Tribunal File Number: 19-001502/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. T.
Applicant
And
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Omar Makhatadze
For the Respondent:
James Schmidt
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on July 27, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2The respondent determined the applicant’s injuries fell within the minor injury definition, were subject to the Minor Injury Guideline (“MIG”) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
Has the applicant sustained predominantly minor injuries as defined under the Schedule?
Is the applicant entitled to medical benefits recommended by Brampton Civic Care Center Inc. (“Brampton”) as follows:
a. $1,995.33 for a psychological assessment recommended in a plan dated November 11, 2017;
b. $3,245.94 for a chiropractic treatment plan dated January 13, 2018;
c. $2,681.88 for a chiropractic treatment plan dated June 23, 2018; and
d. $2,456.26 for a chiropractic treatment plan dated November 10, 2018?
- Is the applicant entitled to 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.
5The applicant is not entitled to the disputed treatment plans, nor interest.
BACKGROUND
6The applicant was the driver of a vehicle which was struck by another vehicle on the rear passenger side while stopped at an intersection. The applicant did not seek medical attention at the scene of the accident but went to the hospital later that day due to neck, shoulder, back, and knee pain as well as headaches. He was assessed at the hospital which produced unremarkable findings and was prescribed Tylenol 3 and referred to physiotherapy. He started physiotherapy at Brampton about a week later.
7The respondent funded the applicant’s treatment at Brampton pursuant to the MIG. After completing treatment within the MIG, the applicant sought funding for a psychological assessment and further chiropractic treatment.
8The applicant claims pre-existing back and knee pain preclude his recovery within the MIG. He further submits that he developed chronic pain syndrome and an adjustment disorder with anxiety as a result of the accident and submits that such injuries are not minor injuries. He submits that the $3,500.00 funding limit should not apply and claims entitlement to the disputed treatment plans.
THE MINOR INJURY GUIDELINE
9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
10If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
11Upon review of the evidence and submissions, I find the applicant sustained a minor injury as defined by the Schedule. As a result, he is bound by the $3,500.00 funding limit provided by section 18. He is not entitled to the disputed treatment plans as they propose treatment outside the MIG and beyond the $3,500.00 funding limit.
Pre-Existing Medical Condition
12I find no evidence showing that the applicant had a pre-existing medical condition which would preclude his recovery within the MIG and entitle him to funding beyond the $3,500.00 limit provided by section 18(2) of the Schedule.
13The is no evidence showing that the applicant’s intermittent knee and back pain existing prior to the accident impacted his recovery. Dr. F. C. Francisco, family physician, made no note of any impact to the applicant’s recovery in his initial visit following the accident or during subsequent visits. Dr. Francisco’s referral to Dr. A. Czok, physiatrist, dated August 1, 2018, notes lower back pain aggravated by the accident however, this is not evidence that pre-existing pain is prolonging his recovery from accident-related injuries. Further, the January 15, 2018 and January 17, 2019 Insurer Examination (“IE”) reports of Dr. L. T. Walters, physician, considered the affect of the applicant’s pre-existing pain but found that it would not preclude his recovery within the MIG.
14The applicant denied pre-existing pain or workplace injuries during assessments. The report of Dr. N. Belyakova, psychologist, dated July 13, 2019, notes that the applicant denied any pre-existing pain and described his health as good prior to the accident. Likewise, the June 25, 2019 assessment report of Dr. M. Gofeld, anesthesiologist, fails to note any workplace accidents or pre-existing pain.
Chronic Pain Syndrome
15I find that the applicant’s ongoing intermittent pain falls within the minor injury definition because it is a clinically associated sequelae of the soft tissue injuries suffered in the accident.
16I prefer the opinions of Dr. Czok and Dr. Walters over Dr. Gofeld because the latter appears to be inconsistent with the applicant’s medical evidence. Dr. Czok is an OHIP-funded physiatrist who examined the applicant and found that he was experiencing mechanical back pain due to the accident and advised him to do at-home exercises. Dr. Czok made no referral for treatment or any further examination. Likewise, Dr. Walters examined the applicant twice and both times found that his pre-existing pain did not warrant removal from the MIG and that his accident-related injuries met the criteria of a minor injury.
17Dr. Gofeld’s June 25, 2019 report is less persuasive than the reports of Dr. Czok and Dr. Walter. Dr. Gofeld’s report fails to explain the connection between the assessment findings and the diagnosis of chronic pain syndrome. Dr. Gofeld assessed the applicant and found tenderness in the cervical and lumbar spine with some range of motion limited by pain, range of motion in both shoulders were limited at the end of range by pain and found no remarkable knee impairment. Dr. Gofeld diagnosed the applicant with chronic pain syndrome as a result of this assessment. However, Dr. Gofeld provides no explanation as to how the applicant’s spine tenderness and partially-limited range of motion in the back and shoulders constitutes a diagnosis of chronic pain syndrome. Dr. Gofeld relies extensively on the applicant’s self-reported limitations yet fails to appreciate the applicant’s functionality. For example, the applicant reports difficulty with personal care tasks and said that his wife assists him with personal care activities when his pain is severe. However, the impairment reported by the applicant is contradicted by his return to work on a full-time basis as a warehouse forklift driver and order-picker a few days following the accident. Further, the applicant reports to Dr. Gofeld that he no longer goes to the gym, but I see no medical reason for this and it is inconsistent with Dr. Czok’s examination finding that the applicant had normal mobility and strength. It is also inconsistent with the recommendations from Dr. Czok and Brampton, for the applicant to do at-home exercises to reduce back pain.
18Lastly, the psychological assessments fail to support a diagnosis of chronic pain syndrome. The applicant was examined during psychological assessments with Dr. Murray and Dr. Belyakova and, on both occasions, failed to deliver any diagnosable pain disorder.
Adjustment Disorder
19I find no compelling evidence of a psychological injury which would remove the applicant from the MIG.
20I am not persuaded by Dr. Francisco’s single referral note for a psychological assessment. The hand-written note, which appears to be dated September 28, 2017, states “MVA 27 June 2017 psychological assessment.” There is no rationale behind the referral and remarkably, there is no correlating entry in Dr. Francisco’s clinical notes and records (“CNRs”) to provide any reason for the referral. In fact, Dr. Francisco’s CNRs are completely devoid of any complaints of a psychological nature made by the applicant. The absence of any documented psychological symptomology is remarkable considering the applicant’s numerous visits to Dr. Francisco following the accident.
21I prefer the report of Dr. Murray over Dr. Beylakova because Dr. Murray’s report is more consistent with the balance of the applicant’s medical evidence. Dr. Murray assessed the applicant and found that he returned to most of his pre-accident activities and responsibilities and found no evidence suggesting the accident caused him to experience psychological problems or symptoms that would warrant a diagnosis. Dr. Murray concluded that the applicant was correctly classified as sustaining a minor injury as defined by the Schedule, which is consistent with the balance of the medical evidence, specifically Dr. Francisco’s CNRs.
22On the other hand, Dr. Beylakova’s report appears to overstate the applicant’s psychological symptoms. For example, Dr. Beylakova found that the applicant presented with a severe level of anxiety impacting his mental and physical functioning. The impact suggested by Dr. Beylakova is contradicted by the applicant’s return to full-time work and regular driving. To me, there is no compelling evidence to show that he suffered psychological injuries to the extent that his mental and physical functioning is impacted. Likewise, psychometric testing indicated that the applicant had mild depression however, Dr. Beylakova reported that the applicant’s inability to maintain his regular lifestyle contributed to his depressed mood. Again, I restate that there is no other compelling evidence to support Dr. Beylakova’s conclusion that the applicant suffers from an adjustment disorder that is significant enough to warrant cognitive behavioural therapy and removal from the MIG.
ENTITLEMENT TO THE DISPUTED TREATMENT PLANS
23The applicant is not entitled to the disputed treatment plans because they propose treatment outside of the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
INTEREST
24Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The disputed treatment plans are not payable because the applicant is subject to the MIG and the plans propose treatment outside of the MIG. The applicant is not entitled to interest as a result.
CONCLUSION
25The applicant sustained predominantly minor injuries as a result of the accident and is bound by the $3,500.00 funding limit prescribed by section 18 of the Schedule.
26The disputed treatment plans are not payable because the plans propose treatment outside the MIG.
27The applicant is not entitled to interest.
Released: August 12, 2020
___________________________
Brian Norris
Adjudicator