Citation: Khio v. Travelers Insurance Company of Canada, 2022 ONLAT 20-012157/AABS

Licence Appeal Tribunal File Number: 20-012157/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:

Mervt Khio

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Beverly Brooks

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Jason L. Hepburn, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Mervt Khio, the applicant, was involved in an automobile accident on August 23, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent, Travelers Insurance of Canada, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute are:

a. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit in the Minor Injury Guideline (“MIG”)?

b. Is the applicant entitled to $136.85 ($1,236.85 less $1,100.00 approved) for chiropractic services proposed by Life Point Medical in a treatment plan dated November 5, 2018?

c. Is the applicant entitled to $3,090.09 for chiropractic services proposed by Life Point Medical in a treatment plan dated December 10, 2018;

d. Is the applicant entitled to $1,845.72 for a psychological assessment proposed by Life Point Medical in a treatment plan dated November 12, 2018?

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

Results

3I find that the applicant’s injuries are predominantly minor and, therefore, subject to the treatment within the $3,500 limit of the MIG;

4Based on my findings that the applicant’s injuries fall within the MIG and that the chiropractic treatment plan has been partially paid up to the MIG limit¹, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

5I find that the applicant is not entitled to interest as no benefits are owning.

ANALYSIS

The Minor Injury Guideline

6The 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 s. 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”. The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7The onus is on the applicant to prove, on a balance of probabilities, that she should be removed from the MIG because the accident caused her to develop psychological and physical injuries, thereby removing her from the MIG.

8The applicant’s position is that she should be removed from the MIG because of accident-related psychological and physical injuries. The respondent maintains that the applicant should not be removed from the MIG as her psychological and physical impairments are minor. Moreover, the respondent emphasizes that some physicians are of the view that not only does the applicant not have psychological or physical impairments as a result of the accident, but that the applicant has achieved maximum medical recovery. The respondent also notes that the applicant has had very few interactions with her family doctor since the accident.

Psychological Impairment and the MIG

9In my view, the applicant’s psychological impairments do not fall outside the MIG. The applicant has been examined by two psychologists who have both administered extensive psychometric testing. The applicant had a psychological rehabilitation pre-screen conducted by Dr. S. Gabidulina, a psychologist, five weeks after the accident on October 1, 2018. Dr. Gabidulina reported that while she administered the Automobile Anxiety Inventory test, the applicant demonstrated symptoms of motor vehicle anxiety. Dr. Gabidulina opined in her report dated October 20, 2018 that the applicant suffers from Situational Phobias and Depressive Episode and concluded that a full psychological assessment was necessary to determine the extent of the applicant’s psychological impairments. Dr. Gabidulina noted in her report that without intervention the applicant’s condition could lead to a chronic disability.²

10The applicant attended a full psychological assessment conducted by Dr. Gabidulina on November 26, 2018. Her report dated December 21, 2018 detailed the results of five psychometric tests including the Beck Depression Inventory, the Beck Anxiety Inventory (BDI), the Multidimensional Pain Inventory (MDI), the SCL-90-R and the Automobile Anxiety Inventory. The BDI test showed that the applicant had a high level of agitation. The SCL-90-R test reveled that the applicant was suddenly scared for no reason.³ Dr. Gabidulina diagnosed the applicant with Situation Phobias and concluded that “without therapy, and under increasing stress, such individuals, may progress towards more serious psychological distress”.⁴ She also stated in her report that the applicant’s psychological condition was posing a significant barrier for her future physical recovery.⁵ Dr. Gabidulina recommended sixteen sessions of psychological treatment.

11The respondent takes issue with the pre-screening and the psychological assessment conducted by Dr. Gabidulina. The respondent points out that in her report, Dr. Gabidulina diagnosed the applicant with a driving phobia, but the clinical notes and records of the applicant’s family doctor do not include any information about driver or passenger anxiety. The respondent also notes that the report does not state whether the pre-assessment screening was done in person or by phone and whether Dr. Gabidulina relied on any medical documentation.

12The applicant attended a psychological insurer’s examination (“IE”) with Dr. M. Pojhan, psychologist, on December 18, 2018. The purpose of the IE was to determine the applicability of the MIG and whether the psychological assessment treatment plan dated November 12, 2018 was reasonable and necessary. Dr. Pojhan administered numerous psychometric tests including the Test of Memory Malingering, the Test of Nonverbal Intelligence, the Reynolds Depression Screening Inventory, the Patient Pain Profile, the Pain Catastrophizing Scale and the (Post Traumatic Stress Disorder) PTSD Checklist – Civilian Form. While these tests were being administered, Dr. Pojhan asked the applicant whether she thought that she required psychological services and she said that she did not think she needed them.⁶

13Although Dr. Pojhan identified issues the applicant had with sleep, mood and the degree of pain that were impacting her daily living activities, he concluded in his report dated January 2, 2019 that the applicant’s emotional presentation was not compatible with any significant mental health problems.⁷ He noted the applicant’s ability to emotionally cope with her current situation, her supportive family environment and her willingness to participate in routine activities at home.⁸ He also pointed to these reasons as the justification for his conclusion that the psychological assessment treatment plan dated November 12, 2018 is not reasonable and necessary. Moreover, he indicated that the applicant had achieved maximum medical recovery⁹ and that she did not have any mental health problems as a result of the accident.¹⁰ Dr. Pojhan reported that the applicant, herself, denied that she had any psychological problems with the exception of her distributed sleep. Dr. Pojhan stated in his report dated January 2, 2019 that “given the applicant’s current appropriate coping skills and her presentation at this psychological evaluation, no psychological intervention is warranted at this time”.¹¹ He also stated that her emotional presentation was not compatible with the diagnostic criteria of any significant mental health problems”.¹²

14The psychometric tests administer by Dr. Pojhan did not indicate that the applicant was suffering any psychological impairments. According to Dr. Pojhan, the applicant’s score on the PTSD test was indicative of lack of significant anxiety and stress responses to the accident.¹³ During the assessment, the applicant noted that she was only taking Tylenol to deal with the pain i.e. no heavy medications.¹⁴ Dr. Pojhan concluded that the applicant’s current emotional state is not indicative of any significant mental health problems.¹⁵

15The clinical notes and records of Dr. Toma, the applicant’s family doctor, and the Life Point Medical Clinic (where the applicant attends her physiotherapy sessions) do not include any information about the applicant’s psychological state except for her complaints about sleeplessness.¹⁶ Dr. Toma has not referred her to any psychologists but has prescribed muscle relaxants for her disturbed sleep and recommended the continuation of physiotherapy sessions to address her problem of sleeplessness. Otherwise, if Dr. Toma thought that her psychological issues were serious, he would have referred her to a psychologist and prescribed stronger medication.

16The applicant has been examined by two psychologists who have reached different conclusions about her psychological state. Dr. Pojhan came to the conclusion that the applicant’s emotional state was not indicative of any significant mental health problems. In contrast, Dr. Gabidulina is of the view that the applicant’s psychological impairment is so serious that it could adversely impact her physical recovery and it could lead to a chronic disability.

17I prefer the findings of Dr. Pojhan to those of Dr. Gabidulina. Although both Dr. Gabidulina and Dr. Pojhan are very well qualified and experienced psychologists and who have conducted numerous psychometric tests on the applicant, Dr. Pojhan’s experience is more oriented to psychological assessments and his results better reflect the information provided by family doctor and the applicant. Dr. Pojhan has worked in the clinical field of psychological assessments on a full-time basis for over twenty-five years. He currently works at the Cambridge Psychology Centre, Altum Health and Dynamic Functional Solutions and completes psychological assessments of the victims of motor vehicle accidents and people who sustain inquiries at work (WSIB referrals).¹⁷ Although Dr. Gabidulina has conducted clinical and rehabilitation work for over 30 years, she has only carried out such work in Canada for sixteen years. Moreover, it is unclear as to how many years she has undertaken psychological assessments in Canada. With respect to the applicant and her views on her health issues, the applicant has reported to Dr. Pojhan that she is driving, performing household chores, participating in family events and not taking any heavy medication. Aside from sleeplessness, her family doctor has not reported any concerns about her psychological wellbeing in his clinical notes and records and has not referred her for psychological counselling. These actions by her family doctor and the applicant’s responses about not needing a psychologist are more in keeping with Dr. Pojhan’s conclusion that she does not have any serious psychological impairments.

18The applicant has not met her evidentiary onus on the balance of probabilities standard. The psychological assessment of Dr. Pojhan does not provide evidence that removes her from the MIG. Dr. Pojhan’s conclusions about her psychological state are supported by the applicants’ comments about her psychological issues and the clinical notes and records of her family doctor and her physiotherapy clinic. As a result, I cannot conclude that the applicant has established any accident-related psychological impairment that would fall outside the MIG and the prescribed definition of minor injuries.

Physical Impairments and the MIG

19In my view, the applicant’s physical impairments do not fall outside the MIG. The applicant was examined by a chiropractor and a physiatrist to determine the extent of her physician injuries. Dr. M. Arabkhari, a chiropractor at Life Point Medical, completed a Disability Certificate on September 21, 2018. Dr. Arabkhari indicated that the applicant suffered from an inability to carry on a normal life as a caregiver and perform housekeeping and home maintenance. Dr. Arabkhari noted the following injuries and symptoms: “pain and stiffness with prolonged postures of sitting, standing, walking along with lifting and carrying problems. The affected joints have a limited range of motion.”¹⁸

20The applicant attended a physiatry insurer’s examination (“IE”) with Dr. F. Ismail, a physiatrist, on November 7, 2018. The purpose of the assessment was to determine the applicant’s eligibility for the non-earner benefit. Although NEB is not an issue at this hearing, the results of the examination speak to functionality, and may be examined to determine whether the applicant’s physical impairments remove her from the MIG. As part of his assessment, Dr. Ismail reviewed the in-home functional assessment conducted by Ms. A. Bertolo, an occupational therapist, the Disability Certificate and several treatment plans. Dr. Ismail noted in his report dated December 19, 2018 that the applicant reported intermittent pain in her left shoulder, lower back and neck. He also reported that she was taking medication (Tylenol and Advil) to manage the pain. Dr. Ismail opined that the applicant sustained soft tissue injuries.¹⁹ He also stated that his examination “did not reveal any ongoing accident related musculoskeletal or neurological impairment”.²⁰

21The applicant had an in-home functional assessment IE conducted on December 5, 2018 by Ms. Bertolo, an occupational therapist, for the purpose of determining her eligibility for NEB. In her report dated December 18, 2018, Ms. Bertolo stated that although the applicant was reporting sharp neck pain, she was able to perform her pre-accident activities and she did not suffer an inability to carry on a normal life from an occupational therapy perspective.²¹ During her assessment, Ms. Bertolo noted the applicant had neck pain and limited movements but that she had “an 80 percent improvement” because of her physiotherapy treatments at Life Point Medical.²²

22The respondent maintains that the applicant should not be removed from the MIG because several physicians have concluded that the applicant has achieved maximum medical recovery including Dr. Ismail and Dr. Pojhan. The respondent also notes that the applicant has had very few interactions with her family doctor, Dr. Toma, since the accident. The applicant has only seen her family physician once since the accident (September 12, 2018) and he has not referred her to any specialists. During this appointment, the applicant complained of neck and shoulder pain. Dr. Toma told her to continue with physiotherapy and prescribed Baclofen, a muscle relaxer.

23Dr. Ismail prepared another physical assessment report with respect to the MIG based on the applicant’s medical records and his physical examination of the applicant on November 7, 2018 which reinforced the conclusions that he reached in his first assessment report i.e. the applicant’s physical impairments are minor. The purpose of this report dated January 2, 2019 was to determine whether the applicant should be removed from the MIG because of physical impairments. The medical documentation included clinical notes and records from Dr. Toma, the applicant’s family doctor, and from Life Point Medical, as well as hospital records, proposed treatment plans and the Disability Certificate completed by Dr. Arabkhari. Dr. Ismail stated in his report dated January 2, 2019, as he had in his December 19, 2018 report, that the applicant had sustained soft tissue injuries of her cervical spine, left shoulder and lumbar spine as a result of the accident.²³ He noted that his most recent review had not revealed any accident-related musculoskeletal or neurological impairment.²⁴ He opined that the applicant’s injuries were soft tissue injuries which are minor injuries as defined by the Schedule and that the applicant had reached maximal medical recovery.²⁵ Dr. Ismail noted in his report that the applicant told him she maintained a valid driver’s licence and was driving without any reported issues.²⁶ In his report, he confirmed his diagnosis that the applicant’s injuries are in the MIG.²⁷ Although Dr. Ismail reached this conclusion based on a paper review instead of conducting objective testing, the overall conclusions that he reached after conducting the paper review are very similar to those Dr. Ismail reached after examining the applicant on November 7, 2019 i.e. that the applicant had achieved maximum medical recovery.

24The applicant submits that the diagnoses provided by Life Point Medical, her consistent attendance at physiotherapy, chiropractic and massage treatment sessions and the fact that she incurred the costs of treatment herself provide compelling evidence that her psychological and physical impairments are beyond the MIG. With respect to Dr. Pojhan reporting that the applicant had achieved maximal medical recovery, the applicant maintains that Dr. Pojhan reached this conclusion without any objective testing.

25I prefer the findings of Dr. Ismail as he is a physiatrist who has completed a Residency Training Program in Physical Medicine and Rehabilitation. His practice focuses on musculoskeletal medicine, neurological rehabilitation and electrodiagnostic medicine. Dr. Ismail conducted an examination of the applicant and her medical records and prepared two detailed reports whereas Dr. Arabkhari is a chiropractor who completed a Disability Certificate.

26After reviewing the evidence, I find that there is insufficient compelling medical evidence to remove the applicant from the MIG. In my view, the applicant does not suffer from a psychological impairment or physical injury that is not predominately minor.

27An analysis of the treatment plans as to whether they are reasonable and necessary is not required, as the foregoing analysis indicates that the applicant remains in the MIG.

28I find that the applicant sustained predominantly minor injuries that fall within the MIG. As a result of my finding that the applicant falls within the MIG and the fact that a chiropractic treatment plan has been approved up to the balance of the MIG and there are no additional monies payable,²⁸ it is unnecessary for me to determine whether the treatment plans are reasonable and necessary as the MIG limit of $3,500 has already been spent on this file. Given that there are no additional monies for treatment plans and the MIG applies, I am not going to determine whether the treatment plans are reasonable and necessary.

CONCLUSION

29The applicant has sustained predominantly minor injuries that fall within the MIG.

30Since the applicant has not been removed from the MIG and the limit of $3,500 has already been spent on this file, it is unnecessary to determine whether the treatment plans are reasonable and necessary.

31The applicant is not entitled to interest as no payments are overdue.

Footnotes

1. 1Respondent’s Document Brief, Letter dated November 8, 2018 from Respondent to Applicant regarding Chiropractic Treatment Plan Dated November 5, 2018, page 84.
2. 2Applicant’s Document Brief, Psychological Rehabilitation Screening Report, Dr. Gabidulina, October 20, 2018, Tab 12, page 2.
3. 3Applicant’s Document Brief, Psychological Assessment Report, Dr. Gabidulina, December 21, 2018, Tab 13, page 11.
4. 4Applicant’s Document Brief, Psychological Assessment Report, Dr. Gabidulina, December 21, 2018, Tab 13, page 13.
5. 5Applicant’s Document Brief, Psychological Assessment Report, Dr. Gabidulina, December 21, 2018, Tab 13, page 12.
6. 6Respondent’s Document Brief, Insurer Examination Report, Dr. Pojhan, January 2, 2019, Tab 6, page 53
7. 7Applicant’s Document Brief, Psychological Evaluation, Dr. Pojhan, January 2, 2019, Tab 17, page 13.
8. 8Respondent’s Document Brief, Insurer Examination Report, Dr. Pojhan, January 2, 2019, Tab 6, page 54.
9. 9Respondent’s Document Brief, Insurer Examination Report, Dr. Pojhan, January 2, 2019, Tab 6, page 55.
10. 10Respondent’s Document Brief, Insurer Examination Report, January 2, 2019, Tab 6, page 54.
11. 11Respondent’s Document Brief, Independent Psychological Evaluation, Dr. Pojhan, January 2, 2019, Tab 6, page 55.
12. 12Respondent’s Document Brief, Independent Psychological Evaluation, Dr. Pojhan, January 2, 2019, Tab 6, page 53.
13. 13Respondent’s Document Brief, Insurer Examination Report, January 2, 2019, Tab 6, page 53.
14. 14Applicant’s Document Brief, Psychological Evaluation, Dr. Pojhan, January 2, 2019, Tab 17, page 10 and 11.
15. 15Respondent’s Document Brief, Insurer Examination Report, January 2, 2019, Tab 6, page 53.
16. 16Respondent’s Document Brief, Clinical Notes and Records of Dr. Toma, Tab 8B and 8C.
17. 17Applicant’s Document Brief, Psychological Evaluation, Dr. Pojhan, January 2, 2019, Tab 17, page 10 and 11.
18. 18Applicant’s Document Brief, Disability Certificate, Dr. Arabkhari, Tab. 5, page 4.
19. 19Respondent’s Document Brief, Physiatry Evaluation Report, Dr. Ismail, December 19, 2018, Tab 3, page 23.
20. 20Respondent’s Document Brief, Physiatry Evaluation Report, Dr. Ismail, December 19, 2018, Tab 3, page 23.
21. 21Applicant’s Document Brief, In Home Functional Report, Ms. Bertolo, December 19, 2018, Tab 15, page 15.
22. 22Applicant’s Document Brief, In Home Functional Report, Ms. Bertolo, December 19, 2018, Tab 15, page 15.
23. 23Respondent’s Document Brief, Physiatry Paper Review, Dr. Ismail, January 2, 2019, Tab 4, page 30.
24. 24Respondent’s Document Brief, Physiatry Paper Review, Dr. Ismail, January 2, 2019, Tab 4, page 30.
25. 25Respondent’s Document Brief, Physiatry Paper Review, Dr. Ismail, January 2, 2019, Tab 4, page 30.
26. 26Applicants’ Document Brief, Physiatry Paper Review, Dr. Ismail, January 2, 2019, Tab 16, page 3.
27. 27Respondent’s Document Brief, Physiatry Paper Review, Dr. Ismail, January 2, 2019, Tab 4, page 30.
28. 28Respondent’s Document Brief, Letter dated November 8, 2018 from Respondent to Applicant regarding Treatment Plan Dated November 5, 2018, page 84.