Licence Appeal Tribunal File Number: 19-013700/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:
Sara Danki
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Daniella Cohen, Counsel
For the Respondent:
Kathleen Mertes, Counsel
HEARD:
By way of written submissions
BACKGROUND
1S.D. was injured in an accident on March 21, 2017, and sought benefits from Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)1. Aviva denied the benefits in dispute on the basis that it determined that S.D.’s accident-related injuries and impairments were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). S.D. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2I have been asked to decide the following disputed issues:
a. Are S.D.’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 Minor Injury Guideline?
b. If S.D.’s injuries are not considered to be predominantly minor, then I must consider:
Medical Benefits
i. Is the medical benefit in the amount of $1,977.05 for physiotherapy services recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated August 31, 2017, denied on January 3, 2018, reasonable and necessary?
ii. Is the medical benefit in the amount of $1,384.70 for physiotherapy services recommended by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated February 2, 2018, denied on February 15, 2018, reasonable and necessary?
iii. Is the medical benefit in the amount of $2,569.40 for physiotherapy services recommended by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated April 2, 2018, denied April 13, 2018, reasonable and necessary?
iv. Is the medical benefit in the amount of $2,569.40 for chiropractic services, recommended by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated May 16, 2018, denied May 22, 2018, reasonable and necessary?
v. Is the medical benefit in the amount of $3,735.00 for psychological services, recommended by Novo Medical Assessments in an OCF-18 dated May 24, 2019, denied June 6, 2019, reasonable and necessary?
Cost of Examinations
vi. Is the cost of examination expense in the amount of $1,995.33 for a psychological assessment, recommended by Novo Medical Assessments, in an OCF-18 dated August 25, 2017, denied January 3, 2018, reasonable and necessary?
vii. Is the cost of examination expense in the amount of $2,200.00 for an orthopaedic assessment, recommended by Novo Medical Assessments, in an OCF-18 dated August 23, 2017, denied on January 3, 2018, reasonable and necessary?
viii. Is the cost of examination expense in the amount of $2,200.00 for a neurological assessment, recommended by Novo Medical Assessments, in an OCF-18 dated August 23, 2017, denied on January 3, 2018, reasonable and necessary?
ix. Is S.D. entitled to interest on any overdue payment of benefits?
FINDINGS
3S.D. has not established that the OCF-18s for physical treatment are reasonable and necessary. Similarly, the OCF-18s for an orthopaedic and neurological assessment are not reasonable and necessary. No interest is payable.
4S.D. has established that she requires treatment beyond the MIG due to her accident-related psychological impairments. The OCF-18s for a psychological assessment and psychological treatment are reasonable and necessary. Interest is payable pursuant to s. 51.
ANALYSIS
Applicability of the MIG
5Section 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.”
6Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence indicating that the condition prevents recovery if they are kept within the MIG limits. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may support removal from the MIG. In all cases, the burden of proof remains with the applicant.
Physical Injuries
8S.D. submits that the impairments she sustained as a result of the accident, described in the April 5, 2017 Disability Certificates (“OCF-3”) and March 10, 2018 as: radiculopathy, other sprain and strain of cervical spine, sprain and strain of lumbar spine, sprain and stain of sacroiliac joint, other superficial injuries of hip and thigh, contusion of ankle, multiple superficial injuries of ankle and foot, disorders of initiating and maintaining sleep, sleep terrors, other anxiety disorders, generalized anxiety disorder, mixed anxiety and depressive disorder, dislocation, sprain and stain of joints and ligaments of thorax, and dislocation, sprain and strain of joints and ligaments of shoulder girdle, warrant treatment beyond the MIG due to the effect on S.D.’s activities of daily living.
9S.D. also submits that she continues to experience neck, shoulder and back pain that is extensively documented in her medical file. S.D. relies on the clinical notes and records of her family physician, Dr. Basta and the October 2, 2019 orthopaedic report of Dr. West in support of her position.
10Aviva submits that the injuries allegedly sustained by S.D. are soft tissue in nature and fall within the definition of minor injuries under the Schedule. Aviva relies on the reports of two s. 44 assessor reports: a December 12, 2017 physician report from general physician Dr. Chaudhry, who determined that from a musculoskeletal perspective, S.D. suffered predominantly minor injuries and a November 24, 2017 psychological assessment from Dr. Marino, who determined that S.D. did not present with a diagnosable psychological impairment.
11I agree with Aviva. On the evidence, I find the injuries indicated in the OCF-3 and other medical documentation are consistent with injuries that are considered predominantly minor. The OCF-3s do not provide compelling evidence to suggest that S.D.’s physical injuries are severe enough to require treatment beyond the MIG.
12Further, there is little in the family physician’s records that ties her pain symptomatology directly to the accident. This is supported by the fact that there were only two post accident visits to Dr. Basta where S.D. presented with accident-related pain. The first visit was on March 25, 2017, where S.D. complained of neck, shoulder, and lower back pain. The next visit to Dr. Basta was April 6, 2017. It was not until an October 18, 2018, over one and a half years post-accident, where S.D. complained of mid-back pain. Dr. Basta noted “two weeks of back pain, no trigger.” Significantly, Dr. Basta made reference to the March 2017 accident, indicating that the back pain was in the same location as the accident-related back pain, however, the note that there was “no trigger” for this onset of back pain, does not make it causally related to the accident. A January 22, 2019 visit shows that S.D. requested an MRI of her head due to “remote MVA March 2017 symptoms”. I note that there were no prior complaints to Dr. Basta of head injuries post-accident. No MRI was ordered. While there were subsequent visits to Dr. Basta in 2019, none appear to be accident related.
13S.D. submits that she suffered a compound fracture, yet diagnostic imaging confirmed that there was no fracture.
14S.D. relies on an October 2, 2019 orthopaedic report from Dr. West, who noted her subjective pain complaints (lower back pain, neck pain, sleep problems, passenger and driving fear), and an inability to sit or stand for extended periods. On examination, Dr. West noted that S.D. appeared moderately depressed, with moderate pain and had limitations in active range of motion of the lumbosacral spine. Dr. West diagnosed S.D. with myofascial strain in the cervical and lumbosacral spine, cervicogenic headaches, insomnia and fatigue, post-traumatic anxiety and stress with depressive episodes and chronic pain syndrome.
15I place little weight on the report of Dr. West for several reasons. While Dr. West does note S.D.’s subjective complaints about her accident-related symptomatology, he did not provide any evidence of functional impairment. Second, Dr. West provided no evidence that he followed the AMA Guides in diagnosing chronic pain syndrome, while not required, would be helpful in understanding the extent of any functional limitations, and from the list of documents he reviewed, it appears he did not review the s. 44 assessment reports. Third, Dr. West failed to consider intervening events, for example, S.D.’s post-accident fall at work, where she injured her left arm, abdomen and back. Lastly, as an orthopaedic surgeon, I place little weight on the diagnoses Dr. West provided regarding S.D.’s accident-related psychological impairments as it falls outside the scope of the doctor’s expertise.
16For the reasons set out above, S.D. has not established on a balance of probabilities that her accident-related physical injuries require assessments or treatment beyond the MIG limit. Therefore, the disputed OCF-18s for physical treatment, the orthopaedic and neurological assessments are not reasonable and necessary.
17Despite my finding, I must still determine if S.D. suffered psychological impairments that warrant removal from and require treatment beyond the MIG limits.
Psychological Impairments
18I find that S.D. has established that the OCF-18s for a psychological assessment and treatment are reasonable and necessary.
19In the March 12, 2019 psychological report of Dr. Vitelli, S.D. notes her subjective complaints about her psychological post-accident well-being. Upon testing, Dr. Vitelli states that S.D. scored in the severe range for reported anxiety symptoms, moderate levels of depression, average for a pain patient on the somatization scale and persistent pain which is exacerbated as a result of sitting or standing for a long period of time, lying down, or bending. Dr. Vitelli diagnoses S.D. with General Anxiety Disorder, Major Depressive Disorder, and Specific Phobia: Situational Type: Vehicular.
20Aviva relies on the November 28, 2017 report of its s. 44 assessor, Dr. Marino in support of its position regarding S.D.’s accident-related psychological impairments. On examination, Dr. Marino opined that S.D. scored above the acceptable standard on the malingering symptomatology scale, in the severe range for depression and anxiety, and in the average range for depression and somatic problems. Despite these findings, Dr. Marino determined that the results of psychometric measures were considered unreliable and invalid. Further, Dr. Marino noted that there were a number of inconsistencies in the clinical interview, however, there was no indication of what Dr. Marino found inconsistent. Dr. Marino concluded there has not been any significant or material changes in her emotional functioning in relation to her pre-accident functioning, specifically, her social anxiety.
21On the evidence, I prefer the report of Dr. Vitelli, that S.D. suffers from severe depression and anxiety as a direct result of the accident. I find that Dr. Marino’s report is contradictory, in that objective testing reveals ‘severe’ findings, yet he opines that “there is no reliable or valid information to conclude with any degree of confidence that S.D. currently presents with a psychological diagnosis that is directly attributable to the index accident.” Both Dr. Vitelli and Dr. Marino conducted similar objective testing, which yielded similar results, so, I find it difficult to place more weight on a report that does not support that further investigation and treatment is reasonable and necessary.
22As such, I find that the OCF-18 for a psychological assessment and the OCF-18s for psychological treatment are reasonable and necessary.
Chronic Pain
23Aviva relies on the six criteria under the AMA Guides as it relates to whether S.D. suffers from chronic pain as a result of the accident. While the AMA Guides criteria are helpful with my analysis, I do not find that S.D. has demonstrated how the criteria establish that she suffers from functional limitation as a result of the accident. The AMA Guides identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome: the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; excessive dependence on health care providers, spouse, or family; secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; a 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; and the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.
24Upon review, I find that there is limited evidence that S.D. meets three of the six criteria. For example, while there is medical evidence that she has been prescribed medication to deal with her social anxiety, this is a pre-existing condition, that is not related to the accident. S.D. indicated that she does not do as much housecleaning or other daily activity tasks to the same extent as pre-accident, however, she is still able to perform the duties. There is no evidence she is excessively dependent on health care providers or her family, she is still able to work at her full-time teaching position and her part-time job(s), and psychologically, she has reported to both her own examiners and the s. 44 assessors, that other life factors have contributed to her psychological well-being, including her ongoing pre-accident anxiety.
25While I am empathetic that she still has ongoing pain, I disagree with the reports S.D. relies on that suggests her accident-related injuries result in chronic pain because they do not consider any of the above criteria in assessing chronic pain syndrome. Consequently, I find that S.D. has not established that she suffers from chronic pain as a result of the accident.
CONCLUSION
26S.D. has demonstrated that her accident-related psychological impairments require treatment beyond the MIG limit. Therefore, she is entitled to the OCF-18 for a psychological assessment and psychological treatment. Interest is payable in accordance with s. 51.
27S.D. has failed to demonstrate that the disputed OCF-18s for physical treatment are reasonable and necessary. In addition, the OCF-18s for an orthopaedic and neurological assessment are not reasonable and necessary. No interest is payable.
Released: November 16, 2021
Derek Grant, Adjudicator