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:
KP
Appellant
and
The Personal Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR
Christopher A. Ferguson
APPEARANCES:
Counsel for Applicant:
Joe I. Kositsky
Counsel for the Respondent:
W. Rosalind Eastmond
Heard In-Writing on:
September 10, 2018
OVERVIEW
1The applicant “KP” was involved in a motor vehicle accident (“the accident”) on January 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”).
2KP applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.
3The respondent (“The Personal”) 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 The Personal is correct, KP 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 KP’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 benefit in dispute.
ISSUES IN DISPUTE
6Did KP sustain predominantly minor injuries as defined under the Schedule?
7If the KP’s injuries are not within the MIG, then I must determine the following issues:
i. Is KP entitled to receive a medical benefit in the amount of $2,097.34 for chiropractic services, recommended by Alpha Med Wellness Center Incorporated in a treatment plan dated and submitted on November 29, 2016, and denied by the respondent on December 6, 2016?
ii. Is KP entitled to receive a medical benefit in the amount of $3,643.76 for chiropractic services, recommended by Alpha Med Wellness Center Incorporated in a treatment plan submitted on May 15, 2016, and by the respondent on June 22, 2016?
RESULT
8I find that KP’s injuries are predominantly minor in nature as defined by the Schedule and fall within the MIG.
9My finding with respect to the KP’s injuries mean that that he is not entitled to the benefits he claims.
10As I have denied KP’s claims, there is no interest payable by The Personal.
REASONS & ANALYSIS
Causation
11Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to an insured person who sustains an impairment as the result of an accident. Similarly s.15 of the Schedule prescribes that medical benefits must pay for all reasonable and necessary medical expenses incurred by the insured person as a result of the accident.
12If I find that the injuries for which the applicant seeks medical benefits for treatment, including medications, were not sustained as a result of the accident, I will not need to determine whether the disputed treatment plans are reasonable and necessary.
Minor Injury Determination
13Section 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.
14Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
15The onus is on the applicant, in this case KP, to prove that his or her injuries or impairments fall beyond the MIG.3
16KP submits that his accident-related injuries themselves exceed the definition of “minor injury” in s. 3(1) of the Schedule, and are not covered by the MIG, because:
He has a pre-existing condition that meets the criteria for exemption from the MIG prescribed by the Schedule (explained below).
He has a chronic pain condition, and a psychological impairment that arose from the accident, and the prescribed definition of “minor injury” does not include either of these impairments.
Does KP have a pre-existing medical condition?
17Section 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.
18The 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: 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
19KP’s submissions offer no analysis of how his pre-existing knee conditions and surgeries would prevent maximal recovery if his medical benefits are capped at $3,500. I find that the uncorroborated assertion by KP that his knee condition was aggravated by an accident is insufficient to meet the compelling evidence standard set by the MIG, particularly as it was expressly contradicted by a medical assessor.5
20I find that KP cannot be exempted from the MIG on the basis of a pre-existing condition.
Does KP suffer from a chronic pain condition?
21KP submits that he continues to suffer “considerable pain” more than two years after the accident. He relies on:
i. treatment plans by Dr. George Charalambous that indicate that KP’s “impairments were not a predominantly minor injury”; and,
ii. a diagnosis by Dr. Dima Rozen of chronic pain syndrome which “adversely affected his activities of daily living”, based on KP’s reports of significant pain-related challenges performing tasks at work and at home.6
22The Personal contends that KP does not suffer from a chronic pain condition as a result of the accident. The Personal submits:
i. An IE report dated July 26, 2016 by Dr. Louis Weisleder in which the physician noted no chronic pain complaints and opined that KP’s need to use over-the-counter pain medication was “not unusual [...] to treat residual pain and stiffness at this stage”. Dr. Weisleder found no evidence of functional impairment and opined that KP’s accident-related injuries were predominantly minor as defined by the Schedule from an orthopedic perspective.
ii. An IE report dated July 26, 2016 by Dr. Louise E. Koepfler, psychologist, included results in the form of scores from pain-related tests that are consistent with KP’s own reports of minimal limitations due to pain, suggest no somatic pre-occupation and identify local areas of pain without unusual symptoms or radiating features.
iii. KP told Dr. Koepfler that he is carrying on a normal and busy life, which is inconsistent with a chronic pain condition. KP indicated to Dr. Koepfler that:
a. He missed one day of school but returned to work right after his accident and works full-time as an electrical apprentice. KP doesn’t mention any pain-related difficulties at work.
b. He is active and does such housekeeping chores as laundry and dishwashing.
c. He reports no significant limitations due to his knee or his neck.7
iv. An IE report dated June 6, 2017 by Dr. Michael Ko, physiatrist, demonstrated no functional limitations, showed full range of motion impairment and noted KP’s report that his headaches had resolved. Dr. Ko noted an as-needed use of over-the-counter Tylenol for pain. He noted KP’s intermittent but daily episodes of pain, alleviated by stretching and changing positions. He concluded that KP’s injuries are minor as defined by the Schedule.
23I conclude that KP has not met the onus on him to show that he suffers from chronic pain as a result of the accident. I reached this conclusion for the following reasons:
i. None of the assertions in The Personal’s submissions were contested by KP.
ii. KP’s statements to IE assessors, during examinations almost a year apart, with respect to pain-related functional limitations at work contradict the reports he gave to Dr. Rozen in December 2016. He offers no explanation for these inconsistencies. I find that unexplained and contradictory self-reporting by the applicant in clinical examinations undermines his case that he has met the onus on him to prove his claim of chronic pain.
iii. I found the IE reports to be persuasive in their analysis, and Dr. Koepfler’s report of pain test results persuasive in assessing the level of pain and related impairment experienced by KP.
24KP relies on the diagnosis by Dr. Ilya Gladshteyn of adjustment disorder with anxiety and acute and specific phobia situational (driver and passenger related).
Does KP suffer from a psychological impairment?
25KP relies on the diagnosis by Dr. Ilya Gladshteyn of adjustment disorder with anxiety and acute and specific phobia situational (driver and passenger related).
26The Personal relies on the IE report of Dr. Koepfler, which concluded that KP suffers from no diagnosed psychological disorder, requires no psychological treatment and characterizes his reported vehicular anxiety as “minor”. Dr. Koepfler states that she does “not concur with the diagnosis by Dr. Gladshteyn of adjustment disorder or specific phobia “as [KP] did not describe symptoms of these conditions”.
27I prefer the evidence of Dr. Koepfler to that of Dr. Gladshteyn, whose diagnosis was provisional and based on a pre-screening interview. Dr. Gladshteyn cautions that her diagnosis “is not sufficient to determine the severity of the psychological impairments or offer a complete diagnostic understanding of [KP’s] psychological injuries […].”
INTEREST
28Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
29The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due.
CONCLUSION
30KP’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.
31As the result of my findings with respect to KP’s minor injuries, it was unnecessary for me to determine whether claimed treatment plans are reasonable and necessary.
32There are no overdue payments and therefore no interest due on overdue payments.
Released: January 30, 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”.
- IE report dated July 26, 2016 by Dr. Louis Weisleder, orthopedic surgeon
- Chronic Pain Assessment Report, December 9, 2016.
- Consistent remarks were made to Dr. Ko almost a year later, as reported in Dr. Ko’s report.