Release date: 10/07/2021
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:
Christian Edward
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Ramya Satkunapalan, Paralegal
For the Respondent:
Patrick Sinclair, Counsel
HEARD:
By way of written submissions
OVERVIEW
1C.E. was injured in an accident on November 17, 2017, and sought various benefits from the respondent, Sonnet, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”). Sonnet denied the benefits in dispute because it determined that C.E.’s accident-related impairments were predominantly minor injuries and therefore subject to the treatment limits set out in the Minor Injury Guideline (the “MIG”). C.E. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues to be determined are as follows:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. Is the medical benefit in the amount of $2,113.04 for physiotherapy treatment, recommended by Alexmuir Wellness Centre in a treatment plan (“OCF-18”) submitted on May 13, 2019, denied on May 27, 2019, reasonable and necessary?
iii. Is the benefit in the amount of $3,663.60 for chiropractic treatment recommended by Alexmuir Wellness Centre in an OCF-18 submitted on April 11, 2018, and denied on April 16, 2018, reasonable and necessary?
iv. Is the benefit in the amount of $2,575.00 for physiotherapy treatment recommended by Alexmuir Wellness Centre in an OCF-18 submitted on July 30, 2018, and denied on August 10, 2018, reasonable and necessary?
v. Is the benefit in the amount of $2,549.94 for physiotherapy treatment recommended by Alexmuir Wellness Centre in an OCF-18 submitted on January 21, 2019, and denied on January 25, 2019, reasonable and necessary?
vi. Is the benefit in the amount of $3,013.76 for psychological services in an OCF-18 submitted by Alexmuir Wellness Centre on April 12, 2019 and denied on April 25, 2019, reasonable and necessary?
vii. Is the cost of examination expense in the amount of $2,125.00 for a psychological assessment submitted in an OCF-18 by Alexmuir Wellness Centre on March 23, 2018 and denied on April 4, 2018, reasonable and necessary?
viii. Is C.E. entitled to interest on any overdue payment of benefits?
FINDING
3C.E. has not demonstrated that his accident-related injuries and impairments justify removal from the confines of the MIG. Since the MIG limits have been exhausted, he is not entitled to payment of the treatment plans or interest.
ANALYSIS
The Minor Injury Guideline
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $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.” In order to be removed from the MIG, an insured must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.
5C.E. submits that he should be removed from the MIG based on his pre-existing health conditions, chronic pain and psychological impairments sustained as a result of the accident. He refers to an OCF-3 dated November 24, 2017 that lists WAD II with complaint of neck pain with musculoskeletal signs, shoulder joint, shoulder girdle, thoracic and lumbar spine, sacroiliac joint, collateral ligament of knee, difficulty in walking, non-organic sleep disorder, headache and pain in legs as his accident-related injuries.
6C.E.’s submits that he has a pre-existing medical condition, has developed a chronic pain condition and has exacerbated his psychological impairments as a result of the accident. It is on this basis that he argues that his impairments fall outside of the MIG. His evidence of pre-existing conditions is a torn right knee in 2016, and knee pain since approximately 2012, that he submits was exacerbated by the accident and resulted in chronic pain. Regarding his psychological impairment, he relies on a February 28, 2019 psychological report conducted by kinesiologist Lital Crombie, as supervised by psychologist Dr. Steiner. According to the report, C.E was diagnosed with “specific phobia, situational (driver-passenger related).” He also refers to the Schedule A attached to the OCF-1 which states that he has “anxiety, depression and has been scared to drive since the accident.”
7I find that C.E. has not established that his accident-related physical injuries warrant removal from the MIG. The injuries noted in the OCF-3 and other supportive medical documentation are sprain and strain injuries that are captured within the MIG as sprain and strain injuries, headaches and pain. There is no evidence of fractures or tears that would support that any of his accident-related impairments fall outside of the definition set out in s. 3(1). The s. 44 report of Dr. Zabieliauskas concluded that C.E. had good range of motion and objective testing revealed sprain and strain injuries that would not exclude him from treatment under the MIG.
Does C.E. suffer from a pre-existing condition?
8C.E. submits that his pre-existing knee injuries were documented pre-accident and worsened by the accident, which supports removal from the MIG under s. 18(2). However, although I agree with C.E. that these pre-existing conditions are documented in his family physician’s clinical notes and records, there is no medical opinion or compelling medical evidence that these pre-existing injuries would prevent him from reaching maximum medical recovery if he is kept within the MIG, which is required under s. 18(2). The MIG is clear that it is not enough to have a documented condition or injury during the pre-accident period, but that there must be compelling evidence of a pre-existing condition that would prevent C.E.’s recovery if he is kept within the MIG. His submissions do not discuss why these specific impairments would warrant removal from the MIG nor does he point to a medical opinion stating that they would prevent his recovery under the MIG.
Does C.E. have chronic pain as a result of the accident?
9I find C.E. does not suffer from functional impairment as a result of accident-related chronic pain.
10The Tribunal has determined that an insured may be removed from the MIG if they suffer from chronic pain that causes functional impairment or if they have a diagnosis of chronic pain syndrome, as these conditions are not captured under the MIG definition. In this case, C.E. points to his knee pain complaints, the records of his family physician dated May 9 and August 8, 2018, and a diagnostic imaging report dated December 15, 2017 that states he has chronic pain. Sonnet argues that C.E. has not directed the Tribunal to any discussion regarding the level of pain, whether the pain is tolerable without treatment and the functional impact of the pain. Sonnet relies on the s. 44 report that found that his injuries are predominantly minor.
11I agree with Sonnet. C.E. has not directed me to a diagnosis of chronic pain syndrome. It is well-settled that without a diagnosis or compelling medical evidence supporting functional impairment, an insured may not establish that they suffer from a diagnosable chronic pain condition. C.E. has directed me to comments from his family physician and a diagnostic imaging report that mentions “chronic pain” and chronic persistent LPB (low back pain). However, there is no referral to a specialist to address the pain issues, there is no treatment plan for a chronic pain assessment, and the medical documentation is silent on whether the pain is tolerant without treatment. Lastly, C.E.’s claim of suffering from chronic pain is weakened by the fact that he works at two jobs post-accident which, in my view, is not indicative of functional impairment as a result of chronic pain. C.E. failed to direct me to compelling evidence that he suffered from functional impairments as a result of chronic pain.
12On the above, it is difficult to find that the accident contributed to a chronic pain condition with functional impairment that requires treatment beyond the confines of the MIG. As such, C.E. has failed to establish that he suffers from chronic pain as a result of the accident.
Did C.E. suffer a psychological impairment as a result of the accident?
13Psychological impairments are not captured within the definition of minor injury under s. 3(1). As such, an insured may be precluded from recovery under the MIG if they have sustained a psychological impairment as a result of the accident. To this end, C.E. mainly relies on the s. 25 report of Dr. Steiner that he has “symptoms of avoidance, anxiety when traveling in a vehicle, constant thoughts about the accident while in a vehicle”, that require a psychological assessment and treatment. Sonnet relies on a s. 44 report by Dr. Syed who opined that C.E. did not present with a diagnosable condition due to numerous failed validity measures.
14Sonnet submits that I should place little weight on the s. 25 report for several reasons. First, the test did not utilize any validity measures in the psychometric testing. Second, the assessment appears to have been conducted in part or in whole by kinesiologist, Ms. Crombie. Lastly, it is not clear from the report of Dr. Steiner’s involvement in the assessment or production of the report.
15I place little weight on the psychological documentation relied on by C.E. and place more weight on the s.44 report by Dr. Syed for several reasons. First, the s. 25 report fails to rely on objective testing that establishes credible reporting on accident-related symptomatology. Second, the lack of confirmation of Dr. Steiner’s level of involvement calls into question the validity of whether an authorized assessor conducted the assessment and produced the report. Third, Ms. Crombie, as a kinesiologist, is not qualified to administer any part of a psychological assessment. Lastly, Dr. Syed’s report, which contains psychometric testing and various validity measures, provides clear results of C.E.’s psychological symptomatology.
16Dr. Syed opined that C.E. is suffering from maladaptive beliefs about his level of disability resulting in psychological distress. Dr. Syed went on to comment that the severity cannot be determined due to the invalidity of the test results. Dr. Syed noted invalid testing measures, citing that C.E. presented with certain patterns that are common among individuals feigning mental disorder. Dr. Syed also commented that C.E.’s testing scores were indicative of feigning psychological impairment. Dr. Syed found no objective psychometric evidence to substantiate C.E.’s subjective self-report of psychological impairment. Due to the unreliable and invalid findings of the evaluation, Dr. Syed ruled out an adjustment disorder with anxiety and depressed mood.
17On the evidence, I find that Dr. Syed’s report provides a clearer picture of C.E.’s psychological condition. As such, I find that the shortcomings of the Dr. Steiner report, combined with the validity testing results of Dr. Syed’s report, do not establish that C.E. suffered psychological impairment as a result of the accident.
Are the treatment plans reasonable and necessary?
18I have determined that C.E. has not demonstrated that removal from the MIG is warranted. As such, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. The MIG limits has been exhausted and, as no benefits are payable, no interest is payable under s. 51.
CONCLUSION
19C.E. has not met his burden to establish that treatment outside of the MIG limits is required. He is not entitled to the disputed treatment plans or interest.
Released: October 7, 2021
______________________
Derek Grant, Adjudicator