Nerlande Fervius v. Economical Insurance, 2022 CanLII 68252

Citation: Fervius v. Economical Insurance, 2022 ONLAT 20-003512/AABS

Licence Appeal Tribunal File Number: 20-003512/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:

Nerlande Fervius

Applicant

and

Economical Insurance

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Neha Kohli, Paralegal

For the Respondent: Danielle Gauvreau, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on September 18, 2017 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 issues in dispute are:

i. Are the applicants’ 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 (“MIG”)?

ii. Is the applicant entitled to a medical benefit in the amount of $2,260.00 for psychological services recommended in a treatment plan (“OCF-18”)?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. Given the applicant is within the MIG and the $3,500.00 limit has been exhausted, the treatment plan in dispute is not payable;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline

4The Minor Injury Guideline (“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.

5Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An 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 a psychological impairment or chronic pain with a functional impairment.

6It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

7In the current matter, the applicant has already exhausted the $3,500.00 MIG treatment limit.

Physical Impairments

8The Disability Certificate (“OCF-3”) filed by R. Moraskar, physiotherapist, dated September 27, 2017, indicates the applicant was suffering from whiplash associated disorder (“WAD 2”) with complaints of neck pain with musculoskeletal signs, sprain and strain of thoracic and lumbar spine, nonorganic sleep disorders and headache. The expected duration of these impairments was 9-12 weeks duration.³

9On September 19, 2017, the applicant visited Dr. Pantazis, general practitioner; it was noted that the applicant was suffering from low back pain, neck pain, headaches, and left leg pain. However, it was noted that spine X-rays taken the hospital the previous day indicated there was no fracture or dislocation and it was a normal study. The applicant otherwise had full range of motion in her back on that date.⁴

10On February 12, 2020, the applicant visited her family physician, Dr. P O’Brien with complaints of persisting neck soreness, lower back pain, and intermittent headaches related to the 2017 accident. Dr. O’Brien noted cervical, lumbar whiplash and cervicogenic migraine headaches.⁵ Aside from these entries in September 2017 and February 2020, there are otherwise no references to any accident-related injuries from September 2017.

11The respondent relies on two Insurer’s Examination (“IE”) reports completed by Dr. O. Gharsaa, orthopaedic surgeon, dated February 8, 2018 and a paper review dated March 22, 2018. Dr. Gharsaa noted the applicant did not sustain any fractures or dislocations as a result of the accident. The examination conducted failed to identify any radiculopathy, musculoskeletal pathology, or any signs of ongoing orthopaedic impairment attributable to the subject accident.

12Dr. Gharsaa recommended that the applicant continue with active home exercises, core strengthening exercises, and resumption of her pre-accident activities to prevent further deconditioning. The doctor concluded the applicant did not suffer any objective orthopaedic impairment as a result of the accident. From an orthopaedic perspective, the doctor opined that the applicant sustained minor soft tissue injuries and should be treated within the MIG.

13I place weight upon Dr. Gharsaa’s reports. These are the sole expert reports related to the applicant’s physical injuries. Although the applicant is not required to provide reports, she relies only on two separate entries from immediately following the accident on September 19, 2017, and February 12, 2020, linking her physical injuries to the accident.

14These two disparate entries do not otherwise establish a pattern of ongoing physical impairments as a result of the accident, especially in light of Dr. Gharsaa’s reports that clearly identify soft-tissue minor injuries, treatable within the MIG.

Pre-Existing Condition

15The standard for excluding an impairment on the basis of pre-existing conditions 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 cap imposed by the MIG.

16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

17The applicant relies on the treatment plan (“OCF-18”) dated November 23, 2018 completed by Dr. A Sekhar, psychologist, to establish that she suffers from persistent headaches, severe anxiety, post-traumatic stress, and fragmented sleep due to pain.⁶

18The clinical notes and records of the applicant’s family physician, Dr. O’Brien indicate that the applicant has a history of anxiety and panic attacks. She also suffered from headaches and disrupted sleep. Dr. O’Brien noted on May 2, 2017, that the applicant’s sleep issues were as a result of job-related stress and shift work as a customer service representative.⁷

19The applicant was referred to Dr. Derek Yung, cardiologist of the Heart Health Institute, who concluded in October 2016 that her symptoms were not cardiac-related, and likely due to anxiety and panic attacks. No further cardiac testing or treatment was required at that time.⁸

20However, by April 25, 2019, Dr. O’Brien prescribed Cymbalta and Trazadone for the applicant’s anxiety symptoms. By October 2019 it was noted the Cymbalta was helping her mood and the Trazadone was assisting her sleep.⁹

21The respondent relies upon the IE report completed by Dr. P. Derry, psychologist, dated April 29, 2019. Dr. Derry noted the applicant had experienced four panic attack episodes, the most recent in February 2019. Dr. Derry also noted that the applicant had previously been prescribed Lorazepam for anxiety but had not undergone any psychiatric treatment.¹⁰

22However, following psychometric testing conducted, Dr. Derry noted she exhibited no specific psychological injuries or disorders.¹¹ Although the applicant was sad and discouraged, this did not represent a psychological disorder, and Dr. Derry found that the applicant was not clinically depressed. Her earlier panic attacks had stopped, and she was confident that no more would occur. Dr. Derry concluded that from a psychological perspective, she suffered a minor injury and the rare panic attacks would not prevent her from achieving maximum psychological-based recovery from within the treatment limits of the MIG.¹²

23While the clinical notes and records do establish a history of anxiety and medication to treat her anxious symptoms, the applicant has not established a nexus between her anxious symptoms and the 2017 accident. Aside from the clinical notes and records, the applicant has otherwise provided no evidence of a pre-existing impairment that would prevent maximal recovery within the MIG.

24The treatment plan submitted by Dr. Sekhar on its own is not compelling evidence in support of treatment. Given the persuasiveness of Dr. Derry’s report and the lack of a psychological diagnosis, I am not otherwise persuaded that her history of anxiety and panic attacks would prevent her maximum psychological recovery within the MIG.

Chronic Pain

25For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence 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. This 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.

26In attempting to establish the applicant suffers chronic pain as a result of the accident, the applicant failed to refer to any of the six criteria laid out in the American Medical Association Guides (“AMA Guides”).¹³ Although the AMA Guides were raised by the respondent, the applicant filed no hearing submissions in reply.

27The only reference to any potential issues surrounding chronic pain in the clinical notes and records provided by the applicant is on April 24, 2019. On that date, Dr. O’Brien noted “chronic abd (abdominal) pain, no change”.¹⁴ This is in relation to the applicant’s history of abdominal pain, which was investigated by the Women’s Health Care Centre in October 2019.¹⁵ Aside from this history of abdominal issues, there are no other clinical records or expert reports that provide any history of a chronicity of pain symptoms, or a formal diagnosis related to chronic pain.

28I am not otherwise satisfied the applicant has demonstrated her functionality was impaired by chronic pain linked to the accident. Simply put, more is required to establish to what extent a chronic condition, be it a syndrome or chronicity of symptoms affects functionality. The applicant has not made any reference to the AMA Guides, nor provided sufficient medical evidence to establish that her functionality was impaired and chronic pain is the cause of the disability.

29Overall, given the totality of evidence adduced by the applicant, I am not persuaded on a balance of probabilities that her physical impairments or pre-existing issues cannot otherwise be treated within the limits of the MIG. Her soft tissue physical injuries clearly fall within the definition of a minor injury. Similarly, the medical records and treatment plan tendered failed to establish a nexus between her pre-existing anxiety or demonstrate she suffers from chronic pain linked to the accident.

30Given that the $3,500.00 treatment limit was previously exhausted, no additional analysis is required to determine if the treatment plan at issue is reasonable and necessary pursuant to the Schedule.

31Similarly, given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

32The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. Given the applicant is within the MIG and the $3,500.00 limit has been exhausted, the treatment plan in dispute is not payable;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10:.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Written Submissions of the Applicant, Tab 1, OCF-3 of Mr. R. Moraskar dated September 27, 2017.
4. 4Written Submissions of the Applicant, Tab 4, Clinical Notes and Records of Dr. Pantazis.
5. 5Written Submissions of the Applicant, Tab 7, Clinical Notes and Records of Dr. O’Brien.
6. 6Written Submissions of the Applicant, Tab 2, OCF-18 of A. Sekhar, dated November 23, 2011.
7. 7Written Submissions of the Applicant, Tab 3, Clinical Notes and Records of Dr. O’Brien.
8. 8Ibid.
9. 9Written Submissions of the Applicant, Tab 7, Clinical Notes and Records of Dr. O’Brien.
10. 10Written Submissions of the Respondent, Tab C, IE Report of Dr. Derry, psychologist, dated April 19, 2019.
11. 11Ibid.
12. 12Ibid.
13. 13American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
14. 14Written Submissions of the Applicant, Tab 7, Clinical Notes and Records of Dr. O’Brien.
15. 15Ibid.