Citation: Velez v. Co-operators General Insurance Company, 2022 ONLAT 20-007853/AABS

Licence Appeal Tribunal File Number: 20-007853/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:

Viviana Acevedo Velez

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Victoria Gorbenko, Paralegal

Sevda Guliyeva, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on November 19, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) after her claims for benefits were denied by the respondent.

2The applicant was a driver of a vehicle that was rear-ended by another vehicle. The airbags did not deploy, and she did not lose consciousness. Neither police nor ambulance attended the scene of the accident.

3The respondent denied the applicant’s claims, including treatment for: chiropractic services, psychological assessment, and psychological services because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”).²

4The applicant submits that her injuries fall outside of the MIG because of her physical and psychological impairments.

5If the applicant’s position is correct, then I must address if the chiropractic services, psychological assessment, and psychological services, are reasonable and necessary pursuant to the Schedule.

6If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to interest.

ISSUES

7The following are the issues to be determined as per the Case Conference Order, dated November 25, 2020:

a. Are the applicant’s injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

b. Is the applicant entitled to $84.09 for chiropractic services (partially approved in the amount of $1,142.71) recommended by Bohdan Osoba, in a treatment plan (“OCF-18”) dated February 21, 2019?

c. Is the applicant entitled to $3,805.76 for chiropractic services recommended by Kuldip Rakkar in an OCF-18 dated February 28, 2019?

d. Is the applicant entitled to $1,920.53 for a psychological assessment recommended by Harinder Mrahar in an OCF-18 dated May 15, 2019?

e. Is the applicant entitled to $3,356.02 for chiropractic services recommended by Bohdan Osoba in an OCF-18 dated May 3, 2019?

f. Is the applicant entitled to $4,314.20 for psychological services recommended by Bruce Cook in an OCF-18, dated May 21, 2019?

g. Is the applicant entitled to $3,805.76 for chiropractic services recommended by Kuldip Rakkar in an OCF-18 dated July 10, 2019?

h. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8I find that the applicant sustained predominately minor injuries because of this accident, and that she is not removed from the MIG as a result of any pre-existing conditions, physical impairments or psychological impairments.

9The applicant has reached the $3,500.00 funding limit on medical benefits for a minor injury. Thus, an analysis on the disputed treatment and assessment plans is not required.

10The applicant is not entitled to interest on any overdue payments of benefits.

ANALYSIS

The MIG

11I find that the applicant sustained predominately minor injuries because of this accident, for all the reasons that will be outlined below.

12The 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.”

13Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. An applicant may be entitled to treatment beyond the $3,500.00 cap 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 a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant’s evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³ The onus is also on the applicant to demonstrate that her injuries fall outside of the MIG.

14On November 28, 2018, Dr. B. Osoba, chiropractor, completed a Disability Certificate (“OCF-3”). Dr. Osoba listed the following injuries as a result of the accident: acute pain; myalgia; disorders of initiating and maintaining sleep [Insomnia]; muscle strain; headaches; other headache syndromes; sprain and strain of cervical spine; injury of muscle and tendons at thorax level; pain in thoracic spine; cervicalgia; stress, not elsewhere classified; injury of muscle and tendon at neck level; sprain and strain of sacroiliac joint; pain in joint; other and unspecified injury of muscle and tendon at neck level; unspecified injury of neck; sprain and strain of thoracic spine; sprain and strain of lumbar spine, and low back pain.⁴ The applicant submits that I should bear more weight to this evidence as this identifies early signs of physical and psychological impairments from the accident. I do not accept the opinion of Dr. Osoba with respect to the psychological symptoms or neurological symptoms as he is a chiropractor, and these diagnoses are outside of his area of practice. With respect to the physical impairments listed in the OCF-3, these all fall within the definition of the MIG. As such, the OCF-3 does not support that the applicant should be removed from the MIG.

15The applicant made no arguments regarding any pre-existing conditions that would remove her from the MIG. However, in other portions of her submissions, she submits that she had pre-existing headaches that worsened as a result of this accident. As such, I will consider next whether any pre-existing conditions will remove her from the MIG.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

16The applicant is not removed from the MIG as a result of a pre-existing condition, as she has failed to prove on a balance of probabilities that her pre-existing headaches or carpal tunnel would prevent maximal recovery within the MIG.

17Section 18(2) of the Schedule provides that an applicant may be removed from the MIG if they provide 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.

18The standard for excluding an impairment on the basis of a pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the funding limit imposed by the MIG.

19There is evidence of pre-existing carpal tunnel syndrome in her family physician, Dr. J. Liu’s records⁵ and post-accident mild carpal tunnel syndrome as per Dr. R. Magder.⁶ The applicant in her reply appears to admit that the post-accident diagnosis of a mild carpal tunnel syndrome is unrelated to the accident. I also find that the applicant has failed to prove how this pre-existing carpal tunnel syndrome was exacerbated by the accident and would prevent maximal recovery within the MIG. As such, I find that the applicant is not removed from the MIG as a result of her carpal tunnel syndrome.

20The applicant next refers me to an entry dated November 28, 2018, from Dr. Liu’s records. In this entry, she complained of tension type headaches which she had prior to the accident and had worsened following the accident.⁷ The applicant submits that this evidence supports her position that her pre-existing headaches were aggravated by the accident.

21While I agree that the applicant had pre-existing headaches, there is no evidence presented by the applicant of how this would affect her ability to recover within the MIG. As such, I am not persuaded on a balance of probabilities that the applicant’s pre-existing medical conditions would warrant removal from the MIG.

The applicant’s physical impairments are within the MIG

22I find the applicant’s physical impairments caused by the accident are all classified within the MIG. As such, she is not removed from the MIG on this basis.

23The applicant argues repeatably that her physical impairments are not within the MIG.

24The first impairment that the applicant seems to refer to is her headaches. On November 20, 2018, the day after the accident, Dr. Liu noted that there was no trauma to the head.⁸ I acknowledge that on November 28, 2018, Dr. Liu noted that her current headaches were different than her pre-existing condition and a reassessment was required as a result.⁹ However, Dr. Liu also noted that there was no head trauma as a result of the accident.¹⁰ I find that the applicant’s headaches are within the MIG as she has failed to demonstrate that it is anything more than a clinically associated sequalae. The applicant has failed to demonstrate that she suffers from a concussion, post-concussion syndrome and her own family physician, Dr. Liu concluded that she did not suffer from any head trauma as a result of the accident. As such, I find that her headaches do not remove her from the MIG.

25The second physical impairment that the applicant appears to submit that will take her outside of the MIG is a partial tear in her right supraspinatus. She refers to an ultrasound on November 28, 2018, where a small partial-thickness tear of the supraspinatus tendon was suggested.¹¹ On December 19, 2018, the applicant advised Dr. Liu that she continued to have right shoulder pain with certain movements.¹² Dr. Liu further diagnosed her with a partial tear of the right supraspinatus which was likely secondary to this accident.¹³ The applicant submits that the ultrasound report of November 28, 2018 should be given more weight and that her partial right supraspinatus tear should take her outside of the MIG. I also acknowledge that the applicant saw an orthopaedic surgeon, Dr. Seligman for her right shoulder impairment, however I have not been provided with these records.

26The respondent relies on a s.44 report by Dr. R. Zabieliauskas, a physiatrist, dated May 10, 2019. Dr. Zabieliauskas reviewed the ultrasound of the right shoulder and the records of Dr. Liu.¹⁴ Despite this, Dr. Zabieliauskas concluded that the right rotator cuff tear was not a result of the accident, as it would not occur in these types of accidents and the ultrasound of November 28, 2018, did not show any bursal fluid. ¹⁵ As such, the respondent takes the position that the partial tear in the right shoulder is unrelated to the accident. The respondent further takes the position that even if the partial tear is related to the accident, this is still classified as a MIG injury. Even if, I was to conclude that the partial supraspinatus tear was a result of the accident, it is well-settled that this is an MIG injury. The applicant failed to address in her reply how a partial tear of the right supraspinatus would take her outside of the MIG. As such, I acknowledge the applicant may have sustained a partial right supraspinatus tear, however this does not warrant a removal from the MIG.

27The third physical impairment that the applicant appears to submit will take her outside of the MIG are right upper extremity impairments sustained allegedly from this accident. To support this, the applicant relies on the entry of Dr. Magder, dated March 28, 2019. Dr. Magder noted that the applicant’s elbow pain and tenderness were unrelated to her carpal tunnel syndrome and appeared to reflect a musculoskeletal process.¹⁶ I am not persuaded by this entry by Dr. Magder as he did not provide an opinion of whether this was caused by the accident. The applicant also refers me to an EMG request form where it states that she has right arm pain and numbness.¹⁷ The applicant also refers me to the entry of Dr. Liu, dated March 5, 2019. Dr. Liu opined that the right elbow/hand paraesthesia/pain could be related to the accident.¹⁸ On the other hand, Dr. Zabieliauskas opined that the applicant developed right lateral epicondylitis which was unrelated to the accident.¹⁹ I find that the applicant’s right upper extremity impairments are unrelated to the accident as Dr. Magder did not opine whether it was from this accident. Also, I am not persuaded that the applicant should be removed from the MIG on this basis, as Dr. Liu failed to provide a definite opinion that this was caused by the accident.

28Fourthly, the applicant appears to argue that her consistent attendance to treatment, continuous complaints to assessors and practitioners, and the fact she incurred the costs of the OCF-18s, should remove her from the MIG. While I acknowledge that the applicant was injured from this accident and incurred costs for treatment, this is insufficient to remove her from the MIG.

29My review of the records of Dr. Liu indicate that on November 20, 2018, December 19, 2018, and March 5, 2019, she complained of neck pain, back pain, headaches, right shoulder pain, and jaw pain. These are all soft-tissue injuries which are classified within the MIG. I also reviewed the updated clinical notes and records of Dr. Liu and it appears the applicant has not complained about any accident-related impairments since 2019. The applicant has also failed to refer me to a chronic pain or chronic pain syndrome diagnosis, nor has she engaged with any of the six criteria under the American Medical Association Guides that the Tribunal has adopted as a tool for assessing chronic pain claims. I have limited evidence to find that the applicant should be removed from the MIG based on a finding of chronic pain. This finding is supported by the fact that she has not seen Dr. Liu since 2019 about this accident and she has not provided any evidence that she suffers from chronic pain. This is also supported by the s.44 assessor, Dr. Zabieliauskas who opined that she sustained uncomplicated soft tissue injuries. As such, I am persuaded that the applicant’s soft tissue injuries are classified within the MIG.

30The applicant submits that she has sustained psychological impairments that are not classified within the MIG. I will consider next whether this will remove her from the MIG.

The applicant does not suffer from psychological injuries which would remove her from the MIG

31The applicant has failed to prove on a balance of probabilities that she suffers from a psychological impairment that will remove her from the MIG.

32Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments.

33I acknowledge that Dr. Liu signed a form that recommended a psychological assessment/treatment. I also note that it appears that someone ticked off the psychological symptoms that were applicable to the applicant.²⁰ I find that I am not persuaded by this evidence as the clinical notes and records of Dr. Liu did not have a single entry with respect to any psychological impairments. Further, the applicant has failed to address why the clinical notes and records of Dr. Liu were silent with respect to this obvious omission.

34The applicant refers me to a psychological pre-screen report done by Dr. Mrahar on December 29, 2018,²¹ however I place little weight on this because it does not appear a Spanish interpreter was used. It is clear that the applicant requires a Spanish interpreter as demonstrated by the clinical notes and records of Dr. Liu, the psychological assessment of Mr. Cook, and the s.44 reports.

35The applicant further relies on a psychological assessment conducted by psychological associate, Bruce Cook, wherein he diagnosed her with an Adjustment Disorder Mixed with Anxiety and Depressed Mood and Specific (Isolated) Phobia (Driver) Anxiety. ²² The respondent relies on the reports of Dr. R. Hines, psychiatrist, dated May 10, 2019²³, and September 19, 2019²⁴, to support that the applicant did not have any accident-related mental health impairments. I acknowledge that the applicant presented with some psychological symptoms during this accident such as: nervousness/anxiety with driving; poor concentration; fatigue; lack of libido; and nightmares.

36I find that I am not persuaded by the report of Mr. Cook that the applicant has psychological impairments from the accident. The Personality Assessment showed that her reported difficulties were consistent with a mild depressive experience.²⁵ Also, the Beck Anxiety Inventory and the Beck Depression Inventory revealed mild anxiety depression and anxiety.²⁶ Mr. Cook failed to provide any explanation on how he reached to these diagnoses when the test scores indicated she suffered from mild depression and anxiety. As such, I find that I am not persuaded by Mr. Cook’s report. There are also no psychological complaints noted in Dr. Liu’s records, other than the form discussed above. Thirdly, I prefer the report of Dr. Hines as this was conducted by a psychiatrist, in comparison to Mr. Cook who is a psychological associate and not a medical doctor. I also place little weight on the psychological symptoms listed on the OCF-18s relied on by the applicant. It is well-settled that an OCF-18 without contemporaneous medical evidence is insufficient to otherwise establish entitlement.

37For all these reasons, I find that the applicant has failed to establish that she suffers from any psychological impairments as a result of the accident. As such, she is not removed from the MIG on this basis.

38As I have found the applicant to be in the MIG and the $3,500.00 limits have been exhausted, I do not need to consider whether any of the OCF-18s in dispute are reasonable and necessary.

INTEREST

39Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

ORDER

40For the reasons set above, I find that the application is dismissed and:

i. The applicant sustained predominately minor injuries as defined under the Schedule;

ii. The applicant is not entitled to an OCF-18 for $84.09 for chiropractic services;

iii. The applicant is not entitled to an OCF-18 for $3,805.76 for chiropractic services;

iv. The applicant is not entitled to an OCF-18 for $1,920.53 for a psychological assessment;

v. The applicant is not entitled to an OCF-18 for $3,356.02 for chiropractic services;

vi. The applicant is not entitled to $4,314.20 for psychological services;

vii. The applicant is not entitled to $3,805.76 for chiropractic services; and

viii. The applicant is not entitled to any interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24 (Div. Ct.).
4. 4Applicant’s Document Brief, Tab 4, OCF-3 dated November 28, 2018.
5. 5Respondent’s Submissions, Tab 19, Clinical Notes and Records of Black Creek Health.
6. 6Respondent’s Submissions, Tab 5, Clinical Notes and Records of Dr. J Liu dated December 19, 2018, to April 18, 2019.
7. 7Applicant’s Document Brief, Tab 6a and 6b, Clinical Notes and Records of Black Creek Health.
8. 8Ibid.
9. 9Ibid.
10. 10Ibid.
11. 11Ibid.
12. 12Respondent’s Submissions, Tab 5, Clinical Notes and Records of Dr. J Liu dated December 19, 2018, to April 18, 2019.
13. 13Ibid.
14. 14Applicant’s Document Brief, Tab 15, Insurer’s Physiatry Assessment, dated May 10, 2019, by Dr. Zabieliauskas.
15. 15Ibid.
16. 16Respondent’s Submissions, Tab 5, Clinical Notes and Records of Dr. J Liu dated December 19, 2018 to April 18, 2019.
17. 17Ibid.
18. 18Applicant’s Document Brief, Tab 6, Clinical Notes and Records of Black Creek Health.
19. 19Applicant’s Document Brief, Tab 15, Insurer’s Physiatry Assessment, dated May 10, 2019 by Dr. Zabieliauskas.
20. 20Applicant’s Document Brief, Tab 6a and 6b, Clinical Notes and Records of Black Creek Health.
21. 21Applicant’s Document Brief, Tab 13, Psychological Rehabilitation Pre-Screen Report dated December 29, 2018, by Dr. Mrahar.
22. 22Applicant’s Document Brief, Tab 14, Psychological Assessment Report, dated May 15, 2019, by Dr. Bruce Cook.
23. 23Applicant’s Document Brief, Tab 16, Psychiatry Assessment dated May 10, 2019, by Dr. Hines.
24. 24Respondent’s Submissions, Tab 8, Psychiatry Addendum by Dr. Hines, dated September 19, 2019.
25. 25Applicant’s Document Brief, Tab 14, Psychological Assessment Report, dated May 15, 2019, by Dr. Bruce Cook.
26. 26Ibid.