Release date: 05/13/2021
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:
Dinat Ruksadbibi
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Mariana Slomyanski, Counsel
For the Respondent:
Monika, Bolejszo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Dinat Ruksadbibi, was involved in an automobile accident on January 3, 2018, and sought benefits from the respondent, Economical Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline. It denied her claims for medical benefits outside the $3,500.00 funding limit available under the Schedule. It also determined that she failed to meet the test for a non-earner benefit. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
i. 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? The parties agreed the $3500 limit has been exhausted;
ii. Is the applicant entitled to a non earner benefit in the amount $185.00 per week from February 3, 2018 to January 3, 2020?
iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $995.58 for physiotherapy and massage therapy recommended by Activa Clinic Services in a treatment plan (OCF-18) submitted on August 13, 2018 and denied September 20, 2018?
iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,299.98 for physiotherapy treatment recommended by Activa Clinic Services in a treatment plan (OCF-18) submitted on May 17, 2018 and denied July 20, 2018?
v. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a Chronic Pain Assessment recommended by Synergy Diagnostic and Assessment Center in a treatment plan (OCF-18) submitted on April 3, 2019 and denied April 4, 2019?
vi. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a Psychological Assessment recommended by Synergy Diagnostic and Assessment Center in a treatment plan (OCF-18) submitted on March 12, 2018 and denied March 18, 2018?
vii. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for an Attendant Care Assessment recommended by Synergy Diagnostic and Assessment Center in a treatment plan (OCF-18) submitted on March 7, 2019 and denied March 15, 2019?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ix. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
4In her submissions, the applicant seeks an order for the payment of attendant care benefits. This is not an issue identified in Adjudicator M. Chakravarti’s case conference order dated April 30, 2020. It is not an issue properly in dispute and accordingly I do not address it.
RESULT
5The applicant has not met her onus in respect of any of the benefits in dispute. Her accident-related injuries are predominantly minor, and the Minor Injury Guideline applies. It is unnecessary to consider whether the claimed treatment and assessments are reasonable and necessary as a result of the accident. The applicant does not meet the test for a non-earner benefit. Since no benefits are owing, no interest is payable. No basis for an award exists under Regulation 664. The application is dismissed.
ANALYSIS
Does the Minor Injury Guideline apply?
6To be eligible for the medical benefits she seeks in this application, the applicant bears the onus of establishing, on a balance of probabilities, that her accident-related injuries are not predominantly minor as defined in s. 3(1) of the Schedule. A “minor injury” is “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.”
7The applicant has not met her evidentiary burden. The medical evidence does not establish injuries other than minor, soft tissue injuries to which the Minor Injury Guideline applies.
8On January 4, 2018, the applicant sought emergency medical treatment for her accident-related injuries. Hospital records show that she presented with head, neck and back pain. She was triaged as “less urgent” and discharged home after unremarkable x-rays of the chest, cervical spine and lumbar spine.
9The applicant submits that she was checked by her doctor, Dr. K. Mohan, who prescribed physiotherapy. The only entry in Dr. Mohan’s clinical notes and records in the days following the accident is a January 4, 2018 report of the emergency department at Toronto East General Hospital. The medical records contain a handwritten prescription stating, “needs ongoing physiotherapy.” The prescription refers to an “MVA on 03-01-18”, and the date of the prescription appears to be “08 11 19.” If Dr. Mohan conducted an assessment or examination in January 2018, no clinical note documented it. If a diagnosis was made, none was recorded.
10On February 12, 2018, the applicant was assessed at Activa Clinic by Dr. Michael Boychuk, a chiropractor. At that visit, Dr. Boychuk completed a disability certificate (OCF-3) on the applicant’s behalf. The disability certificate lists the applicant’s accident-related injuries as a concussion, whiplash, radiculopathy, and sprain and strain injuries of the cervical, thoracic and lumbar spine and sacroiliac joint. While a chiropractor may observe and treat the symptoms of concussions and radiculopathy, he does not possess the qualifications to diagnose them. I therefore attach no weight to these diagnoses. The remainder of the injuries listed in the disability certificate fall squarely within the definition of a minor injury.
11The applicant continued attending Activa for rehabilitation until February 28, 2019.
12On March 19 and 28, 2019, the applicant visited her other family physician, Dr. Irum Tariq. The clinical notes and records from those visits make no mention of the accident or any accident-related symptoms.
13Finally, on April 18, 2019, some 16 months post-accident, the applicant visited Dr. Mohan with complaints related to the accident. Dr. Mohan conducted a physical examination and diagnosed the applicant with a shoulder strain. He discussed physiotherapy, stretching and the avoidance of heavy lifting, and prescribed a 15 day course of two anti-inflammatory medications with no refills.
14The applicant submits that Dr. Mohan prescribed continuation of treatments. It is possible that the prescription for ongoing physiotherapy, referred to in paragraph 9 above, was from this visit. Again, the date of the prescription appears as “08 11 19” and it is unaccompanied by a clinical note.
15To be clear, I draw no adverse inference from the disjointed nature of the medical records. I accept that at some point, Dr. Mohan recommended physiotherapy. However, there is nothing in the medical records to substantiate injuries exceeding the definition of a minor injury.
16The applicant submits that she should be removed from the Minor Injury Guideline on account of chronic pain and psychological impairments. The evidence she has presented does not support a finding of either.
17The applicant relies on the Chronic Pain Assessment Report of Dr. M. Gofeld, a pain medicine specialist. Dr. Gofeld assessed the applicant on August 18, 2020 and concluded that she suffers from chronic pain syndrome, chronic shoulder pain, and chronic lower back pain.
18I do not accept Dr. Gofeld’ s conclusions. First, the only medical record he reviewed in preparation of his report was a single clinical note, dated January 21, 2020 identified simply as “bloodwork.” The apparent lack of medical records available to Dr. Gofeld for review significantly undermines the weight of his clinical evaluation, especially as it relates to the causation of the applicant’s injuries.
19Second, there is no perceptible link between Dr. Gofeld’s clinical findings and his diagnoses. For example, the only psychological symptoms he notes are the applicant’s increased nervousness and difficulty staying asleep at night. He describes the applicant as having an anxious affect. He offers no analysis or discussion, however, of how these findings necessitate intervention by a mental health practitioner. And although he notes that the applicant has difficulty taking her children to play dates and to the park due to pain, he fails to substantiate his conclusion that the applicant has lost interest in recreational activities “due to psychological hardship.”
20Dr. Gofeld’s physical examination findings are also relatively unremarkable: he notes active range of motion of the cervical spine and trunk within normal to moderate limits with some reported pain on flexion and extension, and tenderness on palpation in the lumbosacral region. His neurological exam yielded no abnormal findings, and his functional assessment is based entirely on the applicant’s self-reported limitations. Dr. Gofeld notes the applicant’s reports of “some” difficulties with showering, putting on clothes and putting on shoes. He notes that the applicant’s mother-in-law is responsible for most household chores but does not state whether this has changed as a result of the accident. Dr. Gofeld’s “clinical impression” as to functionality may be summarized in his finding that “some tasks require more effort and some assistance.” It is based on this impression, the (limited) medical documentation and the applicant’s self-reported history that he concludes:
“Ms. Dinat is reportedly substantially impaired in almost all life activities. … it is uncertain whether he [sic] will be able to regain some functionality in the future.” [Emphasis added.]
21Not only does Dr. Gofeld’s opinion expressly refer to the applicant being “reportedly impaired,” his finding of impairment in “almost all life activities” is unsupported by cogent analysis. Simply stated, Dr. Gofeld’s findings do not support his conclusions.
22Finally, while the clinical notes and records from Activa Clinic show that the applicant attended for rehabilitation for approximately one year, persistently complaining of pain, the case law of the Tribunal is clear that chronicity of pain complaints alone is insufficient to establish a chronic pain condition warranting treatment outside the Minor Injury Guideline.
23Chronic pain is a severe, debilitating condition. The evidence does not show that the applicant suffered pain of the severe and functionally disabling nature typically associated with chronic pain. To be clear, I accept that the applicant consistently reported pain symptoms to her chiropractors. But pain symptoms are contemplated by the Minor Injury Guideline framework as “clinically associated sequelae” of minor injuries. As such, pain symptoms often fall within the definition of a minor injury and be subject to treatment within the limits of the Minor Injury Guideline.
24The applicant submits that the treatment and assessment plan (OCF-18) for a Psychological Assessment supports a finding that she suffers from a psychological impairment due to the accident and should be removed from the Minor Injury Guideline on that basis.
25There is no objective medical evidence that the applicant suffered psychologically from the accident. The treatment and assessment plan itself is not evidence of psychological impairment. The psychological pre-Screen report that accompanied the treatment and assessment plan is not corroborated elsewhere in the record. There is no evidentiary basis for a psychological impairment as a result of the accident.
26The Minor Injury Guideline applies. As the parties agree that the funds available under the policy have been exhausted, there is no need to consider whether the individual treatments and assessments are reasonable and necessary as a result of the accident.
Does the applicant meet the test for a non-earner benefit?
27The disability test for a non-earner benefit is set out at s. 12(1) of the Schedule. To be eligible for this benefit, an applicant must prove, on a balance of probabilities, that as a result of an within 104 weeks of the accident, she “suffers a complete inability to carry on a normal life.”
28Section 3(7)(a) of the Schedule provides that a person suffers a complete inability to carry on a normal life as a result of an accident “if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
29In Heath v. Economical Mutual Insurance Company, (“Heath”)2 the Ontario Court of Appeal set out general principles to assist triers of fact in interpreting and applying the non-earner benefit provisions. Heath urges a claimant-focused inquiry that reflects the high threshold created by the language of the Schedule.
30The interpretive approach starts with a comparison of the claimant’s activities and life circumstances over a reasonable period before and after the accident. A “reasonable” time pre-accident period will depend on the facts of each case, but more than a “snapshot” will be required. While all the claimant’s ordinary pre-accident activities should be considered, greater weight may be assigned to those activities which the claimant identifies as being important to her pre-accident life.
31To establish her “complete inability to live a normal life,” the claimant must prove uninterrupted accident-related disability or incapacity. But the phrase “engaging in” is to be interpreted qualitatively. Merely “going through the motions” of an activity will not amount to engaging in it.
32Finally, in cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced during or after the activity practically prevents the claimant from engaging in it.
33An application of the Heath principles to this case is hampered because there is limited evidence of the applicant’s pre-accident circumstances and activities, and limited evidence to support a finding of continuous impairment in all areas of the applicant’s life.
34The applicant submits that a non-earner benefit should have been paid based on the disability certificate prepared by Dr. Boychuk, which indicated she was suffering a complete inability to carry on a normal life. However, a disability certificate itself, completed by a chiropractor after an initial assessment, does not establish that the applicant meets the high threshold for a non-earner benefit. Contrary to the applicant’s submission, the Schedule does not require an insurer to pay a non-earner benefit upon receipt of a disability certificate.
35The applicant submits that her diagnosis of post-traumatic headache, made by Insurer’s Examiner Dr. Mehdiratta, a neurologist, supports her non-earner benefit claim. It has been unnecessary so far to consider the reports of the Insurer’s Examiners. Because the applicant has not discharged her onus, it is unnecessary to deal with the evidence tendered by the respondent in its defence. I need not delve into the applicant’s submissions about the shortcomings of the opinions stated in the s. 44 reports. It is sufficient to note that a diagnosis of post-traumatic headache does not clear the threshold for entitlement to a non-earner benefit.
36The applicant has not directed submissions to the applicable legal test, nor has she tendered evidence capable of establishing its components. There is no basis upon which to conclude that the applicant suffered a complete inability to carry on a normal life as a result of the accident. The non-earner benefit claim is accordingly denied.
Is an award justified?
37The applicant claims an award under Regulation 664. An insurer will be liable to pay an award if it is found to have unreasonably withheld or delayed the payment of benefits.
38The applicant has not established grounds for an award. There is no evidence of conduct on the part of the insurer that amounts to unreasonable withholding or delaying of benefits. The respondent denied the medical benefits in dispute based on its determination that the Minor Injury Guideline applied. As I have found, there is no objective medical evidence to establish accident-related injuries on the part of the applicant that exceed the minor injury definition. The non-earner benefit was also correctly denied. The applicant has fallen short of proving circumstances that would warrant an award and I accordingly deny her request.
CONCLUSION
39The applicant has failed to establish entitlement to the disputed benefits on a balance of probabilities.
40No benefits are owing. No interest is payable. There is no award.
41The application is dismissed.
Date of Issue: May 13, 2021
Theresa McGee, Vice-Chair
Footnotes
- O. Reg. 34/10.
- 2009 ONCA 391 [“Heath”].