Wright v. The Cooperators, 2021 CanLII 88003

Citation: Wright. v. The Cooperators, 2021 ONLAT 20-004765

Release date: 09/14/2021

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:

Donna Wright

Applicant

and

The Cooperators

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Emily Schatzker, Counsel Erica Lewin, Counsel

HEARD: By way of written submissions

OVERVIEW

1Donna Wright (“applicant”), was involved in an automobile accident on October 16, 2018 (“accident”) and suffered injuries. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by The Cooperators (“respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² The respondent also submits that, even if the MIG is found not applicable, the applicant has not established that the disputed treatment plans are reasonable and necessary.

3The applicant’s position is that her physical injuries are not within the MIG and also that her psychological issues take her out of the MIG.

ISSUES

4The issues to be decided in this 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 MIG?

ii. Is the applicant entitled to $2,925.60 for chiropractic treatment, recommended by Dan Shlepakov in a treatment plan (OCF-18) dated March 21, 2019?

iii. Is the applicant entitled to $3,963.04 for psychological treatment, recommended by Aparna Sekhar in a treatment plan dated May 7, 2019?

iv. Is the applicant entitled to $1,995.00 for a psychological assessment, recommended by Aparna Sekhar in a treatment plan dated January 17, 2019?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is payable.

LAW

6The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in s. 3(1) 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Are the Applicant’s Injuries In the MIG?

10I find that the applicant’s physical injuries are minor injuries because the weight of the medical evidence indicates that the applicant did not suffer any physical injuries other than soft tissue injuries resulting from the accident.

11Post-accident the applicant did not immediately seek medical attention but saw her family physician Dr. Bajowa October 23, 2018. The records of Dr. Bajowa do not support that the applicant suffered anything other than soft tissue injuries in the accident. Dr. Bajowa noted neck, bilateral shoulder and lower back strain, and left knee strain during the October 23, 2018 appointment but dis not diagnose any accident related injuries at that time. Strains, even if they had been diagnosed, fall squarely within the MIG.

12The applicant did not see Dr. Bajowa again until October 7, 2019, almost a year later at which time Dr. Bajowa noted chronic low back pain since the accident, “back very stiff and sore” but only diagnosed PTSD.

13The applicant’s two OCF-3’s, disability certificates, dated October 24, 2018 and January 14, 2019 made by her chiropractor Dr. Shlepakov are not sufficient to establish that the applicant suffered physical injuries which are not minor. Dr. Shlepakov is not a physician and is not qualified to make a medical diagnosis of the applicant’s injuries. For the same reason, the treatment plans completed in 2019 by Dr. Shlepakov are not sufficient to support the applicant’s submission that she suffered physical injuries which are not minor. The records of Scarborough Medical Centre, Scarborough Health Network, and the applicant’s prescription summary are insufficient to establish that the applicant’s alleged physical injuries resulting from the accident are anything other than minor.

14There is little medical evidence post-accident to establish that the applicant’s right shoulder and lower back pain resulted from the accident. Although in February, 2020 the applicant self-reported right shoulder and lower back pain resulting from the accident to Dr. Bajowa, this is more than one year post-accident. Further, neither of the disability certificates made by Dr. Shlepakov or the treatment plans in dispute indicate right shoulder complaints. Still further, the applicant did not report right shoulder complaints to respondent’s assessors Dr. Zakzanis or Dr. Gharsaa or make any significant complaints of right shoulder injury to her own family physician, Dr. Bajowa, in the year following the accident.

15The MRI of the applicant’s lumbar spine on March 4, 2020 reveals degenerative disc disease with disc desiccation and bulging noted at L5-S1 which was not a significant change from her pre-accident MRI in May, 2018. The MRI of the applicant’s right shoulder on March 5, 2020 queried mild supraspinatus tendinopathy. The applicant has not provided any opinion from an orthopaedic surgeon interpreting the results or providing an opinion on causation.

16The respondent’s orthopaedic surgeon Dr. Gharsaa opined that all of the applicant’s physical symptoms were those of soft tissue injuries which were treatable within the MIG and did not recommend any further facility-based treatment.

17The applicant has put forward no expert medical report that she has a pre-existing documented medical condition which prevents maximal recovery within the MIG. Although the applicant indicated she was in another motor vehicle accident in 2016 in which she reportedly injured her right shoulder and lower back, the applicant’s self-reporting about this to various assessors is inconsistent. Despite reporting that she needed a walker to ambulate eight months prior to the accident, she told Dr. Zakzanis, her psychologist, that she was recovered, told Dr. Hines, respondent’s psychiatrist, that her lower back pain had gotten a lot better at the time of the accident and told Dr. Gharsaa that she was almost 100% recovered from 2016 accident. Dr. Gharsaa opined that the applicant’s subjective complaints did not correlate to any objective findings regarding any pre-existing medical condition that would prevent the applicant from achieving recovery within the MIG.

18I find that the applicant’s physical injuries from the accident within the definition of “minor injury”. However, the applicant argues that her psychological injury removes her from the MIG.

Does the Applicant have Psychological Impairment Caused by the Accident that would Remove her from the MIG?

19I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from psychological impairment caused by the accident justifying treatment beyond the MIG.

20The applicant relies on the October 29, 2018 psychological status evaluation of Dr. Sekhar. I give this evaluation no weight for the following reasons. It is a one page document attached to the disputed treatment plan for $1,995.00. The professional credentials of Dr. Sekhar have not been established. To the contrary, Dr. Sekhar does not appear to be authorized to provided psychological services in Ontario according to records filed by the respondent. Dr. Sekhar did not conduct the initial pre-screen: another person did. Lastly, the evaluation notes only the applicant’s subjective reporting.

21Dr. Bajowa’s records do not constitute persuasive evidence of psychological impairment caused by the accident that will prevent the applicant from achieving maximal recovery if treated within the MIG. Although Dr. Bajowa diagnosed the applicant in October 7, 2019, almost a year post-accident, with PTSD and again on January 27, 2020, Dr. Bajowa noted that the applicant was not coping with every day stresses and does not attribute the applicant’s PTSD clearly to the accident. There is no indication that Dr. Bajowa referred the applicant to a mental health specialist.

22Dr. Zakzanis on March 18, 2019 diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder with predominant pain, moderate and opined that “but for” the accident, the applicant’s objectively demonstrated psychological impairment would not have occurred. I give this report little weight for the following reasons.

23Firstly, which of the applicant’s medical records Dr. Zakzanis reviewed is not clear from the report, tending to indicate that significant medical records were likely not reviewed, such as, for example, the records of Dr. Bajowa. Secondly, the records that Dr. Zakzanis did review are lacking. Dr. Zakzanis reviewed the evaluation of Dr. Sekhar which was brief and flawed and to which I have attributed no weight for the reasons given above. Dr. Zakzanis reviewed the disability certificate of the applicant’s chiropractor, Dr. Shlepakov, dated October, 2018 which does not contain a medical diagnosis. Dr. Zakzanis does not indicate what other medical records he reviewed, indicating only “clinical notes, various”. Thirdly, Dr. Zakzanis reached his opinion despite the fact that the applicant told Dr. Zakzanis that she experienced a troubled childhood, has various family members residing with her and has custody of a child with medical issues requiring counselling and medication. The impact of these circumstances on the applicant’s psychological status was not adequately explained. Dr. Zakzanis only briefly notes “some” stress related to financial strain and her family living arrangements.

24I prefer the opinion of Dr. Hines, to that of Drs. Zakzanis and Bajowa given Dr. Hines’ specialized medical education and experience, and the thoroughness of his July, 2019 report. Dr. Hines, reported that the applicant discussed with him stress associated with the accident, physical pain, her family members and by her lack of employment and income. After assessment, Dr. Hines opined that the applicant does not have any accident-related mental health impairments. Dr. Hines also opined that he is unaware of the applicant having any mental health condition that existed prior to the accident that has been exacerbated by the accident, she does not currently have a psychiatric diagnosis or impairment directly related to the accident and her subjectively reported emotional or cognitive symptoms would therefore be predominantly a minor injury.

25There has been no persuasive medical evidence put forward by the applicant to support her submission that suffers she suffers from psychological impairment caused or exacerbated by the accident justifying treatment beyond the MIG.

Are the Treatment Plans for $2,925.60 for Chiropractic Treatment, $1,995.00 for Psychological Assessment and $ 3,963.04 for Psychological Treatment Reasonable and Necessary?

26It appears from the records filed that the $3,500.00 limit of funding for medical and rehabilitation benefits has already been substantially provided by the respondent. As a result, having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the medical treatment plans and cost of psychological assessment in dispute are reasonable and necessary.

Interest

27Interest is not payable as no benefits are payable.

ORDER

28For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.