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:
P.S. Applicant
and
Wawanesa Mutual Insurance Company. Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Claire Mazerolle, paralegal For the Respondent: James A. Schmidt, counsel
Hearing in Writing: By way of written submissions
OVERVIEW
1The applicant, P.S., was injured in a motor vehicle accident on October 12, 2016.
The applicant’s vehicle stopped at a red light when a second vehicle making a left turn travelling west collided with a third vehicle travelling south, causing the second vehicle to spin and strike the applicant’s vehicle on the front driver side.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”), which were denied by the respondent. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
a) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
b) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,264.50 for other medical goods and services of a medical nature recommended by Alexmuir Wellness Centre in a treatment plan (OCF-18) submitted on March 10, 2017 and denied on April 28, 2017?
c) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,125.00 for psychological services recommended by Alexmuir Wellness Centre in an OCF-18 submitted on May 6, 2017 and denied on May 17, 2017?
d) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,415.32 for other medical goods and services of a medical nature recommended by Alexmuir Wellness Centre in an OCF-18 submitted on November 11, 2017 and denied on December 14, 2017?
e) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,156.00 for other medical goods and services of a medical nature recommended by Alexmuir Wellness Centre in an OCF-18 submitted on May 6, 2017 and denied on May 17, 2017?
f) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons set out below, I find that the applicant is not entitled to the benefits claimed and, thus, no interest is payable.
ANALYSIS
Issue 1: Did the Applicant’s sustain minor injuries subject to a $3,500 treatment cap in s. 18 of the Schedule?
Definition of minor injury and burden of proof
5The term “minor injury” is defined in s. 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 all defined in s. 3, collectively referred as “soft tissue injuries” in this decision. S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
6If the applicant has pre-existing conditions that will prevent him from achieving maximal recovery from the minor injuries, he may not be subject to the $3,500 treatment cap.
7The definition of minor injury under the Schedule does not include any psychological or psycho-emotional impairment.
8As a general principle, the applicant has the burden of proving that his injuries are not subject to the $3,500 treatment limit in s. 18 of the Schedule. Further, submissions are not evidence, and as such, submissions per se have no evidentiary weight.1 As will be discussed further below, the applicant in this case has made a number of submissions without backing them up with evidence.
9The applicant in this case submitted that he suffers serious spinal and neurological injuries, that he has pre-existing conditions and that he suffers from psychological impairment. I will address each of these submissions as follow:
i. Nature of the applicant’s physical injuries
10I begin by examining the injuries sustained by the applicant as a result of the accident. On this point, the applicant submitted that his injuries are not minor because:
a) He experiences chronic pain in his right shoulder;
b) He suffers from a neurological injury in his lumbar spine; and
c) He has post-concussive syndrome
Chronic Pain
11Starting with the chronic pain issue, the applicant’s evidence is that he has recently been referred to a specialist by Dr. Thamotharam for assessment. The applicant also submitted that the chronic pain in his back has affected his ability to care for his young children, as well as assist with maintenance tasks around the house.
12I have reviewed the record and cannot find any medical evidence with a diagnosis in this regard and as such I find the applicant has not proven that he has chronic pain as a result of the accident.
Neurological Injury
13On the issue of neurological injury, the applicant relies on a CT scan of his lumbar spine on January 25, 2017. The applicant submitted that the CT scan confirmed he is “suffering from a neurological injury due to the nerve root encroachment causing him substantial and sometime unbearable pain that prevents him from sitting or standing for too long.” A review of the CT scan report does not support the applicant’s claim. The CT scan noted, among other things:
L3-L4 – Mild Defuse Disc Bulge identified. Mild Indentation of the disc on the ventral aspect of the thecal sac which is slightly more prominent on the left side compared to the right. Mild degree of spinal stenosis and mild lateral recess stenosis as well as mild neural foraminal stenosis. No definite nerve root encroachment is appreciated.
L4.L5 – Mild diffuse disc bulge. Minimal endplate osteophyte formation. Disc bulge more prominent on the left side extending into the left neural foramen. Overall there is a mild degree of spinal stenosis. There is a mild degree of left-sided lateral recess stenosis and there may be a mild degree of encroachment of the traversing left L5 root in the lateral recess.
L5-S1 – there appears to be a partial sacralization of the transverse process on the left side. Severe disc space narrowing. Mild diffuse disc bulge. No significant spinal stenosis or nerve root encroachment.
(emphasis added)
14Contrary to the applicant’s submission, I do not find the CT scan report supports a finding of nerve root encroachment. As well, I find no neurological abnormalities were noted in this CT scan. The applicant has also not offered evidence to support his claim in this regard and I thus find the evidence does not support a finding of neurological injury.
Post-Concussive Syndrome
15The applicant submitted that he was diagnosed with post-concussive syndrome on November 5, 2016 by Dr. Thamotharam, his family physician. The applicant submitted that “research has shown that someone does not have to hit their head on an object to experience a concussion. Rapid acceleration and deceleration can still cause a concussion.” The applicant further submitted that he noted on his OCF-3 that he suffered from Whiplash Associated Disorder 2, which “suggests a strong jolt to the head and neck from the accident”.
16The applicant submitted that he has seen Dr. Majl, a neurologist, twice, once before and once after the accident. Prior to the accident (as per Dr. Majl’s report dated February 28, 2014), the applicant mentioned he experienced headaches dating back to when he was 16. No mention was made of nausea, vomiting, phonophobia or photophobia. Dr. Majl recommended the applicant continue with his medication. The second visit took place about 6 months after the accident (as per report dated April 7, 2017), in which the applicant reported increased headaches from once a week to two or three times a week, accompanied by nausea, vomiting, phonophobia or photophobia. Other than this report, the only other medical evidence the applicant relied on was the reports from his family physician.
17The respondent, on the other hand, pointed out the lack of evidence indicating that the applicant has sustained a head injury as follows:
a. Records from the emergency room on the date of the accident indicate that the applicant did not complain of any head injury or concussion;
b. Three days after the accident, the applicant attended with Dr. Thamotharam, who conducted a full physical. The applicant reported neck pain, shoulder pain, low back pain, leg pain and driving anxiety. No indication of any post-concussive symptoms or complaints of a head injury or concussion was noted
c. The applicant attended Dr. Thamotharam again on October 19, 2016 and again did not report symptoms of a head injury;
d. The applicant attended on October 30, 2016 with his family physician again and once again did not report symptoms of a head injury
e. The OFC-3 dated October 17, 2016 does not note any symptoms of a post-concussive syndrome, nor indicates any head injury occurred
18The respondent pointed out that it was only on November 5, 2016 that the applicant report to his family physician that he was suffering from symptoms of post-concussive syndrome, and it was only then that the physician noted that the applicant reported to him that he had been suffering from these symptoms since the accident. The respondent also pointed out that Dr. Majl’s April 7, 2017 report does not indicate that the applicant suffered from a head injury of any sort in the accident. Instead, the applicant reported only an exacerbation of pre-existing headaches. The respondent also submitted that the applicant was apparently scheduled for an MRI but results of the same have not been tendered.
19As the applicant did not submit any reply, although given the chance to do so, I am not privy to what happened to the MRI report. As such, I can only make my decision based on the information before me. Taken as a whole, while the evidence suggests that the applicant may have issues with headaches since age 16, and may experience exacerbated headaches to some degree since the accident, there is no evidence supporting the presence of a head injury or that the applicant has post-concussive symptoms, other than the note from the family physician on November 5, 2016, which suggested that the applicant has been complaining about post-concussive syndrome since the accident, even though the physician’s own records indicate otherwise.
20On a balance of probabilities, I therefore find the applicant has not proven that he suffers from a head injury or post-concussive syndrome as a result of the accident.
Conclusion on the Nature of the physical injuries
21The respondent also relied on a s.44 examination report dated April 24, 2017 by Dr. Silver, a general practitioner to support its position that the applicant’s injuries are minor. Dr. Silver reported that the applicant suffered soft tissue injuries to his neck (resolved), right shoulder, low back, left knee and left thigh. Dr. Silver noted that the applicant also reported suffering from headaches. The applicant reported to Dr. Silver little change in his functional status, with the exception that he no longer attended the gym, although his physiotherapist advised him to return to the gym. The applicant also reported 65 percent improvement in his symptoms since the accident. Dr. Silver’s physical examination of the applicant led to his finding that the applicant was within normal limits for all tests concluded and that no neurological abnormalities were noted. Dr. Silver thus concluded that the injuries were minor.
22The applicant did not make any submission, nor did he provide any reply comment with respect to Dr. Silver’s s.44 examination.
23In view of the totality of the evidence with respect to the applicant’s physical injuries, I find that the applicant suffers from minor injuries (subject to my additional finding below with respect to pre-existing conditions and psychological conditions).
ii. Pre-Existing Conditions
24The applicant submitted that he has pre-existing conditions which prevent his maximal recovery from the accident. Based on my reading of the applicant’s submission, it would appear that the applicant is relying on the following two pre-existing conditions.
Type 2 Diabetes
25The applicant submitted that he has type 2 diabetes, which makes treatment more crucial for his recovery.
26In this respect, the applicant did not provide any evidence, but only submission based an article suggesting that diabetes has a negative impact on the skeletal muscle health and that Type 2 diabetes with an association of satellite cells may have an adverse effect on the body’s ability to maintain health, or to regenerate from injury.
27While this may well be true, as noted at the beginning of my decision, submission does not equate evidence, and the burden is on the applicant to provide evidence to prove his case. Unfortunately, the applicant has failed to do so here.
Left Knee Injury
28The applicant further submitted that he suffered from a pre-accident knee injury that was significantly aggravated. The applicant submitted two ultrasounds on his knee, one completed pre-accident (January 7, 2016) and one after (October 18, 2016). The first ultrasound shows some evidence of lateral tendonitis/bursitis, while the second ultrasound found a small 12x3.0 mm suprapatellar joint effusion, as well as fluid collection and a lateral meniscal cyst or ganglion cyst. The applicant submitted that the knee injury disrupts his ability to walk for long periods, as well as climb up and down stairs without experiencing pain. The applicant also submitted that he has had follow up-visits with his family physician complaining of significant left knee pain, for which the doctor recommends continuation with conservative treatments such as physiotherapy and pain medication.
29I note first of all, that the applicant’s assertion of his ability to walk for long periods, or climb stairs without pain, is found only in the submission by his legal representative. The applicant has not pointed to any evidence to support his limitation in this regard. Further, I agree with the respondent that while the two ultrasounds of his left knee indicate some differences, neither the applicant nor his counsel have the requisite medical expertise to explain those differences. Moreover, there is no evidence to suggest that his pre-existing knee injury was aggravated by the accident itself, not to mention how the pre-existing injury would prevent him from achieving maximal recovery from the minor injuries.
30I further note that in the s.44 assessment conducted by Dr. Silver, the applicant reported that he had never been diagnosed with any medical conditions and denied any pre-existing pain.
31As such, I find the applicant has failed to discharge his burden of proof in this regard.
iii. Psychological Issues
32Finally, I will address the issue of whether the applicant suffers from any psychological conditions as a result of the accident.
33The applicant relied on two reports: a report prepared by Dr. Leon Steiner, a psychologist dated October 30, 2017, and clinical notes from Dr. Thamotharam, his family physician.
34Dr. Steiner’s office conducted an examination of the applicant on October 26, 2017. It is unclear whether Dr. Steiner himself has conducted the examination personally as the report noted at the beginning that “part of the assessment was assigned to Lital Crombie, under the supervision of Dr. Steiner”. The assessment included a diagnostic clinical interview and administration of psychometric tests.
35The applicant reported to Dr. Steiner’s office that he had issues with his sleep, due to pain, thoughts, worries and difficulties getting comfortable. The applicant also reported a loss of pleasure and interests in activities that he used to enjoy prior to the accident. Dr. Steiner diagnosed the applicant with adjustment disorder with depressed mood and symptoms of depression, anxiety and specific phobia, situational.
36The applicant’s family physician diagnosed him with post-traumatic stress disorder based on the applicant’s reported complaints including difficulty sleeping, irritability, and vehicular anxiety.
37The applicant was subject to s.44 examination by Dr. Dumitrascu, a psychologist, at the respondent’s arrangement on July 27, 2017. Dr, Dumitrascu noted in her report that the applicant denied any pre-existing medical issues, and based on a validity testing, she found the applicant to be “significantly above the cut off for malingering and/or symptom magnification”. Dr. Dumitrascu also administered tests on the applicant and concluded that the applicant fell within normal range for depressive and anxious symptoms and did not report experiencing any such symptoms. Interestingly enough, Dr. Dumitrascu noted in her report that the applicant had “no knowledge” of the proposed psychological assessment. In conclusion, Dr. Dumitrascu found the applicant required no psychological intervention.
38I also note that in Dr. Silver’s s.44 report, the applicant reported that he experiences some driving anxiety, but that it has not affected his ability to drive.
39The applicant took issue with Dr. Dumitrascu’s report mostly by submitting that the applicant, as a “religious man with a strong cultural background”, had difficulties expressing his psychological issue with an assessor with whom he was not comfortable. The applicant suggested that he cannot be evaluated in the same way as someone who is of “Canadian decent [sic]”, as he does not share the same cultural values, beliefs of behaviour patterns. The applicant’s legal representative also relied on an article by the Canadian Mental Health Association entitled “Cross-Cultural Mental Health and Substance Use”, which highlights the differences minorities face when it comes to opening up about their mental health or addiction issues. The applicant also relied on an article about stigma of mental illness in Sri Lanka and submitted that he has been taught not to open up, and that “westernized medicine” has not been accepted as appropriate by the applicant.
40I do not accept the applicant’s submission and explanation with respect to Dr. Dumitrascu’s report for some of the same reasons suggested by the respondent. To start, I agree with the respondent that the applicant has failed to establish what the behaviour patterns of those of “Canadian descent” are, or even what “Canadian descent” means in a pluralistic and multicultural society like Canada. If the applicant is suggesting that persons of Sri Lankan descent is not considered “Canadian”, that will run contrary to the very notion of equality and equity that the applicant appears to be appealing to in his submission.
41I also agree with the respondent when they noted that Dr. Steiner, the applicant’s own psychological assessor did not identify the applicant as having any barriers to psychological assessment or treatment on the basis of his ethnic origin or religious beliefs; and paradoxically, the applicant seeks to rely on the report of Dr. Steiner, while discounting the reports of Dr. Dumitrascu.
42Indeed, if the applicant does not accept Westernized medicine – or the western allopathic health tradition as it is more commonly referred to - as appropriate, then the treatment and assessment by Dr. Steiner, a health professional trained in the western allopathic tradition, would be just as unacceptable as that provided by Dr. Dumitrascu.
43But more fundamentally, the applicant has not even disclosed what religion he has adopted, let alone what religious values he embraces which prevent him from getting a fair assessment from the insurer’s assessor.
44However, I do not accept the respondent’s submission that accepting the applicant’s submissions would “open the floodgates for differential s.44 assessments on the basis of perceived cultural differences”, which, the respondent submitted, is not permitted by the Ontario Human Rights Code. I reject this submission because, it is a well-established legal principle that equality does not mean sameness. In appropriate cases, an applicant’s religious and cultural beliefs may require treatment that is different from those who do not share those religious or cultural beliefs. Even beyond religion and culture, there may be circumstances where a person needs to be examined by certain health professionals or under specific conditions. I can see, for instance, a female insured person who has experienced sexual trauma at the hands of men might object to being assessed by a male health professional. I do not see it necessary to close the door to the possibility of requiring insurers to conduct s.44 assessments in a manner sensitive to an insured’s sex, race, disability, creed, all of which are grounds protected by the Ontario Human Rights Code. I do agree, however, that this is not one of those cases where accommodation has been requested nor warranted.
45The applicant in this case never made any specific request for accommodation to the insurer with regard to the s.44 assessment based on his race, ethnicity, or creed. The applicant was assessed by other health professionals, including Dr. Steiner and his family physician, both of whom were trained in the allopathic health tradition and did not raise any concern about their assessment or treatment. Indeed, all the treatment plans sought by the applicant are based on the allopathic health tradition, which the applicant does not appear to find inappropriate. I therefore give the applicant’s belated concerns about Dr. Dumitrascu no weight.
46Having made that determination, I still have to decide whether there is enough evidence to show that the applicant suffers from psychological conditions. I give Dr. Dumitrascu’s report more weight over that of Dr. Steiner for two reasons. First, as noted above, it is unclear whether or not Dr. Steiner actually examined the applicant, or was relying on the assessment of his assistant, a registered kinesiologist. Secondly, unlike Dr. Dumitrascu, Dr. Steiner did not appear to have reviewed any of the medical documentation on file, nor did he conduct any validity testing. I finally give little weight to the clinical diagnosis of the applicant’s family physician given he has not appeared to have done any psychological testing to make the assessment.
47Based on the evidence before me, I find that the applicant has failed to prove, on a balance of probabilities, that he suffers psychological issues as a result of the accident.
Issue 2: Medical and Rehabilitation Benefits
a) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,125.00 for psychological services recommended by Alexmuir Wellness Centre in an OCF-18 submitted on May 6, 2017 and denied on May 17, 2017?
b) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,415.32 for other medical goods and services of a medical nature recommended by Alexmuir Wellness Centre in an OCF-18 submitted on November 11, 2017 and denied on December 14, 2017?
c) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,156.00 for other medical goods and services of a medical nature recommended by Alexmuir Wellness Centre in an OCF-18 submitted on May 6, 2017 and denied on May 17, 2017?
48According to the applicant, he has exhausted the $3,500 limit. In view of my finding that the applicant’s injuries are minor, I therefore find that he is not entitled to the above noted medical and rehabilitation benefits.
Is the applicant entitled to interest for the overdue payment of benefits?
49In view of my findings above, the applicant is not entitled to interest.
FINDING & ORDER
50The applicant is not entitled to the medical and rehabilitation benefits claimed. The applicant is not entitled to interest.
Released: July 16, 2019
Avvy Go Adjudicator
Footnotes
- (16-001142/AABS v. RBC General Insurance, 2017 CanLII 35321 (ON LAT))