S.N. v. Intact Insurance Company, 2021 CanLII 28701
Release date: 2021/03/22
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:
S.N.
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Sevda Guliyeva, Paralegal
For the Respondent:
Jason Goodman, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant, S.N., was involved in an automobile accident on April 29, 2017, and sought benefits from the respondent, Intact Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”). The respondent denied the applicant certain medical benefits based on its determination that the applicant’s injuries are subject to treatment within the Minor Injury Guideline. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
b. Is the applicant entitled to receive a medical benefit in the amount of $3,355.20 for chiropractic treatment, recommended by Life Point Medical Inc. in a treatment plan dated May 17, 2017, and denied by the respondent on July 11, 2017?
c. Is the applicant entitled to receive a medical benefit in the amount of $1,236.85 for chiropractic treatment, recommended by Life Point Medical Inc. in a treatment plan dated September 6, 2017, and denied by the respondent on September 19, 2017?
d. Is the applicant entitled to receive a medical benefit in the amount of $3,090.09 for chiropractic treatment, recommended by Life Point Medical Inc. in a treatment plan dated September 27, 2017, and denied by the respondent on October 6, 2017?
e. Is the applicant entitled to receive a medical benefit in the amount of $4,266.47 for psychological treatment, recommended by Life Point Medical Inc. in a treatment plan dated October 19, 2017, and denied by the respondent on November 5, 2017?
f. Is the applicant entitled to receive a medical benefit in the amount of $1,845.72 for psychological treatment, recommended by Life Point Medical Inc. in a treatment plan dated October 2, 2017, and denied by the respondent on October 17, 2017?
g. Is the applicant entitled to receive a medical benefit in the amount of $2,695.22 for chiropractic treatment, recommended by Life Point Medical Inc. in a treatment plan dated December 7, 2017, and denied by the respondent on December 14, 2017?
h. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
i. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to meet his evidentiary onus of establishing, on a balance of probabilities, that he is entitled to treatment outside the Minor Injury Guideline. The funding available for the treatment of the applicant’s accident-related injuries has been exhausted, and I need not consider whether the medical benefits he claims are reasonable and necessary as a result of the accident. As no benefits are payable, no interest is owing. There is no basis for an award.
4The application is dismissed.
ANALYSIS
5To be eligible for the benefits claimed in this application, the applicant must demonstrate, on a balance of probabilities, that the injuries he sustained in the accident exceed the definition of a “minor injury” as set out in s. 3 of the Schedule. Section 3 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.”
6Under s. 18(1) of the Schedule, an accident-related impairment that is predominantly a minor injury will be subject to a $3,500.00 funding limit in accordance with the Minor Injury Guideline.
7The applicant submits that the Minor Injury Guideline does not apply because he sustained psychological impairments and physical impairments that have become chronic in nature as a result of the accident.
The applicant sustained soft tissue injuries in the accident
8The medical evidence tendered by the applicant shows that he sustained predominantly minor, soft tissue injuries in the accident. A Disability Certificate (OCF-3) dated May 8, 2017 completed by Dr. Alexander Yu, Chiropractor, lists accident-related injuries that fall squarely within the Schedule’s definition of a minor injury: soft tissue sprains, strains, and their clinically associated sequelae, or consequences.
9The applicant’s family physician, Dr. Nadin Alo, assessed the applicant’s accident-related injuries as “sprains”. This appears in Dr. Alo’s clinical note dated May 8, 2017. In December 2017, the applicant visited Dr. Alo again. The clinical note from that visit cites “mechanical back pain.”
10In 2018, the applicant switched family physicians. His new physician, Dr. Fawaz Jamil, noted on December 8, 2018, that the applicant had suffered from “low back pain for long time on and off since MVA 2 years ago.” Dr. Jamil assessed the applicant with mechanical back pain and recommended physiotherapy. On December 22, 2018, the applicant returned to Dr. Jamil complaining of chronic back pain since the accident. Dr. Jamil noted that the applicant’s work involved heavy lifting. His assessment and recommendations remained unchanged. On January 6, 2019, Dr. Jamil saw the applicant for his back pain. The clinical note from this visit cites that the applicant’s work involved “a lot of bending”. Dr. Jamil recommended that the applicant avoid heavy lifting.
The applicant has failed to establish accident-related chronic pain
11The applicant submits that he has physical impairments that have become chronic in nature. He submits that he did not achieve maximum medical recovery within 12 weeks. He submits that his pain has resulted in functional impairment because he is no longer able to socialize as he did before the accident.
12The applicant has not met his onus of establishing pain of the severity, duration, and functionally disabling extent necessary to remove him from the Minor Injury Guideline. The evidence he has presented does not show, on a balance of probabilities, that his accident-related injuries developed into a chronic pain condition that is more than the clinically associated consequences of those injuries.
13The clinical notes and records of the applicant’s family physicians, Drs. Alo and Jamil, document sporadic complaints of back pain. Dr. Jamil’s records denote the physical demands of the applicant’s job, including lifting and bending, as a factor responsible for his pain symptoms.
14The records in evidence show the applicant sought no medical treatment from his primary care providers for a full year between December 2017 and December 2018. This is despite the repeated notations by his treating chiropractor, Dr. Tam Phan, that the applicant would “attempt to see his family physician” and that his “recovery will be dependent on co-management with his family physician and other health care providers.” Dr. Phan’s clinical notes and records offer little else by way of an assessment of the applicant’s complaints, other than to suggest that “active rehabilitation” would assist in his recovery.
15The only evidence of functional impairment the applicant directs me to is contained in the Section 44 Insurer’s Examination conducted by Dr. Monique Costa-El Hage, a psychologist. Dr. Hage refers to a reduction in the applicant’s social activities as a result of his pain. However, the applicant also reported to Dr. Hage that he remained independent in self-care.
16Dr. Pravesh Jugnundan, Family Physician and Section 44 examiner, opined that the applicant’s persistent pain complaints are not consistent with the mechanism of the accident, in which the applicant sustained, in his opinion, non-specific mechanical back pain.
17Taken as a whole, the evidence does not establish a causal relationship between the applicant’s soft tissue sprains and strains, documented soon after the accident, and his persistent pain symptoms. There is a significant gap in the objective medical evidence to suggest that the applicant’s ongoing pain complaints are related to the accident. Furthermore, he has not persuasively shown a level of functional limitation associated with chronic pain or chronic pain syndrome.
The applicant has failed to establish accident-related psychological impairment
18The Minor Injury Guideline contemplates that some psychological symptoms may be clinically associated with minor accident-related injuries. Treatment for these symptoms is provided for within the $3,500.00 coverage limit under the Minor Injury Guideline. To be removed from the Minor Injury Guideline based on psychological injuries, an applicant must show an impairment of a psychological nature as a result of the accident. It is settled in the case law of this Tribunal that a diagnosis made by a qualified practitioner under the Diagnostic and Statistical Manual – 5th edition is required.
19The applicant submits that he has been diagnosed with moderate situational (isolated) phobia as a result of the accident. He submits that Dr. Svetlana Gabidulina, Psychologist, made this diagnosis when she assessed him on October 11, 2017.
20The respondent submits that there is no mention in the contemporaneous medical evidence of any psychological symptoms associated with the accident. It relies on the opinion of Dr. Hage that the applicant falls short of meeting the criteria for specific phobia and that his anxiety symptoms are subclinical.
21I have reviewed the July 10, 2017 Psychological Rehabilitation Pre-Screening Report attributed to Dr. Gabidulina, as well as her October 11, 2017 Psychological Assessment report. I have compared these reports to the Section 44 Psychological Assessment by Dr. Hage. I accept the opinion of Dr. Hage over Dr. Gabidulina for these reasons:
a. The Psychological Rehabilitation Pre-Screening Report is attributed to Dr. Gabidulina, but it is written in the first-person plural. The other author of the report is not identified, and there is no discussion of the other author’s credentials. If a supervisory relationship existed between the two authors, the nature of that relationship is not disclosed. It is unclear what role Dr. Gabidulina played in the pre-screening. It is also unclear whether the other assessor is qualified to diagnose psychological conditions, even provisionally.
b. The October 11, 2017 Psychological Assessment report incorporates substantial tracts of the Pre-Screening Report word-for-word. Again, it is unclear the extent to which Dr. Gabidulina, who is qualified to diagnose psychological conditions, participated in a direct clinical encounter with the applicant.
c. Dr. Gabidulina did not review or consider any of the applicant’s medical records in making her assessment. This undermines the strength of her conclusions as to the causation of the applicant’s psychological concerns.
d. Dr. Hage’s assessment is consistent with the clinical notes and records of Marina Mazer, Registered Psychotherapist, who provided psychological treatment to the applicant. On October 23, 2017, Ms. Mazer noted that the applicant was well and not exhibiting anxiety or depressive symptoms. This suggests, as Dr. Hage opined, that the applicant’s psychological concerns were the clinically associated sequelae, or consequences, of his minor injuries.
22Treatment for the sequelae of minor injuries is contemplated in the Minor Injury Guideline. The applicant has already received treatment within the Minor Injury Guideline and the psychological symptoms documented in evidence do not rise to a level warranting additional treatment or assessment.
No basis for an award
23The applicant has presented no evidence to show that the respondent unreasonably withheld or delayed the payment of benefits. I have reviewed the medical evidence the applicant presented in support of his claims. That evidence supports the respondent’s position on the applicant’s entitlement to the medical benefits he seeks. The respondent properly denied the applicant’s claims. There is no unreasonable conduct shown in the record before me.
CONCLUSION
24The applicant has not met his evidentiary onus. He has failed to demonstrate entitlement to the benefits he seeks. No interest is owing. There is no basis for an award.
25The application is dismissed.
Date of Issue: March 22, 2021
Theresa McGee, Vice-Chair