Released Date: 05/11/2020
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:
[D.D.]
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Avvy Go
Appearances:
For the Appellant:
David Carranza, Paralegal
For the Respondent:
Maia Abbas, Counsel
Heard:
By way of written submissions
OVERVIEW
1The applicant was injured in a motor vehicle accident on October 29, 2016. She was driving through an intersection when her vehicle was t-boned by a left turning vehicle. The applicant was taken to a hospital for examination. She was prescribed medication and instructed to follow up with her family doctor.
2At the time of the accident, the applicant, a mother of three, was working night shift as a senior Machine Operator, a job she had held since June 2011. The applicant returned to her work on a modified basis on December 2, 2016.1 She switched employers and started working on a day shift for a chicken processing plant in April 2018.2
3The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 20103 (the “Schedule”). The respondent declined to fund certain treatment. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
4According to the Case Conference Order for a case conference held on July 8, 2019, the issues in dispute identified and agreed to were as follows:
a) Are the applicant’s injuries predominantly minor injuries as defined in s.3 of the Schedule and are therefore subject to the $3,500 limit on treatment in the Minor Injury Guideline (“MIG”)?
b) Is the applicant entitled to a medical benefit in the amount of $4,726.79 for chiropractic services recommended by Dr. Fawad Malik of Physio Fix & Fitness in a treatment plan submitted on January 31, 2017, and denied on February 16, 2017?
c) Is the applicant entitled to a medical benefit in the amount of $3,841.09 for psychological services, recommended by Dr. Belyakova of Physio Fix & Fitness in a treatment plan submitted on March 24, 2017, and denied on May 3, 2017?
d) Is the applicant entitled to a medical benefit in the amount of $452.00 for psychological services, recommended by Dr. Belyakova of Physio Fix & Fitness in a treatment plan submitted on March 28, 2017, and denied on May 3, 2017?
e) Is the applicant entitled to a medical benefit in the amount of $3,707.35 for chiropractic services, recommended by Dr. Sohl of Physio Fix & Fitness in a treatment plan submitted on June 19, 2017, and denied on July 4, 2017?
f) Is the applicant entitled to a medical benefit in the amount of $2,743.42 for psychological services, recommended by Dr. Belyakova of Physio Fix & Fitness in a treatment plan submitted on January 19, 2018, and denied on January 30, 2018?
g) Is the applicant entitled to payments for the cost of examinations in the amount of $2,107.84 for a Psychological Assessment, recommended by Dr. Belyakova of Physio Fix and Fitness in a treatment plan submitted January 16, 2017 and denied by the respondent on February 9, 2017?
h) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5For the reasons set out below, I find that the applicant is not entitled to the benefits claimed and as such no interest will be payable.
ANALYSIS
Issue 1: Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
Definition of MIG and burden of proof
6The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3, and collectively are referred to as “soft tissue injuries” in this decision. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. The definition of MIG does not include any psychological or psycho-emotional impairment.
7The MIG also does not apply to an insured person if he/she has a pre-existing medical condition that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500.00 limit.
8The applicant has the burden of proving that his injuries fall outside of the MIG and are not subject to the $3,500 treatment limit in s. 18 of the Schedule.
Application of MIG to the Present Case
9In this case, the applicant claims that she should be removed from the MIG because her injuries are not predominantly minor in nature. Based on the evidence before me, I find that the applicant’s injuries fall within the MIG.
Physical Injuries
10I will begin by reviewing the evidence with regard to the applicant’s physical injuries resulting from the accident. According to the record from the hospital where the applicant was taken for treatment after the accident, she complained of injuries to her right knee, right thumb, and neck with some burns to her right hand from the airbags, that were deployed. X-rays of her shoulder and cervical spine did not identify any fractures. The applicant was discharged several hours after her admission.
11The applicant first consulted her family physician on November 1, 2016, Dr. Sahheed and reported the accident to him. Dr. Sahheed’s note of November 4, 2016 indicated that he assessed the applicant as having soft tissue injuries.
12The applicant continued consulting with Dr. Sahheed since the accident once or twice a month with the same complaints until May 30, 2017. On May 24, 2017, Dr. Sahheed helped the applicant submit a Disability Certificate (OCF-3) and noted the following injuries that the applicant had sustained as a result of the accident: neck pain, headaches, pain to the right side of the body, right thumb pain, bruises and pain on the abdomen, knee pains, lower back pain, left foot pain and depression.
13The applicant returned to see Dr. Sahheed on September 28, 2017, after a gap of several months. Dr. Sahheed continued to assess the applicant as having soft tissue injuries.
14The treatment plan submitted by Dr. Fawad dated January 31, 2017 generally described her injuries as “sprain and strain of cervical spine; sprain and strain of thoracic spine, sprain and strain of ribs and sternum; sprain and strain of lumbar spine; sprain and strain of sacroiliac joint; sprain and strain of shoulder join; sprain and strain of elbow; sprain and strain of wrist; sprain and sprain of the hip; sprain and strain of the knee; nightmares; dizziness and giddiness; and nervousness.”
15The applicant had a lumbar spine x-ray dated March 23, 2019, which noted mild to moderate degree of degenerative disc disease and facet osteoarthritis of the lumbar spine, most pronounced at the L4-5 and L5-S1. Dr. Sahheed helped the applicant complete a Short-Term Disability form with a diagnosis of discogenic lower back pain and noted that the disability is not a result of an accident. Dr. Sahheed also suggested that the prognosis was good. Dr. Sahheed’s note a month later (April 26, 2019) suggested that the applicant was feeling better and able to return to modified duties on April 16, 2019.
16The applicant was assessed by a neurologist, Dr. Yahmad, as part of an Insurer’s Examination (“IE”) who provided no specific neurological diagnosis as a result of the accident. According to another IE report from a Dr. Nesterenko dated April 11, 2017, the applicant had functional Range of Motion (ROM) in her cervical and thoracolumbar spine as well as both shoulders and knees. Dr. Nesterenko diagnosed the applicant with strain/strain in her cervical spine, thoracolumbar, right shoulder and right knee, and on that basis, Dr. Nesterenko recommended self-directed and at-home exercise for general maintenance.
Chronic Pain
17Thus far, all of the above medical reports would suggest that the applicant suffered soft tissue injuries in the nature of sprain and strain from the accident.
18The only exception was a notation in Dr. Sahheed’s clinic note about “chronic pain” on February 1, 2018. The applicant submitted that this indicates Dr. Sahheed has diagnosed her with chronic pain. However, it is unclear to me whether the notation of “chronic pain” was a reference to an actual diagnosis. Besides, apart from Tylenol 3, I did not find any specific treatment prescribed by Dr. Sahheed in his notes, some of which are not legible. I also saw Dr. Sahheed’s note on May 17, 2018, stating “neck/shoulder and back pain ↓”.
19Therefore, I find there is insufficient evidence to confirm a diagnosis of chronic pain. Even if I assume the mention of chronic pain in Dr. Sahheed’s notes confirm this diagnosis, there is no other evidence leading me to find the applicant was diagnosed with chronic pain.
20I thus conclude, based on the above noted medical evidence, that the applicant suffered soft tissues injuries from the accident.
Psychological Injuries
21I now consider whether the applicant has suffered any psychological injuries which would take her out of the MIG.
22The applicant submitted a Treatment and Assessment Plan from Dr. Belyakova, a psychologist, dated March 24, 2017. Dr. Belyakova diagnosed the applicant with Major Depressive Disorder, Single Episode, Moderate and Specific Phobia, Situational Type (vehicular). Dr. Belyakova recommended psychological treatment for the applicant.
23The respondent referred the applicant to be examined by Dr. Ludders, a psychologist, who concluded that the applicant does not have any psychological impairment that would remove her from the MIG.
24The respondent asked me to not give Dr. Belyakova as much weight because the assessment was not conducted by Dr. Belyakova. Instead, it was conducted by Sally Hsu, a psychotherapist. The respondent also submitted that the conclusions of Dr. Lubbers, their appointed psychologist, should be preferred over those of Ms. Hsu, because Dr. Lubbers conducted validity testing which appears to not have been done by Ms. Hsu.
25In addition, the respondent submitted the applicant only reported “sadness” to her family physician.
26I disagree with the respondent in so far as they tried to understate what the applicant has shared with her own family physician in terms of her psychological state shortly after the accident. Notes from Dr. Sahheed indicated, for instance, on February 13, 2017, that the applicant was “very depressed” since the accident. References to the applicant being “depressed” could be found in some other notes of Dr. Sahheed in the early part of 2017.
27However, I do share the respondent’s concerns with respect to the shortcoming of Dr. Belyakova’s report.
28Apart from the fact that Dr. Belyakova did not carry out the actual assessment, and did not appear to conduct any validity test, there is another oddity about the report. According to Dr. Belyakova’s report, the applicant’s first language is Punjabi and she speaks English fluently. There is no indication that an interpreter was used for the assessment.
29In contrast, both Dr. Ludders and Dr.Yahmad indicated in their report that they had to rely on an interpreter to communicate with the applicant. Dr. Ludders noted in his report, “English as a Second Language was evident toward pronunciation and selection. She alternated in approximate equal portions between direct communication in English and assessing the services of a Punjabi-English language interpreter from 911 Interpreting. Translation assistance was also provided for completion of the psychometric questionnaires.”
30Of course, I have no way of knowing whether the applicant is in fact fluent in English as Ms. Hsu has suggested, or that her English level is such that she would require an interpreter. But given English is indeed the applicant’s second language (as she reported to both Dr. Ludders and Ms. Hsu that she spoke Punjabi growing up in India), I do question why an interpreter did not appear to have been used by Ms. Hsu when she assessed the applicant to ensure there was no miscommunication.
31Putting that aside, I also find the fact that no validity test was used in Ms. Hsu’s assessment does undermine the efficacy of her report.
32I also note that in Dr. Ludders’ report, he did acknowledge that the tests administered were established using North American population norms, but that many specific psychological disorders have an underlying similarity across cultures.
33With that understanding in mind, Dr. Ludders conducted a number of tests on March 28, 2017 on the applicant. He found that, while her total score reveals a report of severe depressive symptomatology and severe level accident-related symptomatology, the applicant also scored high elevation on the pain complaints scale, and very high elevation on the somatic complaints scale. Dr. Ludders concluded that the evaluation revealed “clear evidence of symptom distortion/magnification” and as such, it is unlikely that the clinical scale elevations provide “a reliable and valid estimate of underlying psychological complaints”.
34Further, behaviourally, Dr. Ludders noted the applicant “functioned well” and “remained emotionally composed throughout”; and that she “presented with a normal range and depth of affect. There is no indication of unusual agitation, irritability or fatigue”.
35Dr. Ludders examined the applicant again on May 15, 2018. Psychologically speaking, the applicant reported she “remains somewhat irritable, although less of a difficulty than that described in the Initial Psychological Evaluation.” She also reported improvement in her in-vehicle anxiety and that “she drives as necessary” including driving to work and grocery shopping, although she is somewhat anxious when driving during rush hour. The applicant also reported improvement in memory and that she has recovered 60% (as opposed to the previously reported 50%) and “maintains confidence that she will recover from her injuries.” She reported being upset with tears twice per month and denied suicidal ideation. As a result of changing jobs, the applicant reported her sleep and mood have improved. She reported taking one to two Tylenol No.3 tablets per day for pain relief and that she has not developed any new medical problems since the accident.
36Based on the tests conducted, Dr. Ludders found the applicant’s score reveals a mild level of depressive symptomatology and moderate level anxiety- related symptomatology. There is a high elevation observed on the somatic, pain and functional complaints scales and on measures of depression and anxiety.
37Dr. Ludders concluded that the reassessment does not require him to alter the essential opinion offered in his initial report. He opined that the evaluations did not yield compelling objective and reliable evidence of a diagnosable DSM-5 mental or behavioural disorder and associated clinically significant psychological impairment due to the accident.
38Given my concerns about Dr. Belyakova’s report – the fact that it was conducted by a psychotherapist and not by Dr. Belyakova, and that no validity tests were conducted - I decide to give Dr. Ludders’ report more weight. I adopt his conclusion that the applicant does not have any associated clinically significant psychological impairment due to the accident.
39Finally, I also find that the applicant does not have a pre-existing medical condition that will prevent her from achieving maximal medical recovery from the minor injury. The applicant did not make any submission directly on this point. However, as the respondent has pointed out, there is no documentation of identification of pre-accident degenerative issues, and apart from menopause there does not appear to be any discussion of pre-accident degenerative issues between the applicant and her family physician. There is also no evidence to show that her pre-existing condition, if any, will prevent the applicant’s maximal recovery if she is subject to the MIG.
40Based on all of the above, I therefore find the applicant’s injuries are minor injuries and subject to the MIG.
Issue 2: Is the applicant entitled to any of the medical benefits in dispute:
41The respondent has submitted that the applicant is not entitled to any of the medical benefits in dispute because the MIG applies. Neither party provided any information as to how much of the $3,500 limit within MIG remains unused by the applicant. I must therefore assume, based on the respondent’s submission, that the applicant has already exceeded the $3,500 limit within MIG.
42As I have found the applicant’s injuries fall within the MIG, I therefore find the applicant is not entitled to the benefits sought.
Issue 3: Is the applicant entitled to interest for the overdue payment of benefits?
43In view of my findings above, I find the applicant is not entitled to any interest.
FINDING & ORDER
44The applicant is not entitled to the benefits claimed and as such there is no interest owing.
Released: May 11, 2020
___________________________
Avvy Go
Adjudicator
Footnotes
- Representative for the applicant noted in his submission that the applicant did not return to work on modified basis until March 30, 2017, but the evidence before me, including information provided by the applicant during various assessments suggests that she returned to work in December, 2016.
- Applicant’s representative noted in his submission that the applicant continues to work for the same employer since the accident. But according to the report dated May 15, 2018, by Dr. Ralph Lubbers, one of the assessors retained by the respondent, the applicant began working on a day shift for a chicken processing facility in April 2018.
- O. Reg. 34/10.