Licence Appeal Tribunal File Number: 20-001450/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:
Asha Natkunaseelan
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Kiro Soliman, Paralegal
For the Respondent:
Patrick Sinclair, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant ("A.N.") was injured in an accident on July 1, 2018, and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (including amendments effective June 1, 2016). Economical denied the disputed benefits on the basis that it determined that A.N.'s accident-related injuries were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (the "MIG"). A.N. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Are A.N.'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 the medical benefit in the amount of $1,988.29 for physiotherapy services, recommended by Healthmax Physiotherapy – Thornhill, in a treatment plan (OCF-18) submitted November 24, 2018, denied on December 4, 2018, reasonable and necessary?
c. Is the cost of examination expense in the amount of $2,460.00 for a chronic pain assessment recommended by Healthmax Physiotherapy – Thornhill, in an OCF-18 submitted May 4, 2019, denied on May 6, 2019, reasonable and necessary?
d. Is the cost of examination expense in the amount of $2,460.00 for a psychological assessment, recommended by Healthmax Physiotherapy – Thornhill, in an OCF-18 submitted July 3, 2019, denied July 11, 2019, reasonable and necessary?
3Is Economical liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to A.N.?
4Is A.N. entitled to interest on any overdue payment of benefits?
FINDINGS
5A.N. has not established that her accident-related injuries and impairments require removal from and treatment beyond the MIG limit. The MIG limit has been exhausted, therefore the OCF-18s are not reasonable and necessary, and no interest is payable.
6As there are no benefits payable, costs or an award are not payable.
BACKGROUND
7A.N. was involved in a previous motor vehicle accident on February 1, 2016 in which she suffered lower back pain, right and left shoulder pain, anxiety, major depressive disorder, and post-traumatic stress disorder.
8As a result of the previous accident, A.N.'s position is that these pre-existing injuries and impairments preclude her from recovery under the MIG.
9Economical submits that A.N.'s pre-2018 accident medical history is significant for several psychological diagnoses, which may have arisen or were exacerbated by the 2016 accident. Prior to the 2016 accident, she was diagnosed with post-traumatic stress disorder, major depressive disorder, and social anxiety disorder. For the period of 2016 to September 2019, A.N. received psychological treatment from Dr. Urson as well as a social worker. In 2018, A.N. also attended group sessions for anxiety management. In March 2018, she attended an attention deficit hyperactivity disorder clinic and presented with complaints of social isolation, and anxiety at school.
10Although A.N. submits she suffered pre-existing physical injuries, there is no evidence that demonstrates that a health practitioner documented that her pre-existing injuries would prevent her from reaching maximum medical recovery if kept within the confines of the MIG.
11I note that A.N. has filed an application seeking a determination of catastrophic ("CAT") impairment as a result of the 2016 accident.
ANALYSIS
Applicability of the MIG
12Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured sustains impairments that are 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." In order to be removed from the MIG, an insured must establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition supported by compelling medical evidence stating that the condition precludes 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 be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.
Physical Injuries
13A.N. submits that as a result of the subject accident, she suffers from neck and upper back injuries. On examination at a September 24, 2018 visit, her family physician Dr. Ponrajah noted mild pain of the cervical and thoracic spine, thoracic myofascial strain and tenderness, left shoulder strain and tenderness with abduction to 60 degrees. A February 17, 2019 diagnostic imaging report concluded that A.N. has mild thoracic curvature, right convex and mild annular bulges throughout the lumbar spine. At a February 26, 2019 visit, Dr. Ponrajah diagnosed A.N. with lumbar spine mild hypertonicity of the paraspinal muscles as well as mild scoliosis and lumbar disc bulge.
14In response, Economical submits that A.N sustained minor injuries and that post accident, she returned to school and her work at Tim Hortons. Although it is not clear as to why, A.N. stopped working at Tim Hortons in June 2019. Further, Economical submits that A.N. argues removal from the MIG on the basis that it did not review various medical records. Economical contends that it did not review medical records, as the records that A.N. relies on appear to be related to the 2016 accident. Further, Economical posits that it has not received authorization to share content between the files, even after the Tribunal application was filed. Economical relies on the s. 44 reports of general physician Dr. Levy and psychologist Dr. Rubenstein to support the determination that A.N.'s accident-related injuries and impairments are treatable within the MIG.
15I agree with Economical and find that A.N. has not demonstrated that her accident-related impairments warrant removal from the MIG. There is no compelling evidence that her accident-related physical complaints are not predominantly minor injuries under s. 3. And there is no objective evidence to suggest a tear or fracture. There is no OCF-3 evidence to suggest that A.N. suffered a substantial inability to return to her employment, and there is no dispute that A.N. returned to both school and work following the accident. While I am aware of her subjective pain reports, Dr. Levy opined that A.N. suffered predominantly minor injuries as a result of the accident, and concluded that her injuries were treatable within the MIG, which is in line with Dr. Ponrajah's clinical notes and records which note that A.N.'s physical injuries fall within the definition of 'minor and she had normal range of motion in her lumbar spine.
Psychological Impairments
16It is well-settled that the Tribunal may determine that psychological impairments may warrant removal from the MIG, as psychological impairments are not captured by the definition of a minor injury under the Schedule. There is no dispute that A.N. has been dealing with various psychological challenges prior to the subject accident, and even before the previous accident. However, there is little evidence that the subject accident has exacerbated her pre-existing psychological condition, or that her pre-existing psychological preclude recovery under the MIG.
17For example, A.N. reported to Dr. Urson, her treating psychologist, that her psychological complaints are related to her experiences at school. Regarding the accident, there are two records of complaints to Dr. Urson, September 2018 and October 2018. There are no additional medical records of accident-related complaints beyond October 2018. Of particular note, the s. 25 CAT assessors note her psychological well-being was relatively unchanged during the period of 2017 to 2019 while under the care of Dr. Urson. Further, despite the diagnosis of depression in 2017, the s. 25 assessors opined that this diagnosis remained unchanged throughout 2018.
18The only opinion on A.N.'s psychological well-being as it relates to the 2018 accident, is the s. 25 assessment of, psychologist Dr. Lotfalizadeh. Dr. Lotfalizadeh opined that A.N. had no previous medical conditions or diagnosis that would account for her symptomatology, even after being advised of her pre-existing conditions. From the evidence, Dr. Lotfalizadeh's failure to address A.N.'s pre-existing psychological history may have erroneously resulted in an opinion that A.N.'s psychological impairments were solely as a result of the subject accident. I note that Dr. Lotfalizadeh's report did not address the failed validity measures, which might understandably impact an accurate diagnosis.
19In contrast, the s. 44 assessor, psychologist Dr. Rubenstein, opined that A.N.'s reported difficulties did not meet the threshold to warrant a diagnosis. Dr. Rubenstein also noted that there were compromised validity findings, which impacted making an accurate diagnosis. Dr. Rubenstein concluded that despite A.N.'s pre-existing condition, on examination, she would not be prevented from reaching maximum medical recovery under the MIG and did not have a psychological diagnosis as a result of the accident.
20I prefer the opinion of Dr. Rubenstein, as he relied on a more fulsome medical history, and more accurately determined that the validity issues precluded a diagnosis that A.N. suffered an accident-related psychological impairment.
Chronic Pain
21The Tribunal has determined that chronic pain or chronic pain syndrome with functional impairment may warrant removal from the MIG. A.N. argues that she should be removed from the MIG, relying on a referral from her family physician to a pain clinic for chronic pain.
22Upon review, the letter is undated, and fails to specify which accident is being referenced. Further, there is no diagnosis of chronic pain or chronic pain syndrome, but indicates pain, lower back. It's important to point out that the letter indicates that A.N. presented with normal range of motion in her lumbar spine. In addition, despite the referral, A.N. did not direct me to any evidence that she followed up on the referral.
23While a formal diagnosis of chronic pain syndrome is not required, at minimum, A.N. must demonstrate functional impairment as a result of her pain. A.N. fails to provide any analysis to explain how she meets any of the six criteria under the AMA Guides. As a result, A.N. has failed to demonstrate that she suffers from chronic pain syndrome.
24On the evidence, A.N. has failed on a balance of probabilities to meet her burden or address Economical's response to her claims. As such, I find that as a result of the July 1, 2018 accident, A.N. sustained injuries and impairments that are predominantly minor, and therefore subject to treatment within the MIG.
Are the treatment plans reasonable and necessary?
25I have determined that A.N. has not demonstrated that removal from and treatment beyond the MIG is required. As the MIG limits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, no interest is payable under s. 51.
CONCLUSION
26A.N. has not demonstrated that her accident-related impairments warrant removal from or treatment beyond the MIG limits. The MIG limits have been exhausted, therefore the disputed OCF-18s are not reasonable and necessary.
27Further, as no benefits are payable, it follows that an award or costs are not payable, as Economical cannot have been found to have unreasonably withheld or delayed payment of benefits.
Released: November 22, 2021
Derek Grant
Adjudicator