions and impairments. In addition to being unaware of Mr. Pugen’s qualifications to make psychological diagnoses, Mr. Pugen did not provide clarification as to the details of the testing conducted on the applicant which led him to conclude the applicant suffered from a psychological impairment.
I am not directed to any evidence or testimony directly from the applicant as to his symptoms and impairments as a result of the accident.
Based on the evidence before me, I find the applicant has failed to satisfy his onus to show that there is compelling evidence that he suffers from a psychological impairment that would take him outside of the MIG.
Cost of the Treatment Plans
- Since I have found that the applicant sustained predominately minor injuries as defined under the Schedule, he has exhausted his $3,500 limit under the MIG and he has not established a pre-existing condition or a psychological impairment, therefore the cost of the treatment plans in dispute are not payable.
CONCLUSION
- For the reasons outlined above, I find that:
a. The applicant sustained predominately minor injuries as defined under the Schedule.
b. Since the answer to 43a is yes, and the applicant has not established that he has a pre-existing condition that prevents recovery under the MIG, he is not entitled to the treatment plans or interest that is in dispute for this application.
COSTS
The issue of costs was not listed in the November 2, 2016 Order. Notwithstanding this the respondent has claimed for costs. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure costs are an exceptional remedy. There must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding.
The respondent raised the issue of costs in their submissions. I find that the respondent has not provided sufficient evidence of how the applicant’s conduct was unreasonable, frivolous, vexatious, or in bad faith, to satisfy Rule 19.1. The claim for costs is dismissed.
Released: March 28, 2017
Sandeep Johal,
Adjudicator