J.J. v. Allstate Insurance Company of Canada, 2019 CanLII 101599

Citation: J.J. vs. Allstate Insurance Company of Canada, 2019 ONLAT 18-005948/AABS

Tribunal File Number: 18-005948/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:

J. J.

Appellant

and

Allstate Insurance Company of Canada

Respondent

DECISION

PANEL:

Derek Grant, Adjudicator

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Andrew Franklin, Counsel

HEARD:

In Writing on: April 29, 2019

OVERVIEW

1The applicant (“J.J.”) was involved in a motor vehicle accident (“the accident”) on May 24, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2J.J. applied for benefits from the respondent (“Allstate”) and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.

3Allstate argues that all of J.J.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”)². J.J.’s position is exactly the opposite.

4If Allstate is correct, J.J. is then subject to the $3,500.00 limit on 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.

5I must decide whether J.J.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine his entitlement to the medical benefits in dispute.

ISSUES

6The issues in dispute are as follows:

a. Did J.J. sustain predominantly minor injuries as defined under the Schedule?

b. Is the treatment plan in the amount of $2,616.15 for physiotherapy treatment recommended by Toronto Health Care Inc. in a treatment plan (OCF-18) submitted on June 20, 2017 and denied on July 5, 2017, reasonable and necessary?

c. Is the treatment plan in the amount of $1,291.54 for physiotherapy treatment recommended by Toronto Health Care Inc. in an OCF-18 submitted on October 10, 2017 and denied on October 31, 2017, reasonable and necessary?

d. Is the treatment plan for the cost of an attendant care needs assessment in the amount of $1,521.26 recommended by Toronto Health Care Inc. in a treatment plan (“Form 1”) submitted on June 28, 2017 and denied on July 5, 2017, reasonable and necessary?

e. Is the treatment plan for the cost of a neurology assessment in the amount of $2,000.00 recommended by Toronto Health Care Inc. in a OCF-18 submitted on September 14, 2017 and denied on September 15, 2017, reasonable and necessary?

f. Is J.J. entitled to interest on any overdue payment of benefits?

RESULT

7Based on a review of all the evidence put before me, I find that J.J.’s physical and psychological injuries meet the definition of ‘minor’ under the Schedule, it is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

LAW

Minor Injury Guideline

8The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1).

9The onus is on the applicant to show that his injuries fall outside of the MIG.³

10J.J. argues that his injuries go beyond the definition of “minor” because he has sustained physical and psychological impairments and chronic pain, all of which remove him from the MIG.

J.J. did not sustain physical injuries that remove him from the MIG

11Although J.J. has provided medical evidence which confirms he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Allstate confirms that J.J.’s physical injuries fall within the MIG.

12My finding that J.J.’s physical injuries fall within the MIG is supported by the following evidence:

(i) The disability certificate (“OCF-3”) completed by Dr. Domenic Minnella, a chiropractor, dated June 21, 2017, confirms J.J. has soft tissue injuries. The OCF-3 is consistent with the complaints seen in J.J.'s treatment records from his family physician; for example,

(a) On May 31, 2017, Family Physician Dr. Dilipkumar Mather diagnosed J.J. with physical injuries – “muscular pain”;

(b) On July 4, 2017, J.J. saw Dr. Mather regarding “right leg numbness”. The record specifically indicated that J.J. has “no back pain” and “no nausea or vomiting”; he was again diagnosed with “muscular pain”. Additional visit records from October 17, 2017 to September 11, 2018 repeat the diagnosis of “muscular pain”

(ii) J.J. visited the Lakeridge Health Emergency Department on the date of the accident. The Emergency Records states no sign of cervical, lumbar or thoracic spine tenderness and no signs of open/basal skull fracture. J.J. also underwent a CT scan which indicated normal results; and

(iii) On behalf of Allstate, Neurologist Dr. Brandon Kucher, assessed J.J on November 10, 2017. Dr. Kucher opined that J.J.’s injuries are indicative of “soft tissue sprain/strain injuries of the axial spine”. Dr. Kucher found that J.J.'s injuries were minor in nature.

13The medical evidence submitted by J.J. and Allstate confirm that J.J.’s physical injuries are consistent with those that would be defined as ‘minor’. In it’s consistency, the evidence supports, and I find that, J.J. suffered soft tissue injuries as a result of the accident. J.J. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.

J.J. did not sustain psychological injuries that remove him from the MIG

14For the reasons that follow, I find that J.J. did not suffer psychological impairments that would take him out of the MIG.

15I find that J.J.’s own evidence does not support that he suffered any neurological or psychological impairment as a result of the accident. My finding is based on the following:

(i) J.J. relied on the OCF-3 of Dr. Minnella, to support that he has psychological injuries that would remove him from the MIG. However, I put little weight on the OCF-3 of Dr. Minnella because psychological diagnoses are beyond a chiropractor’s area of expertise. In the OCF-3 Dr. Minnella lists “concussion” as part of J.J.’s injuries. J.J. presented no medical evidence to support he suffered a concussion as a result of the accident.

(ii) J.J. also relies on the OCF-18 of Neurologist Dr. David Morgenthau, who also indicated J.J suffered a concussion. There is no indication that Dr. Morgenthau’s conclusion is based on objective testing. In addition, the concussion diagnosis is not supported by any other medical evidence. In his report, Neurologist Dr. Kucher opined that the only (my emphasis) diagnosis of injury/impairment that J.J. suffered was axial spine sprain/strain, as a result of the accident.

Dr. Shaul Pre-Screen Report

16On January 20, 2018, Dr. Shaul, Supervising Psychologist and Ms. Iliois, Therapist. interviewed J.J. and, based on clinical interview and self-reported questionnaires, indicated that J.J. is suffering from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in and around a vehicle)”.

17I place very little weight on this report as it does not provide me with evidence to show that J.J.’s reported psychological impairment(s) are anything other than symptoms or sequelae arising from the soft tissue injuries sustained in the accident. The report is based entirely on a series of questions asked of J.J. during the screening process. In essence, it is a self-report of J.J.’s symptoms and difficulties.

18No psychometric tests were administered by Dr. Shaul or by Ms. lliois during the pre-screen assessment. The report recommends an assessment but contains no diagnosis based on an objective conclusion.

19In contrast, Dr. Salerno‘s comprehensive testing, in his report dated December 13, 2018, found that J.J.'s psychological symptoms were mild and did not meet DSM-V criteria for a psychological diagnosis, meaning he does not suffer from a formal psychological condition that would remove him from the MIG. Dr. Salerno concluded that J.J. did not suffer from an accident-related diagnosable psychological impairment.

20Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that J.J. suffers from a psychological impairment that is not subject to the MIG.

21J.J. has not provided medical evidence to demonstrate that he is unable to recover under the MIG as a result of his psychological symptoms. Therefore, he has not met the onus of establishing his entitlement to psychological treatment beyond the MIG limits.

22For these reasons, I put more weight on the insurer’s examination (IE) report of Psychologist Dr. Fabio Salerno, than on the report completed by Psychologist Dr. Andrew Shaul, on behalf of J.J.

J.J. does not suffer from chronic pain syndrome that would remove him from the MIG

23I find that J.J. does not have a chronic pain condition arising from the accident that places him outside of the MIG. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

24J.J. submits that due to his psychological injuries and “chronic pain” he suffers from chronic pain syndrome. J.J. submits he has not reached his pre-accident state, still has functional impairments and has not recovered in the usual time with these types of injuries. Despite this, J.J. has not provided me with any medical opinion that supports a chronic pain diagnosis.

25J.J. asserts that he suffers from chronic pain syndrome based on his complaints of pain to Family Physician, Dr. Mather. I disagree.

26I find that J.J.’s symptoms do not meet the criteria for chronic pain because:

(i) The records of Dr. Mather do not diagnosis J.J. with chronic pain based on any objective criteria;

(ii) Neither Drs. Mather, Minnella, Morgenthau or any other treatment providers discuss J.J.’s level of pain or it’s affects on his function;

(iii) I find for chronic pain to take someone out of the MIG, there must be an affect on their functionality. A treating physician’s mention of a chronic pain condition be it ‘syndrome’ or specific use of the term ‘chronic pain’ is not enough in establishing the impact on functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability; and

27I find that the J.J.’s functionality is inconsistent with chronic pain based on the following:

(i) J.J. took “a few days off” after the accident and continues to work on a full-time basis;

(ii) J.J. returned to his work as an driver⁴; and

(iii) J.J. reported independence with all aspects of personal care and does not require assistance.

28Based on the evidence before me, I am unable to find, on a balance of probabilities, that J.J. should be removed from the MIG because he has chronic pain.

CONCLUSION

29J.J. sustained predominantly minor injuries that fall within the MIG. Accordingly, J.J. is not entitled to payment for the treatment plans claimed in this application. His application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para. 24.
4. 4Pre-accident, J.J. worked 20 to 30 hours per week as an driver, post-accident, he works 2-4 hours per week, to maintain his status with [the driving company]. Reason provided to Dr. Salerno about the reduced working hours with [the driving company] was reported to have been less interest in making more money.