Release date: 08/03/2021
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:
Dolores Hagley
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on October 31, 2016 and sought various benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Intact denied the benefit 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 submitted an application 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?
b. If the applicant’s injuries are not considered to be predominantly minor,
i. Is the applicant entitled to a medical benefit in the amount of $3,246.09 for psychological services recommended by Physio Fix and Fitness, per the OCF-18 dated September 23, 2017 and denied on March 8, 2018?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has established that she suffers from chronic pain that warrants removal from the MIG. However, she has not demonstrated that the OCF-18 for psychological treatment is reasonable and necessary or incurred or that interest on same 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 continues to experience low back pain, hip pain and shoulder pain that is well-documented in her medical file and she has also been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as other psychological, cognitive and emotional impairments a result of the accident. She relies on various clinical notes and records from her family physician, Dr. Bariana, her chronic pain treatment with Dr. Bajzath and the psychological report of Dr. Bodnar from September 23, 2017 to support her position that her accident-related impairments continue to affect her activities of daily living and therefore warrant removal from the MIG.
6In response, Intact submits that the applicant was involved in a very minor accident and did not attend at Dr. Bariana’s office until five months post-accident, that the x-ray results were noted as normal and that there are significant gaps in her medical records between January 2018 and March 2020. In addition, it asserts that her complaints of lower back and right thigh pain did not begin until March 2, 2020 and there is no indication that the accident caused this pain 3.5 years later. Further, Intact points to the lack of psychological or emotional complaints in Dr. Bariana’s records to support Dr. Bodnar’s diagnosis and the treatment plan in dispute. To this end, Intact relies on the s. 44 report of psychologist Dr. Syed, who found indications of feigning and no objective psychometric evidence to support a psychological impairment.
7The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, I find that the applicant has met her burden of demonstrating that she suffers from chronic pain that warrants removal from the MIG. Indeed, there is a significant volume of treatment notes evidencing the fact that the applicant has been under the regular care of Dr. Bajzath, a chronic pain specialist at the Karmy Chronic Pain Clinic, since July 2019. She regularly receives nerve block injections, joint injections and trigger point injections, which provide varying degrees of pain relief. As the applicant notes, Dr. Bajzath has also prescribed her Pregabalin, Duloxetine, Baclofen and a combination muscle cream for pain management during this time.
8While the parties addressed the six criteria for assessing chronic pain under the AMA Guides, I note that these criteria are not binding on the Tribunal and have only been adopted as an assistive tool for evaluating chronic pain claims where there is no formal diagnosis. Further, while a diagnosis of chronic pain or chronic pain syndrome is not strictly required, here, both Dr. Bariana and Dr. Bajzath have diagnosed the applicant with chronic pain, with both doctors attributing the pain to the accident. In addition, on review of the medical documents, the applicant has consistently reported pain, primarily in her lower back, in the four years post-accident and that she was pain-free prior to the collision. Where the pain can reach as high as 9/10 on the subjective pain scale, where her complaints have been consistent over time, where she relies on medication and injections for temporary relief and where her pain affects her daily activities, I find on a balance of probabilities that the applicant has demonstrated that she suffers from chronic pain that warrants removal from the MIG.
Is the treatment plan reasonable and necessary?
9However, I find on the evidence that the applicant is not entitled to payment in the amount of $3,246.09 for psychological services, as recommended by Physio Fix and Fitness in the September 23, 2017 OCF-18, as she has not demonstrated that it is reasonable and necessary or incurred.
10In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary. While I agree that the applicant’s pain justifies removal from the MIG, I find limited evidence to support further psychological treatment as a result of impairments sustained in the accident. Unlike her consistent reports of pain, there is limited evidence in the medical documentation of consistent or contemporaneous psychological complaints post-accident that could reasonably be tied to the 2016 accident or that would support further investigation.
11On review of the psychological reports, I assign greater weight to Dr. Syed’s s. 44 report than Dr. Bodnar’s because I find that it is more proportional to the bulk of the medical evidence before the Tribunal. Dr. Syed found no objective psychometric evidence to substantiate the applicant’s self-reporting that the accident caused a psychological impairment. It is clear from the reports that Dr. Syed reviewed and based her opinion on the applicant’s medical records. Indeed, this is significant because there are no complaints of emotional or psychological symptoms to Dr. Bariana that would invite further investigation or referral. In this vein, it is unclear what prompted the referral for a psychological assessment or who made the referral to Dr. Bodnar. Meanwhile, Dr. Bajzath’s notations of “increased anxiety recently” and “ongoing stress” based on the applicant’s self-reporting in 2019 are not particularly compelling indications that the 2016 accident caused a psychological impairment that requires treatment. Similarly, the applicant’s chiropractor, Dr. Yen, is not qualified to make a diagnosis.
12The applicant provided no evidence that she incurred any of the proposed cognitive-behavioural sessions or that she has sought psychological treatment of any kind in the over five years post-accident, which, in my view, lends further support to Dr. Syed’s diagnosis that she does not suffer from a diagnosable psychological condition as a result of the accident. On balance, I agree with Intact that the applicant has not demonstrated that the OCF-18 in dispute is reasonable and necessary or payable. As no benefits are incurred or overdue, it follows that no interest is payable under s. 51.
CONCLUSION
13The applicant has established that she suffers from chronic pain that warrants removal from the MIG. However, she has not demonstrated that the OCF-18 for psychological treatment is reasonable and necessary or incurred or that interest on same is payable.
Date of Issue: August 3, 2021
________________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.