Licence Appeal Tribunal File Number: 20-004757/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:
Aderian Seepersaud
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Amanda Marshall
APPEARANCES:
For the Applicant: Sevda Guliyeva, Paralegal
For the Respondent: Michael Knez, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on March 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The following issues are in dispute:
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
If the applicant’s injuries are not considered to be predominantly minor,
i. Is the applicant entitled to a medical benefit in the amount of $3,245.94 for chiropractic treatment recommended by Roger Singh in a treatment plan (OCF-18) submitted on September 18, 2018, and denied on October 1, 2018?
ii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,995.33 for a Psychological Assessment, recommended by Marco Chiodo in a treatment plan dated August 3, 2018 and denied by the respondent on August 24, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans are not reasonable and necessary, and no interest is payable.
ANALYSIS
The Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $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.” An insured may be removed from the MIG if they can 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 combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits he has unresolved back pain, knee pain, and psychological impairments, due to the accident. He relies on the Disability Certificate (OCF-3) and clinical notes and records (CNRs) from Brampton Civic Care Centre (BCC), along with the CNRs from his family doctor, Dr. Jawaid Mughal. He also submits his pre-existing knee condition, as identified in the s. 44 Insurer’s Examination (“IE”) report by Dr. Stephen Halman, Orthopaedic Surgeon, was exacerbated by the accident which prevents him from achieving maximum medical recovery if kept within the confines of the MIG.
6In response, the respondent submits the applicant injuries fall within the MIG. The respondent submits there is no causational relationship between the accident and the applicant’s knee complaint and that he has not been diagnosed with a psychological impairment attributed to the accident. It states that the applicant failed to provide sufficient evidence to substantiate that he has a pre-existing condition that would prevent him from achieving maximum recovery if kept within the MIG. It relies on the s. 44 orthopaedic IE of Dr. Halman as well as the s. 44 psychological IE of Dr. Karen Spivak.
7I agree with the respondent and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
Did the applicant sustain predominantly minor physical injuries/impairments?
8The disability certificate dated March 19, 2018 provides the actual physical injuries as follows:
a. Whiplash associated disorder (WAD2) with complaint of neck pain;
b. Headache;
c. Concussion;
d. Muscle strain;
e. Sprain/strain of the cervical spine;
f. Sprain/strain of the joints and ligaments of unspecified parts of the neck; and
g. Sprain/strain of the thoracic spine, lumbar spine and pelvis, shoulder joint and parts of the shoulder girdle1.
9The physical injuries sustained fall within the definition of a “minor injury” under s. 3(1).
Does the applicant have a pre-existing condition that warrants removal from MIG?
10With regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant submits he has a pre-existing knee condition as evidenced by the s. 44 Orthopaedic IE report. Dr. Halman found the applicant “may have had Osgood-Schlatters as a youth and has some reactivation of pain at the tibial tuberosity on the left side due to inactivity.”2
11Upon review, I note the OCF-3 does not reflect the applicant had any issues with his knee. I also note Dr. Halman’s report indicates the applicant did not start experiencing knee pain until two months prior to the assessment. As the assessment took place in October, that would mean the applicant’s pain started five months after the accident.
12While Dr. Halman provides an opinion the applicant may have had Osgood-Schlatters, the applicant has not submitted any medical documentation to show he was diagnosed with this condition prior to the accident nor did he direct the Tribunal to a medical opinion that even if he has this condition and it was exacerbated by the accident, that it would prevent maximal medical recovery if kept within the MIG, which is required under s. 18(2). Therefore, I find that the applicant does not have a pre-existing condition that precludes maximal medical recovery if kept within the MIG.
Does the applicant suffer a concussion, as a result of the accident that would remove him from the MIG?
Concussion
13The OCF-3 lists one of the physical injuries as a concussion. While the applicant submits, he sustained a concussion, the CNRs from Osler Health Centre on the day of the accident show that the applicant attended complaining of a headache and a CT scan was ordered. The CT scan summary shows “normal unenhanced head CT.” The applicant was diagnosed with a headache. There is no mention of the applicant being diagnosed with a concussion nor did he attend at his family doctor for treatment for, or investigation of, a concussion.
14I do not find that the applicant suffers a concussion that would remove him from the MIG.
Does the applicant have psychological injuries/impairments that would take him outside of the MIG?
15An applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant asserts that he suffers from psychological impairments, which justify removal from the MIG, based on the notations on the OCF-3 as well in the psychological assessment request completed by Marco Chiodo, Psychologist. The applicant points to Dr. Halman’s IE comments where he states: “was reporting psychological impairments associated with driving anxiety.”3 The applicant also relies on the testing administered by the psychological IE assessor, demonstrating he has psychological issues attributed to the accident.
16I do not find the notations on the OCF-3 or Mr. Chiodo’s comments on the OCF-18 persuasive in establishing a psychological impairment or diagnosis that would take the applicant out of the MIG. On the OCF-3, Dr. Roger Singh notes nervousness, acute stress reactions and anxiety but provides no further information with regards to these issues. Dr. Singh is a chiropractor. Dr. Singh would not be in a position to diagnose a psychological condition. He completed the OCF-3 noting that a functional ability evaluation, psychological assessment and a neurological/concussion assessment are required, but the CNRs do not indicate referrals were made for any of these assessments at that time.
17It was not until August 8, 2018, when Mr. Chiodo, a psychologist at the same clinic, conducted a psychological pre-screening and provided a provisional diagnosis of Adjustment Disorder. Mr. Chiodo noted that the applicant is experiencing vehicular travel anxiety, upsetting recollections and nightmares of his collision, anxiety, difficulty coping with pain and stress, low mood marked by feelings of sadness, decreased activity, low motivation, weight gain, and sleep problems.4 Mr. Chiodo made this provisional diagnosis based on questioning of the applicant without any objective testing.
18The applicant also relies upon Dr. Halman’s orthopaedic IE report where he noted the applicant reports he is experiencing driving anxiety. With regards to a psychological injury, Dr. Halman is an orthopaedic surgeon and he is not in a position to diagnose the applicant with a psychological condition. Dr. Halman only noted the purported driving anxiety as that is what the applicant told him.
19Both the applicant and the respondent rely on Dr. Spivak’s s. 44 psychological report, but for different reasons. The applicant submits that the testing done during the IE shows his scores suggest he is credible and suffers from a psychological impairment. The respondent agrees the doctor conducted various testing but points out the doctor concluded the applicant did not meet the full criteria for a DSM-5 diagnosis.
20The applicant completed the Beck Depression Inventory II, the Zung Self-Rating Anxiety Scale, the Symptom Checklist Revised, the Pain Patient Profile and the Oswestry Low Back Disability Questionnaire. While I note the applicant’s psychometric results indicate a high-moderate level of depressed mood, a moderate level of anxiety, and a perceived moderate level of pain and physical dysfunction due to back pain, I also note the doctor suggests the results indicate the applicant’s tendency to dramatize his responses. She attributes his overdramatization to difficulties in coping with unresolved feelings of grief due to the pre-accident deaths of his parents. She suggests he would benefit from involvement in a grief counselling group to help him process his unresolved feelings.
21Also, Dr. Spivak comments that the applicant drives approximately 35 kms every day to and from work six days a week. I can appreciate the applicant may have some driving anxiety since the accident, however, his ability to drive that distance daily suggests that it is not impeding his ability to function.
22I afford more weight to Dr. Spivak’s conclusions as she was able to administer a variety of psychological testing and, through additional questioning, found the applicant was dealing with grief issues unrelated to the accident, whereas Dr. Singh, Mr. Chiodo and Dr. Halman did not.
23Accordingly, for the reasons above, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Are the Treatment Plans Reasonable and Necessary?
24Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required.
Is the applicant entitled to interest?
25The applicant is not entitled to interest as I do not find that any payments are overdue.
CONCLUSION
26The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary and no interest is payable.
Released: January 25, 2022
Amanda Marshall, Adjudicator