O.S. v. Travelers Insurance, 2019 CanLII 76964

Citation: O.S. vs. Travelers Insurance, 2019 ONLAT 18-003385/AABS

Date: June 6, 2019

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:

O.S.

Appellant

and

Travelers Insurance

Respondent

AMENDED DECISION

PANEL:

Robert Watt, Adjudicator

APPEARANCES:

For the Applicant:

Lawson Hennick Counsel

For the Respondent:

Sirus Biniaz, Counsel

HEARD:

In Writing on: December 17, 2018

OVERVIEW

1The applicant (“the applicant”) was injured in a motor vehicle accident (“the accident”) on August 5, 2015, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the Schedule”). He applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) when his claim for benefits was denied by the respondent.

2The respondent denies the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s 3(1) of the Schedule, and therefore falls within the Minor Injury Guideline (the “MIG”)¹. The applicant’ position is the opposite.

3If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.

4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation 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.

ISSUES

5The issues before the Tribunal which I must decide are:

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

If the applicant’s injuries are not within the MIG, then I must determine the following issues:

B. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,783.64 for chiropractic treatment recommended by Pro-Med Rehabilitation Centre in a Treatment Plan (OCF-18) submitted on March 31 2016, and denied on April 21, 2016?

C. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,653.53 for chiropractic treatment recommended by Pro-Med Rehabilitation Centre in a Treatment Plan (OCF-18) submitted on May 28, 2015, and denied on May 31 2015?

D. Is the applicant entitled to the cost of an examination in the amount of $1,995.32 for a psychological assessment recommended by Dr. Leanne Wagner in a treatment plan (OCF-18) submitted on October 12, 2016, and denied on November 17 2016?

RESULT

6Based on the evidence before me, I find that the applicant sustained predominantly minor injuries as defined under the Schedule. It is therefore unnecessary to consider the reasonableness of the treatment plans.

BACKGROUND AND ANALYSIS

BACKGROUND

7The applicant was involved in a motor vehicle accident on August 5, 2015. He was a front seat passenger in a car that was rear ended. The applicant didn’t hit any part of his body against the interior part of the car, and left the car on his own volition.²

8The applicant attended Scarborough General Hospital and was discharged with some medication. The applicant has not produced his hospital records or any prescription printouts.³

9The applicant attended at his family physician Dr. Richard Allen on August 11, 2015, complaining of left neck, right shoulder and back pain. He was diagnosed with “Cervical Strain” and was provided a referral for an “active exercise program.⁴

10The applicant took 76 treatments at Pro-Med Rehabilitation Centre from August 27, 2015, to November 3, 2016.⁵ The applicant attended at Dr. Allen’s to complain of back pain on February 29, 2016, and on July 19, 2016.⁶ The applicant admitted on his cross examination on December 17, 2018, that after July 19, 2016, he never complained further of any neck, right shoulder, back pain or any psychological or cognitive impairments relating to the accident.⁷ Dr. Allen’s records confirm this statement

11There are no other medical records to show, other than what is stated above, that the applicant sought treatment form other health practitioners to assist with his alleged persistent pain, or psychological, or cognitive concerns, since the accident.

12Tony Jung (OT) in in his IE report dated April 4, 2016 noted that the applicant reported independence with his self-care, his ability to drive, complete pre-accident housekeeping tasks, and that the applicant demonstrated ”essential fully normal physical functioning in all tested areas including independence with all basic transfers and functional use of both hands.⁸

13Dr. D. Rabinovich, Physiatrist, on her IE report dated May 3, 2016, indicated that there was soft tissue injury of the right infraspinatus and mechanical/myofascial low back pain.⁹ She noted that the applicant did not report any headaches or pain in his thigh, ankle or foot.

14Nebal About Moustafa, a psychologist, on behalf of the applicant, issued a psychological report dated May 19, 2017.¹⁰ His report does not contain any reference to any credentials for carrying out the assessment. He diagnosed the applicant with an Adjustment disorder, with mixed anxiety and depressed mood, Chronic somatic symptom disorder, with predominant pain, Moderate Persistent Rule Out, Specific Phobia-situational Type (Driver) through In-Vehicle assessment. He recommended 12 counseling sessions to involve a combination of supportive and cognitive behavioral interventions with relaxation and pain coping strategies.

15Stephen Brown, an anesthesiologist, in his report dated October 15, 2018, diagnosed the applicant with chronic pain syndrome, chronic pain of the cervical and lumbar spine/strain-type accident related injuries. He recommended that the applicant be put into a multidisciplinary, comprehensive rehabilitation program to improve his control over the emotional, behavioural, cognitive, and sensory experiences associated with chronic pain syndrome.¹¹

16Dr. Lavis in an OCF-3 dated August 27, 2015, diagnosed the applicant with a sprain and strain of shoulder joint, superficial injury of ankle, contusion of thigh, low back pain and superficial injury of the neck.

17The applicant was cross examined on December 17, 2018, on his affidavit sworn October 11, 2018. The affidavit indicated that the applicant’s level of functioning had deteriorated, and that his physical and psychological well-being had become much worse. The applicant admitted that he has continued to practice Tai Chi, Yoga, go for weekly walks, watch the news, follow a TV murder mystery and learn French.¹² The applicant admitted that he never discussed any psychological or cognitive complaint with his family doctor Dr. Allen.

ANALYSIS

18The Schedule defines Minor Injury (MIG) as one or more of a sprain, strain whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury.¹³

19The Schedule limits medical and rehabilitation benefits for a minor injury to $3,500.00¹⁴. The Schedule also requires all medical and rehabilitation benefits before being paid, to be reasonable and necessary expenses.¹⁵

20The schedule does provide that the $3,500.00 minor injury limit does not apply to any applicant “if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent the insured from achieving maximum recovery from the minor injury, if the insured person is subject to the $3500.00 limit or is limited to the goods and services, authorized under the MIG.¹⁶

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

21On August 11, 2015, Dr. Allen diagnosed the applicant with a Cervical Strain”. Dr. Lavis in his report of August 27, 2015, Dr. Rabinovitch in her report of May 3, 2016, and Dr. Jung in his report of April 4, 2016, all diagnosed the applicant with soft tissue injury.

22The applicant admitted on his cross examination on December 17, 2018, that after July 19, 2016, he never complained further of any neck, right shoulder, back pain or any psychological or cognitive impairments relating to the accident.¹⁷ Dr. Allen’s records since July 2016, confirm this statement by not recording any of these complaints on the applicant’s subsequent visits.

23Stephen Brown’s chronic pain analysis of the applicant is contradictory to all of the other doctor’s reports. It is also contradictory to the applicant’s admissions on the cross examination on his affidavit. I therefore cannot give much weight to it.

24There is also no evidence before me to show that the diagnosis of chronic pain by Stephen Brown, is separate and distinct from the applicant’s minor injuries and is not a clinically associated sequelae. The injuries of the applicant as set out above in paragraph 21 above, are sprain and strain injuries that fall within the definition of minor injury as set out in the Schedule.

25There is the issue claimed by the applicant, of having a psychological impairment as a result of the accident that would take the applicant out of the MIG. Other than the report of Mr. Moustafa, there is no other evidence of such an impairment. Mr. Moustafa did not attach his credentials to his report to indicate his qualifications for undertaking the assessment. The report was completed under the supervision of psychologist Leanne Wagner, but the applicant indicated that he never met her. I would therefore have to give very little weight to this report.

26One also has to question if the applicant had a psychological impairment, why the applicant did not discuss this issue with Dr. Allen after July 2016? One would have thought that this issue was important to the applicant and needed to be dealt with medically, if the applicant had this impairment. This indicates to me that there is no psychological issue resulting from the accident that needs to be assessed or treated.

27There is no evidence before me showing that the applicant had a pre-existing medical condition that was documented by a health practitioner before the accident, that would prevent the insured from achieving maximum recovery from the minor injury, if he is subject to the $3,500.00 limit, or is limited to the goods and services authorized under the MIG.¹⁸

28Even if the applicant fell outside the MIG, there is the issue of whether the requested medical benefits are reasonable and necessary? The applicant already had 76 treatments at Pro-Med Rehabilitation Centre from August 27, 2015, to November 3, 2016.¹⁹ His evidence was that he would get “some relief.” There is no evidence before me that further similar treatments would meet the goals of the treatment plans submitted or further the applicant in his recovery. I feel that the applicant has reached maximum medical benefits in the treatment he has received to date.

29I therefore find that the applicant sustained predominantly minor injuries as defined under the Schedule?

CONCLUSION

30I order that the applicant’s claim be dismissed.

Released: June 6, 2019

___________________________

Robert Watt

Adjudicator

Footnotes

1. 1Minor injury guideline, Superintendent’s Guideline 01/14, issue pursuant to s 268.3(1.1) of the Insurance Act
2. 2Physiatrist Deborah Rabinovitch Report dated May 3 2016 Tab 2 of Respondent’s Document Brief
3. 3Submissions of Respondent.Para 6
4. 4Dr. Allen Records note dated August 11, 2015
5. 5Pro-Med Rehabilitation File Tab 10 –Applicant’s Documentary brief
6. 6Dr. Allen Records Tab 3 of Respondent’s Document Brief
7. 7Ibid 4 above
8. 8Occupational Therapy In-home assessment Report of Occupational Therapist Tony Jung dated April 4 2016 Tab 1 Respondent’s Document Brief
9. 9Physiatry Assessment Report of Deborah Rabinovitch dated May 3 2016 Tab 2 of Respondent’s Document Brief
10. 10Psychological assessment report of Nebal Abou Moustafa dated May 19, 2017 Tab 11, Applicant’s Documentary Brief
11. 11Section 25 Psychological assessment Report of Stephen Brown dated October 15, 2018- Tab 12 Applicant’s Document Brief
12. 12Cross examination Transcript of O.S. dated December 17 2018 questions43, 65-69,71 73 75
13. 13Schedule s 3.2
14. 14Schedule s18(1)
15. 15Schedule s15(1)
16. 16Schedule s 18(2)
17. 17Ibid 12 above
18. 18Schedule s 18(2)
19. 19Pro-Med Rehabilitation File Tab 10 –Applicant’s Documentary brief