D. G. v. Co-operators General Insurance Company, 2020 CanLII 61461

Citation: D. G. vs. Co-operators General Insurance Company 2020 ONLAT 18-011273/AABS

Date: August 28, 2020

Tribunal File Number: 18-011273/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:

D. G.

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Anita John

APPEARANCES:

For the applicant: Josh Lang, Counsel

For the respondent: Ryland MacDonald, Counsel

Written Hearing on: May 14, 2020

OVERVIEW

1D.G. (“the applicant”) was injured in an automobile accident (“the accident”) on August 31, 2017. She was riding as a front seat passenger when her vehicle was rear-ended by a TTC bus at the intersection of Bathurst St. and Baycrest Ave. in Toronto.

2The applicant sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

3The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is the opposite.

4If the applicant’s position is correct, then I must address the issue of whether the medical treatments claimed are reasonable and necessary.

5If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule. In turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the $3500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

6Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

7If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to receive a medical benefit in the amount of $420.80, representing an unpaid balance remaining of the initial claim for $1,300.00, for physiotherapy services, recommended by Wilson Massage and Physio Ltd., in a treatment plan submitted on June 19, 2018, denied by the respondent on August 30, 2018?

ii. Is the applicant entitled to receive a medical benefit, in the amount of $4,652.96, for physical therapy, recommended by Polyclinic Rehabilitation Institute Inc., in a treatment plan, dated November 19, 2018, and denied by the respondent on December 17, 2018?

iii. Is the applicant entitled to payments for the cost of an examination recommended by Midtown Assessment Services Inc., as follows?:

a. Medical benefit, in the amount of $1,400.00, for a TMJ assessment, in a treatment plan, submitted on August 1, 2018, and denied by the respondent on August 2, 2018; and,

b. $1,900.00 for a TMJ assessment, in a treatment plan submitted on August 1, 2018, and denied by the respondent on August 15, 2018.

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the necessity and reasonableness of the treatment plans or the issue of interest.

ANALYSIS

The Minor Injury Guideline

9Section 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

10Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. Applying Scarlett v. Belair Insurance,³ the applicant must establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

11The onus is on the applicant to show that her injuries fall outside of the MIG.⁴

Did the applicant sustain predominantly minor physical injuries?

12I find that the evidence establishes that the applicant sustained physical injuries that are defined as predominantly minor.

13Excepting the chronic post-traumatic headaches, I find these injuries to fall within the definition of “minor injury” as prescribed the Schedule. This aligns with the indication on the MVA initial assessment form completed by physiotherapist Madeleine Wells-Rowsell and kinesiologist Kevin Ho at Lifemark Health Clinic, dated, September 18, 2017, that the injuries fall within the MIG. I have not been provided with evidence that these injuries are not minor. A box labelled MIG: Minor Injury Guideline, under the heading service description, was marked with a X. As discussed later in this decision, I find that the chronic post-traumatic headaches are clinically associated sequelae and therefore fall within the MIG.

14The applicant began to receive treatment at Wilson Physio and Massage (“Wilson Physio”) on December 19, 2017. The bulk of the injuries listed in the Disability Certificate (OCF-3), dated January 2, 2018 fall within the definition of minor injury. They are listed as WAD 1, with complaints of neck pain,stiffness, sprain and strain of cervical spine and shoulder joint, headache, left leg pain and sleeping disorders (patient reports disturbed sleep due to pain). I find that these injuries, considered alone, are squarely within the definition of “minor injuries” under the Schedule and can be treated within the MIG.

15The applicant began receiving chiropractic treatment at Polyclinic Rehabilitation Institute (“Polyclinic”) on November 19, 2018. According to a Musculoskeletal Assessment by Sherry (last name illegible), dated December 12, 2018, the applicant complained of pain in her neck, left shoulder, left thoracic spine, left elbow, left hand and left forearm.

16However, the applicant argues that as a result of the accident, she suffers from physical injuries and psychological impairments that remove her from the MIG.

Does the applicant suffer from physical injuries that removes her from the MIG?

17The applicant claims that her physical injuries remove her from the MIG. I find that the applicant has not provided compelling medical evidence that she sustained physical injuries that require treatment outside of the MIG.

18In December 2017, the applicant switched treatment providers and started attending Wilson Physio. She was assessed by registered physiotherapist, Mandeep Singh Sethi, who noted the following clinical impression: “traumatic neck pain with radiculopathy.” Mandeep Singh Sethi also completed an OCF-24 (Minor Injury Discharge Report) on June 19, 2018 in which he states that additional intervention outside of the MIG is required. However, the clinical impression and OCF-24 was referred to in the applicant’s submissions and not provided. As the applicant did not provide the Clinical Notes and Records (“CNR”) and OCF-24 to substantiate this finding, I place low weight on Mandeep.Sethi’s finding.

19The applicant also submitted an ultrasound exam dated April 1, 2019 of her right shoulder diagnosed by Dr. S. Jacobs. Two diagnoses were made: “the differential diagnosis includes focal tendinosis vs. a partial thickness interstitial tear”. While a diagnosis of focal tendinosis would be indicative of chronic pain, an interstitial tear falls within the category of a minor injury. I find that because two diagnoses were made, the ultrasound is inconclusive. As a result, I am unable to find that the applicant suffers from chronic pain or pathology that places her injuries outside the MIG.

Psychological Impairments

20The applicant claims that she suffers from psychological impairments that remove her from the MIG. To support her claim, she relies on documentation suggesting she suffers from sleeping disorders and headaches, the results of a BDI-II questionnaire and a referral for a mental health and addiction assessment.

21Having reviewed the documentation, I find that the applicant has not provided compelling medical evidence that she suffers from a psychological impairment that removes her from the MIG.

Sleeping Disorders

22The applicant submits she suffers from a sleeping disorder as a result of her injuries. I find that there is insufficient objective medical evidence demonstrating that she suffers from a sleeping disorder that would remove her from the MIG. On September 18, 2017, the applicant’s chief complaints (as noted in the Lifemark Health MVA Initial Assessment Report) included whiplash associated disorder, [WAD2], with complaint of neck pain with musculoskletal signs, spran and strain of thoracic spine and chronic post-traumatic headache.

23Before attending an Occupational Therapist (“OT”) consult, the applicant participated in a Neck and Pain Disability Index Assessment at Lifemark. On a scale from 0-5, “0” being no difficulty and “5” being excruciating difficulty, the applicant ranked her sleep as a “2”. She indicated, “My sleep is disturbed, 1-2 hours sleepless.”

24In an OT Consult that took place on September 27, 2017, Sabrina Anand (OT) noted the following:

Sleep:

o Difficulty with falling and staying asleep. She wakes up tired.

o She has been given water pillow.

25In her affidavit dated May 14, 2019, the applicant states: “prior to the accident, I did not have sleep issues. I would describe myself as a night-person, often going to bed between 12 am and 2 am, and would sleep well until the morning. Since the accident I not only have trouble falling asleep, but also staying asleep. Sometimes falling asleep is hard because of pain, but most of the time it is just general restlessness, tossing and turning, and inability to find a comfortable resting position. My husband mentions to me often that he hears me in the middle of the night moaning, saying “Ow. Ow.”, wincing and grabbing my neck.”

26Other than the OCF-3 dated January 2, 2018, I have not been provided with any medical evidence that the applicant suffers from a sleeping disorder. Nor has the applicant made submissions on how the trouble she is experiencing with sleeping should remove her from the MG. As a result, I find that she has not presented any compelling evidence suggesting that she should be removed from the MIG on the basis of a sleeping disorder.

Headaches

27The applicant submits that she should be removed from the MIG on the basis that she suffers from chronic post-traumatic headaches. Physiotherapist, Madeleine Wells-Roswell, and kinesiologist, Kevin Ho, characterized the applicant’s headaches as chronic post-traumatic headaches in their MVA Initial Assessment Report, dated September 18, 2017. It is questionable whether a physiotherapist and kinesiologist are best equipped to make such a diagnosis. No medical evidence has been provided from other medical professionals with regards to the chronic post-traumatic headaches. The applicant participated in a Headache Disability Index in which she reports on all the areas of her life. Specifically, she indicated that the headaches have caused feelings of isolation and desperation concern and guilt about having difficulties at work, unable to think clearly, avoiding travelling, irritability, difficulty reading, feeling confused, lack of enjoyment of social gatherings, frustration, difficulty focusing, etc.

28The applicant argues “that while the test frames the questions as pertaining to headaches, these symptoms are very much related to psychological impairments such as depression, post traumatic stress disorder and driver anxiety.” I place little weight on the Headache Disability Index report as it completely based on the applicant’s self-reporting. Without objective, compelling evidence from a medical professional, I am unable to conclude that she suffers from chronic post-traumatic headaches.

BDI-II questionnaire

29Third, the applicant argues that she should be removed from the MIG because of her psychological symptoms based on her responses to a BDI-II questionnaire contained in Polyclinic’s records.

30The BDI-II questionnaire required the applicant to rank her feelings on a scale of 0-3, 3 being the most extreme. Her responses are as follows:

1. Sadness -1 - “I feel sad much of the time.”

2. Pessimism – 1 - “I feel discouraged about my future than I used to be.”

3. Past Failure – 1 - “As I look back, I see a lot of failures.”

4. Loss of Pleasure – 2 – “I get very little pleasure from things I used to enjoy.”

5. Guilty feelings – 2 - “I feel quite guilty most of the time.”

6. Punishment Feelings – did not answer

7. Self-Dislike – 1 - “I have not lost confidence in myself.”

8. Self-Criticalness – 1 - “I am more critical of myself than I used to be”

9. Suicidal Thoughts – 0 - “I don’t have any thoughts of killing myself.”

10. Crying – 3 - “I feel like crying, but I can’t.”

11. Restlessness -1 - “I feel restless “quite a lot”

12. Enjoyment – 2 – “I enjoy things “definitely less than I used to.”

13. Panic -1 - “I get sudden feelings of panic “quite often.”

14. Entertainment – 3 “I can enjoy a good book or radio or tv program “very seldom”

31I find that there is no indication that the questionnaire was administered by a licensed psychotherapist, psychologist, psychiatrist or anyone trained or permitted to administer such tests.

32As a result, I place little weight as the questionnaire was based on the applicant’s self-reporting and does not provide any formal diagnosis.

33The respondent relies on the decision of Ahmed and Unifund.⁵ In that decision, Arbitrator Parish held that a psychological pre-screening report did not provide a sufficient evidentiary basis for removing the applicant from the MIG because the report, was not a “full psychological assessment”, the information in the report relied solely on the applicant’s self-reporting and “there was no diagnostic testing or diagnoses yielded."

34To the case at hand, I find that the applicant has not discharged her evidentiary burden that she suffered from psychological impairment due to reliance on a questionnaire that incorporates no validity measures.

35In MFX and Certas,⁶ Adjudicator Norris held that the submissions of a treatment plan requesting psychological treatment is not sufficient to prove that an applicant suffers from a psychological impairment that falls outside the MIG if there is not corroborating medical evidence. At paragraph 18, Adjudicator Norris stated:

The applicant claims to have sustained psychological injuries (anxiety) and specifically, emotional distress. However, the submissions fail to include reference to any evidence of or a diagnosis of a psychological injury other than the disputed treatment plan, completed by a chiropractor who is not qualified to render a diagnosis on a patient’s psychological health. The applicant’s family physician’s clinical notes and records are absent a recommendation for psychological intervention or any complaints of a psychological nature.

36Similarly, Adjudicator Avy Go also held in Applicant and Travelers (2017)⁷ that a psychological pre-screening report was not sufficient to remove the applicant from MIG where it was not supported by other corroborating medical evidence:

The only substantive evidence about the applicant’s psychological impairment is found in the pre-screening report prepared by Dr. Bodnar’s office. Dr. Bodnar’s report was based entirely on an interview conducted with the applicant by a registered social worker, without the support of any diagnostic testing. I note also that there is an absence of any of the emotional issues raised by the applicant with his own family physician. As a result, I find there is lack of compelling evidence to support the presence of psychological impairment that would take the applicant out of the MIG.

37To the case at hand, the applicant’s submissions fail to include reference to any evidence or a diagnosis of a psychological injury. Furthermore, the applicant’s submissions do not include family physician CNRs with recommendations for psychological intervention or any complaints of a psychological nature.

38I find that there is a lack of compelling evidence to support the presence of psychological impairment that would take the applicant out of the MIG. The applicant has not discharged her evidentiary burden that she suffered from psychological impairment as she has not seen her treating family doctor with respect to any of her purported emotional issues. The applicant has not been diagnosed with any psychological impairment.

Referral for a Mental Heath and Addiction Assessment

39Fourth, the applicant also argues that she should be removed from the MIG because she was referred for a “mental health and addiction assessment” by Sophia Balanovsky, (social worker) from Midtown Assessments. The applicant has not provided any evidence that a medical or rehabilitation professional referred her for such an assessment. The applicant has provided no evidence that she was assessed by Ms. Balanovsky aside from a treatment plan that is unsigned by both Ms. Balnovsky and the applicant.

40Subsection 38(3) of the Schedule requires that a Treatment and Assessment Plan must be signed by the insured person and a health professional unless the insurer waives the requirement. Subsection 38(2) of the Schedule further states that an insurer is not liable to pay for medical or rehabilitation expense of a Treatment and Assessment Plan that does not satisfy the requirements of subsection 38(3).

41In Chaparina v. State Farm Mutual Automobile Insurance Co.,⁸ Arbitrator Sapin dismissed two treatment plans that were in dispute on the basis that they were not signed by either the appellant or a health professional.

42In the present case, the disputed treatment plans were not signed by the applicant or a health professional. The respondent also did not waive the requirement of the applicant’s signature. I find that the treatment plans in dispute are not proper pursuant to ss. 38(2) as they were not signed by the applicant and a health professional.

43It should be noted, that under Part 6 of the Treatment Plan (Injury and Sequelae Information), no emotional or psychological issues are identified. Therefore, the applicant has not provided any evidence that a mental health assessment was warranted.

44As part of their authorities, the applicant relies on the 2016 LAT decision, 16-000098 and Aviva⁹. In that decision, the Tribunal found that the applicant’s injuries fell outside out of the MIG. In addition, the applicant was entitled to receive a medical benefit pursuant to a treatment plan, submitted by Dr. San Bui, chiropractor from Pain Rehabilitation Clinic Inc., for a social work assessment in the amount of $2,000.00. I find that this case is distinguishable on the facts. First, in 16-000098 and Aviva, there were clinical findings by a social worker that the applicant’s social and cognitive behaviour had been impacted after the accident. In the case at hand, no clinical findings were ever made, and no assessment was ever commissioned.

45Secondly, the adjudicator in that case based her decision on the fact that the clinical findings from the social worker was corroborated by the CNRs of the treating family physician. In the case at hand, there is no such corroborating evidence of any kind. The applicant is relying on affidavit evidence and questionnaires as the evidentiary basis of her psychological impairment. Therefore, the evidence provided in 16-000098 and Aviva is superior than the evidence provided in the case at hand.

46In addition, the applicant relies on the 2018 LAT decision, 17-004824 v. Aviva Insurance Canada.¹⁰ That case has a similar fact pattern to the case at hand as the applicant’s vehicle was also rear-ended. In that decision, the Tribunal found that the applicant’s evidence did not show a psychological impairment as the suspected PTSD was ruled out by November 5, 2015, when Dr. Catford clearly indicated that the applicant showed “no criteria for PTSD at present.” Ultimately, the applicant’s impairments were found to be predominantly minor in the LAT decision.

47To the case at hand, the applicant outlines her symptoms in the Headache Disability Index as symptoms that are very much related to psychological impairments such as depression, PTSD and driver anxiety. According to the applicant, the records demonstrate that her psychological state after the accident had deteriorated. It appears that the applicant is attempting to show, that unlike the applicant in LAT decision, 17-004824 v. Aviva, that she meets the criteria for a psychological injury, as a result of the Headache Disability Index. I place no weight on this argument as there is no formal diagnosis of any psychological impairment (including for depression, PTSD, driver anxiety) but merely the applicant’s self-reporting.

Are the treatment plans and assessments reasonable and necessary?

48According to the submissions, the applicant has exhausted the funding available under the MIG. Having determined that the applicant’s injuries are predominantly minor injuries and that she is not entitled to treatment beyond the MIG, I have not analyzed the medical benefits in dispute.

CONCLUSION

49For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, she is not entitled to the treatment plans claimed in this application. Her application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635.
4. 4Scarlett v. Belair, 2015 ONSC 3635 at para. 24.
5. 5Ahmed and Unifund, 2017 CarswellOnt 19426, para. 39.
6. 6MFX and Certas, 2019 CarswellOnt 21313, para. 18.
7. 7Applicant v. Travelers, 2017 CarswellOnt 21313, para. 31.
8. 8Chaparina v. State Farm Mutual Automobile Insurance Co., 2016 CarswellOnt 3156 at paras. 5-9.
9. 916-000098 v. Aviva Insurance Canada, 2016 CanLII 93136 (ON LAT).
10. 1017-004824/AABS v. Aviva Insurance Canada, 2018 CanLII 81880 (ON LAT).