Tribunal File Number: 17-005315/AABS
Case Name: 17-005315 v Pembridge 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
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
Counsel for the Applicant: Tina Radimisis
Counsel for the Respondent: Patrick Baker
Written Hearing on: March 9, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on June 27, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).1
2[The applicant] applied for a chronic pain assessment and chronic pain treatment, but was denied.
3The respondent, (“Pembridge”) found [the applicant]’s injuries were predominantly minor and considered to be within the Minor Injury Guideline (the “MIG”), however, she had not exhausted the $3,500 statutory limit. Pembridge denied the treatment plans as not reasonable or necessary.
4[The applicant] disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES
5The following issues are to be decided:
(i) Are the applicant’s injuries predominantly minor as that term is defined in s.3 (1) of the Schedule and, thus, subject to a $3,500.00 treatment limit pursuant to s.18?
(ii) Is the applicant entitled to compensation of $2,260.00 for a chronic pain assessment by All Health Medical Centre that was submitted to the respondent on August 5, 2015 and denied on September 5, 2015?
(iii) Is the applicant entitled to receive a medical benefit in the amount of $13,273.54 for chronic pain treatment that was recommended by All Health Medical Centre in a treatment plan submitted to the respondent on August 18, 2018 and denied on August 21, 2015?
RESULT
6Based on the evidence before me, I find that:
a. [The applicant] sustained predominantly minor injuries as defined under the Schedule;
b. Based on the above finding, [the applicant] is not entitled to compensation of $2,260.00 for a chronic pain assessment by All Health Medical Centre that was submitted to the respondent on August 5, 2015;
c. [The applicant] is not entitled to receive a medical benefit in the amount of $13,273.54 for chronic pain treatment that was recommended by All Health Medical Centre in a treatment plan submitted to the respondent on August 18, 2018;
ANALYSIS
The Minor Injury Guideline
7Section 3(1) of the Schedule defines a “minor injury” 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 and includes any clinically associated sequelae to such an injury.” The Schedule also defines what these terms for injuries mean.
8Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
9The onus is on the applicant to show that his/her injuries fall outside of the MIG.2
Did [the applicant] sustain predominantly minor physical injuries?
10The only medical evidence provided by [the applicant] in support of her claim is the treatment plan and assessment.
Dr. Alrick Daugherty, Chiropractor – Life Total Wellness Centre
11In a letter dated July 8, 2014, Dr. Daugherty, indicated [the applicant] “has minor soft-tissues injury with microtrauma”. The insurer’s assessors are also of the opinion that [the applicant]’s injuries sustained in the accident do not fall outside the MIG.
12On July 14, 2014, Dr. Daugherty, completed a Disability Certificate (OCF-3) with a description of injuries that were directly caused by the accident:
a. Lumbar spine sprain and strain
b. Spinal joint dysfunction
13Additionally, in Dr. Daugherty’s OCF-3, he indicated that [the applicant] does not suffer a complete inability to carry on a normal life, specifically, that [the applicant] “has not sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which [the applicant] ordinarily engage in before the accident”. Further, Dr. Daugherty indicated the anticipated duration for recovery was 9-12 weeks.
14As a result of his OCF-3, Dr. Daugherty recommended treatment for [the applicant] first started attending physiotherapy treatment at Life Total Wellness Centre on July 8, 2014. She attended treatment until September 2014. It is unclear as to why [the applicant] stopped receiving treatment.
15I find Dr. Daughterty’s OCF-3 analysis supports a finding that M.W’s injuries fall within the MIG. This is consistent with the injuries reported by [the applicant] to Pembridge.3
Dr. Zatzman, Family Physician and Dr. Husnani, Chiropractor
16A chronic pain examination was conducted at the request of [the applicant] on September 5, 2015 by Dr. Zatzman and Dr. Husnani. Neither Dr. was a treating physician of [the applicant], their sole purpose was to conduct an assessment of [the applicant]. In addition, it was unclear as to how long of an assessment of [the applicant] was done by Drs. Zatzman and Husnani. According to their report, Drs. Zatzman and Husnani relied on “updated chronic pain scientific medical literature” to determine if [the applicant] suffers from chronic pain. There is no indication that Drs. Zatzman and Husnani reviewed any other medical document(s), specifically Dr. Daugherty’s OCF-3 to assist with their assessment of [the applicant] I am hesitant to assign full weight to an assessment that only relies on medical literature and does not consider a review of any other medical evidence of [the applicant]’s accident-related impairment(s).
17In addition to the medical literature, Drs. Zatzman and Husnani conducted a physical examination of [the applicant] and reported that all testing shows that [the applicant]’s active range of motion is within normal functional limits. According to the testing done, the normal values were obtained from the AMA Guide.4
18Despite the physical testing results, Drs. Zatzman and Husnani report [the applicant] suffers from “a poor psychological and emotional response to injury.” They conclude that [the applicant]’s subjective reports of injuries and testing “points towards a chronic pain syndrome with central sensitization.” The Zatzman/Husnani report does not include a psychological component to the assessment, and therefore, I place little weight on the psychological findings of Drs. Zaztman and Husnani, as psychological findings are beyond their scope of expertise.
19I find the report of Drs. Zaztman and Husnani, from a physical perspective, supports the opinion of Dr. Daugherty, that [the applicant] has suffered predominantly minor injuries. As a result, I find the report lacks compelling objective evidence to support a finding of chronic pain syndrome.
Dr. Gharsaa, Orthopaedic Surgeon
20Dr. Osama Gharsaa, Orthopaedic Surgeon, on behalf of Pembridge, provided a report dated October 23, 2015. Dr. Gharsaa relied on a review of the treatment plans, the report of Drs. Zatzman and Husnani, the application for accident benefits and disability certificate. Based on this review, Dr. Gharsaa noted, “unless there is any evidence of a fracture, she [the applicant] should be treated within the MIG”. The treatment plans were not reasonable and necessary and no formal facility-based treatment will be needed at this point.” Dr. Gharsaa also noted that the treatment plan indicated a fractured scapula (shoulder), but found no result or report of same and concluded there was no fracture.
21Dr. Gharsaa noted the physical examination revealed that [the applicant] was able to demonstrate a full range of motion. Further, Dr. Gharsaa opined that [the applicant]’s “upper extremities muscle power was 5/5”. Similarly to Drs. Zatzman and Husnani, Dr. Gharsaa found [the applicant] showed a normal range of motion. Dr. Gharsaa makes a diagnosis of whiplash associated disorder (“WAD II”) of the neck, sprain/strain of upper and lower back and both shoulders; concluding [the applicant] has sustained soft tissue injuries, which are minor in nature.
22I prefer the report of Dr. Gharsaa as his physical impairment findings are in line with the conclusion that Dr. Daugherty reaches in determining [the applicant]’s reported injuries are minor in nature. This is the same conclusion that Drs. Zatzman and Husnani reach in determining that [the applicant]’s physical injuries are minor.
Dr. Sharma, Psychiatrist
23Dr. Shreekant Sharma, Psychiatrist, conducted an insurer examination and provided a report on November 28, 2015. Dr. Sharma’s report was based on a review of the medical brief provided by the respondent, the history provided by [the applicant] and an examination of [the applicant] It should be noted that Dr. Sharma was not able to complete the assessment due to [the applicant]’s behaviour during the assessment. As a result, I am unable to make any findings from a psychological perspective regarding [the applicant]’s injuries.
24[The applicant]’s initial injury complaints at the time of the accident and to Pembridge indicated left side of body injuries. In her report to Drs. Zaztman and Husnani, [the applicant] reports to have suffered right side of body injuries. Neither [the applicant]’s assessors, nor the IE assessors or any other evidence provides any explanation as to why there is a change in which side [the applicant] injuries occurred on. The contradictions of [the applicant]’s injury complaints are key as the lack of consistency may indicate the injuries are not as serious as initially presented to Pembridge and the respective medical treatment provider and subsequent assessors. I place more weight on the IE report of Dr. Gharsaa, because his findings are based on a review of the medical reports; in addition to a physical evaluation of [the applicant].
25Based on the evidence before me, I find that [the applicant] sustained predominately minor injuries, as defined under the Schedule, as a result of the accident. There is no evidence of any pre-existing condition(s). I find no evidence that she incurred anything other than soft tissue injuries. [The applicant] has not provided any compelling objective evidence that her injuries are not minor or that her injuries fall outside the MIG. Further, neither the OCF-3 nor the chronic pain assessment establishes that [the applicant] sustained any injuries other than minor injuries.
CONCLUSION:
26For the reasons outlined above, I find that:
(i) [The applicant] sustained predominately minor injuries as defined under the Schedule. This means that her coverage of medical benefits is limited to $3,500.00;
(ii) As [the applicant]’s injuries are described as minor and thus fall within the ‘Minor Injuries Guideline’, and that amount has been not exhausted, [the applicant] may be entitled to receive treatment up to the $3,500.00 limit.
(iii) As a result of my finding that [the applicant]’s injuries are predominantly minor, it is unnecessary for me to make a determination as to whether the disputed treatment plans are reasonable and necessary.
Released: July 17, 2018
Derek Grant, Adjudicator
Footnotes
- O. Reg. 34/10
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- Statement of [the applicant], dated August 22, 2014
- American Medical Association Guide to the Evaluation of Permanent Impairment, 6th Edition