Release date: 2021/03/08
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:
[LD]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Daniela Corapi
APPEARANCES:
For the Applicant:
[LD], Applicant
Marc Golding, Paralegal
For the Respondent:
Raji Kulen, Claims Representative
Nabila Majidzadeh, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant applied for medical benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). These benefits were denied by the respondent because he was placed into the minor injury guideline (“MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.
2The accident took place at approximately 9:00 a.m. on July 15th, 2016 (the “accident” or the “first accident”). The applicant was a front seat passenger in his mother's vehicle, and states that he was wearing his seatbelt. He states that, as his mother was attempting to make a left turn, a vehicle suddenly and without any warning hit the passenger side where he was sitting. He states that he sustained both physical and psychological injuries as a result of the accident.
3The applicant submits that the treatment plans should be approved because:
i. his injuries are not minor as defined in the Schedule and fall outside of the MIG;
ii. the treatment sought is reasonable and necessary; and
iii. he has pre-existing condition(s) that remove him from the MIG.
4The respondent denied the treatment plans and submits that:
i. the applicant’s injuries are minor injuries and, thus, treatment should be pursuant to the MIG;
ii. the treatment plans are not reasonable and necessary; and
iii. the injuries complained of are the result of a subsequent motor vehicle accident.
5If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.
6If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
RESULT
7Based on the totality of the evidence before me, I find:
i. The applicant sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit on treatment;
ii. The applicant is not entitled to the disputed treatment plans; and
iii. the applicant is not entitled to interest.
ISSUES
8The issues in dispute are:
i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?
ii. Is the applicant entitled to a medical benefit in the amount of $3,948.91 for physiotherapy services recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on November 10, 2016 and denied by the respondent on January 9, 2017?
iii. Is the applicant entitled to a medical benefit in the amount of $1,920.53 for psychological services recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on November 28, 2016 and denied by the respondent on January 9, 2017?
iv. Is the applicant entitled to a medical benefit in the amount of $3,191.25 for physiotherapy services recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on January 23, 2017 and denied by the respondent on January 31, 2017?
v. Is the applicant entitled to a medical benefit in the amount of $2,893.91 for physiotherapy services recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on March 15, 2017 and denied by the respondent on March 29, 2017?
vi. Is the applicant entitled to a medical benefit in the amount of $3,865.52 for psychological services recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on April 27, 2017 and denied by the respondent on May 17, 2017?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
LAW
Applicability of the Minor Injury Guideline
9The term “minor injury” is defined in s. 3 of the Schedule 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.”
10Section 18(1) limits the recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
11The onus is on the applicant to show that his injuries fall outside of the MIG.
ANALYSIS
POST-ACCIDENT EVENTS
12The applicant has a significant post-accident history. Subsequent to the accident which forms the subject of this dispute, he was involved in two further motor vehicle accidents in 2017 and 2018, as well as a physical altercation on April 27, 2016.
13Based on the evidence on a balance of probabilities, I find that the applicant suffered minor injuries as a result of the accident. The applicant’s family doctor, Dr. Sandhu, made a note in the applicant’s patient CPP dated August 19, 2016, indicating “MVA – Soft Tissue Injury – Resolved – 2016”, suggesting that the soft tissue injuries sustained in the accident were resolved.
14The applicant was involved in a second motor vehicle accident on February 2, 2017 (the “second accident”) which resulted in the applicant’s vehicle being rear-ended into a ditch. The applicant was taken to the hospital and reported right shoulder and neck pain.
15The applicant was involved in a physical altercation on August 19, 2016. In a CPP Report dated August 19, 2016, it states that the applicant was choked and now presents with pain in the neck, stiffness and a decreased range of motion (mostly on his right side). On April 27th, 2016, the applicant reported these injuries to Dr. Sandhu. He complained of pain in his neck, stiffness, and decreased range of motion, mostly on his right side. He was diagnosed with a neck strain and contusion. It was recommended that he apply localized heat or ice, take pain medication and attend physiotherapy.
16Finally, the applicant was also involved in a third motor vehicle accident which took place on December 2, 2018 (the “third accident”). The applicant sustained a facial injury; specifically, bleeding to his eye.
17The applicant requests that the Tribunal not give much weight to the respondent’s argument that the subsequent motor vehicle accidents exacerbated the injuries sustained in the first accident, leading to his current condition. In support of this position, the applicant states that Dr. Sandhu issued a treatment plan which was “nearly identical” to the treatment plan emerging from the first accident and that no significant physical trauma was visualized in the imaging examinations conducted on February 2, 2017 (emerging from second accident). Moreover, the applicant states that he continued to attend the same clinic and did not increase his frequency of treatment or complain of any new physical ailments following the second accident.
18I do not find the applicant's position persuasive. The applicant’s treating physician, Dr. Sandhu, indicated in his CPP note dated August 19, 2016, that the applicant’s physical injuries relating to the first accident were resolved (see above). Dr. Sandhu made a further note in the applicant’s patient CPP January 10, 2017, indicating “thoracic sprain/strain” likely related to awkward posture movement or overuse and “stretching exercise demonstrated, refer to physio/massage/postural treatments”. Dr. Sandhu also made a recommendation for physiotherapy as a result of the injuries sustained in the altercation. This suggests that Dr. Sandhu observed new or exacerbated injuries following the first accident.
19Based on these records, it appears that Dr. Sandhu was satisfied that the accident-related soft tissue injuries emerging from the first accident were resolved and any lingering back pain was attributable to posture and overuse. At no point in time did Dr. Sadhu recommend that the applicant see a specialist for the injuries sustained in the first accident.
Did the Applicant Suffer Injuries That Are Predominantly Minor?
20I will now move on to discuss whether the applicant’s injuries are considered “minor injuries” under the MIG. The applicant submits that as a result of the first accident, he suffered physical and psychological impairments, as well as an exacerbation of his pre-existing injuries, and, as a result, he should not be placed within the monetary limit of the MIG.
21At the scene of the accident, the applicant was seen by a paramedic and did not go to the hospital. When he did visit the hospital on July 17, 2016, two days after the accident, he was discharged with soft tissue injuries and it was noted that he experienced emotional distress. No diagnostic imaging was done, and he was sent home without intervention. His pain-related complaints (neck, back and right shoulder) were addressed with over-the-counter pain medication and a “physiotherapy referral” was noted on his chart, as well as a further note which stated, “return to usual activity ASAP”.
(i) Does the applicant have physical injuries as a result of the accident?
22Based on the medical reports and records produced by the applicant, I find that his physical injuries from the first accident are minor soft tissue injuries.
23In the days following the accident, the applicant reported his injuries to Dr. Sandhu. He complained of pain and restriction of motion in his neck, head, upper thoracic region, right shoulder, lower back, right hip, right thigh and knee. Dr. Sandhu recommended that he apply a warm compress, engage in exercise and take over-the-counter pain medication.
24On January 10, 2017, the claimant returned to Dr. Sandhu complaining of a "deep aching pain in his mid thoracic region". Dr. Sandhu noted that "psychosocial factors" he evaluated were "suggestive of chronicity/disability”. Dr. Sandhu recommended that the applicant engage in heat/ice therapy, pain medication, stretching exercises and physiotherapy. Dr. Sandhu did not make a referral to any specialists.
25The applicant returned to Dr. Sandhu's office on February 11, 2017, advising that he had been involved in a subsequent motor vehicle accident the week prior, and presented with complaints relating to injuries. The applicant attended various ultrasounds and imaging of these injuries for which radiologists concluded that there was no clear acute bony fracture or malalignment through the cervical spine from the skull base of the cervicothoracic junction, and that the applicant’s prevertebral soft tissue was normal.
26There is nothing in the medical evidence before me that establishes that the applicant had anything other than soft tissue or sprain/strain-type physical injuries from the accident. These fall within the definition of “minor injury”.
(ii) Does the applicant have chronic pain and psychological injury as a result of the accident?
27I find the psychological injuries and chronic pain claimed by the applicant do not remove him from the MIG for the reasons explained below.
28In the days following the accident, the applicant reported his injuries to Dr. Sandhu. He complained of feelings of intense fear, feelings of helplessness, distressing recollections of events, diminished interest in significant activities, and difficulty with sleep. Dr. Sandhu did not make a recommendation for prescription medication or a referral to a psychologist or psychiatrist.
29The applicant submits that the psychological injuries he sustained in the accident should remove him from the MIG because the injuries are not predominantly minor in nature. The applicant requests that the Tribunal determine that a psychological condition exists on the facts provided and that the claimant be removed from the MIG. The applicant is relying on three decisions to support this position.
30I do not find that the applicant's injuries are of a nature so as to remove him from the MIG. I do not find that a chronic condition or psychological diagnosis exists. The applicant has failed to adduce persuasive and medical evidence to support his claim that his injuries have created a chronic condition that prevents him from adequate recovery if confined to the limits of the MIG.
31In Dr. Sandhu's records, he merely notes that psychological factors were "suggestive" of chronicity/disability. This statement was made during a "consultation" and there is no evidence or particulars presented to establish that Dr. Sandhu finds it necessary to further investigate this or make a referral to a psychologist or psychiatrist. Likewise, there is no follow up on the suggestive comment of chronic pain; nor is there any comment from other medical practitioners and/or assessors on the fact that Dr. Sandhu did not arrange for an investigation of chronic pain.
32The applicant underwent a psychological assessment on April 18th, 2017, which was conducted by Snezana Djuric, psychometrist. The assessor concluded that the applicant suffered from 1) specific phobia - relating to driving and sitting as passenger; and 2) adjustment disorder with mixed anxiety and depressed mood.
33The report provided by Ms. Djuric, dated April 18, 2017 (“the Djuric report”), concludes that the applicant presented with adjustment disorder with mixed anxiety and depressed mood, and specific phobia, and situational relating to driving and passenger related. The Djuric report recommends 14 sessions of psychotherapy over a 4-6-month period, during which the focus will be on helping him with his depression and anxiety.
34There are a number of issues with the Djuric report which undermine its recommendation. Firstly, Ms. Djuric opines that an effort to involve the applicant in an active and participatory treatment plan for pain management may be unsuccessful due to the applicant’s low energy, motivation and enthusiasm. The report fails to establish how this concern is alleviated or mitigated in the context of engaging the applicant in a psychotherapy program which requires participation over several months. The Djuric report also states that the applicant scored in the 84th percentile of the pain catastrophizing scale, which suggests “possible exaggeration of the impact of pain on his life. He tends to ruminate over the pain, to magnify the pain and feel hopeless about it”.
35In light of the above, I find that the Djuric report is insufficient to establish a psychological impairment resulting from the accident.
36The IE Assessment completed by Dr. Gembora, psychologist, dated December 30, 2016 concludes that, while the applicant shows some signs and symptoms of depression and anxiety, the applicant does not meet the criteria for a DSM-5 psychological disorder. Dr. Gembora concludes that there is no psychological impairment or disability as a result of the first accident and states that there is no pre-accident history of emotional and/or adjustment difficulties.
37The Section 44 IE of Dr. Dessouki determined that the applicant reached maximum medical recovery and opined that the treatment plans were not reasonable and necessary.
38Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain or psychological impairments as a result of the accident that would justify treatment beyond the limits of the MIG. I also find that the applicant failed to present any evidence to support his submission that he suffered from a pre-existing condition which would remove him from the MIG; rather, this submission was pleaded in the alternative, without providing particulars and thus fails. The burden of bringing forward persuasive medical evidence of the alleged conditions is on the applicant, which he has failed to do.
CONCLUSION
39With the onus on the applicant to prove on a balance of probabilities, I find that the onus has not been met. After a review of the evidence, I am not persuaded that the applicant has sustained injuries which are not considered “minor” as a result of the accident and, as a result, I find that the applicant is not entitled to the treatment plans in dispute.
Date of Issue: March 8, 2021
Daniela Corapi, Adjudicator