Citation: J.K. vs. The Co-operators, 2020 ONLAT 19-000114/AABS

Released Date: 03/06/2020

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:

J. K.

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Shalini M. Thomas, Counsel

HEARD: In Writing

September 16, 2019

1The applicant, J.K., was involved in an automobile accident on December 6, 2017 (“the accident”) and sought medical benefits from the respondent, The Co-operators.

2The Co-operators denied J.K.’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline¹ (“the MIG”). J.K. disagrees.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. J.K. argues that his injuries take him out of the limits set out by the MIG. Based on treatment that J.K. has received to date, the MIG limit has not been exhausted.

ISSUES

4The issues in dispute were identified and agreed to as follows:

(i) Did J.K. sustain predominantly minor injuries as defined under the Schedule?

(ii) Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period December 13, 2017 to date and ongoing?

(iii) Is the medical benefit in the amount of $3,308.64 for physiotherapy services recommended by Dr. C. Hefford of Prime Healthcare Inc. in a treatment plan submitted January 22, 2018 and denied by the respondent on February 5, 2018, reasonable and necessary?

(iv) Is the medical benefit in the amount of $3,470.57 for psychological services recommended by Dr A. Shaal of Prime Healthcare Inc. in a treatment plan submitted October 22, 2018 and denied by the respondent on November 2, 2018, reasonable and necessary?

(v) Is the medical benefit in the amount of $8,909.26 for physiotherapy services recommended by Dr. G. Karmy of Prime Healthcare Inc. in a treatment plan submitted November 6, 2018 and denied by the respondent on November 16, 2018, reasonable and necessary?

(vi) Is the cost of examination expense in the amount of $1,230.92 for an Attendant Care Assessment, recommended by Dr. V. Le of Prime Healthcare Inc. in a treatment plan submitted January 31, 2018 and denied by the respondent on February 14, 2018, reasonable and necessary?

(vii) Is the cost of examination expense in the amount of $2,000.00 for a Mental Health and Addictions Assessment, recommended by Dr. A. Shaal of Prime Healthcare Inc. in a treatment plan submitted February 13, 2018 and denied by the respondent on February 28, 2018, reasonable and necessary?

(viii) Is the cost of examination expense in the amount of $2,000.00 for a Chronic Pain Assessment, recommended by Dr. C. Hefford of Prime Healthcare Inc. in a treatment plan submitted June 19, 2018 and denied by the respondent on July 4, 2018, reasonable and necessary?

(ix) Is the medical benefit in the amount of $200.00 for other goods and services of a medical nature (specifically an updated Disability Certificate/OCF-3) included in a treatment plan submitted June 1, 2018 and denied by the respondent on June 22, 2018, reasonable and necessary?

(x) Is J.K. entitled to interest on any overdue payment of benefits?

(xi) Is J.K. entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

5The parties agreed that J.K. has withdrawn issue numbered ii. This decision will focus on the remaining issues in dispute.

FINDING

6Based on a review of the evidence put before me, I find the following:

i. J.K.’s physical and psychological injuries are predominantly ‘minor’. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable; and

ii. J.K. is not entitled to an award and the application is dismissed.

LAW

Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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 terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1).

8The onus is on the applicant to show that his injuries fall outside of the MIG.²

9J.K. argues that his injuries go beyond the definition of “minor” because he has sustained physical and psychological impairments which remove him from the MIG.

Did J.K. sustain physical injuries that remove him from the MIG?

10Although J.K. has provided medical evidence which confirms he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by The Co-operators also confirms that J.K.’s physical injuries fall within the MIG.

11My finding that J.K.’s physical injuries fall within the MIG is supported by the following evidence;

(i) The disability certificate (“OCF-3”) completed by Chiropractor, Dr. Chad Hefford, dated February 5, 2017, confirms J.K. has soft tissue injuries.³ Although, as a frontline healthcare practitioner, Dr. Hefford may be trained to observe possible signs of psychological issues, he is not qualified to diagnose them. As such, I place no weight on the “other anxiety disorder and other sleep disorder” diagnoses mentioned in the OCF-3 of Dr. Hefford;

(ii) An OCF-3⁴ by Dr. Vyvyen Le, Chiropractor, also confirms J.K. has soft tissue injuries. As with Dr. Hefford, I place little weight on the behaviour diagnoses provided by Dr. Le, as these are beyond the scope of her qualifications to diagnose.

(iii) J.K. saw his Family Physician, Dr. Seif, on the day of the accident. J.K. presented with neck pain and upper back pain. He was given a pain medicine prescription and referred for x-ray imaging of the cervical and thoracic spine, and advised to access physiotherapy. There is no evidence that J.K. completed the recommended imaging studies. In addition, J.K. has not submitted any evidence that the prescription was filled;

(iv) On the day of the accident, J.K. attended Physio Fix & Fitness and underwent an initial assessment with Chiropractor, Dr. Fawad, who prepared a Treatment Confirmation Form (OCF-23) for treatment under the MIG in the amount of $2,200.00. A three-week plan for treatment under the MIG was created but the records show that J.K. only attended once more, on December 9, 2017;

(v) J.K. attended treatment at Prime Healthcare Inc. (“Prime”) between December 2017 and April 2018, followed with a final visit on October 18, 2018. During the April 10, 2018 treatment, J.K. reported experiencing more pain with treatment and advised that he “doesn’t want to do them.” He was advised to follow up with his family physician to obtain imaging of his shoulder. J.K. did not follow through with this recommendation. As per the clinic, of the partially approved amount of the OCF-23 ($2,200.00, $1,872.20 partially approved), J.K. has only incurred $1,561.53; and

(vi) The Co-operators had also approved a treatment plan, dated June 8, 2018, from Prime for physical therapy and acupuncture in the amount of $1,301.96. The Co-operators was only expensed for $200.00 under this treatment plan, which pertained to Prime’s expenses for preparing the OCF-18 and not actual treatment;

(vii) I find that the medical evidence submitted by J.K. confirms that his physical injuries are predominantly ‘minor’. J.K. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided for in the MIG.

Did J.K. sustain psychological injuries that remove him from the MIG?

12For the reasons that follow, I find that the evidence does not support the conclusion that J.K.’s psychological impairments would remove him from the MIG.

Ms. Ilios and Dr. Shaul – section 25 report/assessment

13I am not persuaded by the reports⁵ of Helen Ilios and Dr. Andrew Shaul, that J.K. suffered psychological impairments that would remove him from the MIG limits. The January 2018 report is lacking any analysis or in-depth objective assessment of J.K.’s pre- and post-accident psychological well-being.

14In the June 2018 report, psychotherapist, Ms. Ilios (supervised by Dr. Shaul), conducted three psychological tests on J.K. and noted that his scores indicated he was “only experiencing relatively low levels of symptoms of depression and anxiety”. However, based on J.K.’s self-reports during his interview, Ms. Ilios believed his emotional distress to be “slightly more significant than what was represented in his test responses” warranting a DSM-5 diagnosis. The diagnosis provided is “Adjustment Disorder (Unspecified)”.

15Dr. Shaul concludes that “these psychological and emotional difficulties are in large part a direct consequence of his physical condition. As long as his physical condition, along with its pain and restrictions remain present, it is likely that J.K. will experience significant emotional distress”.

Dr. Ratti – section 44 assessment

16In support of its position that the treatment plan is not reasonable and necessary, The Co-operators relies on the May 9, 2018 report of its assessor, Clinical Psychologist, Dr. Ratti. Dr. Ratti assessed J.K. and, based on objective testing, concluded that J.K. suffered minimal psychological impairments as a result of the 2017 accident. Dr. Ratti opined that J.K. “does not meet criteria for any mental health diagnosis. There is no evidence that psychological factors result in any functional limitations”. In concluding, Dr. Ratti noted that J.K. “reported limitations in functioning in some areas of his life, which he attributed to physical pain related to the subject accident”.

17My finding is further based on the following:

(i) During his Examination Under Oath (“EUO”) testimony, J.K. stated that he did not suffer from any accident-related psychological impairments⁶;

(ii) The testing conducted by Ms. Ilios, Dr. Shaul and Dr. Ratti all resulted a finding of minimal psychological impairment as a result of the accident;

(iii) I find that the lack of an interpreter during the Ilios/Shaul assessment speaks to the credibility of said reports. The Tribunal application indicated that J.K. requires a Spanish interpreter. There is no record in the Ilios/Shaul reports that note a Spanish interpreter was provided or used;

(iv) I am persuaded that all reasonable measures were taken by Dr. Ratti to ensure that the interview and objective testing segments produced accurate and credible results for the following reasons. Dr. Ratti notes in his report, that a Spanish interpreter was used during the assessment. In addition, Dr. Ratti’s report indicates that “the claimant responded to some queries in English”. As such, I place more weight on the report of Dr. Ratti;

(v) I note there is an absence of post-accident psychological complaints noted in his family physician records or OHIP records, nor are there any records of prescriptions filled for psychological medication.

18Without the presence of an objective medical opinion providing a thorough analysis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that J.K. suffers from a psychological impairment that warrants removing him from the application of the MIG.

Chronic Pain

19For the reasons below, I am not persuaded by the evidence submitted by J.K. that he has chronic pain.

Dr. Karmy – section 25 assessment

20Dr. Karmy’s report⁷ notes a diagnosis of “Chronic mechanical bilateral shoulder pain, likely originating from post-traumatic tendinopathy, caused by the subject accident, Chronic mechanical lower back pain, likely originating from the lumbar discs and facet joints, caused by the subject accident, Sacroiliac joint dysfunction, caused by the subject accident, Myofascial pain syndrome, caused by the subject accident, Bilateral hand numbness and weakness- rule out cervical radiculopathy”.

21Dr. Karmy recommended active and passive treatments i.e., physiotherapy, exercise, acupuncture, massage, laser, ultrasound, chiropractic adjustments (avoiding the cervical spine), spinal decompression and psychological help. Dr. Karmy also recommended an MRI of the cervical spine and bilateral shoulder ultrasound.

22Dr. Karmy opined that, “As a result of the subject accident, the claimant developed chronic pain in the shoulders and lower back. The claimant's multiple impairments, related to the subject accident, do not meet the definition of a minor injury”. I note that Dr. Karmy’s report provides no opinion on whether J.K.’s chronic pain diagnoses are sequelae of the soft tissue shoulder and low back injuries sustained in the accident.

23Further, Dr. Karmy does not diagnose J.K. with any psychological impairment, even though he opines that J.K., “suffers from post-accident psychological consequences”. Dr. Karmy’s report is based mainly on the physical pain complaints J.K. suffered with minimal focus or assessment of any psychological impairment.

Examination Under Oath and Surveillance Evidence

24My finding that J.K. does not suffer from chronic pain is further supported by the following:

i. J.K. stated in the EUO that he had not returned to work with Currency Converters or Uber, however The Co-operator’s, through MKD International Inc., obtained surveillance footage⁸ of J.K. on March 21, 22 and 23, 2018, as well as on May 14 and 15, 2018. J.K. was observed working at Currency Converters on each day of surveillance “with no signs of limitations, discomfort or impairment”;

Family Physician Evidence

ii. J.K. relied on the records of three family physicians – Dr. Lamine, Dr. Seif and Dr. Halka – in support of his position. The records of Dr. Lamine and Dr. Seif encompass a period between December 2014 and May 2018.

iii. J.K. visited Dr. Lamine on February 2, 2017, which was a pre-accident visit. J.K. visited Dr. Seif on two occasions – the first, on the day of the accident and approximately one month later, on January 8, 2018. During this visit, J.K. complained of severe intermittent abdominal pain with no history of injury, as well as neck, back and bilateral shoulder pain. J.K. complained that he was gaining weight despite eating healthy. He was advised to lose weight and was prescribed Naproxen 500 mg. There is no evidence of this prescription being filled.

iv. The records of Dr. Halka indicate that J.K.’s first visit after the accident occurred on July 11, 2018, seven months post-accident, during which J.K. discussed his obesity, history of hypertension and reported having “no other medical conditions.” He was referred to a dietitian and for bariatric surgery. J.K. visited Dr. Halka again on August 8, 2018, for a physical. The records do not contain any mention of any accident-related complaints.

v. J.K.’s only mention of the accident to Dr. Halka was on January 30, 2019, more than one-year post-accident. During this visit, J.K. complained of mid and upper back pain and reported that he “is on physiotherapy” and was advised to continue physiotherapy. The evidence discussed in paragraph 12 (v) shows that J.K. did not comply with Dr. Halka’s recommendation;

vi. Dr. Halka provided a diagnosis of neck strain and ordered x-ray imaging of the spine that was conducted on January 30, 2019. The imaging was found to be unremarkable but noted “minimal osteophytic lipping in the thoracic spine”. At the next visit on February 9, 2019, Dr. Halka informed J.K. that the x-ray imaging revealed osteoarthritis;

vii. During the next visit on February 15, 2019, J.K. complained of various cold and flu symptoms and did not mention any accident-related issues; and

viii. At the final recorded visit, on April 13, 2019, J.K. complained of pain and stiffness in the neck and back “since MVA”. However, it is unclear to which MVA the note refers to as Dr. Halka’s records also contain an Emergency Record from Halton Healthcare, which indicates that J.K. was in another accident on or about February 20, 2019.

25The evidence of Dr. Karmy, the EUO testimony, surveillance and physician records are not indicative of an individual who suffers from chronic pain. Based on the evidence before me, I am unable to find, on a balance of probabilities, that J.K. should be removed from the MIG because he has chronic pain, or that he suffers from chronic pain as a result of the accident.

CONCLUSION

26J.K. has not met the onus on him to prove his injuries caused by the accident are not predominantly minor.

27As J.K.’s injuries are described as minor and thus fall within the ‘Minor Injuries Guideline’, and that amount has been not exhausted, J.K. may be entitled to receive treatment up to the $3,500.00 limit by following the protocol set out in the MIG. J.K. is not entitled to an award. J.K.’s claim is dismissed.

Released: March 6, 2020

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