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:
L.T.
Appellant
and
Coseco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Christopher A. Ferguson
Appearances:
For the Appellant:
Nader Fathi, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
Heard In Writing on:
July 18, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant “L.T.” was involved in a motor vehicle accident (“the accident”) on March 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”).
2L.T. applied to the Licence Appeal Tribunal (the “Tribunal”) when her claims for benefits were denied.
3The respondent (“Coseco”) argues 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 Guideline (“the MIG”).2 The applicant’s position is exactly the opposite.
4If Coseco is correct, L.T. 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 the 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 L.T.’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 her entitlement to the medical benefit and cost of examinations in dispute.
ISSUES IN DISPUTE
6Did L.T. sustain predominantly minor injuries as defined by the Schedule?
7If the L.T.’s injuries are not within the MIG, then I must determine the following issues:
Is L.T. entitled to a cost of examination in the amount of $1765.20 for chronic pain assessment completed by Vipul Delvadiya and submitted on November 25, 2017, and denied on December 1, 2017?
Is L.T. entitled to the other assistive devices in the amount of $1059.75 based on the documentation completed by Vipul Delvadiya and submitted on November 25, 2017, and denied on December 1, 2017?
Is L.T. entitled to a cost of examination in the amount of $998.88 for an attendant care assessment completed by Paul Bruni and submitted on July 13, 2017, and denied on July 21, 2017?
Is L.T. entitled to a cost of examination in the amount of $1999.82 for a psychological assessment completed by Dr. Jon Mills and submitted on July 13, 2017, and denied on July 21, 2017?
Is L.T. entitled to a cost of examination in the amount of $2200.00 for a psychological assessment completed by Dr. Romeo Vitelli and submitted on November 25, 2017, and denied on December 5, 2017?
Is L.T. entitled to interest on any overdue payment of benefits?
RESULT
8I find that L.T.’s injuries are predominantly minor in nature as defined by the Schedule and fall within the MIG.
9My finding with respect to L.T.’s injuries mean I do not have to determine her entitlement to the medical benefit and cost of examinations in dispute.
10As I have denied L.T.’s claim, there is no interest payable by Coseco.
REASONS & ANALYSIS
Minor Injury Determination
11Section 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.” The MIG defines in detail what these terms for injuries mean.
12Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
13The onus is on the applicant, in this case L.T., to prove that her injuries or impairments fall beyond the MIG.3
14L.T. submits that her claims are not covered by the MIG, because she has a pre-existing condition that meets the criteria for exemption from the MIG prescribed by the Schedule (explained below).
15L.T. also claims psychological injuries as the result of the accident. These too, if proven, could remove her from the MIG.
Does L.T. have a pre-existing medical condition that exempts her from the MIG?
16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
17The standard for excluding 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: it is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG clearly requires that a pre-existing condition must be shown with “compelling evidence” to prevent maximal recovery within the cap imposed by the MIG.4
18L.T.’s submissions indicate that she has pre-existing conditions:
i. L.T. sustained a lower back injury caused by a previous automobile accident that happened in November 2009. She submits that the index accident aggravated her previous condition, which had not fully healed and which continued to inhibit her mobility.
ii. L.T. has degenerative disc disease of the C3-C4 Level of her C-spine with mild right-sided neural foraminal stenosis at the same level. This problem created pre-accident pain and restriction and was aggravated by the accident.
iii. She has a history of chronic knee pain stemming from an accident “while running in high school.”5
19To rebut L.T.’s claim of pre-existing condition, Coseco relies on:
i. An assessment by Dr. Michael Ko, physiatrist, who reported on August 26, 2016 that:
a. He found a full range of motion in all planes and joints. L.T.’s sole complaint was lower back pain.
b. He found no objective evidence of ongoing impairments or organic pathology related to the accident.
c. He had not been provided with any compelling evidence of a pre-existing condition that would prevent L.T.’s maximal medical recovery (MMR) within the MIG.
ii. An assessment by Dr. Farooq Ismail, who reported on January 11, 2016 that:
a. L.T.’s physical examination was “completely normal” with no evidence of ongoing accident-related musculoskeletal or neurological impairment.
b. L.T. reported returning to work full time, working out three times weekly, resuming housekeeping activities – essentially all of her pre-accident activities.
c. Dr. Ismail concluded that L.T. had reached MMR from her accident-related injuries, with no further facility-based treatment being indicated.
iii. An assessment by Dr. Valen Sivasubramanian, psychiatrist, who reported on January 26, 2018 that:
a. He did not believe that L.T. suffered any lasting psychological impairment from her 2009 accident, and that she was well at the time of the index accident.
b. He had no evidence of a pre-existing psychological condition that would prevent L.T.’s MMR within the MIG.
20I find that the evidence and argument by L.T. for pre-existing conditions is insufficient to meet the compelling evidence standard set by the MIG. Her statements are not backed by any medical opinion as to how any pre-existing medical complaints affect her ability to achieve MMR within the MIG.
21I find that L.T. cannot be exempted from the MIG on the basis of a pre-existing condition.
Does L.T. suffer from a psychological impairment?
22Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.
23I find the applicant does not have a psychological injury that would take him/her out of the MIG.
24L.T. claims that she sustained a psychological injuries as a result of the accident. Her claim rests on notes in various OCF-18s from [a Rehabilitation Clinic] and from Ontario L.T.D. In discussing her psychological state, she focuses on an OCF-18 dated November 25, 2017, which was prepared by a psychologist, Dr. Romeo Vitelli.
25According to Dr. Vitelli, L.T. reported that:
i. She was experiencing stress, decreased interest, fatigue, increased appetite and was struggling with her emotions.
ii. She had become hyper-vigilant and cautious when driving or riding in a car, constantly checking her mirrors because of her fear of another accident.
iii. She was experiencing serious sleep disturbances caused by pain and stress, which had decreased her energy level.
26To rebut L.T.’s claim, Coseco on a report by Dr. Valen Sivasubramanian, psychiatrist, dated January 26, 2018:
i. Dr. Sivasubramanian reported that L.T. expressly denied intrusive thoughts, flashbacks, or nightmares.
ii. He noted that L.T. reported good mood, normal sleep, “intact energy levels” and no discernable changes in appetite. She claimed to be productive at work without any concentration issues.
iii. L.T. reported only mild traffic-related anxiety, which did not meet the threshold for a diagnosis.
iv. Dr. V. Sivasubramanian found no basis to recommend further examination or treatment and opined that L.T.’s prognosis was excellent.
27In reviewing the psychological reports of both parties, it is immediately evident that both of them depend heavily on frank and forthright self-reporting by L.T. The medical conclusions in each are based on L.T.’s answers in clinical interviews.
28In the IE with Dr. Sivasubramanian, L.T.’s statements contradicted or were inconsistent with the information she provided to Dr. Vitelli. L.T. makes no explanation for the discrepancies in self-reporting in the different examinations. She does not attack the veracity of the psychiatric report of her own statements. Accordingly, I am confident in giving the psychiatric report substantial weight in determining how L.T.’s self-reporting speaks to her claim of psychological injury.
29I find that unexplained discrepancies in L.T.’s self-reporting undermine her credibility claim on this issue of psychological injury.
30I conclude that L.T. has failed to meet the onus on him to prove psychological injury as the result of the accident; accordingly, she cannot be removed from the MIG on this basis.
INTEREST
31Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
32The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due.
CONCLUSION
33L.T.’s injuries are minor and fall within the MIG. Accordingly, her claims are subject to a $3,500.00 cap imposed by s.18 of the Schedule, and the claimed benefits cannot be paid.
34As the result of my findings with respect to L.T.’s minor injuries, it was unnecessary for me to determine whether claimed treatment plans are reasonable and necessary.
35There are no payments owing to L.T. and therefore no interest due on overdue payments.
Released: February 7, 2019
___________________________
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, RSO 1990, c.I.8
- Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
- Based on clinical notes and records, various dates, from Dr. Petrona Manasseh.