Released Date: 03/30/2021
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:
Gunasakila Sribaskaran
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Clifford Singh, Counsel
For the Respondent:
Patrick Baker, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant was involved in an accident on November 10, 2012, and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Certas denied the benefits on the basis of its determination that the applicant sustained predominantly minor injuries treatable within the Minor Injury Guideline (“MIG”) and that the benefits claimed are not reasonable and necessary as a result. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
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 and in the Minor Injury Guideline?
b. Is the applicant entitled to $28,107.00 for a catastrophic assessment, recommended by Novo Medical in a treatment plan submitted to the respondent on August 29, 2019?
c. Is the applicant entitled to $1,995.33 for a psychological examination, recommended by Novo Medical in a treatment plan submitted to the respondent on April 3, 2019?
d. Is the applicant entitled to interest on any overdue payment of benefits?
e. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant has not met her burden to demonstrate that her accident-related injuries warrant treatment beyond the limits of the MIG or that she is entitled to payment for either of the treatment plans in dispute, interest or an award.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”
5Further, 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 psychological conditions may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
6While the accident occurred in 2012, as I understand it, the applicant submits that she should be removed from the MIG because her injuries “are not predominantly minor in nature and she had a pre-existing medical condition that, while asymptomatic and unknown before the accident, substantially worsened post-accident, causing additional pain and delayed healing.” In her submissions, the applicant states that she has chronic pain, psychological impairments and that her pre-existing condition entails degenerative changes in her lumbar spine. To this end, she relies on an OCF-3, the OCF-18s in dispute, treatment records from The Rehab Centre, her family physician’s clinical notes, Certas’ s. 44 reports and her own self-reporting.
7In response, Certas submits that the applicant has failed to demonstrate that her accident-related impairments warrant treatment beyond the MIG. It asserts that the applicant sustained soft-tissue injuries and has not met the criteria for removal from the MIG under s. 18(2). In addition, Certas submits that there is no evidence of a psychological impairment and that the applicant has not provided objective medical evidence to prove that she suffers from chronic pain.
8I agree with Certas and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. First, the actual physical injuries identified all fall squarely within the definition of a minor injury under the Schedule, as they are consistently identified as soft tissue or sprain and strain-type injuries in nature. Further, the applicant’s complaints of pain to her family physician are inconsistent, rarely tied to the accident and fall off completely in the last five years. The other ailments identified—whiplash, tendonitis, osteoarthritis and mild degenerative changes in her spine—are either minor injuries or age-related conditions not attributable to the accident. Accordingly, I find there is no indication in the file that her accident-related impairments should be considered outside of the definition of a minor injury under s. 3(1) at over eight years post-accident.
9Second, 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 submits that Certas’ s. 44 assessor, Dr. Marchuk, reported that she has pre-existing (asymptomatic) degenerative changes of the lumbar spine that may delay her recovery, which automatically entitles her to removal from the MIG.
10I disagree. As Certas submits, this condition is age-related and there is no evidence that it was documented by a health practitioner prior to the accident. Indeed, in the background section of her own submissions, the applicant states that she “had no significant pre-existing medical conditions” and was a “healthy woman” at the time of the accident, so I find it somewhat disingenuous to argue for removal from the MIG on this ground where eight years have passed since the accident. In any case, removal from the MIG on this ground requires an opinion that a pre-existing condition would preclude maximal medical recovery under the MIG. On review of the report, Dr. Marchuk opined that the condition may delay recovery, not that the condition would preclude maximal medical recovery if the applicant is kept within the MIG.
11Next, 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 is the alleged duration and intensity of her pain. While not strictly required, the applicant did not direct the Tribunal to a clear, objective diagnosis of chronic pain causing functional impairment or of chronic pain syndrome, specifically, relying only on the OCF documents and her self-reporting of the duration of her pain.
12While the duration of pain is one factor, this alone does not satisfy her burden. In contrast, Certas provided submissions on the six criteria under the AMA Guides to demonstrate that the applicant does not suffer from chronic pain. 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. However, the applicant did not offer substantive or even reply submissions to rebut any of Certas’ arguments.
13On the evidence, I find Certas’ submissions on the six criteria to be persuasive and especially so where there are no records in evidence after 2016 to show objective ongoing or contemporaneous impairments and complaints.
14For example, the applicant was not consuming excessive prescription medication beyond the recommended duration. I agree with Certas that there is no evidence of excessive dependence on health care providers or the applicant’s family where the applicant has been employed consistently and the complaints to her family physician that can reasonably be attributed to the accident are limited. Further, the applicant has continued to work since the accident and has not presented argument that her recreational or social activities have been affected. In addition, I agree that there is little to no evidence of disruption of function or activity and there is no evidence of secondary physical deconditioning or fear avoidance of physical activity. Finally, while the applicant seeks a psychological examination, I also agree with Certas that there is no evidence of psychosocial sequalae related to the accident where there is limited reference to psychological, emotional or cognitive issues in the family physician records.
15Finally, the Tribunal has held that applicants may escape the MIG if they are diagnosed with a psychological impairment, as psychological impairments do not fall within the definition of a minor injury under the Schedule. Here, I again agree with Certas that there is no evidence in support of psychological complaints or a psychological diagnosis after the accident. In her submissions, the applicant asserts that she continues to experience “psychological, cognitive and emotional symptoms, as indicated in the medical records in the weeks, months, and years” following the accident.
16However, the basis for this claim seems to stem from a handwritten note in the OCF-3 that simply states “psychological factors involved” and the applicant’s own self-reporting during the s. 44 psychiatry IE four years after the accident in 2016, where Dr. Wiesenthal did not even make a psychological diagnosis but instead attributed her stress to her difficulties caring for her ailing husband and the housework that accompanies it. Further, there are no reports of psychological or emotional symptoms in the family physician records to contemporaneously attribute any symptoms to the accident and the applicant was not referred for investigation or treatment over the last eight years. In this vein, I agree with Certas that the submission of an OCF-18 for a psychological assessment seven years post-accident, with no objective evidence of any complaints prior to, is not evidence of a psychological impairment justifying removal from the MIG.
17Accordingly, I find the applicant has not demonstrated that she meets any of the grounds that would justify removal from the MIG at eight years post-accident. For these reasons, and in the absence of specific submissions from the applicant speaking to any remaining funds, treatment is limited to the $3,500 MIG cap.
Are the treatment plans reasonable and necessary?
18The applicant bears the burden of demonstrating that the treatment and assessment plans are reasonable and necessary. Having determined that the applicant suffered predominantly minor injuries that are subject to treatment within the MIG, it follows that the treatment plans in dispute are not reasonable and necessary.
19However, for completion, I do not find the psychological assessment recommended by Dr. Vitelli in April 2019 to be reasonable and necessary. For the same reasons described above, I find the applicant has not demonstrated that any alleged psychological or emotional symptoms are attributable to the accident that occurred seven years prior to the submission of the OCF-18 and where there is limited to no evidence of objective psychological complaints to her family physician, no referrals for investigation and no diagnosis during that time.
20In a similar vein, considering that the applicant remains within the MIG eight years post-accident, I do not find the $28,107 slate of 11 catastrophic assessments proposed by Dr. Getahun to be reasonable and necessary. Again, the applicant did not provide any medical evidence since 2016 that could possibly support her position that she sustained a catastrophic impairment as a result of the 2012 accident and especially so where her application before the Tribunal also featured a MIG determination.
21In any case, I agree with Certas that the applicant’s submissions on the proposed catastrophic assessments fall well-short of meeting her burden of proof. Her submissions contain no specific arguments or analysis to explain why this slate of assessments is necessary to prepare an application under s. 45, why the cost of same is reasonable under s. 25(1), or even which category of catastrophic impairment she believes would apply to her impairments. The OCF-18 itself is not particularly assistive in this regard either, as it does not provide the nexus between the items proposed and the applicant’s condition.
22Even without the required analysis to meet her burden, it is plainly obvious that many of the items listed in the OCF-18 are duplicative or unnecessary, as there are, for example, three types of neuropsychological evaluations, three types of psychiatric evaluations and several overlapping physical or functional evaluations. The OCF-18 is vague. The additional comments section is boilerplate. There are no specific details of the applicant’s condition or function whatsoever. For these reasons, I agree with Certas that there is no reasonable basis upon which to investigate whether the applicant sustained a catastrophic impairment as a result of the 2012 accident. Accordingly, I find the OCF-18 is not payable under s. 25. As no benefits are overdue, no interest is payable.
Section 10 Award
23The applicant also sought an award under s. 10 of O. Reg. 664, arguing that Certas was “well aware of the severity” of her conditions given the “litany of medical evidence” and that it chose to delay payment unreasonably. Under s. 10, the Tribunal may order up to 50% of the total benefits in dispute if it determines that an insurer unreasonably withheld or delayed the payment of benefits.
24An award is not appropriate. The applicant’s submissions fall well-short of the particulars required to consider an award. Further, given my determination that the MIG applies and where no benefits are owing to the applicant, it follows that the Tribunal cannot order an award. In any case, I find no evidence that Certas unreasonably withheld or delayed the payment of benefits, as alleged.
ORDER
25The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. She has not demonstrated that the assessments are reasonable and necessary or payable. Interest and an award do not apply. Her application is dismissed.
Date of Issue: March 30, 2021
________________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.