Released Date: 07/03/2020
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:
[U.P]
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Jessie V. Tran, Paralegal
For the Respondent:
Farid Mahdi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[U.P] (“the applicant”) was involved in an automobile accident on November 15, 2016 and sought benefits from Security National Insurance Company (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“the MIG”)?
ii. If the answer to the first question is no, is the applicant entitled to the following benefits:
a. a medical benefit in the amount of $1,400.00 for physical therapy, recommended by York Medical Centre, in a treatment plan (OCF-18) submitted on February 13, 2017, and denied on February 27, 2017?
b. a medical benefit in the amount of $800.00 for other goods and services, recommended by York Medical Centre: Transportation, in a treatment plan (OCF-18) submitted on April 26, 2017 and denied on April 26, 2017?
c. a medical benefit in the amount of $2,600.00 for physical therapy, recommended by York Medical Centre, in a treatment plan (OCF-18) submitted on May 4, 2017 and denied on May 4, 2017?
d. a cost of examination in the amount of $2,200.00 for a chronic pain assessment, recommended by York Medical Centre, in a treatment plan (OCF-18) submitted on May 4, 2017 and denied on May 4, 2017?
e. a medical benefit in the amount of $2,600.00 for hot pads, exercises recommended by York Medical Centre, in a treatment plan (OCF-18) submitted on October 25, 2017, and denied on October 31, 2017?
f. a medical benefit in the amount of $200.00 for preparation of a disability certificate, recommended by York Medical Centre, in a treatment plan (OCF-18) submitted on December 6, 2017 and denied on December 21, 2017?
g. interest on any overdue payment of benefits?
RESULT
4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. Therefore, she is not entitled to the disputed treatment plans or interest as the MIG limit has been exhausted.
BACKGROUND
5On November 15, 2016, the applicant was a passenger involved in a collision when the vehicle she was travelling in was rear-ended by another which came to a sudden stop coming off the highway. The applicant maintains that she felt pain in her chest following the collision but did not seek medical attention on that day.
6Following the accident, the applicant commenced treatment pursuant to the MIG at York Medical Centre. The applicant now seeks a finding that her injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.
ANALYSIS
Do the applicant’s impairments fit within the MIG?
7I find the applicant’s impairments fall within the MIG.
8Section 3 of the Schedule provides the following definition of a minor injury:
“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.
9Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that her impairments are not minor and not subject to the $3,500.00 cap.
10The applicant argues that her impairments do not fit within the definition of a minor injury because she had a pre-existing medical condition that would prevent her from achieving maximum medical recovery within the MIG. She maintains that she had a pre-existing lumbar strain, and suffered from lumbago, cocydynia and sciatica pain and that the accident exacerbated these conditions. The applicant relies on a few entries in her decoded OHIP summary dated April 2, 2014 and June 13, 2015 which note these conditions. The applicant also maintains that she suffers from chronic pain syndrome as well as a psychological impairment as a result of the accident which are not minor injuries. The applicant relies on the report of Dr. Ta, anesthesiologist dated December 5, 2019, which diagnosed her with chronic pain syndrome and the social work assessment of Shayna Pilc, dated November 21, 2017 to support that she sustained a psychological impairment as a result of the accident.
11The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the medical evidence relied upon by the applicant do not support that her pre-existing medical condition would prevent her from achieving maximum medical recovery within the MIG. In addition, it submits that the applicant’s medical reports in support of her position that she suffers from chronic pain syndrome and a psychological impairment are based on the applicant’s self-reports and are not corroborated by objective evidence.
12The respondent relies on the CNRs of the applicant’s family doctor, decoded OHIP summary and prescription summary, as well as the insurer examination (“IE”) reports of Dr. Zabieliauskas, physiatrist, and Dr. Mandel, psychologist, both dated February 12, 2018. The IE doctors determined that the applicant sustained soft tissue injuries and determined that she did not sustain a psychological impairment as a result of the accident. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury and is therefore subject to treatment within the MIG.
Does the applicant have a pre-existing medical condition that would prevent her from achieving maximum medical recovery within the MIG?
13I do not find that the applicant had a pre-existing medical condition which would prevent her from achieving maximum medical recovery within the MIG for the following reasons.
14The applicant maintains she should be removed from the MIG because she had a history of lumbar strain and suffered from lumbago, cocydynia and sciatica pain. It is her position that these pre-existing conditions were exacerbated by the accident and would prevent her from achieving maximum medical recovery in the MIG. Unfortunately, other than a few entries in a decoded OHIP summary in 2014 and 2015, this opinion is not supported by any of the medical evidence. In my view, a few entries in an OHIP summary does not constitute compelling evidence of a pre-existing condition that would prevent the applicant from achieving maximum medical recovery in the MIG. What I found lacking from the applicant’s evidence was a medical report of an expert or her family doctor opining that these conditions were still present prior to the accident, were exacerbated by the accident and would prevent her from achieving maximum medical recovery within the MIG and why.
15Furthermore, the applicant’s position regarding her pre-existing condition is not supported by Dr. Ta, the only expert report she relied upon in support of her physical impairments. In Dr. Ta’s report the doctor states that the applicant did not have any pre-existing medical conditions that were aggravated or made worse by the accident. In my view, this is significant and does not support the applicant’s argument. The applicant also reported to the other assessors that she did not have any significant medical issues pre-accident.
16Finally, the applicant submitted the treatment plans themselves. In those plans the injuries are listed as sprain and strain of the thoracic and lumbar spine, shoulder joint and elbow. I find these impairments all fit within the definition of a minor injury. The plans make a reference to impairments sustained by the applicant in a prior motor vehicle accident on January 29, 2015 as a barrier to recovery. No further information was submitted by the applicant regarding any impairments sustained in that accident. In addition, I agree with the respondent that in her submissions the applicant acknowledged that she did not sustain any impairments in that accident as she did not claim accident benefits as a result. In my view, in the absence of corroborating evidence I do not find the treatment plans themselves compelling evidence as per the test to be removed from the MIG as a result of a pre-existing condition.
17For the above-reasons, the applicant has not met her onus in proving on a balance of probabilities that she had a pre-existing condition that would prevent her from achieving maximum medical recovery within the MIG.
Does the applicant suffer from chronic pain or chronic pain syndrome as a result of the accident which would remove her from the MIG?
18I do not find that the applicant suffers from chronic pain or chronic pain syndrome as a result of the accident which would remove her from the MIG for the following reasons.
19The applicant relied on the report of Dr. Ta, who diagnosed the applicant with chronic pain syndrome (amongst other impairments) as a result of the accident. I did not find Dr. Ta’s report persuasive as the doctor’s opinion was based on the applicant’s self-reports and not objective medical evidence. The applicant reported to Dr. Ta that she suffers from constant low back pain, intermittent neck pain, occasional insomnia and occasional chest pain as a result of the accident. The only documents reviewed by Dr. Ta in completing the assessment was an OCF-3 (disability certificate), a treatment plan, the IE of Dr. Zabieliakas and an x-ray dated December 2, 2016 which documented mild degenerative disc disease. Despite the applicant’s complaints of pain she also reported to Dr. Ta that she was independent with her daily activities, she had resumed her full employment responsibilities post-accident and managed her housekeeping and home maintenance tasks with some pain. Further, Dr. Ta conducted a physical examination of the applicant and did not interpret the results. Instead, Dr. Ta provides the above diagnoses and fails to provide any rationale on how the medical opinion was reached. For this reason, I give Dr. Ta’s report little weight.
20By contrast, the respondent submitted the CNRs of Dr. Tran, the applicant’s family doctor, from November 2016 to February 2019. The CNRs of Dr. Tran note that the applicant made four visits between this time period and the accident is not mentioned in any of these records. In my opinion, the CNRs of the applicant’s family doctor do not support that the applicant suffers from chronic pain or chronic pain syndrome as a result of the accident. In addition, with the exception of two entries (which I will discuss later) the OHIP and prescription summaries do not establish that the applicant sought any medical attention or was prescribed any pain medication as a result of her accident related impairments.
21The respondent relied on the IE report of Dr. Zabieliakas, physiatrist whose physical examination revealed that the applicant had full range of motion with minimal pain. The applicant sat comfortably during the interview and did not show any pain behaviours such as facial grimacing. Dr. Zabieliakas opined that the applicant sustained soft tissue injuries as a result of the accident which had healed as of the date of the assessment. In his opinion, the applicant did not have any ongoing physical impairment which would prevent her from achieving maximum medical recovery within the MIG. I prefer Dr. Zabieliakas report over Dr. Ta’s as I find it more consistent with the rest of the medical evidence before me.
23The applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain or chronic pain syndrome that would remove her from the MIG.
Did the applicant sustain a psychological impairment as a result of the accident?
24I find the applicant did not sustain a psychological impairment as a result of the accident.
25The applicant relied on Shayna Pilc’s initial social work assessment dated November 21, 2017 in support of her position that she sustained a psychological impairment as a result of the accident. The applicant reported to Ms. Pilc that she suffers from driving and passenger anxiety despite the fact that she had resumed driving. In addition, her sleep had been impacted due to pain and she has increased feelings of anger and irritability following the accident. Despite having these complaints the applicant reported that it had a minimal impact on her ability to function in her activities of daily living, her employment or social functioning. Furthermore, she reported that she had been experiencing some family related stress.
26Ms. Pilc recommended that the applicant receive counselling to treat stress, anxiety, and reduce frustration to promote social activities. Of significance the applicant reported to Ms. Pilc that she continues to attend social activities with family and friends. Like Dr. Ta’s report, I find that Ms. Pilc also relied on the applicant’s self-reports and her findings were not based on any objective medical records. In completing her assessment, the only records reviewed was a psychological pre-screen report, an OCF-18, an OCF-3 and the aforementioned x-ray. Consequently, I have given her assessment little weight.
27The only record which mentions any psychological complaint is a CNR of Dr. Tran’s dated December 21, 2017 which states “chronic worrier – leading to insomnia. Worried about upcoming wedding in family/denies depression.” As a result of this complaint, Dr. Tran prescribed the applicant anti-anxiety medication. The accident is not mentioned at all in this CNR. In my view, this is not accident related and does not support that the applicant sustained a psychological impairment as a result of the accident.
28By contrast, the respondent relied on the psychological report of Dr. Mandel dated February 12, 2018, which determined that the applicant did not sustain an accident related psychological impairment. Unlike Ms. Pilc, Dr. Mandel administered psychometric tests with validity measures as part of the assessment. The applicant reported that she has issues with sleep due to pain, that she no longer socializes with friends and isolates at home. This conflicts with what she reported to Ms. Pilc that she continues to socialize with family and friends. The applicant reported that she feels sad 50% of the time and worries more than she used to. Some of the psychometric tests revealed that the applicant was malingering and exaggerating her symptoms and Dr. Mandel interpreted this to mean that she was not being forthright in answering the questions. Dr. Mandel opined that there was a lack of objective evidence to support that the applicant sustained a psychological impairment as a result of the evidence. I agree. I prefer Dr. Mandel’s opinion over Ms. Pilc’s as it was consistent with the evidence before me.
29The applicant has not met her onus in proving on a balance of probabilities that she sustained a psychological impairment as a result of the accident which would remove her from the MIG.
30Since I have determined that the applicant sustained a minor injury, the applicant is not entitled to any of the disputed treatment plans as the MIG limit has been exhausted.
ORDER
31For all of the above reasons, I find:
i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit; and
ii. The applicant is not entitled to any of the treatment plans in dispute or interest.
Released: July 3, 2020
__________________________
Rebecca Hines
Adjudicator