Tribunal File Number: 17-000862/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:
R.N.
Applicant
and
The Personal Insurance Company
Respondent
DECISION
Adjudicator: Anna Truong
Appearances:
Michael Wentzel, Paralegal for the Applicant
Shelby Chung, Counsel for the Respondent
Heard in writing on: July 31, 2017
OVERVIEW
1R.N. (the “applicant”) was involved in an automobile accident on December 17, 2015. He sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), but they were denied by the respondent.
2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided:
Did the applicant sustain predominately minor injuries as defined under the Schedule?
If the answer to issue one is no:
a. Is the applicant entitled to a medical benefit as outlined in the psychological Treatment and Assessment Plan (OCF-18) dated August 2, 2016, completed by Dr. Judith Pilowsky, in the amount of $3,129.48?
b. Is the applicant entitled to a medical benefit as outlined in the chiropractic and massage therapy Treatment and Assessment Plan (OCF-18) dated September 14, 2016, completed by Mackenzie Medical Rehabilitation Centre, in the amount of $2,027?
c. Is the applicant entitled to the cost of a psychological assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated June 27, 2016, completed by Dr. Judith Pilowsky, in the amount of $2,200?
- Is the applicant entitled to an award pursuant to section 10 of Ontario Regulation 664 (O/Reg 664), because the respondent unreasonably withheld or delayed payments?
RESULT
4Based on the totality of the evidence before me, I find the applicant sustained predominately minor injuries as defined under the Schedule. Since the answer to issue one is yes, the applicant is not entitled to any of the medical benefits in dispute. I also find the applicant is not entitled to an award pursuant to section 10 of O/Reg 664.
ANALYSIS
5The only evidence submitted by the parties is documentary evidence. I have considered all of the documents submitted and summarized the ones I find relevant to my determination below.
1. Applicability of the Minor Injury Guideline
6The Minor Injury Guideline (“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.
7Section 18(2) of the Schedule makes provision for some 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 the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
8It is well-established law that the onus of establishing entitlement beyond the MIG cap rests with the applicant. The applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
9The applicant submits as a result of the accident, he suffers from neck pain, headaches, left shoulder pain, anxiety, stress, depression, difficulty concentrating, decreased libido, dysfunctional sleep patterns, vehicular anxiety and nervousness as a passenger. While the applicant lists all of these injuries, his submissions focus on his left shoulder injury, low back pain, and his alleged psychological impairments in support of his removal from the MIG.
Physical Impairments
10The applicant’s submissions with respect to his physical injuries focus mainly on his left shoulder impairment in support of his removal from the MIG. The applicant referenced several notes from Dr. Dharma Singaram, his family physician, and Mackenzie Medical Rehabilitation Centre Inc. in his submissions. However, none of the notes referenced demonstrate the applicant suffered anything more than minor injuries as a result of the accident.
11An X-ray of the applicant’s left shoulder dated September 8, 2016, found a high grade partial thickness supraspinatus tendon tear. The applicant submits this is a significant finding that supports his removal from the MIG. I disagree. The MIG specifically states a partial tear is a minor injury and only complete tears are excluded from the MIG. The applicant’s X-ray does not indicate a complete tear, only a partial tear. Since a partial thickness tear falls within the MIG, the applicant cannot be removed from the MIG based on this.
12The applicant made reference to the Insurer’s Examination Medical Report dated November 17, 2016, wherein Dr. Mula noted the applicant “reported low back pain with seated SLR on the left, findings which in the context of his history are suggestive of possible lumbar disc herniation” and recommended the applicant undergo an MRI. The applicant argued this meant Dr. Mula “felt there may be a significant injury to the applicant’s spine, enough to warrant an MRI and perhaps remove him from the MIG”. The applicant further argued Dr. Mula’s report is incomplete and inconclusive evidence the applicant’s injuries fall within the MIG, because an MRI had not yet been conducted.
13I find several weaknesses in this argument. First, Dr. Mula does not state he felt there may be significant injury to the applicant’s spine. Dr. Mula’s examination found full range of motion except for mildly decreased mobility of the applicant’s left shoulder and low back. Dr. Mula diagnosed the applicant with myofascial strain of the left shoulder and left bicep tendon, and lumbosacral myofascial strain, which are all minor injuries.
14Second, Dr. Mula’s report is based on the medical evidence he had at the time. Dr. Mula stated he would be happy to do an addendum, if the applicant does undergo an MRI. However, there is no MRI in the applicant’s hearing submissions. If the applicant felt Dr. Mula’s opinion is incomplete due to the lack of an MRI, it is incumbent on the applicant to obtain a referral from his treating practitioners for an MRI. It is not the respondent’s responsibility to ensure the applicant follows through with recommendations.
15Lastly, it is not up to the respondent to provide evidence that the applicant’s injuries fall within the MIG. As mentioned above, it is the applicant’s onus to prove his accident-related injuries are not predominately minor. Therefore, if the applicant believes an MRI would reveal significant injury to his spine, it is incumbent on the applicant to obtain that MRI and provide it to the Tribunal as evidence. He has not done so.
16Based on the evidence before me, the applicant has not proven his accident- related physical injuries are not predominately minor. Therefore, I find the applicant’s physical injuries are predominantly minor.
Psychological Impairments
17With respect to the applicant’s psychological impairments, he relies on the psychological report of Dr. Judith Pilowsky dated September 23, 2016 wherein Dr. Pilowsky opined the applicant met the criteria for a DSM-5 diagnosis and diagnosed him with an “Adjustment Disorder with Mixed Anxiety and Depressed Mood”. I have trouble with Dr. Pilowsky’s conclusion. Dr. Pilowsky administered three psychometric tests: the Beck Depression Inventory (BDI-II), the Beck Anxiety Inventory (BAI) and the Pain Catastrophizing Scale (PCS). Dr. Pilowsky noted the applicant scored minimal levels of depression and moderate levels of anxiety on the Beck Inventories. She also noted the applicant’s PCS score indicated he was coping relatively well with pain.
18Dr. Pilowsky cited the DSM-5 as the basis for her diagnosis and I have reviewed the criteria. The specific DSM-51 diagnostic criteria for an adjustment disorder are as follows:
A. The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B. These symptoms or behaviors are clinically significant, as evidenced by one or both of the following:
Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and cultural factors that might influence symptom severity and presentation.
Significant impairment in social, occupational, or other important areas of functioning.
C. These [sic] stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.
D. The symptoms do not represent normal bereavement.
E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months. [Emphasis added]
19Dr. Pilowsky’s psychometric testing as well as her clinical interview does not indicate the applicant meets the DSM-5 diagnostic criteria for an adjustment disorder. The applicant is not experiencing marked distress that is out of proportion with the stressor and he is not experiencing significant impairment in his functioning. Furthermore, in the Insurer Examination Psychological Report dated August 29, 2016, Dr. Chan found the applicant is not experiencing significant psychological difficulties and he did not sustain any psychological injuries as a result of the accident. Dr. Chan’s findings are consistent with Dr. Pilowsky’s psychometric testing and his conclusions are consistent with the DSM-5’s diagnostic criteria. For these reasons, I prefer them over Dr. Pilowsky’s.
20Even if I were to accept Dr. Pilowsky’s diagnosis, the applicant’s psychological impairments would still not remove him from the MIG as his psychological impairments do not interfere with his functioning and therefore is not the predominant injury. In other words, his accident-related injuries are still predominantly minor. Based on the evidence before me, the applicant has not met his onus of demonstrating he suffered non-minor injuries as a result of the accident. Therefore, I find the applicant has suffered predominantly minor injuries as a result of the accident and can be treated appropriately within the MIG.
2. Medical Benefits in Dispute
F. Since I have found the applicant sustained predominately minor injuries as defined under the Schedule, the medical benefits in dispute are not payable as the respondent has paid for treatment up to the MIG limits.
3. An Award Pursuant to Ontario Regulation 664
21Section 10 of O/Reg 664 states an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. Since I found nothing payable, the respondent cannot have unreasonably withheld or delayed payments. As such, no award will be granted.
CONCLUSION
22For the reasons outlined above, I find the applicant sustained predominately minor injuries as defined under the Schedule and he is not entitled to any of the medical benefits in dispute, or an award pursuant to section 10 of O/Reg 664.
Released: January 9, 2018
Anna Truong
Adjudicator