DECISION AND ORDER
Released Date: January 8, 2020
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:
[M.A.]
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
ADJUDICATOR: Tavlin Kaur
APPEARANCES:
For the Applicant: [M.A.], Applicant Claire Mazerolle, Paralegal
For the Respondent: Alex Amigud, Adjuster Paul Omeziri, Counsel
HEARD: In Writing June 10, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in an automobile accident (“the accident”) on February 10, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent.
2The respondent denied 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, fall within the Minor Injury Guideline2 (MIG). The applicant disagrees.
3If the applicant’s position is correct, then I must address the issue of whether the medical benefits claimed are 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 medical benefits are reasonable and necessary will be unnecessary as the applicant has already exhausted the $3,500.00 maximum benefit for minor injuries.
ISSUES
5Did the applicant sustain predominantly minor injuries as defined by the Schedule?
6If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,057.00 for other goods and services of a medical nature, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on February 22, 2017, and denied on March 9, 2017?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,546.40 for other goods and services of a medical nature, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on August 4, 2026, and denied on August 17, 2016?
iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,689.20 for other goods and services of a medical nature, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on May 5, 2016, and denied on May 17, 2016?
iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,889.20 for other goods and services of a medical nature, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on May 5, 2016 and denied on August 9, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant sustained predominantly minor injuries as defined under the Schedule. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plans.
ANALYSIS
8In order to determine if the applicant’s injuries fall outside the MIG, I considered whether or not there was any evidence that the applicant: (a) had a pre-existing medical condition that would prevent him from achieving maximum medical recovery within the MIG; (b) if he sustained any physical injuries that were more than soft tissue in nature; or (c) if he sustained any psychological injuries and/or post-concussion syndrome as a result of the accident.
The Minor Injury Guideline
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.” The MIG defines in detail what these terms for injuries mean.
10Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
11The onus is on the applicant to show that his injuries fall outside of the MIG.3
Did the applicant have a pre-existing condition?
12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 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 $3,500.00 limit on treatment costs under the MIG.4
13The 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 must be documented by a health practitioner before the accident and must be shown to prevent maximal recovery within the cap imposed by the MIG.
14I find that the applicant did not have a pre-existing condition that would remove him from the MIG for the following reasons.
(i) In the submissions, it is stated that “the applicant accepts and acknowledges that he had a pre-existing alcohol use disorder, as well as some pre-existing depression and anxiety. However, his issues have been significantly aggravated due to the stress and pain of the accident. This is a pre-existing medical condition that precludes the Applicant from the MIG framework.”
(ii) The respondent argues that having a pre-existing condition does not take the applicant out of the MIG. Furthermore, there is no compelling evidence.
(iii) In support of his position, the applicant has relied on various medical articles. For example, the applicant relies on “The Impact of Psychological Stress on Wound Healing: Methods and Mechanisms” by Jean-Philippe Gouin and Janice K. Kiecolt-Glaser. He states:
This article directly relates to the Applicant. Though, [sic] on paper, Mr. Ahsan has suffered from primarily soft-tissue, or aggravated soft tissue injuries, his recovery has been significant slowed due to his issue with Somatic Symptom Disorder. He has not been provided with the psychological intervention to treat this disorder. Not only do psychological issues increase levels of pain, these psychological issues can slow wound healing, meaning it [sic] would take the Applicant longer to recover from a soft-tissue injury.
This is outlined in the cited article. This supports that Mr. Ahsan would need more treatment than someone who does not suffer from psychological issues. With his combined psychological and physical issues, it would be impossible for the Applicant to be treated within the MIG framework.
(iv) The applicant refers to an article about diabetes and suggests that he is unable to recover at the same rate as someone who does not have Type 2 diabetes.
(v) I am not assigning any weight to these articles. While medical articles can provide some useful information, they are not a substitute for a medical opinion from a medical practitioner with respect to the applicant’s specific conditions.
(vi) Upon reviewing the evidence, I agree that the applicant had some pre-existing conditions that are psychological and physical in nature. There are notations in Dr. Goldenberg’s CNRs in this regard.
(vii) However, the presence of a pre-existing condition alone is not sufficient enough to remove the applicant from the MIG. The applicant bears the onus and must adduce compelling evidence to demonstrate that the pre-existing condition prevents him from achieving maximal medical recovery if subjected to the MIG limits. The applicant did not point me any evidence that demonstrates this.
(viii) The applicant has not satisfied the criteria of section 18(2) of the Schedule. As a result, I find the applicant’s pre-existing conditions do not remove him from the MIG.
Did the applicant sustain predominantly minor physical injuries?
15Section 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.” Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.
16The applicant has failed to persuade me that he sustained any injuries that were more than soft tissue in nature for the following reasons.
(i) The applicant visited Dr. Goldenberg a few days after the accident. Dr. Goldenberg examined the applicant and documented the following: neck full ROM, tender suprascapular areas, SCM non-tender, left arm full ROM, right hip slightly tender to palpitation, right low back s1 tender to palpitation. She notes: sprain, strain and other trauma-neck low back coccyx MVA whiplash. The applicant was given a note for physiotherapy, temazepam for sleep and told to continue Tylenol and heat.
(ii) After this visit, there are no pain related complaints documented in the CNRs until July 6, 2015 where it is mentioned that the applicant has neck, back and leg pain from the MVA. A month later, the doctor notes that the applicant has right knee pain and is doing physiotherapy.
(iii) On November 4, 2015, Dr. Goldenberg documents that the applicant “feels fine”.
(iv) However, two weeks later, the applicant met with her due to pain in his left shoulder. It is documented that this pain was a result of him lifting.
(v) On February 3, 2016, Dr. Goldenberg referred him for physiotherapy for his left shoulder strain.
(vi) There are notations in the CNRs from 2016 to 2018 that mention that the applicant was experiencing pain. However, the CNRs noted that the cause of the pain was triggered by activities that he was engaged in such as heavy lifting and gardening.
(vii) The respondent relies on an orthopaedic assessment by Dr. Michael Martin dated July 20, 2016. According to Dr. Martin, the applicant’s musculoskeletal injuries are minor injuries. He opines that there is little objective evidence of an impairment. He notes that there is some restriction of motion in the neck and in the lower back, but the restrictions are due to pain and not to a physical impairment. He states, “in my opinion, [M.A.] has reached maximum therapeutic benefit with respect to facility-based therapy.” In reaching his conclusion, Dr. Martin assessed the applicant in addition to reviewing his medical history and reports.
(viii) Based on the medical records, I am persuaded that the applicant suffered a minor injury. The nature of his injury falls within the definition of predominantly minor injuries subject to treatment within the MIG. Dr. Goldenberg’s notations have consistently referred to his injury as a sprain. Dr. Martin’s report also supports this.
17The applicant has not advanced any evidence to suggest that his physical injuries are not minor in nature. As such, I find that the applicant sustained predominantly minor injuries as a result of this accident.
Did the applicant sustain any psychological impairment?
18Psychological impairments, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include accident related psychological impairments.
19I find that the applicant has not demonstrated that he suffers from a psychological injury that would remove him from the MIG for the following reasons.
(i) With respect to the applicant’s psychological impairments, it is evident that the applicant suffers from some psychological symptoms as a result of the accident. However, psychological symptoms that do not amount to a diagnosis do not take a person out of the MIG. The applicant has the onus of showing that he has a psychological impairment and not just psychological symptoms or sequelae arising from the soft tissue injuries.
(ii) In support of his position, the applicant relies on a psychological assessment completed by Dr. Judith Pilowsky dated October 26, 2017. Dr. Pilowsky administered the Beck Depression Inventory-II (BDI-II), the Beck Anxiety Inventory (BAI) and the Pain Catastrophizing Scale (PCS). The applicant obtained a score consistent with severe levels of depression and anxiety. His responses on the PCS were over the 75th percentile. Dr. Pilowsky notes that this is a significantly elevated score which is indicative of increased risk to develop somatoform disorder and pain chronicity.
(iii) Dr. Pilowsky diagnosed the applicant with major depressive disorder (single episode, moderate), post-traumatic stress disorder with phobic symptoms in a vehicle, persistent, moderate somatic symptom disorder with predominant pain and excessive alcohol consumption.
(iv) The respondent relies on insurer examinations completed by Dr. Tatiana Dumitrascu dated August 21, 2015 and July 12, 2016. Dr. Dumitrascu administered a series of psychometric tests at both examinations.
(v) During the August 21, 2015 insurer examination, the applicant’s scores on the BAI were found to be within the severe range. The applicant rated his average pain level as 5 out of 10 on the Brief Pain Inventory. His pain is 2 out of 10 when at its least and 7 out of 10 when at its worst. The Trauma Symptom Inventory (TSI-2-A) results were considered valid. There were some slight elevations on the scales of anxiety, depression and tension reduction behaviour.
(vi) The Clinical Assessment of Depression (CAD) indicated that he experiences feelings of unhappiness, is anhedonic, has a pessimistic view, and experiences fatigue. The Structured Inventory of Malingered Symptomatology (SIMS) indicated that he had a tendency to magnify his emotional and cognitive symptoms. As a result of this finding, Dr. Dumitrascu found that this likely affected his responses on all administered psychological tests and therefore his results are likely over-representing the severity of his symptomatology.
(vii) The applicant attended a second insurer examination with Dr. Dumitrascu on July 12, 2016 and underwent a series of psychometric testing. On the BAI, the applicant’s score was within the moderate-severe range. His score was in the severe range on the BDI-II. On the TSI-2-A, it was found that he had a tendency to over-endorse his emotional symptoms. The results were considered to be invalid. The CAD indicated that he tended to endorse items in an extreme manner. The results were considered to be invalid. No clinical interpretation was provided. The applicant’s total score on the Miller Forensic Assessment of Symptoms Test (M-FAST) was significantly elevated indicating that he had a tendency to over-endorse his emotional symptoms.
(viii) I prefer Dr. Dumitrascu’s assessment over Dr. Pilowsky’s assessment because I found it to be more reliable as Dr. Dumitrascu did validity testing. Moreover, the results from the psychometric testing from Dr. Dumitrascu’s assessments are consistent.
(ix) I am assigning less weight to Dr. Pilowsky’s report because she did not conduct any validity testing. Moreover, her conclusions are solely based on the applicant’s self-reporting. The results from the psychometric testing conducted by both Dr. Pilowsky and Dr. Dumitrascu’s are quite similar. The applicant appears to be someone with a high degree of psychological distress. However, Dr. Pilowsky did not conduct any validity test to confirm the accuracy of the results before drawing conclusions from them. Therefore, I prefer Dr. Dumitrascu’s report as I find it to be more reliable and objective.
(x) I have also reviewed Dr. Teresa Goldenberg’s CNRs. On February 13, 2015, the applicant informed her that he was not sleeping well due to the stress of MVA. She prescribed him Temazepam 15mg for sleep. On March 16, 2015, she notes that the applicant is stressed because his car insurance was cancelled. On July 6, 2015, it is mentioned that the applicant still has some anxiety around driving. There are no further notations regarding his psychological symptoms after this visit until the following year.
(xi) On April 29, 2016, the applicant met with Dr. Goldenberg. It is documented that the applicant’s physiotherapist thought he would benefit from psychological treatment. It is stated that the applicant is “worried about having another accident, is no longer confident when he drives, worries that he may die when he is driving, occas [sic] slams on the brakes when it is not necessary.” As a result, she provided a doctor’s notes that states “[M.A.] has emotional symptoms that are related to his motor vehicle accident of February 10, 2015. He would benefit from psychological therapy to treat these symptoms.” It is unclear who this note is directed to as it states, ‘to whom it may concern.’
(xii) Although Dr. Goldenberg mentions that the applicant has emotional symptoms, she does not provide a diagnosis. This note, in my opinion, is not sufficient enough to take the applicant out of the MIG.
20Based on the totality of the evidence before me, I find that the applicant has not established that he suffered from a psychological impairment that would remove him from the MIG.
Did the applicant sustain chronic pain?
21I am not satisfied that the applicant has chronic pain as a result of the accident.
(i) In her report, Dr. Pilowsky recommends that treatment at a chronic pain facility is necessary given the applicant’s physical and emotional conditions are ultimately intertwined. As already highlighted above, I am not persuaded by Dr. Pilowsky’s opinion and am assigning less weight to it.
(ii) Dr. Pilowsky did not review the applicant’s medical records. She relied solely on the applicant’s subjective reporting, which is problematic given that there is evidence of malingering.
(iii) The objective evidence, such as Dr. Goldenberg’s CNRs, do have notations of pain. However, Dr. Goldenberg did not diagnose the applicant with chronic pain or refer him to a chronic pain specialist. Based on my review of the evidence, it appears that the pain-related complaints were triggered by physical activities that the applicant engaged in. While I do acknowledge that the applicant did experience some pain as a result of the accident, I am not convinced that he has developed chronic pain and/or suffers from chronic pain syndrome as a result of the accident.
22I find that the applicant has not met his burden to demonstrate that he has chronic pain. He has not provided supporting medical records that corroborates that he suffers from chronic pain as a result of the subject accident. The applicant has not satisfied his onus to establish that he has chronic pain that may remove him from the MIG.
The treatment plans and interest
23As I have found that the applicant’s injuries fall within the MIG, I do not have to make a determination on whether the treatment plans are reasonable and necessary. The applicant has already exhausted $3,500.00 limit on medical and rehabilitation benefits for the treatment of minor injuries under the MIG. He is therefore not entitled to any further medical and rehabilitation benefits. Consequently, interest is not payable as there are no amounts owing.
ORDER
24For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that are subject to treatment within the MIG. Accordingly, he is not entitled to the treatment plans claimed in this application. His application is dismissed in its entirety.
Released: January 8, 2020
Tavlin Kaur, 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.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- 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”.