Released Date: 04/22/2021
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:
Constantin Vervitas
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Yianniko Kozoronis, Counsel
For the Respondent:
Patrick Sinclair, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION
OVERVIEW
1The applicant, Constantin Vervitas, was involved in an automobile accident on January 26, 2019, and sought benefits from the respondent, Economical Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent determined that the applicant's injuries were subject to treatment within the Minor Injury Guideline and denied the applicant's claims for benefits exceeding the associated $3,500.00 policy limit. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.
ISSUES
3The 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 $252.81 ($1,300.70 less $1,047.89 approved) for chiropractic treatment recommended by HealthMax – St. Clair in a treatment plan ("OCF-18") dated May 18, 2019, and denied by the respondent on June 4, 2019?
c. Is the applicant entitled to $1,965.55 chiropractic treatment and massage therapy recommended by HealthMax – St. Clair in an OCF-18 dated July 3, 2019, and denied by the respondent on July 29, 2019?
d. Is the applicant entitled to $1,739.93 for chiropractic treatment recommended by HealthMax – St. Clair in an OCF-18 dated November 29, 2019, and denied by the respondent on December 19, 2019?
e. Is the applicant entitled to $2,486.00 (the maximum amount that the applicant is entitled to under the Schedule of the original amount of $3,559.50 for a chronic pain assessment recommended by Dr. Hien Ta in an OCF-18 dated November 15, 2019, and denied by the respondent on November 27, 2019?
f. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant sustained injuries in the accident to which the Minor Injury Guideline applies. As the funds available to the applicant under the Schedule have been exhausted, it is not necessary for me to consider whether the disputed treatments and assessment are reasonable and necessary as a result of the accident. As no benefits are owing, no interest is payable. The application is dismissed.
ANALYSIS
5The applicant's accident-related injuries are documented in the emergency medical records from the date of the accident and in the clinical notes and records of his family physician, Dr. P. Photopoulos.
6Hospital records note that in the accident, the applicant struck his head on the side door of the vehicle in which he was a passenger, sustaining a small abrasion on his head and suffering neck stiffness.
7A CT scan of the applicant's brain and cervical spine conducted the day after the accident revealed no acute abnormality and multilevel degenerative cervical spondylopathy.
8The clinical notes and records of Dr. Photopoulos, dated January 29, 2019, indicate that the applicant suffered a small laceration on his head and that he started having back pain the day after the accident. Dr. Photopoulos diagnosed the applicant with whiplash and recommended physiotherapy. She also ordered an x-ray of the applicant's cervical spine, which showed marked degenerative changes.
9A February 16, 2019 Disability Certificate (OCF-3) prepared by Dr. F. Hassan, a chiropractor, lists the applicant's accident-related injuries as sprain and strain injuries affecting the muscles and tendons, post-traumatic headache, superficial injury of the head, vertigo, and a sleep disorder.
10All of the applicant's documented injuries fall within the definition of a "minor injury" set out in s. 3 of the Schedule, as in "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." The diagnostic imaging findings show degenerative changes not linked to the accident. These findings are consistent with pre-existing degenerative changes of the applicant's cervical spine noted in an x-ray dated January 10, 2018.
11There is a note from Dr. Photopoulos dated February 4, 2020 that the applicant was suffering from depression and was taking anti-depressant medication, but the applicant has made no submissions suggesting that he suffered a psychological impairment related to the accident. There is nothing in the medical records suggesting this link either. Elsewhere in the record, there is mention of the applicant having a history of depression that pre-dated the accident.
Chronic pain syndrome
12The applicant submits that he should be removed from the Minor Injury Guideline because he has been diagnosed with chronic pain syndrome, a condition that falls outside the Schedule's definition of a minor injury. He refers me to the opinions of Dr. Hien Ta, an anesthesiologist with an interest in chronic pain medicine, and to the Insurer's Examiner, Dr. Silver, a general practitioner.
13To Dr. Ha, the applicant reported neck pain, lower back pain radiating to the right knee, sleep disturbance and vehicular phobia. After a physical examination and psychometric testing, Dr. Ha diagnosed the applicant with chronic pain syndrome, whiplash, disc herniation of the cervical spine and probable disc herniation of the lumbar spine, probable mood disorder, right elbow pain and right brachioradialis tendonitis. Dr. Ha states that the applicant "likely" has disc disease of the cervical and lumbar spine, and that the applicant's pre-existing depression was exacerbated by the accident. Dr. Ha opined that the applicant's injuries prevent him from working full-time. Dr. Ha recommended a referral to a chronic pain program for treatment of herniated discs.
14I give Dr. Ha's evidence limited weight. First, it is unclear from his report what diagnostic criteria he applied in diagnosing the applicant with chronic pain syndrome. There is no discussion of pain of the severity, duration, or functionally disabling nature commonly associated with chronic pain syndrome. The report notes that the applicant continues to be able to work, although for fewer hours since before the accident. Dr. Ha does not document functional limitations resulting from the accident that are significant. Dr. Ha's diagnosis of a "probable" mood disorder is tentative and of questionable reliability given his specialization.
15Dr. Ha's diagnoses of disc herniation of the cervical spine and probable disc herniation of the lumbar spine are similarly unsupported by analysis: Dr. Ha simply refers to an appendix listing the medial records he reviewed, but none of the records refer to constitute evidence linking possible herniated discs to the accident. Fundamentally, Dr. Ha's recommendation that the applicant undergo a chronic pain program to pursue steroid injections and thermal ablations for herniated discs appears targeted at conditions unrelated to the accident. Considering the record as a whole, I do not find Dr. Ha's conclusions compelling as they relate to injuries the applicant sustained in the accident.
16To Dr. Silver, the applicant reported constant neck pain, headaches, back pain that is always present, and left hand numbness. The applicant also reported his estimate of a 30% reduction in his pain symptoms since the accident. Dr. Silver opined that the applicant's numbness was unrelated to the accident based on a review of the medical records afforded to him for review. He further opined, based on his clinical interview and physical examination, that the applicant sustained uncomplicated soft tissue injuries in the accident.
17Dr. Silver's report notes that the applicant is on reduced hours as a maintenance supervisor and cleaner, but that he continues to perform the tasks of his employment without limitation. He cited depression and pain as reasons for not returning to full-time work. Ultimately Dr. Silver found no objective evidence of ongoing musculoskeletal impairment as a result of the accident. Dr. Silver concluded that the applicant's neck pain was related to his pre-existing degenerative condition.
18It is clear from the applicant's medical records that he suffers from degenerative changes to his cervical spine, and that he has a history of depression. It is reasonable to conclude, based on the objective medical evidence, that the applicant experienced aggravation of these pre-existing conditions as a result of the accident. However, there is nothing in the record to show, on a balance of probabilities, that the applicant suffered from pain or psychological symptoms greater than the clinically associated sequelae of his minor, soft tissue injuries. The applicant has not met his evidentiary onus. He has not proven entitlement to treatment beyond the Minor Injury Guideline.
CONCLUSION
19The applicant has not established entitlement to treatment outside the Minor Injury Guideline. It is not necessary to consider the reasonableness and necessity of the disputed treatment plans, as the funds available under the Guideline have been exhausted. Since no benefits are owing, no interest is payable.
20The application is dismissed.
Released: April 22, 2021
Theresa McGee
Vice-Chair