Licence Appeal Tribunal File Number: 20-001851/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:
Crystal MacGillivary
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Sevda Guliyeva, Counsel
For the Respondent:
Laura Emmett, Counsel
HEARD:
By way of written submissions
BACKGROUND
1C.M. was injured in an automobile accident on January 23, 2018, and sought benefits and an income replacement benefit (“IRB”) from Co-operators, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)1 (the “Schedule”). Co-operators denied the benefits in dispute on the basis of its determination that C.M.’s accident-related injuries and impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). It denied the IRB benefit because it determined that C.M. did not establish entitlement to the benefit beyond the date of denial. C.M. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
a. Are C.M.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
b. Is C.M. entitled to an IRB of $400.00 per week from June 7, 2018 to date and ongoing?
c. Are the medical benefits recommended by Mediwise Healthcare Centre reasonable and necessary as follows:
i. $3,404.36 for chiropractic services in a treatment plan (OCF-18) dated February 7, 2018?
ii. $1,920.53 for a psychological assessment in an OCF-18 dated March 29, 2018?
iii. $3,178.08 for chiropractic services in an OCF-18 dated May 11, 2018?
iv. $4,463.96 for psychological services in an OCF-18 dated May 9, 2018?
v. $3,566.28 for psychological services in an OCF-18 dated July 16, 2018?
d. Is the cost of examination expense in the amount of $2,768.50 for a neurology assessment, recommended by Q Medical in an OCF-18 dated September 6, 2018, reasonable and necessary?
e. Is C.M. entitled to interest on any overdue payment of benefits?
FINDINGS
3C.M. has not demonstrated that her accident-related impairments warrant removal from the MIG. The OCF-18s in dispute are not reasonable and necessary and interest is not payable. C.M. is not entitled to payment of an IRB as she has not demonstrated that she suffers a substantial inability to perform the essential tasks of her employment from June 7, 2018, to date and ongoing.
ANALYSIS
Physical Injuries
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains an impairment that is predominantly a minor injury in accordance with the MIG. Section 3(1) 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.” To be removed from the MIG, an insured must establish that their accident-related injuries fall outside of the MIG, or, pursuant to 18(2), that they have a documented pre-existing injury or condition, supported by compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG restrictions. The Tribunal has also determined that chronic pain with documented functional impairment or a psychological condition may allow for removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside the MIG.
5C.M. submits that her medical documents support her assertions that she suffers from physical and psychological injuries that warrant removal from the MIG. In this vein, she relies on the January 23, 2018 Trillium Hospital Emergency record, in which she reported pain in the back of her head, but no loss of consciousness, no dizziness, and no blurry vision. She reported two bruises on her left arm. There was no x-ray, CT scan or MRI conducted. Despite her position, there was no diagnosis of a concussion or any musculoskeletal injuries. She also relies on a February 10, 2018 OCF-3 from chiropractor Dr. Rakkar who noted the following injuries: neck pain, upper and lower back pain, right shoulder strain, headaches, nervousness, dizziness, and a state of emotional shock. During the initial assessment, Dr. Rakkar noted that C.M. complains of non-restorative sleep as a result of pain. In addition, testing revealed that she was restricted in all ranges of motion and had not returned to work due to injuries.
6Co-operators argues that since C.M. has not been referred to a pain clinic and has not undergone a chronic pain assessment, her injuries are predominantly minor. Co-operators relies on various medical documents and a s. 44 assessment report in support of its denial of benefits.
High Mark Health
7On January 30, 2018, C.M. saw physician Dr. Mazza. The CNRs of Dr. Mazza noted there was no direct cranial impact, no amnesia, and no loss of consciousness. Dr. Mazza indicated C.M. had been diagnosed with a concussion and neck strain, according to the hospital records, and opined that there was “probably concussion and lower back and neck strain.” C.M. was recommended to follow up with Dr. Mazza in four weeks, however there is no evidence of subsequent attendance.
8I agree with Co-operators that there was no diagnosis of a concussion in the hospital records. Although Dr. Mazza opined that C.M. suffered a probable concussion, there is no indication of further objective investigation into Dr. Mazza’s opinion regarding the concussion.
Family Physician
9C.M. also relies on clinical notes and records (“CNRs”) of family physician Dr. Jalota, in support of her ongoing pain complaints. C.M. first saw Dr. Jalota on February 28, 2018 following the accident. C.M. reported to Dr. Jalota that she had been diagnosed with a concussion at the hospital. She noted that her symptoms were improving and that she did not take any medication or use heat for muscle aches.
10At a second visit on March 21, 2018, C.M. reported right eye twitching for the past two weeks. She indicated that she was not sleeping well due to mid-terms and related stress. Dr. Jalota advised that she get more rest and eat healthier. I note there was no reference to the accident at the March 2018 visit.
11The next visit was June 8, 2018. The brief entry noted that C.M. wanted to return to work on modified duties, which was supported by Dr. Jalota.
12On January 31, 2019, C.M. presented with low back pain for three days. She also reported pain between her shoulder blades for three months. She reported to Dr. Jalota that she had physiotherapy but stopped as she did not have much time to go. Dr. Jalota diagnosed her with left lower back strain and bilateral interscapular strain. Dr. Jalota recommended conservative management, at-home stretching/exercise. No diagnostic imaging was recommended.
13There were several additional visits to Dr. Jalota as follows:
a. July 2019 – confirmation of pregnancy;
b. January 6, 2020 – post-partum follow-up;
c. February 25, 2020 – musculoskeletal complaints
d. March 11, 2020 – mid-back pain. X-ray referral;
e. May 12, 2020 – Thoracic and lumbar spine x-ray. Thoracic spine findings were normal. Lumbar spine showed “very mild scoliosis convex to left centered at L3, may be positional.”; and
f. May 29, 2020 – back pain after a walk. Dr. Jalota diagnosed mild scoliosis, informed C.M. that it was mild scoliosis and recommended that she continue stretches and exercises.
Mediwise
14C.M. received treatment from Mediwise from February 5, 2018 to October 31, 2018. According to the initial chiropractic assessment dated February 5, 2018, C.M. reported headaches and sleep issues as well as pain in the cervical spine, thoracic spine, lumbar spine and right shoulder. Of note during the duration of treatment, C.M. reported headaches on three occasions (February 17, 21, and 24) and a sole reference to sleep problems on April 4, 2018.
15In a February 25, 2020 entry, Dr. Jalota notes that C.M. continues to report back pain, shoulder pain and trouble sleeping. A July 2, 2020 note indicated that she has been having pain issues with her lower back, and May 2020 diagnostic imaging showed that she has mild scoliosis. Dr. Jalota opined that an accident could have triggered or affected her scoliosis and possibly made her back pain worse.
16Co-operators argues that this July 2, 2020 note from Dr. Jalota should be given little weight, as it was served with C.M.’s submissions. It is unclear who the note was addressed to, and its position is that Dr. Jalota comments on the lower back, although C.M.’s complaints have been related to mid-back concerns. Further, it submits that there is no context or explanation for Dr. Jalota’s opinion that the accident “could have” or “possibly” impacted her back pain.
17I am not persuaded that Dr. Jalota’s letter, or the diagnostic imaging objectively connect C.M.’s scoliosis to the accident. First, the diagnosis comes more than two years post-accident. Second, I agree with Co-operators that there is no context to the opinion given, and Dr. Jalota does not provide any objective findings in support of her note. Lastly, I am not persuaded that the several complaints of mid-back pain in early 2020 are the same as the lower back pain complaints that Dr. Jalota indicates in her July 2, 2020 note.
18In my opinion, the above-noted medical records support that C.M. suffered predominantly minor injuries. In addition to the consideration of the treatment records, Co-operators relies on the reports of its s. 44 assessors., which I will now discuss.
Dr. Bhangu Report
19In a May 31, 2018 report, physiatrist Dr. Bhangu noted limitations in her cervical and lumbar range of motion with pain. Specifically, Dr. Bhangu assessed C.M. to have the following range of motion in the cervical spine “extension was to 40 degrees and lateral flexion was to 40 degrees bilaterally. Rotation was to 80 degrees bilaterally.” For her lumbar range of motion, “forward flexion to 40 degrees, extension to 5 degrees and lateral flexion to 10 degrees bilaterally.” Dr. Bhangu opined that C.M. suffered soft tissue injuries to the thoracic and lumbar spine. Dr. Bhangu ultimately concluded that from a musculoskeletal perspective, C.M.’s injuries were minor in nature and were treatable within the MIG.
20C.M. submits that the facility-based treatment she received to date within the MIG limit and incurred beyond the MIG, is responsible for her current level of improvement. She also points to Dr. Jalota’s records from various dates that supports that treatment was helpful. For example, on February 27, 2018, Dr. Jalota noted that “PT is helping”; June 8, 2018, “is doing PT”; and on February 25, 2020, “has done PT and massage in the past which was helpful.” Dr. Jalota recommended physiotherapy, massage and chiropractic therapy to treat C.M.’s pain symptoms.
21On the evidence, the injuries listed in the OCF-3 fall within the definition of a minor injury as set out in the Schedule. Despite her claims of ongoing pain, I am not persuaded that C.M. suffered more than predominantly minor injuries. Further, there is no documented pre-existing injury that would prevent the applicant from achieving maximum medical recovery under the MIG, and there is no diagnosis of a chronic pain condition. I will now consider whether C.M. sustained an accident-related psychological impairment which would remove her from the MIG.
Psychological Impairments
22C.M.s claim for removal from the MIG is based on psychological impairments she alleges are as a result of the accident. She argues that her impairments noted to be anxiety, sleep disturbance, nervousness, irritability, stress, concentration difficulties, fatigue, anger/frustration with physical limitations, flashbacks and intrusive thoughts, and driving/passenger anxiety, justifies removal from the MIG. It is well-settled law that in order to be removed from the MIG due to psychological impairments, C.M. must establish that she has an actual psychological impairment and not just symptomatology. A psychological diagnosis requires the progression of ongoing, substantive post-traumatic symptomatology or clinically significant psychological impairment. I find that C.M. has not directed me to persuasive evidence that supports her accident-related psychological impairments require treatment beyond the MIG.
23C.M. relies on an April 24, 2018 psychological report from psychologist Bruce Cook (“Mr. Cook”), who diagnosed her with generalized anxiety disorder and major depressive disorder (single episode, severe), without psychotic symptoms. The report recommends that C.M. undergo 16 90-minute treatment sessions. C.M. reported that she suffers from impaired self-esteem, attention/concentration issues, short-term memory impairment, and anxiety. Mr. Cook’s report is refuted by Co-operators psychological report from Dr. Dancyger, who determined that psychological testing “did not find any valid and objective evidence of her having a significant and diagnosable accident-related psychological disorder.” Dr. Dancyger also found that C.M. can distort her clinical presentation during testing. Dr. Dancyger opined that test results did not reveal a substantial psychological impairment as a result of the accident. Dr. Dancyger concluded that C.M.’s accident-related psychological impairments are minor in nature and fit within the MIG.
24On the evidence, I prefer the report of Dr. Dancyger, as I found it to be more in line with the majority of her evidence and self-reporting. Although she indicates to Mr. Cook that she suffered a psychological impairment, Mr. Cook notes that C.M. “may not have answered in a completely forthright manner; the nature of her responses might lead the evaluator to form a somewhat inaccurate impression.” This observation is in line with Dr. Dancyger who opined that the “test results could not be interpreted as the results suggested a lack of effort on C.M.’s part, an exaggeration of her complaints, or some underlying motivation for her complaints that were not disclosed or of which she may not be aware.” In addition, the family physician’s records do not note any ongoing accident-related psychological complaints. I conclude that there is insufficient compelling evidence that establishes that C.M. suffered significant psychological impairments that would require treatment beyond the MIG limits.
Income Replacement Benefits
25In order to qualify for an IRB, C.M. must establish that she suffers a substantial inability to perform the essential tasks of her employment during the first 104 weeks after the accident. For the following reasons to follow, I find that C.M. is not entitled to IRBs.
26At the time of the accident, C.M. was enrolled at Sheridan College. Post-accident, she missed two weeks of school, but was able to complete the semester. C.M. was also working part time at Maple Leaf Sports & Entertainment.
27C.M. did not provide any submissions on her entitlement to IRBs. Co-operators relied on the reports of its s. 44 assessors. Both Drs. Dancyger and Dr. Bhangu concluded that there was no objective evidence to suggest that C.M. suffered a substantial inability to perform the essential tasks of her employment as a direct result of the accident. Based on the opinions of the assessors, Co-operators denied the benefit effective June 7, 2018. C.M. indicated a desire to return to work as noted in the CNRs of Dr. Jalota dated June 8, 2018.
28I am not persuaded on a balance of probabilities that C.M. suffered a substantial inability to complete the tasks of her employment (or education), therefore, the benefit was properly terminated. Further, as there is no evidence or argument brought forth by C.M. addressing her entitlement to the benefit, she has failed to meet her onus.
Are the treatment plans reasonable and necessary?
29On the evidence, the MIG limit has been exhausted. I have determined that C.M.’s accident-related injuries and impairments remain within the MIG, I do not need to conduct an analysis of whether the disputed treatment plans are reasonable and necessary. As no benefits are payable, no interest is payable under s. 51.
CONCLUSION
30C.M. sustained injuries that are predominantly minor and treatable within the MIG. As the MIG limits have been exhausted, the disputed treatment plans are not reasonable and necessary.
31The application is dismissed.
Released: November 9, 2021
Derek Grant
Adjudicator