M.S. v. Dominion of Canada General Insurance, 2019 CanLII 126107

Citation: M.S. vs. Dominion of Canada General Insurance, 2019 ONLAT 19-000579/AABS

Tribunal File Number: 19-000579/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:

M.S.

Applicant

and

Dominion of Canada General Insurance

Respondent

DECISION

PANEL: Brian Norris, Adjudicator

APPEARANCES:

For the Applicant: Volha Vinahradava, Paralegal

For the Respondent: Alfred W. F. Cheng, Counsel

HEARD in writing on: August 19, 2019

OVERVIEW

1The applicant was injured in an automobile accident on July 23, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

2. Is the applicant entitled to medical benefits recommended by Scarborough Medical Centre as follows;

a. $3,204.95 for a chiropractic treatment plan dated February 2, 2017;

b. $2,859.66 for chiropractic treatment plan dated June 16, 2017;

c. $4,463.96 for a psychotherapy treatment plan dated February 8, 2017; and

d. $3,809.90 for a physiotherapy and chiropractic treatment plan dated November 8, 2016?

3. Is the applicant barred from proceeding with a claim for a medical benefit in the amount of $3,809.92 for physiotherapy and chiropractic treatment recommended in a treatment plan by Scarborough Medical Centre, in a treatment plan dated November 8, 2016?

4. Is the applicant entitled to the cost of examinations in the amount of $1,770.91 for a psychological assessment proposed by Scarborough Medical Centre in a treatment plan dated April 28, 2017?

5. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3The applicant suffered predominantly minor injuries and is subject to the $3,500.00 funding limit.

4The applicant is not entitled to the disputed claims or interest.

BACKGROUND

5The applicant was the driver of a car which was struck by another vehicle on the front passenger side. The applicant went to the hospital following the accident where ankle and foot x-rays were taken but found no fractures. About a week later, following a visit to a family physician, further x-rays were conducted on the applicant's neck and back but found no fractures or remarkable abnormalities.

6The applicant engaged in treatment at Scarborough Medical Centre pursuant to the Minor Injury Guideline ("MIG"), funded by the respondent. The applicant claims injuries outside the MIG and claims entitlement to benefits beyond the $3.500.00 funding limit for minor injuries.

THE MINOR INJURY GUIDELINE

7There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in section 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. Section 3 also notes that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8If the applicant's injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

9The applicant submits the funding limit should not apply because she has a pre-existing medical condition which precludes recovery within the funding limit, has suffered psychological injuries which are not included within the definition of a minor injury, and has ongoing pain. The respondent holds the applicant has suffered predominantly minor injuries as defined by the Schedule and is subject to the MIG and the $3,500.00 funding limit.

10For the following reasons, I find the applicant has suffered predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit.

Does the applicant have a pre-existing medical condition which precludes recovery within the funding limit?

11I find the applicant's medical condition at the time of the accident does not preclude recovery within the funding limit. My reasons are as follows.

12There is no evidence the applicant's pre-existing cholesterol, gastrointestinal, and blood sugar issues prevent maximal recovery if she is subject to the funding limit. Although the applicant's family physician was monitoring these conditions and the applicant was using prescription medication to address them, there is no evidence to indicate these conditions would impair the applicant's recovery from predominantly soft-tissue injuries.

13Specifically, there is no evidence in the clinical notes and records ("CNRs") of Dr. N. Zung, family physician. The applicant visited Dr. Zung two days following the accident. Dr. Zung conducted an examination and found the applicant suffered sprain/strain injuries and recommended physiotherapy and massage therapy. There is nothing in the records from this visit, or any visits after, to suggest the applicant's recovery would be hindered by a pre-existing medical condition.

14The auto insurance claim forms completed by the applicant note the pre-existing medical condition but do not anticipate a delayed recovery. The disability certificate dated August 17, 2016 lists high cholesterol, a previous motor vehicle accident, and diabetes as barriers to recovery, yet the anticipated duration of the applicant's disability is still only 9-12 weeks. This is consistent with the anticipated recovery timelines contemplated in the MIG.

15The notation of a previous accident is not evidence of a medical condition which would remove the applicant from the funding limit. Referencing a prior accident may provide context for the reader however it does not necessarily indicate the impact on the applicant's recovery. In fact, the applicant had reported a full recovery from the previous accident, which occurred about 7 years prior to this subject accident. This was recorded in several examination reports related to this claim for benefits.

Did the applicant suffer injuries which are not included within the definition of minor injury?

16The psychological injuries claimed by the applicant are minor injuries as defined in section 3 of the Schedule.

17The applicant's medical record is without any significant psychological symptoms suffered by the applicant and is not indicative of a psychological injury. Dr. Zung's CNRs note no psychological symptoms until November 21, 2016, where the applicant reports her physiotherapy clinic wishes her to see a psychologist or psychiatrist. However, it is also noted the applicant disagrees with this recommendation. It appears Dr. Zung felt no need to make a referral based on this information and made no recommendations for any psychological treatment. In another visit to Dr. Zung, the applicant "brought in paper" (sic) from Scarborough Medical Centre for Dr. Zung to "order more psycho therapy" (sic). However, the applicant did not know why psychotherapy was recommended. During that visit to Dr. Zung the applicant reported her energy was a little low and she experienced occasional worry, but her sleep and appetite were fine, driving was fine but with occasional fear, no nightmares and no depression. Again Dr. Zung did not find any reason to conduct any further investigations or make a referral for psychological treatment.

18I prefer the psychological assessment report of Dr. D. Mandel, dated May 11, 2017 ("the Mandel report") over the report of Dr. D. Peric-Todorovic, dated January 22, 2017 ("the Peric-Todorovic report"). The Peric-Todorovic report is not consistent with the balance of the applicant's medical record. The conclusion of the Peric-Todorovic report found the applicant has significant psychological/emotional impairments, including depression described as severe, but the evidence shows otherwise. As previously indicated, Dr. Zung's records do not corroborate this finding as they are absent any significant symptoms of a psychological injury. The Mandel report found the applicant had no psychological impairment.

19Relative to the Peric-Todorovic assessment, the Mandel assessment had greater breadth and is the most likely to be accurate. The Mandel assessment included a review of an array of medical documents including the applicant's decoded OHIP summary from January 2009 to September 2016, Dr. Zung's CNRs from January 2013 to August 2016, and the psychological intake screening by A. Seklar, clinical psychologist. The Peric-Todorovic report has no evidence any medical records were reviewed as part of the assessment. The Peric-Todorovic report is founded on a clinical interview and two psychometric tests with no mention of validity testing. The Mandel report is based on a clinical interview and three psychometric tests and included reference to the validity measures.

20The applicant's return to driving indicates she has not suffered a psychological injury significant enough to warrant removal from the MIG and the $3,500.00 funding limit. In all reports, the applicant confirms she has returned to driving, albeit less than prior to the accident. To me, this evidence coupled with no recommendation for in-vehicle treatment, undermines Dr. Peric-Todorovic's diagnosis of phobia of vehicles.

Does the applicant's ongoing pain remove her from the funding limit in section 18?

21I find the applicant's ongoing pain does not remove her from the funding limit because there is no evidence it is a chronic pain condition, nor is there evidence she is impaired by pain.

22The various medical records sporadically note general soreness but do not include symptoms generally associated with a chronic pain condition. Despite the applicant regularly seeing Dr. Zung for gastrointestinal and blood sugar conditions, the CNRs are without any complaints of a significant impairment as a result of pain. Dr. Zung's only recommendations were to engage in physiotherapy and massage therapy shortly following the accident. Dr. Zung once referred the applicant to a physiatrist, however the physiatrist found only sprain/strain injuries and only recommended home exercises and stretching. In fact, beyond the referral to a physiatrist, Dr. Zung's CNRs show no significant level of concern regarding the applicant's ongoing but sporadic complaints of neck, shoulder, and back pain.

23There is no evidence the applicant is dependant on health care providers or pain medication to address ongoing pain. As noted above, the applicant regularly visits Dr. Zung but there is not an ongoing pattern of dependence on Dr. Zung to address issues with pain. Similarly, the applicant's prescription history does not show any reliance on prescription medication to alleviate pain.

24Lastly, the evidence shows the applicant has returned to the majority of her pre-accident activities. The applicant reports independence with personal care and grooming in all medical reports. Although it may be at a reduced rate, the applicant has returned to driving, continues to care for her disabled spouse, continues to enjoy the company of others, and remains emotionally connected to friends. Ongoing pain does not predominate to the extent that the injuries are no longer considered to be minor.

THE RESPONDENT'S PRELIMINARY ISSUE IS MOOT

25The respondent raised a preliminary issue and submits the applicant is statute-barred from commencing an application to dispute entitlement to the treatment plan dated November 8, 2016 because it has been more than two years since the benefits were denied.

26This preliminary issue is moot because the treatment plan is for treatment beyond the funding limit and the applicant is found to have suffered predominantly minor injuries.

THE DISPUTED TREATMENT PLANS & INTEREST

27The applicant is not entitled to the disputed treatment plans because the applicant is subject to the MIG and the plans propose treatment which is not included in the MIG.

INTEREST

28Pursuant to section 51, interest is only payable on overdue payments. Having found nothing payable, I conclude no payments went overdue and no interest is payable as a result.

CONCLUSION

29I find that the applicant sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit. The applicant tis not entitled to the disputed benefits.