G.R. v. Scottish & York, 2019 CanLII 83894

Citation: G.R. vs. Scottish & York, 2019 ONLAT 18-006015/AABS

Tribunal File Number: 18-006015/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:

G.R.

Applicant

and

Scottish & York

Respondent

DECISION

PANEL:

Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant:

Nicole Walker, Counsel

For the Respondent:

Amanda Faulkner, Counsel

HEARD:

In Writing on: February 11, 2019

OVERVIEW

1The applicant was a pedestrian injured in an automobile accident (“the accident”) on November 24, 2016 when she was struck by a vehicle while crossing the street at an intersection. As a result, she sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) when her claims for medical benefits were denied by the respondent.

2The respondent 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”). If 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

3Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the MIG?

4The other substantive issues to be decided are:

(i) Is the applicant entitled to receive payment for the cost of an examination in the amount of $2,254.71 for a psychological assessment, recommended by Royal Health Evaluations in a treatment plan dated April 4, 2017, denied by the respondent on May 10, 2017?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $2,254.67 for chiropractic treatment, recommended by Royal Health Evaluations in a treatment plan submitted July 12, 2017, denied by the respondent on July 27, 2017?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $1,327.90 for chiropractic treatment, recommended by Alpha Med Wellness Centre in a treatment plan submitted July 18, 2017, denied by the respondent on August 3, 2017?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $2,590.84 for chiropractic treatment, recommended by Alpha Med Wellness Centre in a treatment plan submitted July 26, 2017, denied by the respondent on August 3, 2017?

(v) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find the applicant’s injuries are classified under the Schedule as predominantly minor in nature and fall with the MIG.

6As I find the applicant sustained predominantly minor injuries which fall within the MIG and the applicant has exhausted available treatment under the MIG, I do not need to address the remaining treatment plans in dispute.

7As no benefits are payable, no interest is owing.

ANALYSIS

The Minor Injury Guideline

8Section 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.”

9Section 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.”

10Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries up to $3,500.

11Section 18(2) of the Schedule provides the provision if an insured provides documented pre-accident medical evidence from a health practitioner which shows a pre-existing medical condition which prevents an insured from achieving maximum medical recovery under the MIG, then the limit of $3,500.00 does not apply. The onus is on the applicant to show that his injuries fall outside of the MIG.²

Did the applicant sustain predominantly minor injuries?

12I find that the applicant’s physical injuries are “minor injuries” as defined by the Schedule because:

(i) The applicant has not produced compelling evidence which supports a prior elbow fracture would prolong her recovery within the MIG;

(ii) The applicant did not sustain a psychological impairment as a result of the accident.

13The applicant argues she should be removed from the MIG because:

(i) The applicant suffers from a pre-existing physical impairment; a prior fracture to her elbow which prevents her recovery within the MIG;

(ii) The applicant experiences ongoing pain in her neck, back, and right knee which have caused her psychological distress including: increased irritability, difficulty sleeping, and anxiety when crossing the street as a pedestrian.

14The respondent’s position is the opposite.

Does the Applicant Have a Pre-existing Condition?

15I find that the applicant’s prior elbow fracture (side not specified) has not prevented her from achieving maximum medical recovery within the MIG. There has been no documentation produced prior to the accident noting an elbow fracture. There has been no compelling medical evidence produced by the applicant that her prior elbow fracture would prolong her recovery within the MIG.

16The applicant attended the emergency department at the hospital on the date of the accident and x-rays were done on her cervical spine and right humerus bone to rule out fractures. The x-rays yielded no abnormal findings. The applicant saw her family doctor, Dr. L. Sreetharan on November 28, 2016 and the clinical note and record (“CNR”) referenced the subject accident and the applicant was diagnosed with soft tissue injuries to her neck, right arm, and right knee. It was noted the applicant had right knee and leg pain associated with numbness from prolonged sitting or standing. There are only two CNRs prior to the accident from June 2016 which do not reference a prior elbow fracture. Further, the last CNR from Dr. Sreetharan produced for the hearing referencing the accident is dated December 5, 2016 and it noted the applicant had recovered from the accident in November, she still attends massage therapy and chiropractic treatment, and takes Vimovo occasionally for pain.

Does the Applicant Have a Psychological Impairment?

17Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

18I find the applicant does not have a psychological impairment which would warrant her removal the MIG for the following reasons:

(i) I am not persuaded by the findings noted within the psychological pre-screen that was done by Dr. A. Shaul, psychologist on April 18, 2017³ as it relies exclusively on the information obtained from the applicant’s self-reporting.

(ii) The CNR of Dr. Sreetharan does not reference any psychological complaints. The last CNR referencing the accident was December 5, 2016 and it noted the applicant had recovered from the accident.

(iii) I find the fact that the applicant continues to work and had returned to work a few days following the accident to full duties at her full-time job and modified duties of supervising (not merchandising) at her part-time job supports a minimal impact regarding her functionality. During her pre-screen interview with Dr. Shaul the applicant advised she had returned to her full-time job and part-time jobs, albeit with some pain resulting from prolonged sitting and standing, and right wrist pain from using a computer mouse.

(iv) I prefer the respondent’s insurance examination (“IE”) report of Dr. Day, psychologist dated March 2, 2018 over the Dr. Shaul’s psychological pre-screen. He performed a complete psychological assessment which took three hours and included both a diagnostic interview and psychometric testing. Further, his findings support the applicant does not suffer a psychological impairment. His report noted that her pain symptoms have improved since the accident and her level of activity is gradually increasing as she has returned to work but not to working out at the gym. Dr. Day’s handwritten notes indicated she returned to modified duties and hours with her part-time job. Under a section titled “Anxiety” within Dr. Day’s handwritten notes, Dr. Day referenced the intersection of the accident scene and that the applicant has to use the intersection as she goes to work six times per week. I do not find this supports the anxiety has caused any functional impairment. Dr. Day further noted in his handwritten notes that the applicant has no difficulty with sleep, reduced pain in the areas of her right knee and shoulders, she takes pain medication only 1-2 times per month when her pain is severe, and she sees her friends as often as she used to. I find Dr. Day’s report to be comprehensive and his findings supported by the information he obtained from the applicant’s self reporting, and the psychometric test results.

(v) I have reviewed the DSM-5 symptom checklist completed by Dr. Day which does have many incomplete sections. However, I find Dr. Day has addressed the disorders identified within this checklist on pages 9-10 of his report before reaching his conclusion the applicant does not meet the diagnostic criteria for any psychiatric disorders under the DSM-5. I find Dr. Day’s report to be comprehensive and his findings supported by the information he obtained from the applicant’s self reporting, and the psychometric test results. No explanation was provided why there was a 9-month delay in Dr. Day issuing his report and as a result, as I do not know the reasons for the delay, I am not affording less weight to his report as a result.

(vi) Dr. Day’s report noted he carefully reviewed the symptoms associated with post-traumatic stress disorder (PTSD) with the applicant and concluded she does not meet the diagnostic criteria for PTSD, or any psychiatric disorders. This conclusion is based on the applicant denying experiencing the following: symptoms of anxiety, nightmares and distressing dreams related to the accident, distressing memories/flashbacks related to the accident. I find this information and the information which I have already noted above supports the conclusion reached by Dr. Day that the applicant does not suffer from PTSD, or any psychiatric diagnosis.

19I do not find the CNRs from the Great American Backrub noting the client received four massage therapy treatments from June - December 2018 to relieve muscle tightness are conclusive that the applicant’s bilateral shoulder pain is a result of the accident. This is because the CNRs do not reference the accident and the CNRs of the family doctor do not note anything accident related beyond December 5, 2016.

20Based on the evidence before and for the reasons noted above the applicant has failed to persuade me that she sustained psychological injuries in the accident and hence should be removed from the MIG.

Interest

21As no benefits are payable, no interest is owing.

CONCLUSION

22For the reasons outlined above, I find that:

(i) The applicant sustained predominantly minor injuries that fall within the MIG. The applicant is not entitled to the medical benefits in dispute, or any interest. The applicant’s claim is dismissed.

Released: July 18, 2019

___________________________

Kimberly Parish

Adjudicator

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 3Additional comments from psychological pre-screen contained within the Treatment plan (OCF-18) in the amount of $2,254.71 for a psychological assessment, submitted by Dr. A. Shaul, dated April 4, 2017.