Released Date: 07/07/2020 File Number: 19-004099/AABS
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:
S. E.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Sveda Guliyeva, Paralegal
For the Respondent:
Rose Bilash, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant (“S.E.”) was involved in a motor vehicle accident on December 23, 2017 (“the accident”). S.E. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”) from the respondent, Certas Home & Auto Insurance Company (“Certas”) and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.
2Certas argues that S.E.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“the MIG”).2 S.E.’s position is the opposite.
3If Certas is correct, S.E. is then subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the MIG limit has been exhausted.
4I must decide whether S.E.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit and, if they are not, I must determine his entitlement to the medical benefits in dispute.
PRELIMINARY ISSUE
Is Certas in non-compliance pursuant to s. 38?
5S.E. submits that Certas failed to provide notice within 10 business days, in accordance with s. 38(8) regarding a treatment plan submitted July 11, 2018 and denied on July 25, 2018. S.E.’s position is that pursuant to s. 38(11)(1), Certas is therefore prohibited from taking the position that S.E.’s injuries are subject to the MIG. I disagree with S.E.’s position.
6Section 38(8) requires the insurer to give notice within 10 business days of any services the insurer does not agree to pay for, including the medical and any other reasons they do not agree to pay for the services. There is no evidence that the notice did not comply with any of these s. 38 requirements.
7Certas submits, and the evidence put forth by both parties confirms, that the treatment plan was submitted on July 11, 2018 and was denied on July 25, 2018. As required by s. 38(8), Certas provided notice to S.E. on the 10th business day, that being July 25, 2018.
8Based on the evidence, I find Certas to be in compliance with s. 38(8), and therefore able to take the position that S.E.’s injuries are subject to the MIG.
ISSUES
9The issues to be determined are as follows:
i. Did S.E. sustain predominantly minor injuries as defined under the Schedule?
ii. Is the medical benefit for $3,355.20 for chiropractic services recommended by Alex Yu, chiropractor ($2,200 is pre-approved) submitted January 24, 2018 and denied February 6, 2018, reasonable and necessary?
iii. Is the medical benefit for $3,643.68 for chiropractic services recommended by Kuldip Rakkar, chiropractor, submitted April 2, 2018 and denied April 10, 2018, reasonable and necessary?
iv. Is the medical benefit for $2,759.06 for chiropractic services recommended by Kuldip Rakkar, chiropractor, submitted May 30, 2018 and denied June 2, 2018, reasonable and necessary?
v. Is the medical benefit for $2,889.60 for chiropractic services recommended by Kuldip Rakkar, chiropractor, submitted August 13, 2018 and denied August 23, 2018, reasonable and necessary?
vi. Is the medical benefit for $1,920.53 for a psychological assessment recommended by Bruce Cook submitted April 11, 2018 and denied April 20, 2018, reasonable and necessary?
vii. Is the medical benefit for $4,463.96 for psychological services recommended by Bruce Cook submitted April 26, 2018 and denied May 2, 2018, reasonable and necessary?
viii. Is the medical benefit for $4,015.12 for psychological services recommended by Bruce Cook submitted July 11, 2018 and denied July 25, 2018, reasonable and necessary?
ix. Is S.E. entitled to interest on any overdue payment of benefits?
FINDING
10Based on a review of all the evidence put before me, I find that S.E.’s physical and psychological injuries meet the definition of ‘minor’ under the Schedule. He is therefore subject to treatment within the MIG limit which has already been exhausted. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable
ANALYSIS
The Minor Injury Guideline
11Section 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.”
12Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
Did S.E. sustain physical injuries that remove him from the MIG?
13Although S.E. has provided medical evidence confirming he sustained accident-related injuries, none of the evidence shows that his physical injuries fall outside the MIG. In addition, the evidence submitted by Certas confirms that S.E.’s physical injuries fall within the MIG.
14My finding that S.E.’s physical injuries fall within the MIG is supported by the following evidence:
(i) The Disability Certificate (“OCF-3”) completed by Dr. Rakkar, a chiropractor, dated January 29, 2018, confirms S.E. has soft tissue injuries.3 The OCF-3 is consistent with the complaints seen in S.E.'s treatment records. In addition, the OCF-3 lists issues that are not accident-related or injuries;
(ii) There is a single post-accident visit at which S.E. saw Family Physician Dr. Mughal and presented with pain in the shoulder blades, neck, upper and lower back; and
(iii) On behalf of Certas, Dr. Michael Boucher, general practitioner, assessed S.E. on May 28, 2018. It should be noted that S.E. reported an 80% improvement in pain symptoms. Dr. Boucher diagnosed S.E. with “thoracic myofascial strain”. Dr. Boucher found that S.E.'s injuries were minor in nature. I agree.
15The evidence supports that S.E. suffered soft tissue injuries as a result of the accident. Dr. Rakkar diagnoses S.E. with soft tissue injuries, with a duration of 9-12 weeks, and Dr. Boucher noted an 80% improvement in pain complaints within 5 months of the accident. The medical evidence submitted by S.E. and Certas confirm that S.E.’s physical injuries are consistent with those that would be defined as a “minor injury”.
Did S.E. suffer psychological impairments that remove him from the MIG?
16S.E. submits that he should be taken out of the MIG because of his ongoing accident-related psychological impairments. For the reasons that follow, I find that S.E. did not suffer psychological impairment that would remove him from the MIG.
17S.E. underwent a psychological screening and assessment with Bruce Cook.4 In his report, Mr. Cook opined that, as a result of testing and the clinical interview, S.E. “is experiencing adjustment issues to a clinically significant level in relation to the psychological impact of the accident…”. Mr. Cook determined that S.E. suffered mild anxiety and Adjustment Disorder with Depressed Mood. Mr. Cook recommended cognitive behavioural therapy.
18Between May 1, 2018 and June 28, 2018, S.E. reported to Mr. Cook that he continued to experience post-accident psychologically-based symptoms.5 Mr. Cook recommended a further 14 sessions of psychotherapy.
19Between July 4, 2018 and September 5, 2018, S.E. attended another 14 sessions. On September 5, 2018, Mr. Cook noted in his Psychological Progress Report that S.E. was improving since starting psychotherapy treatment. However, S.E. still reported feeling sadness, mood swings, hopelessness, low self-esteem, self-worth and self-confidence, a lack of motivation and a loss of pleasure in activities he used to enjoy. S.E. reported to Mr. Cook that he still suffered from anxiety symptoms, flashback and intrusive thoughts, but the nightmares has ceased. This, despite having attended 30 counselling sessions with Mr. Cook.
20Certas submits that the psychological treatment is not reasonable and necessary based on S.E.’s self-reporting to Mr. Cook. Certas contends that the lack of consistency in S.E.’s reports to Mr. Cook do not support the need for further facility-based psychological treatment, or that treatment is necessary beyond the MIG limit.
21For example,
a. Although S.E. reported a loss of motivation to socialize, he did express an interest in outside activities and other people. Certas submits that Mr. Cook also raised concerns regarding the outcome of certain aspects of testing. Mr. Cook noted that S.E.’s response style suggested that he may not have answered questions in a forthright manner;
b. S.E. was not prescribed any medication for depression or anxiety; and
c. S.E. was still able to complete household activities and had returned to work.
22I am not persuaded by the psychological-based medical evidence, that S.E.’s psychological impairments are more than sequelae of his injuries.
23Certas relied on its assessor report6 in support of its decision to deny the April 11, 2018 treatment plan. After considering that S.E. did not report any accident-related symptoms and, as a result of testing, Dr. Dancyger opined that “the results of S.E.’s psychological testing did not find any valid and objective evidence of his having a significant and diagnosable accident-related psychological disorder”. Dr. Dancyger went on to state that “from a psychological perspective there is no valid and objective evidence to suggest that S.E. suffers from an impairment as a direct result of the subject motor vehicle accident”. Dr. Dancyger concluded that S.E. reached maximum medical recovery and that any psychological improvement could be attained within the MIG limits.
24The reports of both Dr. Dancyger and Mr. Cook indicate inconsistencies with S.E.’s self-reporting of ongoing psychological impairment. I prefer the evidence of Certas from Dr. Dancyger, that S.E.’s psychological impairment would not remove him from the MIG. I come to this conclusion because:
a. Despite receiving treatment on May 1, 2018, by the June 28, 2018 Progress Report, S.E.’s symptoms went from Adjustment Disorder to Major Depressive Disorder and Generalized Anxiety Disorder. Despite this conclusion, Mr. Cook stated, “it appears S.E. has positively responded to psychotherapy treatment” and “it’s important to continue with treatment to achieve further improvement’. I agree with Certas that such comments seem contradictory to a diagnosis of a worsening condition;
b. The contradictory psychological-based medical evidence suggests that either S.E. is not receiving any benefit from the recommended treatment, or there is inconsistency in S.E.’s self-reporting of symptoms to both Mr. Cook and Dr. Dancyger. The evidence does not support that S.E. was deteriorating from a psychological standpoint;
c. Contrary to his submissions, S.E. appears to have adapted to his post-accident way of living. There is evidence that he has returned to work, socializing and managing his activities of daily living; and
d. Although there are reports of psychological impact as a result of the accident I am not persuaded by S.E.’s self-reporting that the mood changes noted in paragraph 21, are anything but accident-related psychological sequelae. This is not enough to establish that S.E.’s complaints of psychological impairments are significant enough to warrant his removal from the MIG.
25I accept Dr. Dancyger’s conclusion that based on objective testing and self-reporting, S.E. does not suffer from significant psychological impairment. This is further supported by Mr. Cook’s conclusion that S.E. “may not have answered questions in a completely forthright manner”.
26S.E. has returned to work, does not take any prescription medical for any accident-related psychological issues, and has largely adapted to re-engaging in his pre-accident activities. Given the evidence that S.E. has returned to participating in a majority of his pre-accident activity, I do not find that he has established that his psychological impairment is of sufficient severity that it is the predominant cause of his accident-related impairments.
Does S.E. suffer from chronic pain as a result of the accident?
27For the reasons that follow, I find that S.E. does not suffer from chronic pain.
28In the June 28, 2018 Progress Report, Mr. Cook noted ongoing pain and stiffness in the neck and shoulder blades. Neck pain was improving. In his September 5, 2018 Progress Report, Mr. Cook noted similar symptoms with ongoing improvement in neck pain. Mr. Cook diagnosed S.E. with chronic pain on the basis of these findings.
29Certas relies on, and I accept, the test used to establish whether an insured suffers from chronic pain as a result of their accident-related injuries.
30In the Tribunal decision of 17-007825 v Aviva Insurance Canada7 Adjudicator Ferguson noted at paragraph 6 that, “chronic pain is a severe, debilitating condition distinct from on-going or recurring pain.” In the Tribunal decision of YXY v The Personal Insurance Company8, Adjudicator Neilson stated at paragraphs 27-28 that in order for chronic pain to be more than just sequelae from soft tissue injuries, it must be of such a severity that it causes suffering and distress accompanied by functional impairment or disability.
31The criteria for chronic pain established in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”) has also been used as a benchmark for determining chronic pain. These criteria are cited in Adjudicator Ferguson’s decision of 17-007825 v Aviva at paragraph 6 as follows:
a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
b. Excessive dependence on health care providers, spouse, or family;
c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
d. Withdrawal from social milieu, including work, recreation, or other social contracts;
e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32S.E. did not direct me to any evidence that supports or confirms that he suffers from chronic pain as a result of the accident. Further, S.E. failed to satisfy any of the criteria to establish that he suffers from chronic pain. Certas submits that S.E.’s records do not demonstrate that he meets the criteria for chronic pain, for example:
a. S.E. only saw his family physician once for accident-related symptoms;
b. S.E. was not prescribed any pain medication for his neck, shoulder or back pain, either prescription or non-prescription. S.E. also did not report taking any pain medication;
c. S.E. has returned to work and/or is actively seeking alternative employment; and
d. S.E. self-reported that he was able to perform his household chores.
33Certas submits that this pattern of activity is not at a level of suffering and distress accompanied by functional impairment or disability indicative of chronic pain. I agree.
34My finding is further supported in the Tribunal decision of J.A. and Aviva General Insurance Company9. In that decision, the adjudicator addresses the consideration of chronic pain and its impact on an insured’s functionality. Specifically, the adjudicator states:
I find for chronic pain to take someone out of the MIG, there must be an effect on their functionality. A treating practitioner’s mention of a chronic pain condition, be it “syndrome” or specific use of the term “chronic pain” is not enough in establishing the impact on functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
35S.E. has not pointed me to evidence that suggests or supports that he suffers from chronic pain as a result of the accident. S.E. has failed to meet his burden that he suffers from chronic pain or that his injuries or impairments satisfy any of the criteria for chronic pain in the AMA Guides. Consequently, I find on a balance of probabilities that S.E. does not suffer from chronic pain as a result of the accident. I find that S.E.’s pain complaints, do not meet the level of impact on his functionality that are indicative of chronic pain.
CONCLUSION
36S.E. sustained predominantly minor physical injuries that fall within the MIG. Accordingly, S.E. is not entitled to payment for the OCF-18s claimed in this application.
37The application is dismissed.
Released: July 7, 2020
____________________
Derek Grant
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.
- OCF-3 lists the following accident-related injuries: examination of eyes and visions, personal history of major surgery, not elsewhere classified, schooling unavailable and unattainable, disturbance of activity and attention, pain in joint, myalgia, acute pain, muscle strain, pain in thoracic spine, sprain and strain of thoracic spine, injury of muscle and tendon at thorax level, sprain and strain of sacroiliac joint, sprain and strain of lumbar spine, low back pain, dorsalgia (upper back pain) and special screening examination for eye and ear disorders.
- Psychological Pre-screen Report of Bruce Cook dated February 17, 2018, Psychological Assessment Report dated April 24, 2018.
- S.E. complained of low mood, sadness, mood swings, hopelessness, low self-esteem, low self-worth and self-confidence, social isolation, lack of motivation and loss of pleasure in activities he used to enjoy, as well as sleeping and eating difficulties.
- Psychological Assessment of Psychologist Dr. Dancyger dated June 7, 2018
- Respondent’s Book of Authorities - Tab 30: 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT)
- Ibid - Tab 31: Y.X.Y. v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
- Respondent’s Book of Authorities - Tab 33: JA v. Aviva General Insurance Company (18-008207/AABS, October 2, 2019) at para 27