Tribunal File Number: 17-006513/AABS
Case Name: 17-006513 v The Co-Operators 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:
The Applicant
Applicant
and
The Co-Operators Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES
For the Applicant: Nader Fathi, Paralegal
For the Respondent: David Raposo, Counsel
HEARD: In Writing on April 3, 2018
OVERVIEW
1[The applicant] was involved in an automobile accident on February 2, 2016, and sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied to the Licence Appeal Tribunal (the “Tribunal”) when her claim was denied by The Co-Operators (“the respondent”).
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (“the MIG”). The applicant’s position is exactly the opposite.
3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES
4Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?
5If the applicant’s injuries are not within the MIG, then I must determine the following issues
- Is the applicant entitled to a medical benefit in the amount of $1,999.82 for psychological treatment recommended by Normed in a treatment plan (OCF-18) submitted on August 15, 2017, and denied on September 1, 2017?
- Is the applicant entitled to medical benefits for treatment recommended by MacKenzie Medical Rehabilitation Centre Inc. in the following OCF-18s: a. $2,569.40 for chiropractic and massage treatment submitted on February 8, 2017, and denied on February 24, 2017? b. $1,418.00 for chiropractic and massage treatment submitted on September 2, 2016, and denied on September 19, 2016? c. $2,027.00 for assistive devices submitted on July 22, 2016, and denied on August 8, 2016?
- Is the applicant entitled to a medical benefit in the amount of $1,195.00 for chiropractic treatment recommended by Promed Rehabilitation Clinic in an OCF-18 submitted on June 8, 2016 and denied on July 4, 2016?
- Is the applicant entitled to a benefit for the cost of examination in the amount of $2,640.00 for an orthopedic assessment recommended by Princeton Hills Medical Assessments Inc. in an OCF-18/OCF-23 submitted on May 31, 2016 and denied on July 4, 2016?
- Is the applicant entitled to interest on any overdue payment of benefits?
FINDINGS
6I find that the applicant’s injuries are predominately minor. Her entitlement to benefits is governed by the MIG. Her application is dismissed.
7There is no interest on overdue payment of benefits due.
REASONS
The Minor Injury Guideline
8Section 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.” It also defines what these terms for injuries mean. Section 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.3
10There is no evidence that the applicant’s physical injuries were anything but predominantly minor. However, the applicant argues that she should be removed from the MIG because she sustained psychological injuries, had a pre-existing psychological condition and suffers from chronic pain.
Did the applicant sustain psychological injuries?
11The applicant claims that she sustained psychological impairments as the result of the accident that place her claims outside of the MIG.
12Psychological impairments, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the definition does not include psychological impairments.
13To support her claim of psychological injury, the applicant relies on:
i. A psychological report by Dr. Jon Mills, psychologist, dated October 4, 2017, in which she was diagnosed with adjustment disorder with mixed anxiety and depressed mood, specific situational phobia – motor vehicles, and somatic symptom disorder with persistent pain. ii. The OCF-18 prepared by Normed, dated August 15, 2016 in which the applicant’s complaints of flashbacks, sleep disruption and driving/passenger anxiety are noted, and psychological treatment recommended.
14To rebut the applicant’s claim of psychological injury, the respondent relies on:
i. A psychological insurer’s examination (IE) report by Dr. Semple, psychologist, dated October 21, 2016, which indicated no basis for a psychological diagnosis. ii. A second psychological insurer’s examination (IE) report by Dr. Bacchichi, dated December 4, 2017, which indicated no basis for a psychological diagnosis. iii. Both IE assessors consider the applicant’s injuries to be governed by the MIG.
15In reviewing the medical reports of both parties, it is immediately evident that all of them depend heavily on frank and forthright self-reporting by the applicant. The medical conclusions in each are based in large part on the applicant’s answers in clinical interviews and to diagnostic test questions.
16In the IEs, the applicant’s statements in direct interviews contradicted information provided to her own medical practitioners and assessors:
i. She denied psychological issues resulting from the accident, denied sleep disturbances and nightmares and related psychological symptoms experienced in 2016 to personal, non-accident related causes in her examination by Dr. Semple. ii. She denied depression and anhedonia4 the month prior to her examination by Dr. Bacchichi on November 27, 2017 and explicitly stated to him that she did not need or want psychological treatment.
17The applicant makes no explanation for the discrepancies in self-reporting in the different examinations. She does not attack the veracity of the IE reports on her own statements. Accordingly, I am confident in giving the IE reports substantial weight in determining how the applicant’s self-reporting speaks to her claims of psychological impairment.
18An applicant’s own words in examination interviews are powerful evidence in determining whether the psychological problems claimed are real. An applicant’s credibility and consistency are at the core of meeting the onus to prove her case.
19I find that the applicant’s claim of psychological injury arising from the accident is not credible based on her self-reporting to IE assessors.
Does the applicant have a pre-existing medical condition?
20The MIG does permit an applicant with predominately minor injuries to be removed from its coverage if s/he has a medically documented pre-existing condition. The applicant must provide compelling evidence from a health practitioner that he or she will be prevented from achieving maximal recovery from his/her injuries if s/he is subject to the $3,500 cap imposed by the MIG on treatment costs.5
21The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.
22The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires compelling evidence to be provided using the Treatment and Assessment Plan (“OCF-18”) with attached medical documentation, if any, prepared by a health practitioner.
23It is against this strict standard of interpretation that I find that the applicant has failed to prove her contention that she had pre-existing conditions that would take him outside of the MIG. This is because:
(i) The applicant’s submissions do not provide compelling evidence that her pre-accident injuries would generate a barrier to maximal recovery with treatment confined to the MIG limits. None of her medical practitioners addressed this issue. (ii) The applicant’s self-reporting to IE assessors clearly indicated that previous psychological problems were limited episodes linked to acute stress in her personal affairs, for which no medication or psychological treatment was sought, and for which there was no diagnosis.
24I find no evidence exists for a pre-existing psychological condition.
Does the applicant suffer from Chronic Pain Syndrome?
25Chronic pain syndrome may remove an applicant from the MIG.
26The applicant referred to ongoing complaints of pain and the psychological report by Dr. Mills, as noted above, included a diagnosis of somatic symptom disorder with persistent pain.
27The applicant does not develop her argument with respect to chronic pain beyond simply stating Dr. Mills’ results and setting out a list of self-reported pain and pain-related impairment of everyday activities that were noted in a number of OCF-18s.
28The respondent relies on the following evidence to rebut the applicant’s claim of chronic pain:
i. An IE report by Dr. Khan, physiatrist, dated May 12, 2016, in which the applicant noted no ongoing inability to carry out housekeeping, childcare or occupational functions due to pain or any other issues. Physical examination showed no evidence of impairment. Dr. Khan’s opinion was that the applicant’s injuries could be treated with the MIG limits. ii. The IE report by Dr. Semple in which the applicant indicated that pain did not interfere with her job duties.
29I find that the applicant has failed to prove that she suffers from chronic pain syndrome because unexplained conflicts in her self-reporting render her evidence non-credible. Her statements to Dr. Khan directly contradict her words to Dr. Mills and to the persons preparing OCF-18s on her behalf.
Request for Interest
30Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
31In this case, the applicant is not entitled to interest on denied claims, because no payment is due from the insurer.
CONCLUSIONS
32The applicant has not proven that her injuries fall outside the MIG.
33It is unnecessary for me to address the claimed treatment and assessment plans.
34There are no overdue payments and therefore no interest is owed to the applicant.
Released: April 23, 2018
________________________________
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.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- “Anhedonia” refers to the inability to experience pleasure in normally pleasurable activities.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.