Released Date: 07/20/2021
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:
Nehaben Gandhi
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Yousef Jabbour, Counsel
For the Respondent:
Michael Ditkofsky, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on September 29, 2018, and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”). Economical denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
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? Note: The parties agree the MIG limits have been exhausted.
b. Is the applicant entitled to $3,893.04 for psychological treatment, recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted on August 30, 2019, and denied on September 6, 2019?
c. Is the applicant entitled to $225.62 ($1,299.74 less the partially approved amount of $1,074.12) for physiotherapy treatment, recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted on January 22, 2019, and denied on February 4, 2019?
d. Is the applicant entitled to $200.00 ($2,460.00 less the partially approved amount of $2,260.00) for a psychological assessment, recommended by Complete Rehab Centre in a treatment plan (OCF-18) submitted on June 28, 2019, and denied on July 10, 2019?
e. Is the applicant entitled to interest on any overdue payment of benefits?
result
3The applicant has not demonstrated that she sustained impairments that warrant removal from or treatment beyond the MIG. The treatment and assessment plans are not reasonable and necessary, and no interest is payable.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 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.” 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 a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that she suffers from arthritis, chronic pain and psychological impairments that warrant removal from the MIG. She relies on various clinical notes and records from her family physician, Dr. Budhiraja, and from rheumatologist, Dr. Rai, as well as treatment records from Midtown Urgent Care and Complete Rehab Centre and the Mr. Kaur/Dr. Mills’ August 14, 2019 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia (motor vehicles) and Somatic Symptom Disorder, with predominant pain, persistent.
6In response, Economical submits that the applicant sustained physical sprain and strain injuries that are treatable within the MIG and that she has never complained about psychological or emotional issues at any point post-accident to support the psychological diagnosis made nearly one-year post-accident. Further, Economical points to a dearth of treatment, no evidence of a pre-existing condition and the applicant’s trip to India in early 2020, where she developed arthritis secondary to an insect bite, as evidence that she sustained predominantly minor injuries as a result of the accident. Finally, it asserts that payments made above the MIG are not an indication that its position has changed but were as a result out of an adjusting transfer from Waterloo Insurance to Economical and that it has not sought repayment of same in good faith. Economical relies on the s. 44 report of psychologist, Dr. Clewes, who found that the applicant did not suffer from a diagnosable psychological condition as a result of the accident.
7I agree with Economical and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The actual physical injuries outlined in the medical documentation and in Dr. Jessa’s Disability Certificate all fall squarely within the s. 3(1) definition and the MIG as they are consistently identified as sprain and strain injuries to the neck, back and shoulder, headaches, chest wall and abdominal pain. This is largely consistent with the notes of Dr. Budhiraja, who found myofascial pains and authorized the applicant’s return to work in January 2019. Further, there is no evidence of a tear or fracture and all of the diagnostic imaging reports in evidence revealed unremarkable or normal findings. It appears that these impairments were treated primarily with pain medication and physiotherapy, which the applicant ceased in April 2019.
8With regard 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 will preclude maximal medical recovery if they are kept within the confines of the MIG. Here, the applicant provided no indication of a pre-existing impairment that would prevent maximal medical recovery if she is kept within the MIG and there was no medical opinion of same provided, as required.
9The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, the applicant’s submissions do not specifically argue for removal from the MIG based on a chronic pain diagnosis but rather focus on the duration of her pain. Removal from the MIG on this basis requires evidence of ongoing pain of severity that causes functional impairment. As there is no diagnosis of chronic pain or chronic pain syndrome, the applicant points to her functional limitations such as her “limited range of motion and stiffness” and her development of polyarthritis that she submits have substantially interfered with her activities of daily living and in her pursuit of her recreational activities.
10I find the applicant has not met her burden on this ground. While I am alive to the applicant’s subjective reports of pain, on the medical evidence, the accident-related complaints are sporadic, she reported wanting to return to work in December 2018 and then returned to work as a customer sales representative in early 2019 and has seemingly continued to work since. There are no accident-related complaints to Dr. Budhiraja thereafter. On February 24, 2020, the applicant reported returning from her trip to India having been bit by an insect and subsequently developing knee and elbow pain, which Dr. Budhiraja suspected was secondary to the insect bite and referred her to Dr. Rai. It was Dr. Rai who later diagnosed her with inflammatory polyarthritis as a result of the insect bite and not as a result of the 2018 accident. The applicant began taking Prednisone and followed up with Dr. Rai. None of the clinical notes and records thereafter mention the accident and it appears that the applicant stopped attending for physical treatment by April 2019. On these facts, and absent a diagnosis of same, it is difficult to find that the applicant suffers from a chronic pain condition that is causing functional impairment as a result of the accident.
11Finally, an applicant may escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant asserts that her psychological impairments justify removal from the MIG based on the diagnosis of Mr. Kaur/Dr. Mills from the August 14, 2019 report. I find this report is not in line with the bulk of the evidence where the applicant never reported psychological or emotional symptoms to her family physician and continues to drive a vehicle, which calls into question the foundation of the diagnosis. I discount the report further based on the fact that it does not appear that any of the applicant’s medical documentation was considered by Mr. Kaur/Dr. Mills. The report itself seems to have been prompted by a pre-screen that was appended to the OCF-18 in dispute and not based on a referral from Dr. Budhiraja.
12I prefer the s. 44 report of Dr. Clewes, as I find it is more proportional to the bulk of the applicant’s evidence. Indeed, as part of her assessment, Dr. Clewes interviewed the applicant, reviewed 39 medical documents, including the clinical notes of Dr. Budhiraja, and conducted two psychological tests, ultimately determining that an accident-related DSM-5 diagnosis was not appropriate and that there were no psychological barriers to her recovery. The report notes that the applicant, when asked if she could describe any significant psychological symptoms, remarked “mentally, I am very strong” and denied any accident-related symptoms such as depression, anxiety and trauma. Notably, the applicant did not refute these statements despite having the benefit of reply. Where Dr. Clewes found no basis for psychological intervention, where the applicant made no psychological complaints to her family physician and denied having any accident-related psychological symptoms, I find it difficult to accept the report of Mr. Kaur/Dr. Mills as evidence that she sustained a psychological impairment as a result of the accident that warrants removal from and treatment beyond the MIG.
13Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
14I agree that Economical’s overpayment of MIG funds as a result of the transfer of the file from Waterloo Insurance does not automatically remove the applicant from the MIG or indicate acceptance on Economical’s part of same. The burden of proof always remains with the applicant. Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
ORDER
15The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment and assessment plans in dispute are not reasonable and necessary and no interest is payable.
Released: July 20, 2021
Jesse A. Boyce
Vice-Chair
Footnotes
- O. Reg. 34/10, as amended.