Citation: Sidhu vs. TD General Insurance Company, 2020 ONLAT 19-009840/AABS

Released Date: 11/10/2020

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:

Satbir Sidhu

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Alim Ramji, Counsel

For the Respondent:

Jillian Beaulieu, Counsel

HEARD:

By way of written submissions

1Satbir Sidhu (the “applicant”) was involved in an automobile accident on March 23, 2018 and sought benefits from TD General 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 (“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 (“MIG”)?¹

(ii) If the answer to the first question is no, is the applicant entitled to the following benefits:

(a) Is the applicant entitled to a medical benefit for $1099.49 for physiotherapy recommended Complete Rehab Centre submitted November 19, 2018 and denied November 30, 2018?

(b) Is the applicant entitled to the cost of examination for $2460 for a psychological assessment recommended by Complete Rehab Centre submitted December 12, 2018 and denied January 2, 2019?

(c) Is the applicant entitled to a medical benefit for $3243.04 for psychological treatment recommended by Complete Rehab Centre submitted February 2, 2019 and denied February 21, 2019?

(d) Is the applicant entitled to the cost of examination for $2680 for a chronic pain assessment recommended by Complete Rehab Centre submitted November 28, 2018 and denied November 30, 2018?

(e) Is the applicant entitled to the cost of examination for $2200.00 for a driver anxiety assessment recommended by Complete Rehab Centre submitted May 27, 2019 and denied June 6, 2019?

(f) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4After reviewing the parties’ submissions and all of the evidence I find as follows:

(i) The applicant sustained predominately minor injuries as defined under the Schedule. This means that her coverage of medical benefits is limited to $3,500.00;

(ii) As the applicant’s injuries are described as minor and thus fall within the MIG, and that amount has been not exhausted, the applicant may be entitled to receive treatment up to the $3,500.00 limit by following the protocol set out in the MIG.

(iii) I do not find the disputed treatment plans reasonable and necessary. The applicant is not entitled to interest as I do not find that any payments are overdue.

BACKGROUND

5On March 23, 2018, the applicant was involved in a collision in which her vehicle was rear-ended. The applicant did not seek immediate medical attention and, three days later, went to a walk-in clinic, where she complained of pain in her neck, right shoulder and low back.

6Later, the applicant commenced treatment at Complete Rehab Centre pursuant to the MIG. The applicant now seeks a finding that her injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

7To date, the respondent has paid $2,863.85 in medical and rehabilitation benefits, leaving a balance of $636.15 left within the MIG limit.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

8I find the applicant’s impairments fall within the MIG.

9Section 3 of the Schedule provides the following definition of a minor injury:

a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

10Pursuant 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 – for example, a diagnosis of chronic pain or a psychological impairment – can remove an individual from the MIG. The onus is on the applicant to prove that her impairments are not minor and not subject to the $3,500.00 cap.

11The applicant argues that her impairments do not fit within the definition of the MIG because, as a result of the accident, she suffers from chronic pain and a psychological impairment. Further, she submits that her accident-related impairments remain unresolved and she requires further treatment. She relies on the clinical notes and records (“CNRs”) of Complete Rehab Centre (the “treating clinic”) and both the Torbram Medical Centre and Main Street Medical (the “walk-in clinics”). She also relies on the chronic pain assessment prepared by Dr. Siddiqui, chronic pain specialist, along with the psychological assessments completed by both Sandeep Kaur, psychotherapist, and Dr. Mills, supervising psychologist (“Dr. Mills’ report), both dated January 18, 2019, in support of her position that her impairments are not minor.

12The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNRs relied upon by the applicant do not support that she sustained a psychological impairment or suffers from chronic pain as a result of the accident. Further, it argues, Dr. Siddiqui’s report should be given little weight as it was based on the applicant’s self-reported complaints. The respondent relies on the January 7, 2019 physiatry insurer examination (“IE”) of Dr. Baker, who determined that applicant’s accident-related physical impairments are minor. Further, it relies on the IEs of Dr. Rubenstein, psychologist, dated May 21, 2019 and June 18, 2019, which determined that the applicant 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.

13The applicant did not submit any evidence supporting that she had a pre-existing medical condition that would prevent her from achieving maximum medical recovery within the MIG, so she is not removed from the MIG as a result of a pre-existing condition.

14The CNRs of the walk-in clinics do not support the applicant’s position that she suffers from chronic pain as a result of the accident. Since the accident, the applicant has attended the two walk-in clinics on five occasions. A CNR three day’s post-accident confirms she attended one of them complaining of pain in the neck, right shoulder and low back. The doctor prescribed Vimovo. The applicant attended this clinic again months later on June 11, 2018, reporting anxiety, chest palpitations, headaches and poor sleep. The doctor diagnosed her with a panic attack and prescribed seven tablets of Lorazepam. The applicant did not attend a walk-in clinic again for eight months. A CNR dated February 19, 2019 notes “problems sleeping the last couple of nights, taking Lorazepam.” The next note dated June 25, 2019 states “needs more meds, migraine and anxiety. Wakes up feeling good.” Under “observations” for both entries, the doctor states “the patient looks well.” The last note, dated August 8, 2019, states “insomnia – not sleeping well on and off.”

15Significantly, other than the first visit three days post-accident, the applicant does not report any symptoms of ongoing physical pain in her neck, shoulder or back and the accident is only referred to in two CNRs of the walk-in clinics. In my view, these sporadic visits to these clinics does not support that the applicant suffers from chronic pain as a result of the accident. Moreover, the doctors do not refer the applicant to any specialists or recommend additional investigation. The applicant also submitted prescription summaries, which prove that the applicant was prescribed Vimovo and an anti-inflammatory medication in April 2018. In my view, the fact that the applicant was prescribed pain medication one- month post accident does not support that she suffers from ongoing chronic pain.

16The applicant also relied on the CNRs of Complete Rehab Centre which note that the applicant attended multiple treatment sessions from the date of the accident to May 16, 2019. While the entries note that the applicant reported ongoing pain, I did not find these CNRs helpful as most of the notes were not legible. Further, there were no progress reports within these records and the notes contained self-screening questionnaires and checklists which were inconsistent, which I will address later. In addition, while the applicant reports symptoms of pain throughout these records, there is nothing that shows how these symptoms negatively impacted her function or her activities of daily living. It is well accepted law that pain alone in the absence of impairment in function is not sufficient to support removal from the MIG.

17The applicant relied on the chronic pain assessment of Dr. Siddiqi, who diagnosed her with chronic myofascial pain; cervical sprain/strain; lumbar sprain/strain; non-restorative sleep; and anxiety consistent with post-traumatic stress. Dr. Siddiqui recommended that the applicant receive physiotherapy, chiropractic treatment, acupuncture, enrollment in a chronic pain management program, nerve block injections, assistive devices, and a referral to a psychologist for her anxiety related issues.

18I did not find Dr. Siddiqui’s report persuasive as I find the doctor relied entirely on the applicant’s self-reports. Further, the diagnosis was not supported by any objective evidence as the doctor did not review any medical documentation in completing the assessment. In my view, the applicant’s self-reported symptoms of ongoing pain in her neck, shoulder, back and headaches is not sufficient enough for the conclusions rendered by Dr. Siddiqui. In addition, Dr. Siddiqui’s physical examination did not reveal anything abnormal, and the report notes that the applicant was not in any acute distress during the examination. In my opinion, this is not typical for someone who suffers from chronic pain. In rendering the diagnosis, Dr. Siddiqui states that the applicant has limitations that significantly impact “all aspects of her life including from a vocational perspective resulting in a loss of competitive advantage.” Further, her impairments “have caused severe distress including but not limited to vocational, personal, recreational and social aspects of her life.”

19In addressing the applicant’s employment, Dr. Siddiqui states that the applicant “works as a community nurse at St. Elizabeth Health.” This is the extent of the doctor’s analysis with respect to the applicant’s limitations in her employment. The doctor does not describe the tasks of the applicant’s employment as a nurse, her hours of work or how she is functionally limited in this domain.

20By contrast, the respondent submitted the applicant’s employment file which supports that the applicant returned to her employment as a nurse one-week following the accident. The file does not document any modified hours or duties post-accident. In fact, the employment file supports that the applicant changed jobs in June 2019 and began working for another clinic. In a pre-placement health review form signed by the applicant in the same month, the applicant reported that she was in excellent health and did not have any physical limitations which would interfere with her ability to carry out her duties. The applicant endorsed that she does not suffer from migraines, chronic back pain and is not limited in any activities as a result of a neck, back or shoulder injury. In my view, the applicant’s employment file undermines her credibility in reporting her functional limitations and discredits Dr. Siddiqui’s opinion.

21I find that the applicant was also inconsistent in reporting her functional limitations to the doctors at the walk-in clinic as well as to her assessors. For example, in the IE assessment of Dr. Baker completed in January 2019, she reported that pre-accident she had a gym membership which she used five days a week for cardio and weight training and that she no longer attends post-accident due to her physical limitations. This is contradicted by the CNR of Main Street Medical dated February 19, 2019, which states that she goes to the gym five days a week and does cardio and weight training. The applicant also submitted the IE report of Tanya Blazevic, occupational therapist, dated May 21, 2019 which did not reveal any significant functional limitations. The applicant reported that, with the exception of outdoor home maintenance tasks, she was independent with housekeeping, meal preparation and personal care. Further, she also reported that she works 40 hours as a nurse, which she claimed to be working in a modified capacity. As a result of these inconsistencies and the lack of objective evidence, I have given Dr. Siddiqui’s report little weight.

22By contrast, the respondent relied on the IE of Dr. Baker, who determined that the applicant sustained soft-tissue injuries which could be treated in the MIG. I prefer Dr. Baker’s opinion as I find it more consistent with the rest of the evidence before me.

23The applicant relied on the Tribunal’s Reconsideration Decision in T.S. v. Aviva² in support of her position that, because she suffers from ongoing pain 13 months post-accident, she has chronic pain which removes her from the MIG. In that decision, the Executive Chair accepted the definition of chronic pain to be “an ongoing recurrent pain, lasting beyond the usual course of acute illness or injury or more than three to six months which adversely affects the individual's well-being.”³

24I agree with the applicant that, if she suffers from chronic pain or chronic pain syndrome, she is removed from the MIG. However, I find this case distinguishable from the one before me as the insured in T.S. v. Aviva was diagnosed with chronic pain syndrome by a medical expert which the adjudicator accepted. The insured in that case was successful on the request for reconsideration as the adjudicator determined that chronic pain syndrome was covered by the MIG. In the present case, I do not accept that the applicant’s diagnosis of chronic pain as I do not find it is supported by objective evidence, and I find the evidence about her functional limitations inconsistent. In my view, the inconsistencies challenge the applicant’s credibility which also includes her self-reports of ongoing physical pain.

25The applicant has not met her onus on proving on a balance of probabilities that she suffers from chronic pain as a result of the accident that would remove her from the MIG.

Is the applicant entitled to the treatment plan for the chronic pain assessment recommended by Complete Rehab Centre?

26I do not find the treatment plan for the chronic pain assessment to be reasonable and necessary.

27First, as noted above there was no objective medical evidence to support that the applicant suffers from chronic pain as a result of the accident. Therefore, the request for an assessment is not reasonable and necessary.

28Second, the treatment plan itself contained inaccurate information about the applicant’s medical history and personal and functional status. The goal of the treatment plan was to return the applicant to her pre-accident employment and identify retraining if necessary. However, as already highlighted this was not a reasonable objective as the applicant had already returned to her employment as a nurse and no evidence was submitted to support that she was working modified duties. The treatment plan also referred to two prior accidents in which the applicant’s impairments were exacerbated by the subject accident. There was no evidence before me to support this statement. Finally, the treatment plan indicated that the applicant was a caretaker for her adult daughter who has special needs. I find this was clearly an administrative error and demonstrates that the author of the treatment plan had very little knowledge of the applicant’s personal status or medical condition.

29The applicant has not met her onus on a balance of probabilities that the treatment plan for a chronic pain assessment is reasonable and necessary as a result of her accident related impairments.

Did the applicant sustain a psychological impairment that would remove her from the MIG?

30I do not find the applicant suffers from a psychological impairment that would remove her from the MIG for the following reasons.

31The applicant relied on the psychological assessment of Dr. Mills, who diagnosed her with Adjustment Disorder with Mixed Anxiety and Depressed Mood; Specific Phobia. Situational Type (motor vehicles); and Somatic Symptom Disorder, with Predominant Pain, Persistent. The applicant reported having ongoing headaches as well as shoulder, neck and back pain which drastically affected her mood and functioning. She also reported that her sleep had been negatively impacted due to her accident-related pain as well as vehicular anxiety as a driver and passenger. Dr. Mills opined that the applicant’s psychological impairment removed her from the MIG, and recommended 12 sessions of psychotherapy as well as a driving anxiety assessment. As part of the assessment, the assessors administered psychometric tests such as the Beck Depression Inventory-II (BDI-II); Beck Anxiety Inventory (BAI); Impact of Event Scale-Revised (IES-R); and an Accident Fear Questionnaire (AFQ) in which it was determined the results were valid.

32I do not assign Dr. Mills’s assessment much weight as I find that the applicant inconsistently reported her psychological symptoms to her own assessors and both assessments were completed on the same day. For example, Dr. Siddiqui’s report states the applicant “does not have any feelings of guilt, worthlessness, sadness or depression.” This contrasts with Dr. Mills’s assessment, which states the applicant “endorsed a depressed mood, irritability, impatience and hopelessness as well as difficulties concentrating.”

33I also find the applicant irregularly reported her psychological symptoms in the CNRs of Complete Rehab Centre. While there are a few entries in 2018 which note that the applicant reported feeling sad, stressed and frustrated as a result of ongoing pain the psychological screening forms in the file are inconsistent. For example, on some dates she reports a fear of driving and on others she does not. She also inconsistently reports how her social activities and relationships have been impacted as well as problems relating to concentration. On some, she endorses mild impairments and, on others, she endorses moderate or none. I find the applicant’s inconsistent reporting of her psychological symptoms leads me to question the diagnosis rendered by Dr. Mills. For this reason, I assign the doctor’s report less weight.

34The applicant maintains that the CNRs of the walk-in clinics support that she sustained a psychological impairment as a result of the accident because they reflect that she had panic attacks, was prescribed Lorazepam and had bouts of insomnia. As already noted above, I did not find the one CNR in June 2018 persuasive evidence that the applicant sustained a psychological impairment as a result of the accident. Further, the CNRs thereafter do not mention the accident as the cause of the applicant’s complaints. Neither did the doctors at the walk-in clinics find these incidents serious enough to warrant further psychological intervention. The prescription summaries submitted reflect that the applicant has been prescribed seven pills of Lorazepam once in 2018 and again in 2019, as well as Amitriptyline. However, there is no link in the records that these medications were prescribed as a result of an accident-related psychological impairment. Ultimately, I do not find the psychological diagnosis provided by Dr. Mills is supported by the medical evidence before me. Nor do I find that the evidence supports that the psychological symptoms proposed by the applicant have interfered with her ability to function in her daily activities.

35The respondent relied on the May 21, 2019 and June 18, 2019 IE reports of Dr. Rubenstein, who assessed the applicant’s entitlement to an IRB and the applicability of the MIG. Dr. Rubenstein determined that the applicant did not have any accident-related psychological impairment which would remove her from the MIG. The applicant was highly critical of Dr. Rubenstein’s IEs in that the doctor did not adequately explain the results of the psychometric tests administered and did not review any medical records or the report of Dr. Mills in completing the assessment. However, I find the applicant’s argument contradictory, as Dr. Mills did not review any medical records in completing his assessment. Based on the evidence before me, I prefer the findings of Dr. Rubenstein as I find it more consistent with the evidence before me.

36The 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 that would remove her from the MIG.

37In light of my determination that the applicant did not sustain a psychological impairment as a result of the accident, I do not find the treatment plan recommending psychological treatment flowing from the psychological assessment to be reasonable and necessary.

Is the applicant entitled to the treatment plans for the psychological or driving anxiety assessments recommended by Complete Rehab Centre?

38I do not find the treatment plans for the psychological assessment or driving anxiety assessment to be reasonable and necessary.

39I do not find the treatment plans for either the psychological or driving anxiety assessments to be reasonable and necessary. As already highlighted, I find that the applicant was inconsistent in reporting her psychological symptoms and functional limitations to her own assessors, as well as to the IE assessors. In addition, there was also contradictory evidence relating to her complaints of driving anxiety in the self-reported questionnaires contained in the Complete Rehab Centre’s CNRs. Moreover, part of the applicant’s employment’s duties was to drive to patient’s homes to provide care in different locations. There is no evidence before me that the applicant was prevented from carrying out her employment duties as a result of driving anxiety. In addition, I do not find the psychological report of Dr. Mill’s recommending the driving anxiety assessment persuasive. For these reasons, I do not find the treatment plans for the psychological or driving anxiety assessment to be reasonable and necessary as a result of the applicant’s accident related impairments.

40Finally, since I have determined that the applicant sustained a minor injury she is not entitled to these treatment plans as the cost of same is over the monetary policy limit covered by the MIG.

Is the applicant entitled to $1,099.49 representing the balance of the treatment plan for physiotherapy recommended by Complete Rehab Centre because the respondent’s denial notice was deficient?

41The applicant is not entitled to payment of the treatment plan as I find the respondent’s notice of its denial was sufficient.

42The applicant argued that the respondent was non-compliant with its obligations under s. 38(8) of the Schedule, which provides that an insurer shall respond to a treatment plan within 10 days advising the applicant what benefits it agrees to pay for and, if a benefit is denied, it is to provide medical and other reasons why it does not find the treatment plan reasonable and necessary. Section 38(11) of the Schedule states that if an insurer fails to comply with s. 38(8), it shall pay for the treatment plan.

43On November 19, 2018, the applicant submitted a treatment plan in the amount of $2,399.49 for physiotherapy recommended by Complete Rehab Centre. The respondent partially approved this treatment plan in the amount of $1,300.00, leaving a balance of $1,099.49 in dispute which is above the MIG limit. Under part 4 of the treatment plan, it stated that the applicant sustained a minor injury and was seeking treatment within the MIG. The accident-related impairments listed under part 6 of the plan list impairments that fit within the MIG.

44On November 30, 2018, the respondent sent the applicant an explanation of benefits stating:

We regret to inform you that we are unable to approve the proposed goods, services and/or assessments on the basis that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline. Our determination is based on the following information: Your injuries sustained in the mva fall within the Minor Injury Guideline.

45The letter goes on to state that an IE would be scheduled, the details of which would follow under a separate letter.

46The applicant maintains that the respondent’s denial of this treatment plan was deficient as its reasons were very general and not specific to the applicant’s condition. Therefore, the argument goes, the respondent must pay for the treatment plan in accordance with s. 38(11)2 of the Schedule.

47I find the applicant’s argument that the respondent’s denial of this treatment plan was deficient to be without merit. First, part 4 of the treatment plan itself confirmed that the applicant’s impairment was within the MIG. Second, the impairments listed under part 6 of the treatment plan fit within the MIG.

48The applicant relied on the T.F v. Peel⁴ which stated that “insurers cannot rely on incongruent or contrived reasons to satisfy their notice obligations.” I find this case is distinguishable from T.F. v. Peel as the treatment plan submitted by the applicant supported that her impairments were minor. Therefore, I do not find the respondent’s reasons for denying the treatment plan on this basis to be incongruent or contrived. Consequently, I do not find the respondent’s reason for denying the benefit and scheduling an IE to be deficient. Therefore, the remedy requested by the applicant is dismissed.

49The applicant is not entitled to payment of the balance of this treatment plan as I find the respondent’s denial sufficient. However, the applicant may be entitled to receive treatment up to the $3,500.00 limit by following the protocol set out in the MIG.

ORDER:

50For the reasons outlined above, I find that: