Alekseychuk v. Pembridge Insurance Company, 2022 CanLII 45266

Citation: Alekseychuk v. Pembridge Insurance Company, 2022 ONLAT 20-005629/AABS

Licence Appeal Tribunal File Number: 20-005629/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:

Olena Alekseychuk

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Olena Alekseychuk, Applicant Kateryna Vlada, Paralegal

For the Respondent: Dale J. Stuckless, Counsel

HEARD: In Writing

REASONS FOR DECISION

OVERVIEW

1Olena Alekseychuk, ("the Applicant"), was involved in an automobile accident on October 25, 2017, and sought benefits from Pembridge Insurance Company, ("the Respondent"), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).

2The Respondent denied the Applicant's claims, because it determined that the Applicant's injuries fit the definition of "minor injury" as prescribed by the Schedule and, therefore, fall within the Minor Injury Guideline ("the MIG").¹ As a result, the Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

3The issues to be decided in the hearing are:

1. 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?
2. Is the applicant entitled to $3,500.00 for physiotherapy services recommended by Tandem Health and Diagnostic in a treatment plan (OCF-18) dated March 15, 2018?
3. Is the applicant entitled to $2,000.00 for chronic pain assessment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated June 3, 2019?
4. Is the applicant entitled to $2,000.00 for psychological assessment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated June 19, 2019?
5. Is the applicant entitled to $12,293.41 for chronic pain treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated November 7, 2019?
6. Is the applicant entitled to $3,335.98 for psychological treatment recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated September 10, 2020?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant has not met her onus of proving that her accident-related injuries warrant removal from the MIG.

5The Applicant is subject to the MIG and the $3,500.00 funding limit on medical benefits. An analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted as the Applicant has exhausted the funding available to her for medical benefits.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck on the driver's-side, near the rear end, by an oncoming vehicle which made an improper left turn. The impact caused the Applicant's vehicle to spin around before it came to a complete stop after striking a guardrail. The Applicant was picked up from the scene of the accident by a family member and later taken to a walk-in clinic where her family physician, Dr. I. Safir, practices.

7The Applicant's initial complaints were headaches, bruising around her eye, nausea, a small laceration on her nose, back pain, an inability to raise her arms, mild ecchymoses in her face, and general limited range of motion. She was diagnosed with sprains/strains and other trauma: neck, low back, coccyx, and was advised to be active as tolerated, take Tylenol and Advil, and commence physiotherapy treatment. She started physiotherapy, chiropractic, and massage therapy within approximately a week of the accident.

8Follow-up visits with Dr. Safir on November 2, 9, and December 21, 2018, included similar complaints, but also reports of numbness in the left arm with associated tingling. The Applicant was referred to Dr. T. O. Gyenes, a physical medicine specialist, for a consultation on February 26, 2018. Dr. Gyenes examined the Applicant and administered a nerve conduction study which produced normal results. The Applicant was advised to use a splint for therapeutic purposes and referred for a head and neck MRI.

9The MRI results are noted in Dr. Safir's clinical notes and records ("CNRs") in an April 30, 2018 visit. Dr. Safir noted that the Applicant has some degenerative disc disease with no compression and no evidence of a brain injury. Though, Dr. Safir noted "possible microangiopathic changes in the l(eft) hemispheric white matter," it was also noted that it was "possibly idiopathic in nature." This suggests that any white matter changes are unlikely related to the subject accident. The Applicant stopped all treatment on May 24, 2018, and never met with Dr. Safir for an accident-related complaint after this visit, until June 4, 2019.

10The visit to Dr. Safir in June 2019 was primarily for an issue unrelated to the accident. However, the Applicant also complained of the same accident-related symptoms that she complained of immediately following the accident. Dr. Safir referred the Applicant to a neurologist due to headaches and numbness in the left hand. OHIP records show that the Applicant met with Dr. V. Prigozhikh, neurologist in September 2019, but no records from that consultation are before me.

11The Applicant was assessed for insurer's examinations ("IEs") in the summer of 2019. Dr. T. Dumitrascu, psychologist, and Dr. A. Marchie, orthopaedic surgeon, conducted assessments and issued corresponding reports. The reports from both assessors concluded that the Applicant sustained a predominantly minor injury and was subject to the MIG.

12The Applicant was then assessed by Dr. G. Karmy, physician, and Dr. A. Shaul, psychologist. Those assessors concluded that the Applicant developed chronic pain syndrome and psychological injuries.

THE MINOR INJURY GUIDELINE

13The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant's heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

14If an insurer deems an Applicant's injuries to be minor in nature, the onus is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

15Upon review of the evidence and submissions, I find that the Applicant sustained a minor injury as defined by the Schedule. As a result, she is subject to the $3,500.00 funding limit provided by section 18 of the Schedule. I also find that the Applicant is not entitled to the disputed treatment and assessment plans because she is subject to the MIG.

Pre-Existing Knee Pain

16I find no compelling evidence to demonstrate that the Applicant suffers from pre-existing knee pain which would preclude her recovery if subject to the MIG.

17The Applicant's medical records show that the Applicant sustained a meniscus injury more than 3 years prior to the accident. She consulted with a specialist and received nerve-blocking injections for the injury. However, there is no indication that this injury had any affect on the Applicant's recovery from her accident-related injuries.

18Dr. Safir's CNRs include no notes that indicate the subject accident exacerbated the Applicant's pre-existing knee condition. Likewise, there is no indication that the pre-existing knee injury would preclude her recovery from accident-related injuries. In fact, Dr. Safir does not mention anything about the Applicant's knee issues in any post-accident visit.

19The Applicant denied any pre-existing illnesses or conditions to assessors or stated that she recovered from the meniscus injury. The Applicant denied any pre-existing injury in the reports by Dr. Marchie, Dr. Karmy, and Dr. Shaul. The Applicant reported her meniscus injury in the psychological assessment with Dr. Dumitrascu but stated that she fully recovered from the injury prior to the subject accident.

20Considering the evidence, I find that the Applicant's pre-existing health condition had no impact on her ability to recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

Chronic Pain

21I find no compelling evidence that the Applicant suffers from a chronic pain condition which would remove her from the MIG.

22The Tribunal has accepted that a diagnoses of chronic pain syndrome is not required to remove someone from the MIG but, instead, the Applicant may show that ongoing pain is a continuous impairment. Here, the Applicant has not demonstrated that she is impaired by pain. Pain does not impair the Applicant from working or completing her activities of daily living. She returned to work in an office and as a banquet server, within a week or two following the accident. She reported to assessors that she is independent with all her personal care and light housekeeping duties. Similarly, no medical records indicate that the Applicant's pain affects her functionality. A note in Dr. Safir's CNRs dated April 30, 2018, states that the Applicant's neck range of motion ("ROM") was within normal limits, her shoulder ROM was full, and her back ROM was within normal limits.

23I find Dr. Karmy's September 16, 2019 report to be uncompelling evidence of a chronic pain condition that would warrant the Applicant's removal from the MIG. Dr. Karmy diagnosed the Applicant with a mild traumatic brain injury, chronic headaches, chronic mechanical neck and back pain, myofascial pain syndrome, chronic pain syndrome, mood disorder with symptoms of passenger/driver anxiety, and post-traumatic features. Yet, Dr. Karmy never reviewed the Applicant's medical records as part of the assessment and, instead, based his opinion almost entirely on the Applicant's self-reported symptoms. As a result, Dr. Karmy never saw Dr. Safir's clinical note that ruled out a brain injury as a result of the accident. Dr. Karmy is a physician with a focus on pain issues, his opinion on potential neurological or psychological injuries holds minimal weight. Further, Dr. Karmy found that the Applicant's injuries negatively affect her job performance and that she constantly struggles with pain at work yet, this is not noted in any other records. It is unusual that such a drastic negative impact on the Applicant's functionality would be omitted from all other records, particularly Dr. Safir's CNRs. Remarkably, Dr. Safir never referred the Applicant to any pain specialist as a result of the accident. The lack of a referral from Dr. Safir is unlike the situation in 2014 when the Applicant was referred to Dr. Wilderman for her ongoing meniscus pain.

24I prefer the report of Dr. Marchie, dated August 21, 2019, over Dr. Karmy's report. Dr. Marchie reviewed Dr. Safir's CNRs as part of the assessment, providing a more fulsome perspective on the Applicant's medical history. Dr. Marchie noted that the Applicant complained of no improvement in her health since the subject accident, despite reporting some improvement to Dr. Safir in November 2017. On examination, Dr. Marchie found that the Applicant has some mild tenderness in her back but provided no objective findings. Dr. Marchie diagnosed the Applicant with myofascial strain to her upper back consistent with a Whiplash Associated Disorder along with a left rotator cuff tendinopathy as a result of the subject accident. These injuries fall within the minor injury definition.

25The Applicant does not meet 3 of the 6 criteria for chronic pain syndrome, as defined by the American Medical Association ("AMA"). While it is not a requirement to meet the AMA guidelines, the guides often act as a helpful tool when determining whether someone suffers from a chronic pain condition which warrants removal from the MIG. Here, there is no evidence that the Applicant meets the requirements. She is not using prescription drugs beyond the recommended duration, nor is she dependent on prescription drugs. The Applicant does not excessively depend on healthcare providers or family – she went more than a year without seeking treatment or any clinical care for her accident-related injuries. There is no evidence of secondary physical deconditioning due to disuse. She returned to work and remains independent with her activities of daily living following the accident. Lastly, there is little evidence of any psychosocial sequalae, as discussed in the next section.

Psychological Injuries

26I find no persuasive evidence showing that the Applicant sustained a psychological injury as a result of the accident.

27Dr. Safir's CNRs note no complaints of psychological symptoms that warrant investigation. While Dr. Safir noted a discussion of some relaxation techniques in the acute phase after the accident, there are no ongoing symptoms documented in the records. There is no indication of depression or anxiety which would warrant any investigation. The Applicant has resumed driving and passenger travel and there is no symptomatic behaviour, such as avoidance, that would indicate a psychological injury.

28I prefer Dr. Dumitrascu's report over Dr. Shaul's report. Both assessments included a clinical interview and psychometric testing with the Applicant. The clinical interviews from both reports revealed no compelling evidence of a psychological injury. Dr. Dumitrascu's assessment of the Applicant concluded that she exhibited no clinically significant symptoms of anxiety, depression, or post-traumatic stress. These findings are supported by the psychometric testing results, which concluded that the Applicant scored in the minimal range for anxiety and depression. The psychometric test results noted in Dr. Shaul's report are similar, yet Dr. Shaul concluded that the Applicant sustained an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Shaul's diagnosis is remarkable considering that the Applicant denied any cognitive difficulties, continued to socialize at her per-accident rate, and denied any driving-related phobia. This behaviour reported by the Applicant is not suggestive of a psychological injury which would warrant removal from the MIG.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS

29An analysis of whether the treatment and assessment plans are reasonable and necessary is not required. The Applicant consumed $3,500.00 in treatment, which is the funding limit for the treatment of minor injuries.

INTEREST

30Interest is only payable on any overdue payment of benefits pursuant to section 51 of the Schedule. As no payments are overdue, no interest is payable.

CONCLUSION

31The Applicant sustained a minor injury as a result of the accident.

32The evidence includes no compelling evidence of a pre-existing condition that would preclude her recovery if subject to the MIG and the $3,500.00 funding limit.

33The Applicant is not entitled to the disputed treatment plans because she has exhausted the $3,500.00 funding limit for minor injuries.

34No interest is owed.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.