Released: February 9, 2021
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:
Ortenza Torchia
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Donata Di Iorio, Counsel
For the Respondent:
Rozlien Brikha, Counsel
HEARD
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on April 4, 2016, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Aviva denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
b. Is the applicant entitled to $2,000.00 for a chronic pain assessment recommended by Downsview Healthcare Inc. in a treatment plan (“OCF-18”) submitted December 19, 2017 and denied by the respondent July 23, 2017?
c. Is the applicant entitled to $115.00 (partially approved for $81.53) recommended by Bodyworx Vitality Inc. in a treatment plan submitted January 8, 2019 and denied by the respondent January 10, 2019?
d. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
e. Is the applicant entitled to interest on any overdue payment of benefits?
result
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $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.” An insured may be removed from the MIG if they can 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 combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that as a result of the accident she suffers from physical and psychological impairments and continues to require extensive treatment, justifying removal from the MIG. She asserts that her accident-related pain—particularly in her head, right wrist, right lower back, shoulders, upper back and left knee—has become chronic in nature and that her psychological symptoms—anxiety, flashbacks, sweating while driving, and constant worry about dying—also justify removal from the MIG. Further, she submits that she is no longer able to perform her activities of daily living, due to both her physical and psychological impairments, as well as her pre-existing headaches that were exacerbated by the accident. She relies on the clinical notes and records of her family physician, Dr. Freedman; the opinion of her neurologist, Dr. Levitan; and the opinions of Dr. Karmy and Dr. Pivtoran from the OCF-18 in dispute that she has not achieved maximal medical recovery.
6In response, Aviva submits that the applicant has failed to demonstrate that her accident-related impairments warrant treatment beyond the MIG. It asserts that the applicant’s evidence that she suffers from chronic pain does not meet three of the six the criteria under the AMA Guides, that her accident-related complaints to her family physician are limited, that she has never been diagnosed with chronic pain and that she has returned to work full-time. Further, Aviva submits that her accident-related psychological symptoms have resolved and there is no indication that maximal medical recovery is prevented if she is kept within the MIG. To this end, Aviva relies on the s. 44 physiatry report of Dr. Marchuk, who found the applicant sustained minor injuries as a result of the accident.
7I agree with Aviva and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. First, the actual physical injuries identified in the OCF-3 and the clinical notes and records of Dr. Freedman are all contusion and sprain and strain-type injuries that fall squarely within the definition of a minor injury under the Schedule: wrist strain, low back strain, knee contusion, upper back strain and neck strain. A cervical spine x-ray dated April 6, 2016 revealed normal findings. The soft-tissue neck x-ray dated May 1, 2017 also came back normal. The s. 44 report of Dr. Marchuk from July 2018 found predominantly minor physical injuries. Accordingly, I find there is limited indication in the file that her physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1).
8Second, with regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant cites to her pre-existing history of headaches that are documented in the medical records as well as Dr. Levitan’s opinion that her migraines were exacerbated by the accident.
9While this pre-existing condition is documented by a health practitioner, I was not directed to an opinion from Dr. Levitan or from Dr. Freedman that the applicant’s recovery from migraines would be precluded if she is kept within the confines of the MIG, which is a strict requirement of s. 18(2). Indeed, Dr. Levitan’s report states that as of June 2016 the applicant’s headaches were “relatively quite mild” with no neck pain. Further, Dr. Levitan opined that “hopefully she’ll be able to limit her naproxen” and that he “reassured her” and that there was “no need for neurological investigation.” In order to escape the MIG under s. 18(2), the pre-existing condition needs to be documented and there needs to be compelling evidence that the condition will prevent maximal medical recovery. I find the applicant’s evidence falls well short of the compelling standard where Dr. Levitan made no formal recommendations and did not even address the MIG.
10Next, as the applicant submits, the Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. Here, the basis for the applicant’s chronic pain claim appears to be from the additional comments section of the OCF-18 in dispute that recommends a chronic pain assessment. In the treatment plan itself, Dr. Pivtoran diagnosed the applicant with “multiple chronic injuries” due to the fact she was still in pain at the time the plan was submitted in December 2017. The OCF-18 also identifies a number of impairments that are not documented anywhere else, for example, chronic cervical joint dysfunction and thoracic joint dysfunction. The plan states that the applicant had not reached maximal medical recovery.
11Despite making a diagnosis, it is well-settled that treatment plans are not medical evidence and the treatment plan was seemingly not accompanied by a report that would provide more analysis to support the diagnosis. In any case, where many of the impairments in this OCF-18 are not corroborated elsewhere in the medical records, where it is unclear if Dr. Pivtoran reviewed any of the applicant’s medical records or if he relied simply on her self-reporting and where Dr. Freedman did not diagnose the applicant with chronic pain, chronic pain syndrome and did not make a referral for an assessment on same, I assign limited weight to the treatment plan, as it is not objective medical evidence.
12However, to support her assertion that she suffers from chronic pain, the applicant did provide substantive submissions on the six criteria under the AMA Guides. While not binding, the Tribunal has adopted the six criteria as a tool for assessing chronic pain claims. In order to satisfy her burden, the applicant should demonstrate that she meets at least three of the six criteria. Her submissions only focused on three of the criteria: 4) Withdrawal from social milieu, including work, recreation, or other social contracts; 5) 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, 6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
13Specifically, the applicant submits that if she is granted a chronic pain assessment that she would meet criteria 4 and 5 because she is unable to participate in household activities and chores due to her limitations as a result of pain and other accident-related injuries; she is unable to participate in childcare activities without assistance; she experiences anxiety when in a motor vehicle; her chronic pain and traumatic headaches have prevented her from walking the dog and she is unable to work on a computer for more than half an hour at a time and requires frequent breaks. With regards to criteria 6, she again points to the OCF-18 where Dr. Karmy and Dr. Pivtoran state that she experiences various psychological barriers to her recovery and the clinical notes from Dr. Freedman that indicate a diagnosis of anxiety that developed subsequent to the accident.
14With respect, I find limited evidence to support the applicant’s assertions that she meets three of the criteria enumerated in the AMA Guides. Her three paragraphs of submissions on these criteria do not actually cite to any contemporaneous or consistent objective indications of the functional struggles she claims. Further, I find much of the evidence she relies on is outdated, as it is based on self-reporting from 2016 and 2017, with limited accident-related notations in the clinical notes beyond 2018. While this is not determinative on its own, I find it relevant where the applicant submits that she has been in pain and functionally impaired at all times post-accident but has barely exhausted the MIG funding in the five years leading up to this hearing.
15In any case, again, the OCF-18 on which she relies was not accompanied by a report or opinion that would demonstrate that the findings of Dr. Pivtoran are not based entirely on the applicant’s self-reporting and, again, the OCF-18 is not persuasive medical evidence. I also note that the applicant returned to work full-time and reported to Dr. Marchuk that she is capable of completing many of her household and personal tasks, so I find it difficult to conclude that she has withdrawn from her work, recreational or social contracts or that her pre-accident function has not been restored in order to meet criteria 4 and 5. Compounding these weaknesses is the normal diagnostic imaging results, Dr. Marchuk’s s. 44 opinion that her injuries were minor and the fact that Dr. Freedman has never diagnosed the applicant with chronic pain or chronic pain syndrome despite being her treating physician at all material times post-accident.
16Finally, I am alive to the OCF-3 that lists anxiety as an impairment and the applicant’s self-reporting of anxiety and sleep issues. However, I note that Dr. Freedman did refer her for psychological counselling due to her anxiety one-month post-accident, but it is unclear if the applicant ever followed through with the referral in the five years since. Further, there are only two OHIP codes related to anxiety in the rather voluminous clinical notes and records provided. Dr. Freedman’s January 2018 notation about the applicant’s anxiety does not mention the accident and her August 2018 notation indicates anxiety about being unable to speak to her supervisor at work. While the applicant may have suffered from anxiety post-accident, on the objective medical evidence, I ultimately agree with Aviva that there is limited indication that her accident-related anxiety continues to affect her in order to meet criteria 6 or to justify removal from the MIG on the ground of a psychological impairment. Accordingly, I find the applicant has not demonstrated that she meets three of the six criteria under the AMA Guides that would justify removal from the MIG based on chronic pain.
17For these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
18Having determined that the applicant has not demonstrated that removal from the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
Section 10 Award
19The applicant also sought an award under s. 10 of O. Reg. 664, submitting that Aviva unreasonably withheld the payment of benefits and has kept her within the MIG. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. As the applicant was unsuccessful and is not entitled to payment of benefits, I find an award is not appropriate.
ORDER
20The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.
Released: February 9, 2021
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.