Mondroid v. Certas Direct Insurance Company, 2022 CanLII 117081

Mondroid v. Certas Direct Insurance Company

Citation: Mondroid v. Certas Direct Insurance Company, 2022 ONLAT 20-011617/AABS

Licence Appeal Tribunal File Number: 20-011617/AABS

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:

Marilou Mondroid

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Kenway Yu, Counsel

For the Respondent:

Kyle Duncan, Counsel

HEARD:

By Way of Written Submission

BACKGROUND

1Marilou Mondroid, ("the applicant"), was involved in an automobile accident on January 28, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

ISSUES

2The following issues are to be decided:

a. Are the applicant's injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline ("MIG")?

b. Is the applicant entitled to a benefit in the amount of $3,889.65 for chiropractic services proposed by Wilson Massage and Physio in a treatment plan ("OCF-18") dated September 4, 2020?

c. Is the applicant entitled to a benefit in the amount of $1,995.55 for a psychological assessment proposed by Alliance Diagnostics in an OCF-18 dated April 2, 2021?

d. Is the applicant entitled to an award under O. Reg 664 because the respondent unreasonably withheld or delayed payment of benefits?

e. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

3I find that:

a. The applicant's injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable as the applicant has exhausted the limits of the MIG;

c. The applicant is not entitled to an award under O.Reg. 664; and

d. The applicant is not entitled to interest.

ANALYSIS

4For the reasons outlined below, I find that the applicant's impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.

Minor Injury Guideline

5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in section 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in section 3(1).

8The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

9It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

Did the applicant suffer physical injuries that warrant the removal from the MIG?

10I find that the evidence establishes that the applicant's physical injuries fall within the minor injury definition.

11I find that the applicant's injuries are predominately soft-tissue injuries for the following reasons.

12The applicant did not attend a hospital following the accident, she first reported the motor vehicle accident to Dr. Rajinder Atwal, family physician, on June 11, 2019, almost five months after the accident.

13Dr. Atwal's clinical notes and records³ ("CNRs") diagnosed the applicant with right shoulder strain. The applicant was prescribed Naproxen with no indication of refills and referred her to undergo an ultrasound on her right shoulder, which revealed she had right shoulder tendinosis.⁴

14The Disability Certificate⁵ ("OCF-3") of Dr. Awal indicated that the applicant suffered from a "right shoulder strain" and opined that the applicant does not suffer from a complete inability to carry on normal life, nor does she suffer from a substantial inability to perform housekeeping or caregiving tasks.

15The OCF-3⁶ prepared by Dr. Khushboo Khushboo, physiotherapist, identifies predominately soft-tissue injuries, including sprain and strain of lumbar and thoracic spine, whiplash, elbow, and shoulder joint, radiculopathy, headache, malaise and fatigue, and dizziness.

16The OCF-3⁷ prepared by Dr. Afshin Maskan, chiropractor, also identifies predominately soft-tissue injuries.

17The respondent argued that the CNRs submitted by the applicant all report soft tissue injuries and based on the evidence the applicant at most suffered a right shoulder strain as a result of the accident.

18When reviewing Dr. Awal's evidence, I noted that the doctor did not comment on the applicant's tendinosis and if this diagnosis was as a result of the accident.

19I am persuaded by the medical opinion of Dr. Atwal that the applicant has a right shoulder strain, which is supported by the soft-tissue injury observations of Dr. Khushboo and Dr. Maskan.

20Taken together, I find that the applicant has not demonstrated that her accident-related injuries warrant a removal from the MIG.

Did the applicant suffer psychological impairments that justify the removal from the MIG?

21An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

22In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

23I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

24The applicant relies on the psychological assessment report⁸ by Dr. Mohammed-Reza Sadeghi, psychologist, who diagnosed the applicant with the following Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"): injuries: adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder.

25Furthermore, the applicant argues in her submissions that her emotional functioning has been adversely affected since the motor vehicle accident, reporting feelings of sadness, irritability, agitation, impatience, frustration, and anger.

26The respondent submits that the psychological symptoms were self-reported by the applicant resulting in Dr. Sadeghi's examinations and observations to be entirely based on subjective findings. The respondent provides that self-reported symptoms do not amount to a diagnosis based on the matter of 17-004796 and 17-004801 v. Certas Direct⁹, where the Tribunal assigned no weight to the applicant's self-reporting to the physiatrists and found that said evidence did not form the basis to remove an applicant from the MIG.

27Moreover, the respondent highlights that Dr. Sadeghi's findings were out of line with the bulk of the medical documentation submitted in the applicant's application; At no point in time did the applicant report symptoms indicating psychological impairments to Dr. Atwal, her family doctor.

28After considering the evidence and submissions from the parties, based on a balance of probabilities I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from a psychological impairment as a result of the accident.

29I note that the CNR's and OCF-3s are completely void of any complaint or diagnosis of a psychological impairment. In reviewing the applicant's medical records there is no indication of psychological symptoms, prescriptions, or referrals.

30When considering the applicant's evidence, I afford little weight to Dr. Sadeghi I agree with the respondents that the findings were out of line with the applicant's submissions, CNRs, and other medical documentation.

31The applicant has the onus of establishing that she suffered a psychological impairment sufficient to remove her from the MIG treatment limits. In this regard, I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG.

Chronic Pain

32For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality.

33This opinion must be supported by medical evidence that establishes the applicant's functionality is impaired and that the chronic pain is the cause of the disability. The applicant submits that she has been diagnosed with chronic neck, back, and shoulder pain causing headaches which therefore exempts her from the MIG.

34The applicant relies on Arruda v. Western Assurance¹⁰ where an arbitrator found that the applicant continued to have complaints of pain, dizziness and headaches following an accident and held that chronic pain should preclude an individual from the MIG. I am not persuaded that this decision has any bearing on the matter before me.

35I find that the applicant failed to provide evidence demonstrating that she developed or suffers from chronic pain resulting from the accident.

36In addition, the applicant failed to refer to the six criteria laid out in the American Medical Association Guides¹¹ ("AMA Guides"). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal's decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The respondent guided the Tribunal to the AMA Guides chronic criteria as outlined in 17-007825 v. Aviva Insurance Canada.¹²

37I find no evidence demonstrating that the applicant has a chronic pain requiring removal from the MIG. The applicant's CNRs are absent of any diagnosis of chronic pain or chronic pain syndrome. The evidence suggests that the applicant is not impaired by pain.

38I also find that the OCF-3 of Dr. Atwal does not support the applicant's position that she suffers from chronic pain, nor does it diagnose the applicant with such.

39For all the above reasons, the applicant has not shown based on a balance of probabilities, that she suffers from chronic pain requiring removal from the MIG.

40As the parties agree that the applicant has exhausted the limits of the MIG, I do not need to address the disputed treatment plans and if they are reasonable and necessary.

AWARD AND INTEREST

41Given that there are no overdue payments of benefits, the applicant is not entitled to interest under section 51 of the Schedule.

42Since I have found that no benefits are owing, I find that the respondent did not unreasonably withhold or delay payment of benefits. Therefore, the applicant is not entitled to an award under O.Reg. 664.

ORDER

43The application is dismissed, and I find that:

i. The applicant's injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable;

iii. The applicant is not entitled to an award under O.Reg 664 and

iv. The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Clinical Notes and Records of Dr. Rajinder Atwal dated June 11, 2019.
4. 4Downsview Clinic, ultrasound, dated June 12, 2019.
5. 5OCF-3 dated January 2, 2021.
6. 6OCF-3 dated March 23, 2019.
7. 7OCF-3 September 4, 2020, including: sprain and strain of ribs and sternum, injury of muscle and tendon at the neck, thorax and shoulder and headache
8. 8Psychological Assessment Report by Mohammed-Reza Sadeghi, June 10, 2021.
9. 917-004796 and 17-004801 v. Certas Direct, 2018 CanLII 97830 (ON LAT) at para. 27.
10. 10FSCO A13-003926.
11. 11American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
12. 122018 CanLII 98282 (ON LAT).