Tribunal File Number: 17-002337/AABS
Case Name: 17-002337/AABS v Wawanesa Mutual Insurance Company
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:
[Applicant]
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES
Lisa Bishop, Counsel for the Applicant
Tim Gillibrand, Counsel for the Respondent
HEARD in Writing on October 5, 2017
OVERVIEW
1[The Applicant] (“the applicant”) was involved in an automobile accident on June 24, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.
DISPUTED BENEFITS
3The issues to be decided by the Tribunal are:
a. Do the applicant’s injuries fall within the Minor Injury Guideline2 (the “MIG”)?
b. Is the applicant entitled to receive income replacement benefits in the amount of $400.00 per week submitted on June 24, 2015 for the period July 1, 2015 to July 1, 2017, denied by the respondent on April 21, 2016?
c. Is the applicant entitled to attendant care benefits, in the monthly amount of $433.06, submitted on August 19, 2015 to date and ongoing, denied by the respondent on November 11, 2015?
d. Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services, recommended by Downsview Healthcare Inc., in a treatment plan submitted on June 25, 2015? This issue was withdrawn at the case conference.
e. Is the applicant entitled to receive a medical benefit in the amount of $1,861.60 for physiotherapy treatment, recommended by Downsview Healthcare Inc., in a treatment plan submitted on November 9, 2015, denied by the respondent on November 17, 2015?
f. Is the applicant entitled to receive a medical benefit in the amount of $1,151.20 for physiotherapy treatment, recommended by Downsview Healthcare Inc., in a treatment plan submitted on January 8, 2016, denied by the respondent on January 18, 2016?
g. Is the applicant entitled to receive a medical benefit in the amount of $2,887.14 for psychological services, recommended by Downsview Healthcare Inc., in a treatment plan submitted on April 4, 2016, denied by the respondent on April 13, 2016?
h. Is the applicant entitled to receive a medical benefit in the amount of $9,005.52 for physiotherapy services, recommended by Downsview Healthcare Inc., in a treatment plan submitted on August 8, 2016, denied by the respondent on August 17, 2016?
i. Is the applicant entitled to receive the cost of an examination, in the amount of $1,521.26, for the assessment of attendant care needs, recommended by Downsview Healthcare Inc., in a treatment plan submitted on July 13, 2015, denied by the respondent on July 21, 2015?
j. Is the applicant entitled to receive the cost of an examination, in the amount of $2,000.00, for a psychology assessment, recommended by Downsview Healthcare Inc., in a treatment plan submitted on November 2, 2015, denied by the respondent on November 9, 2015?
k. Is the applicant entitled to receive the cost of an examination, in the amount of $2,000.00, for a chronic pain assessment, recommended by Downsview Healthcare Inc., in a treatment plan submitted on February 5, 2016, denied by the respondent on February 16, 2016?
l. Is the applicant entitled to receive the cost of an examination, in the amount of $200.00, for a submission of an OCF-3 Disability Certificate, denied by the respondent on October 26, 2015?
m. Is the applicant entitled to receive the cost of a psychological pre-screen interview examination, in the amount of $200.00, submitted on November 7, 2015, denied by the respondent on November 26, 2015?
n. Is the applicant entitled to interest for the overdue payment of benefits?
FINDINGS
4The applicant has failed to establish his entitlement to income replacement benefits.
5The applicant’s injuries are governed by the MIG, and accordingly he is ineligible for the attendant care and medical benefits he claims.
6I find that the applicant has not proven his entitlement to the benefits he seeks: his application is denied.
7The respondent is not liable to pay interest on overdue payments.
REASONS
Income Replacement Benefits
8The applicant did not submit any substantial evidence or argument in support of its case for income replacement benefits (IRBs), nor did it did it set out an amount owing in IRB payments – as it did for other claimed benefits.
9The applicant included an affidavit in which he claims that his business incurred expenses in hiring a new employee to perform tasks that he himself used to perform. It is not clear how he believes this cost translates into a claim for IRBs.
10The respondent’s assertion that the applicant returned to work full-time immediately after the accident is uncontested.
11The applicant is the owner-operator of his own business. He does not dispute the respondent’s evidence that a report on IRB calculations by Great Oak3 dated January 7, 2016 showed that his business did not suffer economic loss as a result of the accident and that his calculated IRB would be $0.00.
12The respondent’s statement that the “the applicant’s advisor has advised that he has abandoned his claim” is uncontested by the applicant, who did not file a Reply submission in this matter. As a result, there is no evidence and no basis for me to find for the applicant on this issue. His claim for IRBs is dismissed.
13The applicant’s submissions include his claim for the cost of the Great Oak IRB report. The applicant’s claim for reimbursement of the expense of $2,260.01 incurred in producing the Great Oak IRB report is denied because the Tribunal’s Order states that this specific claim was withdrawn at the case conference for this matter, which the applicant did not move to amend. The applicant is precluded from re-entering this issue into the proceeding.
Medical Benefits: Minor Injury Guideline
14The issue of whether or not the applicant’s injuries fall within the MIG was not listed in the Order for this hearing; however, the parties have effectively agreed that it is at issue by submitting submissions that focus extensively on this issue. Accordingly I will determine it.
15Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”
16The respondent argues that the applicant’s predominant injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore fall within the MIG. The applicant’s position is exactly the opposite.
17If the respondent’s position is correct, then the applicant is subject to the $3,500.00 limit on benefits prescribed by the s. 18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
18In addition, if I find that the applicant’s injuries are within the definition of “predominantly minor”, then he will be precluded from claiming attendant care benefits (ACBs) by s. 14.2. of the Schedule.
19The evidence from both parties is that the applicant’s physical injuries are predominantly minor in nature: it is uncontested that he sustained sprain and strain of the joints and ligaments of the cervical, thoracic and lumbar spine, left elbow and left shoulder as a result of the accident.
20The applicant argues that his injuries go beyond the definition of “minor” because he has sustained psychological impairments, concussion and post-concussion syndrome and chronic pain syndrome, all of which remove him from the MIG.
Did the applicant sustain psychological injuries that remove him from the MIG?
21I agree with the applicant that psychological impairments, if established, fall outside the MIG, because:
i. The MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological impairment.
ii. I agree with the applicant’s evidence that psychological injuries or conditions such as specific phobia (e.g. driving or travel), acute stress disorder, and post-traumatic stress disorder arise independently from physical injuries and are not clinically associated sequelae to such injuries (minor or not).4
iii. I note that the applicant’s arguments that diagnosed psychological injuries, if proven, are outside of the MIG are uncontested by the respondent.
22The applicant relies on the diagnosis by Dr. Shaul, psychologist, in a psychological assessment report dated February 16, 2016 of adjustment disorder with mixed anxiety and depressed mood, and specific phobia (driving) reiterated in Dr. Shaul’s treatment plan of March 24, 2016.
23The applicant also self-reported psychological issues to Dr. Grigory Karmy in the course of a chronic pain assessment on June 10, 2016.
24The respondent relies on a psychological report by Dr. Karen Spivak, psychologist, dated April 11, 2016 which concluded from a clinical interview and psychometric tests that the applicant does not meet the criteria for a formal diagnosis (DSM-V). The doctor also reported that the applicant tested “minimal to mild” for depressive symptoms and “normal” for anxiety.
25I find the respondent’s evidence more persuasive than the applicant’s evidence because:
i. Dr. Shaul’s conclusions are inconsistent with his own observation on psychometric testing results, which he said implied “low levels of emotional distress since the accident”.
ii. The test results from both Dr. Spivak and Dr. Shaul indicate minimal to mild symptoms, which do not support formal diagnoses that warrant removal from the MIG.
iii. Dr. Shaul is not clear why she strayed from test results in reaching her conclusions or why she apparently places greater weight on interview reporting by a therapist, Ms. Ilios, who is not qualified to make diagnoses.
iv. The applicant fails to explain apparent discrepancies in his self-reporting to different examiners. A finding of driving-specific phobia, for example, seems to conflict with the applicant’s stating to Dr. Spivak that he was driving, cycling and taking his family to Niagara Falls and Blue Mountain.
26On balance, I find that the applicant has not met the onus on him to demonstrate psychological injuries or impairment that would remove him from the MIG.
Is the applicant suffering from chronic pain syndrome that would remove him from the MIG?
27My reading of the Schedule is that chronic pain syndrome, if caused by soft-tissue injuries, falls within the MIG, because the language of s. 3(1) of the Schedule itself expressly includes clinically associated sequelae to soft tissue injuries of the type sustained by the applicant. This leads me to believe that the applicant must argue the issue of whether the chronic pain symptoms he reports are or are not clinically associated sequelae to his minor injuries, and/or his medical reports must provide me with evidence on this question.
28I am persuaded by and follow the reasoning in YXY v. The Personal5 , cited by the respondent, that:
i. Chronic pain takes an applicant out of the MIG if it causes functional impairment and disability.
ii. Ongoing pain alone does not takes an applicant out of the MIG: chronic pain syndrome must be established.
iii. For chronic pain to be more than sequelae from the soft tissues injuries listed in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability.
iv. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the burden on an applicant to show that chronic pain is more than mere sequelae.
29My reading of the cases cited by the applicant to support his assertion that chronicity alone takes a person out of the MIG is that the cases do not support his contention. Neither Arruda v Western, FSCO A13003926, 2015,6 nor Lamasan v. Certas7 suggest that chronic pain automatically excludes coverage by the MIG, and the cases are each distinguishable from this case. In Arruda the applicant’s position was uncontested, making the persuasive value of the decision weak. In Lamasan, the issue was compromised by the insurer having already paid for treatment beyond the MIG.
30I do find Lamasan useful because the adjudicator was clear that chronic pain resulting in demonstrated functional impairment removes the applicant from the MIG.
31The applicant asserts that he suffers from chronic pain syndrome based on:
i. A chronic pain assessment by Dr. Grigory Karmy dated June 24, 2016 which reported chronic mechanical neck pain with left-sided radiculopathy, chronic lower back pain and post-traumatic headache, and opined that the applicant’s chronic pain symptoms place him outside of the MIG.8
ii. A disability certificate from Dr. Pivtoran dated October 8, 2015 indicating a “clear tendency toward chronicity” in the applicant’s symptoms and indicating that “recovery within 12 weeks cannot be assured”.
iii. Ongoing complaints of back pain reported by his family physician Dr. Lurkin.
32The respondent relies on medical evidence that the applicant’s own description of his symptoms do not meet the criteria for chronic pain syndrome:
i. an IE report of April 11, 2016 by Dr. Karen Spivak, psychologist, in which the applicant reported 80% improvement in lower back pain and 95% improvement in neck pain.
ii. a second IE report dated April 11, 2016 by Dr. Eric Silver, physician, in which the applicant reported intermittent (2-3 times per week) lower back pain, which resolved very quickly, and 75% improvement in neck symptoms – described as “tightness” when seated for prolonged periods.
33The respondent also argues that the applicant’s behavior is inconsistent with chronic pain syndrome based on the following:
i. The applicant resumed full-time work almost immediately after the accident and continues to work 60-hour weeks albeit with some limitations on heavy physical tasks.
ii. The applicant has had no treatment since January 2016 and takes very little medication.
iii. In an IE report dated April 8, 2016, Deborah Westbrook, physiotherapist, indicated that the applicant reported taking Extra-Strength Tylenol once weekly.
iv. A clinical note from the applicant’s personal physician Dr. S. Lukin dated May 10, 2016 indicates that the applicant declined a referral to a pain clinic and pain killers.
34I conclude that the applicant has not proven on a balance of probabilities that he suffers from chronic pain syndrome; accordingly, cannot be removed from the MIG on that basis, because:
i. Taken altogether, I find the respondent’s evidence persuasive in refuting the applicant’s claim that he suffers from chronic pain syndrome. None of this evidence is denied by the applicant.
ii. I find that the medical evidence and argument led by the applicant did not clearly address whether or not his chronic pain symptoms are sequelae to his minor injuries.
Is the applicant suffering from chronic post-traumatic headaches and post-concussion that would remove him from the MIG?
35Neither party neatly separates this issue from that of chronic pain in its arguments. However, the applicant claims a diagnosis of post-concussion syndrome (PCS), which would remove him from the MIG. Accordingly, I have decided to determine this issue.
36My reading of the Schedule is that PCS, if established, fall outside the MIG, because the MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include concussion or trauma to the head. As a result the symptoms or issues arising from such injuries, such as chronic post-traumatic headaches cannot be characterized as sequelae to minor injuries.
37To establish his concussion and post-concussion, the applicant relies on the chronic pain assessment of Dr. Karmy, dated June 24, 2016, which included among its diagnoses chronic post-traumatic headache and post-concussion syndrome arising from the accident. Dr. Karmy’s report is clear: he stresses that he regards the chronic post-traumatic headaches in this case as symptoms and indicators of PCS.
38The respondent argues that Dr. Karmy’s report is unreliable because its concussion-related diagnoses are made without reference to records contemporaneous with the accident: physicians Dr. Galina Portnoi and Dr. O. Pivtoran saw the applicant shortly after the accident make no report of headaches or dizziness. This contradicts the statements that the applicant made to Dr. Karmy that he experienced headaches and dizziness right after the collision or shortly after the accident.
39I find that this apparent contradiction weakens the credibility of the report, because Dr. Karmy links his diagnosis to head pain and dizziness experienced at the time of the accident – indicators, he says, of a mild traumatic brain injury or concussion. The contradictions are unexplained by the applicant.
40I also find the report by Dr. Karmy is weakened by his failure to review and account for findings in the IEs, which were completed before his examination of the applicant. This led to a failure to address other potential causes of the symptoms he attributes to PCS, the headaches and also the applicant’s alleged irritability and low mood.
41Lastly, the respondent’s argues that Dr. Karmy is unreliable. It notes that Dr. Karmy has failed to provide a CV, proof of credentials and acknowledgment of duty form.
42Taken altogether, I find the respondent’s evidence and arguments more persuasive in refuting the applicant’s claim that he suffers from post-traumatic headaches that indicate post-concussion syndrome. None of this evidence is denied by the applicant.
43I conclude that the applicant has not proven on a balance of probabilities that he suffers from post-concussion syndrome; accordingly, he cannot be removed from the MIG on that basis.
44As a result on my finding that the applicant’s injuries fall within the MIG, I do not need to determine whether the medical benefits and assessments are reasonable and necessary
Request for Interest
45Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
46In this case, because I have denied this appeal, no payments or overdue and therefore no interest is payable.
CONCLUSIONS
47The applicant has not proven that his injuries fall outside of the MIG.
48The applicant is not entitled to the benefits he claims. His appeal is denied.
49The applicant is not entitled to interest on overdue payments.
Date of Issue: December 29, 2017
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- “Great Oak” is a litigation support firm that does IRB, financial loss, and vocational assessments in personal injury cases.
- Ontario Psychological Association Guidelines for Assessment and Treatment in Auto Insurance Claims, Ontario Regulation 34/10, July 29, 2010, at pp.29-31
- YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
- Arruda v Western, 2015, FSCO A13003926
- Lamasan v. Certas Direct Insurance Company, 2017, FSCO A-14-006115
- A treatment plan dated July 21, 2016 by Dr. Karmy reinforces these findings.