Released Date: 11/08/2021
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:
Millissa Branford
Applicant
And
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nancy Aquilina
APPEARANCES:
For the Applicant:
Donata Di Iorio, Counsel
For the Respondent:
Jeffrey Wong, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on April 21, 2017, and sought various benefits from the respondent, The Dominion of Canada General Insurance Company (“Dominion”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Dominion denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
If the applicant’s injuries are not considered to be predominantly minor,
i. Is the applicant entitled to a medical benefit in the amount of $3,488.18 for chiropractic treatment, proposed by Myo Health Rehab & Wellness Centre in a treatment plan (OCF-18) dated January 4, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $3,541.70 for physiotherapy treatment, proposed by Myo Health Rehab & Wellness Centre in a treatment plan (OCF-18) dated April 18, 2019?
iii. Is the applicant entitled to a medical benefit in the amount of $2,452.71 for a psychological assessment, proposed by Myo Health Rehab & Wellness Centre in a treatment plan (OCF-18) dated February 6, 2019?
- Is the applicant entitled to interest on any overdue payment of benefits?
3The parties withdrew the issue of an award at the case conference on August 12, 2020.
RESULT
4Based on the totality of the evidence before me, I find that:
(i) The applicant has sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the monetary limits of the MIG.
(ii) As I have found that the applicant’s injuries are within the MIG, there is no need to determine if the treatment plans are reasonable and necessary, and therefore, no interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) 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.”
6The onus falls on the applicant to prove that her injuries are not predominantly minor as a result of the accident.
7The applicant submits she has sustained accident-related physical and psychological impairments that are not minor in nature and justify her removal from the MIG. In support of her claim, the applicant relies on an OCF-3 (“Disability Certificate”) dated May 11, 2017, clinical notes and records of the applicant’s family physician, Dr. Trina Xian-Min Liew (“Dr. Liew”), and the clinical notes and records of Myo Health Rehab Wellness Centre.
8In response, Dominion submits that the applicant’s injuries are predominantly minor and that x-rays of the applicant’s cervical spine, thoracic spine and lumbar spine ordered by Dr. Liew on April 24, 2017 were normal.2 Dominion relies on the insurer’s examination report of Dr. Shafik Dharamshi, physician, dated January 15, 2020 and Dr. Rakesh Ratti, psychologist, dated November 9, 2020 that support a finding that the applicant’s physical injuries are minor in nature and that the applicant did not sustain a psychological impairment as a result of the accident.
9I find that the applicant does not provide compelling evidence to meet her burden to prove on a balance of probabilities that she did not suffer predominantly minor injuries. The physical injuries reported in Dr. Liew’s Disability Certificate are consistent with the injuries reported in Dr. Dharamshi’s insurer’s examination, which are those as defined within the MIG, being headaches, whiplash associated disorder, and strains with pain. In the limited entries contained within Dr. Liew’s post-accident clinical records, she identifies the applicant’s injuries as being “still whiplash” weeks following the accident.3
10Although I am pointed to a diagnosis of mixed anxiety and depressive disorder by Dr. Andrew Shaul, psychologist, in a treatment plan dated February 6, 2019 and by Mr. George Charalambous, chiropractor, dated January 4, 2019, I agree with Dominion that there is no medical evidence to justify the applicant’s removal from the MIG on the basis that she is psychologically impaired, as discussed in greater detail below.4
Does the applicant have chronic pain?
11An applicant has the evidentiary burden of proving that they suffer from chronic pain that causes functional impairment. The applicant submits that the clinical notes and records of her treating practitioners at Myo Health Rehab identify several entries of ongoing pain complaints in her neck, shoulders, and back that impact her function. In the applicant’s reply submissions, she notes that Mr. Sudeep Deshpande, physiotherapist, makes a diagnosis of fibromyalgia and spinal instabilities in a treatment plan dated April 18, 2019 which the applicant argues are sufficient grounds for her removal from the MIG.5 Lastly, she submits that her Multidimensional Pain Inventory scores, as noted in Dr. Ratti’s psychological report, are comparable to what is reported by individuals with chronic pain.
12Dominion submits that the evidence does not support a chronic pain diagnosis and that Dr. Dharamshi’s diagnosis of tension headaches, whiplash-associated disorder grade I, and lumbosacral musculoligamentous strain are soft-tissue injuries which are treatable within the MIG. In addition, Dominion contends that the applicant’s employment file relating to her full-time job demonstrates a significant amount of regular and overtime hours worked between February 2018 and March 2020 and that this is not consistent with an individual with chronic pain. Lastly, Dominion submits that Drs. Dharamshi and Ratti do not find functional impairment and report that the applicant is able to drive, manage her self-care and her work-related activities.6
13After a review of the evidence, I find that the applicant’s self reports of pain, Dr. Dharamshi’s report of persistent mechanical pain, and Mr. Deshpande’s mention of fibromyalgia in an OCF-18 on its own is not compelling evidence in support of a chronic pain or chronic pain syndrome. Further to this, I am not pointed to medical evidence of chronic pain or a chronic pain syndrome by the family physician or any other treating medical practitioner.
14I acknowledge that Dr. Ratti finds that the applicant’s Multidimensional Pain Inventory response patterns are comparable to what is reported by individuals with chronic pain. However, in the report, Dr. Ratti goes on to opine that the applicant’s perceived severity of pain is significantly lower than the range that is reported by the comparison group and, given this, concludes that her scores for participation in home and social activities are not consistent with this group.7 When I consider this in combination with the evidence, there does not appear to be a functional impairment that impacts the applicant’s ability to engage in work and social related activities.
15Therefore, I find that the applicant has not met her onus to prove that she has chronic pain, because other than her submission that she has chronic pain, I have not been pointed to medical evidence of chronic pain or chronic pain syndrome and she has not demonstrated functional impairment.
Does the applicant have a psychological impairment?
16Finally, an applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1).
17The applicant submits that her psychological impairments justify removal from the MIG and relies on a treatment plan from Mr. George Charalambous that references anxiety and depression, and the treatment plan of February 2019 where Dr. Shaul makes a diagnosis of Adjustment Disorder, Mixed Anxiety and Depressive Disorder and Specific Phobias.8
18In response, Dominion relies on the psychological report of Dr. Ratti who contends that the applicant does not suffer from a psychological impairment as a result of the motor vehicle accident and does not meet the DSM criteria for a clinical diagnosis.9 Dr. Ratti opines that the applicant presents with mild to a possibly low-moderate degree of emotional distress and neither meets the criteria for a formal mental health diagnosis nor requires formal intervention.10
19While Mr. Charalambous references anxiety and depression in his OCF-18, I give little weight to this opinion given that it is beyond the scope of practice of a chiropractor to opine on psychological impairments. Two years post-accident, Dr. Shaul diagnosed the applicant with an adjustment disorder, specific phobia and a mixed anxiety and depressive disorder, however, Dr. Liew, the applicant’s family physician, makes no reports of psychological issues, including anxiety and depression, in her clinical notes and records and neither do any other treating practitioners. I agree with Dr. Ratti’s conclusion that there are no psychological factors that appear to contribute to the applicant’s functional abilities as I am not pointed to medical evidence that suggests that her psychological impairments have had an impact on her personal relationships or social and work-related activities.
20Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related physical and psychological impairments cause a functional impairment that warrants removal from the MIG. As a result of the finding the applicant’s injuries to be within the MIG and that the applicant does not suffer a psychological impairment or chronic pain, she is subject to the MIG limits and an analysis of the reasonableness and necessity of the treatment plans is not necessary.
CONCLUSION
21For the reasons outlined above, I find that:
(i) The applicant has sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the monetary limits of the MIG.
(ii) As I have found that the applicant’s injuries are within the MIG, there is no need to determine if the treatment plans are reasonable and necessary and, therefore, no interest is payable.
Date of Issue: November 8, 2021
Nancy Aquilina, Adjudicator
Footnotes
- O. Reg. 34/10, as amended
- Written Submissions of the Applicant at Tab 7, Clinical Notes and Records of Dr. Trina Xian-Min Liew, X-rays from Markham Lawrence dated April 24, 2017
- Written Submissions of the Applicant at Tab 7, Clinical Notes and Records of Dr. Trina Xian-Min Liew, various dates
- Written Submissions of the Applicant at Tab 4, OCF-18 of Dr. Andrew Shaul dated February 6, 2019 and Mr. George Charalambous dated January 4, 2019
- Written Submissions of the Applicant at Tab 5, OCF-18 of Mr. Sudeep Deshpande dated April 18, 2019
- Written Submissions of the Respondent at Tab G, Insurer Examination Report of Dr. Shafik Dharamshi dated January 15, 2020
- Written Submissions of the Applicant at Tab 12, Insurer Examination Report of Dr. Rakesh Ratti dated November 9, 2020
- Written Submissions of the Applicant at Tab 4, Mr. George Charalambous, OCF-18 dated January 4, 2019 and Dr. Andrew Shaul, OCF-18 dated February 6, 2019
- Written Submissions of the Respondent at Tab H, Insurer Examination Report of Dr. Rakesh Ratti dated November 9, 2020
- Written Submissions of the Respondent at Tab H, Insurer Examination Report of Dr. Rakesh Ratti dated November 9, 2020