Released Date: 07/06/2020
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:
C. K.
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Jessie V. Tran, Paralegal
For the Respondent:
Farid Mahdi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, C.K., was involved in an automobile accident on November 15, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). C.K. was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2Security National argues that C.K.’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”).1 C.K. disagrees.
3If Security National is correct, C.K. 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 not be needed as C.K. has exhausted the $3,500.00 maximum benefit for minor injuries.
4I must, therefore, decide whether C.K.’s injuries are predominantly minor as defined by the Schedule. If they are not, I must then determine whether the disputed medical benefit, as well as the associated fees and expenses, are reasonable and necessary.
ISSUES
5The issues I must determine are as follows:
(i) Are C.K.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (the “MIG”)?
6If C.K.’s injuries are not subject to the MIG limits, then I must determine the issues as follows:
(i) Is the medical and rehabilitation benefit in the amount of $2,300.00 for other goods and services, recommended by York Medical Centre, in a treatment plan (OCF-18) submitted on May 15, 2017, and denied on May 16, 2017, reasonable and necessary?
(ii) Is the medical and rehabilitation benefit in the amount of $2,600.00 for other goods and services of a medical nature, recommended by York Medical Centre, in an OCF-18 submitted on October 23, 2017 and denied on October 31, 2017, reasonable and necessary?
(iii) Is the medical and rehabilitation benefit in the amount of $560.00 for transportation, recommended by York Medical Centre, in an OCF-18 submitted on February 16, 2017, and denied on March 1, 2017, reasonable and necessary?
(iv) Is the medical and rehabilitation benefit in the amount of $1,400.00 for other goods and services, recommended by York Medical Centre, in an OCF-18 submitted on February 13, 2017 and denied on February 27, 2017, reasonable and necessary?
(v) Is the cost of an examination, in the amount of $2,350.00 for a social worker assessment, recommended by York Medical Centre, in an OCF-18 submitted on May 15, 2017, and denied on May 16, 2017, reasonable and necessary?
(vi) Is C.K. entitled to the cost of an Auto Insurance Standard invoice (OCF-21), in the amount of $200.00, submitted on July 18, 2017, denied on July 18, 2017?
(vii) Is C.K. entitled to interest on any overdue payment of benefits?
RESULT
7Based on a review of all the evidence put before me, I find that C.K.’s physical and psychological injuries meet the definition of “minor injury” 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.
LAW
Minor Injury Guideline
8The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 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 s.3(1).
9The onus is on the applicant to show that his injuries fall outside of the MIG.2
10C.K. argues that his injuries go beyond the definition of “minor injury” because he has sustained physical and psychological impairments which remove him from the MIG.
ANALYSIS
Does C.K. have a pre-existing condition that was exacerbated by the accident?
11On January 29, 2015, C.K. was involved in a previous accident. At the time of this 2015 accident, C.K.’s injuries were as follows: other sprain and strain of cervical spine, whiplash associated disorder with complain of neck pain with neurological signs, sprain and strain of lumbar spine, sciatica and lumbago with sciatica3. These injuries were noted in an OCF-23 dated February 3, 2015 completed by C.K.’s chiropractor, Dr. San Bui.
12As a result of the January 2015 accident, C.K. received treatment and still attended at the time of the subject accident. Dr. Bui completed an OCF-3 on February 9, 2015. The OCF-3 noted similar minor injuries as indicated in the OCF-23. On July 6, 2015, Dr. Bui completed a second OCF-3, which again listed similar injuries to the February 2015 OCF-3. On January 19, 2016, Dr. Bui completed a third OCF-3 that, again, noted the same diagnoses as the previous OCF-3s.
13Security National relied on its assessor report4 from Dr. Platnick. Dr. Platnick diagnosed C.K with cervical myofascial strain (WAD II) and lumbosacral myofascial strain. Dr. Platnick went on to note that these injuries occurred in the context of chronic neck pain of ten years’ duration. Dr. Platnick concluded that the January 2015 accident “temporarily exacerbated C.K.’s pre-existing chronic neck pain”. C.K. submits Dr. Platnick’s report also supports that C.K.’s pre-existing chronic pain removes him from the MIG limit.
14Although there is a report of chronic neck pain, I find that maximal recovery would not be impeded if limited to the MIG. As I will address below, the medical evidence shows that the fluctuating level of neck pain has been consistent between the January 2015 and subject accidents. C.K. has maintained his level of functioning with the chronic neck pain between the time of the two accidents, and ongoing after the subject accident.
15C.K. has received treatment for his January 2015 accident-related injuries, which, as the evidence will show, does not appear to be helping. Based on the medical evidence and C.K.’s self-reporting, he has continued to experience neck pain and shoulder numbness, which has been reported as largely the same after the subject accident.
16C.K. has managed to function with his pain, and the evidence supports that he has largely adjusted to participate in most of his activities with constant pain. This remains the case, despite having been receiving treatment after the January 2015 accident. I am persuaded that regardless of how much treatment C.K. has received, the evidence supports that it has not had a significant improvement on his physical well-being.
17I am not persuaded by C.K.’s evidence that his pre-existing neck pain has been worsened by the subject accident. I do not find that C.K. suffers from a pre-existing condition that would prevent him from reaching maximum medical recovery from his November 2016 accident-related injuries, under the MIG limit.
Did C.K. sustain physical injuries that remove him from the MIG?
18Although C.K. has provided medical evidence confirming he sustained accident-related injuries from the subject accident, the evidence shows that his injuries are predominantly ‘minor’. In addition, the evidence submitted by Security National confirms that C.K.’s injuries fall within the MIG.
19My finding that C.K.’s physical injuries fall within the MIG is supported by the following evidence:
(i) The Disability Certificate (“OCF-3”) completed by Dr. Bui, a chiropractor, dated November 28, 2016, confirms C.K. has soft tissue injuries.5 The OCF-3 is consistent with the complaints seen in C.K.'s treatment records;
(ii) Additional OCF-3s completed by Dr. Mohit Rastogi, physiotherapist, dated March 12, September 10, 2018 and February 11, 2019, diagnosed C.K. with the same soft tissue injuries as the November 2016 OCF-3. Each OCF-3 note an anticipated duration of disability to be 9-12 weeks; and
(iii) On behalf of Security National, Dr. Zabieliauskas, physiatrist, assessed C.K. and provided a report dated December 29, 2017. Dr. Zabieliauskas reported that C.K. exhibited good range of motion with his neck and upper body, with no pain complaints. Dr. Zabieliauskas concluded that there was no significant restriction of joint movement and found that C.K.'s injuries were minor in nature. I agree.
20The evidence supports that C.K. suffered soft tissue injuries as a result of the accident. Dr. Bui and Dr. Rastogi diagnose C.K. with soft tissue injuries, with a duration of 9-12 weeks, and Dr. Zabieliauskas noted C.K. was pain free with good or full range of movement in the areas affected by the accident. The medical evidence submitted by C.K. and Security National confirm that C.K.’s physical injuries are consistent with those that would be defined as predominantly “minor”.
Did C.K. suffer psychological impairments that remove him from the MIG?
21C.K. 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 C.K. did not suffer psychological impairment that would remove him from the MIG.
22The evidence shows that C.K.’s psychological impairments are not the predominant cause of his injuries. For example:
(i) There is contradictory evidence of the history and extent of C.K.’s psychological well-being. C.K. reported to Dr. Vo, family physician, that he has a history of depression, that there is a family history of mood disorders, and that he has been depressed for the last few years. Dr. Vo referred C.K. to Dr. Tran, psychiatrist, to get a formal diagnosis;
(ii) C.K. was assessed by Dr. Tran6 to determine the extent of his psychological impairment. There was no discussion of the accident. The report points to various non-accident, personal circumstances as contributors on the impact of C.K.’s psychological well-being. Dr. Tran, as a result of these non-accident related factors, diagnosed C.K. with Adjustment Disorder, with depressed mood; and
(iii) C.K. was also assessed7 by Ashley Silvester, psychotherapist. Ms. Silvester did not perform any objective testing; her report is based solely on C.K.’s self-reporting. In addition, Ms. Silvester did not review any other medical records in order to come to a conclusion. Based on C.K.’s self-reporting, Ms. Silvester diagnosed C.K. stating, “may be suffering from some form of Anxiety Disorder and Post-Traumatic Stress Disorder”. It should be noted that there was no discussion of any family history of depression, which contradicts C.K.’s report to Dr. Vo. In addition, C.K. specifically reported to Ms. Silvester that “there is no history of psychiatric disorder in the family”.
23I am not persuaded by the psychological-based medical evidence, that C.K.’s accident-related psychological impairments are more than sequelae of his injuries.
24The contradictory psychological-based medical evidence suggests that there is inconsistency in C.K.’s self-reporting of causes and symptoms to Dr. Vo, Dr. Tran and Ms. Silvester. The evidence supports that C.K.’s complaints of depression seems to be based on personal circumstances and not the accident.
25Contrary to his submissions, C.K. 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 C.K. 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 C.K. suffer from chronic pain as a result of the accident?
26I find that C.K. does not have a chronic pain condition arising from the accident that places him outside of the MIG. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.
27C.K. submits that due to his ongoing pain complaints, it has resulted in “chronic pain”. C.K. contends he has not reached his pre-accident state, he still has functional impairments and has not recovered in the usual time with these types of injuries. Despite this, C.K. has not provided me with any medical opinion that supports a chronic pain diagnosis.
28C.K. relies on a report form Dr. Ta, anesthesiologist, in support of his claim of chronic pain. I place little weight on the report of Dr. Ta and I find that C.K.’s symptoms do not meet the criteria for chronic pain because:
(i) Dr. Ta did not conduct any objective observation of C.K. to support his diagnosis of a chronic pain condition. Dr. Ta relied on an undated OCF-18, an undated OCF-3 and an insurer examination report dated April 29, 2019. Dr. Ta relied mainly on C.K.’s self-reporting;
(ii) I find for chronic pain to take someone out of the MIG, there must be an effect on their functionality. A treating physician’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 insured’s functionality is impaired and that the chronic pain is the cause of the disability;
(iii) C.K. has not provided persuasive medical evidence that supports a chronic pain syndrome diagnosis.
29I find that the C.K.’s functionality is inconsistent with chronic pain based on the following:
(i) C.K.'s pain does not result in functional impairments as he continues to work at his [store] location between 30-40 hours a week;
(ii) He has resumed his activities of daily living, he is capable of engaging in housekeeping tasks, he is independent with respect to his personal care tasks and he continues to drive; and
(iii) Post-accident, C.K. attends [the gym] up to five days a week.
30Based on the evidence before me, I am unable to find, on a balance of probabilities, that C.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.
31Security National directed me to a Tribunal decision8 which discussed six criteria to determine whether an insured suffers from chronic pain. I agree with the adjudicator in 17-007825 that the American Medical Association (AMA) Guides’ criteria are key factors in assessing an insured’s claim of chronic pain.
32According to the AMA, at least three of the criteria must be met for a diagnosis:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
(ii) Excessive dependence on health care providers, spouse, or family.
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
(iv) Withdrawal from social milieu, including work, recreation, or other social contracts.
(v) 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.
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.9
33Security National submits, and I agree, that C.K.’s evidence does not support a finding of chronic pain, for example:
(i) C.K. has not been prescribed medication for his accident-related pain complaints or any psychotherapeutic medication, and therefore cannot be considered dependant on that medication;
(ii) The family physician records show that there has been minimal, if any reports of accident-related pain complaints;
(iii) There is no evidence of avoidant behaviour or deconditioning post-accident;
(iv) There is no evidence of social withdrawal, in addition, post-accident, C.K. continues to work;
(v) There is no evidence of a failure to restore pre-accident function, and the medical evidence suggests that C.K. has continued to function, albeit with pain; and
(vi) The psychological or emotional distress as a result of the accident, does not seem to be the predominant cause of C.K.’s psychological impairment.
34As C.K. has not satisfied at least three of the criteria set out by the AMA Guides, he cannot be found to suffer from chronic pain as a result of the accident. Consequently, I do not find that C.K. suffers from chronic pain as a result of the accident.
CONCLUSION
35C.K. has not met the onus on him to prove his injuries are not predominantly minor. As such, C.K. is not entitled to the treatment plans in dispute as the $3,500 MIG limit has already been exhausted. No interest is owing as there is no overdue payment of benefits. The claim is dismissed.
Released: July 6, 2020
___________________________
Derek Grant
Adjudicator
Footnotes
- 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.
- OCF-23 Treatment Confirmation Form, completed by Dr. San Bui dated February 3, 2015.
- Insurer’s Medical Examination report completed by Dr. Howard Platnick on August 2, 2016
- OCF-3 lists the following accident-related injuries: sprain and strain of thoracic spine and sprain and strain of shoulder joint.
- Psychiatric Evaluation Report of Dr. Tran dated May 31, 2017
- Psychotherapist Evaluation Report of Ashley Silvester dated December 5, 2018
- 17-007825 v Security National Insurance Canada, 2018 CanLII 98282 (ON LAT) at para. 6
- American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24