Citation: Lobo v. Intact Insurance Company, 2022 ONLAT 20-009565/AABS

Licence Appeal Tribunal File Number: 20-009565/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:

Fabian Lobo

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Shohreh Rakhshannavaz, Counsel

For the Respondent:

Ada Lika, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant, Fabian Lobo, was injured in an automobile accident on November 27, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Intact Insurance Company, the respondent.

2The respondent denied the applicant’s medical and rehabilitation claims because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on April 6, 2021, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

I. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment therefore subject to treatment within the MIG?

II. Is the applicant entitled to $2,581.08 for physiotherapy services recommended in a treatment plan submitted on January 3, 2019?

III. Is the applicant entitled to $1,225.10 for physiotherapy services recommended in a treatment plan submitted on February 20, 2019?

IV. Is the applicant entitled to $1,465.10 for physiotherapy services recommended in a treatment plan submitted on March 15, 2019?

V. Is the applicant entitled to $2,000.00 for a psychological assessment recommended in a treatment plan submitted on March 26, 2019?

VI. Is the applicant entitled to $2,000.00 for a chronic pain assessment recommended in a treatment plan submitted on July 11, 2019?

VII. Is the applicant entitled to $1,077.98 for physiotherapy services recommended in a treatment plan submitted on August 2, 2019?

VIII. Is the applicant entitled to $1,340.20 for a functional impairment assessment recommended in a treatment plan submitted on September 16, 2019?

IX. Is the applicant entitled to $11,281.90 for physiotherapy services recommended in a treatment plan submitted on October 10, 2019?

X. Is the applicant entitled to $1,214.28 for physiotherapy services recommended in a treatment plan submitted on May 23, 2019?

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

RESULT

5I find that the applicant has not met his onus of proving that his accident-related impairments require treatment beyond the MIG. As the MIG limits have been almost exhausted, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is also not entitled to an award or interest, and the application is dismissed.

ANALYSIS

The Minor Injury Guideline (MIG)

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.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for 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. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

8I find that the applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of pre-existing conditions, chronic pain, and/or a psychological impairment.

Pe-existing Condition

9The applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of any pre-existing conditions.

10Section 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.⁴

11The applicant underwent a chronic pain assessment completed by Dr. Grigory Karmy on July 29, 2019 (Report dated August 7, 2019). The only documents he reviewed were a letter from the applicant’s family physician, Dr. Chacko, dated June 25, 2018 (prior to the accident), a Disability Certificate (OCF-3) dated March 14, 2019, and five treatment plans which are the OCF-18s in dispute. The applicant told Dr. Karmy that he had a previous MVA in 2012, at which time he developed neck, bilateral shoulder, upper, mid and lower back pain. The applicant stated that the pain was tolerable and did not result in significant functional limitations until the subject accident occurred. Dr. Karmy opined that the applicant’s pre-existing conditions were worsened following the subject accident. Dr. Karmy opined that the applicant could not achieve maximum medical recovery if he was treated within the MIG and, therefore, should be removed from the MIG.

12According to the May 8, 2021 psychological report completed by psychotherapist Helen Ilios and Psychologist Dr. Brunshaw, however, the applicant reported to these assessors that he was in good health before the subject accident and that he had recovered from his 2012 accident. He stated, “I was perfect and then this accident happened.”

13On the evidence, I find that the applicant has been inconsistent with his reporting with respect to having a pre-existing injury and he has failed to adduce any pre-accident medical records to corroborate any such claims. Therefore, I find that the applicant has not proven on a balance of probabilities that he had a pre-existing condition that would prevent maximal recovery from the minor injury under the MIG.

Chronic Pain

14For chronic pain to take someone out of the MIG, there must be an effect on their functionality. There is no medical evidence that the applicant’s accident-related injuries have had a detrimental impact on his functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms,” affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

15The applicant relies on the August 7, 2019 chronic pain assessment report completed by Dr. Grigory Karmy as, in his report, Dr. Karmy diagnosed the applicant with the following:

(i) Post-Traumatic Fibromyalgia, caused by the subject accident;

(ii) Persisting symptoms following mild Traumatic Brain Injury, caused by the subject accident;

(iii) Chronic Post-Traumatic Headache, caused by the subject accident;

(iv) Chronic mechanical neck pain, originating from cervical discs and facet joints, significantly aggravated by the subject accident, and possibly associated with bilateral radiculopathy, caused by the subject accident;

(v) Chronic mechanical right shoulder pain, significantly aggravated by the subject accident and likely associated with post-traumatic tendinopathy, caused by the subject accident;

(vi) Chronic mechanical left shoulder pain, significantly aggravated by the subject accident;

(vii) Chronic mechanical upper and mid back pain, likely originating from the thoracic discs and facet joints, significantly aggravated by the subject accident;

(viii) Chronic mechanical lower back pain, originating from lumbar discs and facet joints, significantly aggravated by the subject accident, and possibly associated with bilateral radiculopathy, caused by the subject accident;

(ix) Sacroiliac joint dysfunction, caused by the subject accident;

(x) Chronic Pain Syndrome, caused by the subject accident; and

(xi) Sleep Disorder, caused by the subject accident.

16As a result of the diagnoses listed above, Dr. Karmy concluded that the applicants’ condition falls outside the MIG. Dr. Karmy further opined, as discussed above, that due to the applicant’s pre-existing conditions, he cannot achieve maximum medical recovery if he is treated within the MIG cap and, therefore, he should be excluded from the MIG.

17The respondent relies on 16-000438 v The Personal, in which Adjudicator Neilson set out the requirements for a diagnosis of chronic pain to move an individual outside of the MIG. Neilson stated that: “For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.”

18The respondent submits that Dr. Karmy’s report is unreliable for the following reasons:

(i) The applicant’s reporting of his pre-accident medical history, post-accident injuries, and functional limitations are boldly contrary to the evidence he gave at the subsequent Insurer Examinations (IEs);

(ii) Some of the diagnoses, such as mild traumatic brain injury, post-traumatic fibromyalgia, and mood disorder with vehicular anxiety, are baseless and not supported by any medical or treatment records provided to date; and

(iii) The diagnosis of a psychological disorder and recommended treatment are outside of the scope of Dr. Karmy’s expertise.

19The respondent also relied upon several IEs to support its position that the applicant does not suffer from chronic pain or chronic pain syndrome such that his accident-related injuries fall outside of the MIG. For example, in his May 28, 2019 report, Dr. Ahmad Belfon, physiatrist, opined that the applicant’s musculoskeletal injuries were in keeping with uncomplicated, soft tissue injuries, and considered minor. Further, orthopaedic surgeon Dr. Fathi Abuzgaya opined in his December 24, 2020 report that the applicant sustained minor injuries and that there was no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the subject accident. Dr. Abuzgaya opined that the applicant has achieved maximum medical recovery.

20I find that the conclusions of the IE assessors are supported by other evidence before me, specifically the clinical notes and records of the applicant’s family doctor, Dr. Mary Chacko. The applicant first visited Dr. Chacko on February 27, 2019, three months after the accident. The applicant complained of neck pain, bilateral shoulder pain, and lower back pain with numbness in his legs when sitting for prolonged periods of time. Dr. Chacko recommended Vimovo and physiotherapy.

21On May 15, 2019, the applicant complained to Dr. Chacko of severe lower back pain. The applicant reported a standing tolerance of 1 hour and sitting tolerance of 30 minutes. However, the applicant also reported that he had resumed long distance driving and all of his housekeeping tasks. He further denied any sleep disturbance and Dr. Chacko prescribed Baclofen and Mobicox for pain management.

22On October 30, 2019, the applicant reported to Dr. Chacko that he had pain in his upper back for the past two days and left foot pain which was not as a result of an injury and a rash was observed on his back. The applicant attended Dr. Chacko’s office on November 9, 2019 and made no reference of any accident-related pain or injuries.

23In 2020 and 2021, the applicant consulted Dr. Chacko several times, some visits did not reference any pain symptoms. The applicant’s back and shoulder pain were noted at some of these visits, but they appear to be related to flare-ups and it is not clear what the causes of these flare-ups were. Indeed, Dr. Chacko made no reference of the applicant’s complaints being accident-related.

24Based on all of the evidence before me, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain. The applicant reported that he has resumed his pre-accident activities, including his physical job at the warehouse, and his second job as an UBER driver. The applicant’s medical records did not present persuasive evidence that he suffers from chronic pain. I also agree with the respondent, that Dr. Karmy’s report is problematic due to the many diagnoses made that are not supported by the evidence and the psychological diagnoses are outside of his scope of practice

Psychological Impairment

25Lastly, psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

26Psychologist, Dr. Jacqueline Brunshaw and Helen Ilios completed a psychological report on May 8, 2021, with respect to the applicant’s alleged psychological injuries. This report noted that it was based upon a clinical interview of the applicant by Helen Ilios, a registered psychotherapist, working under the supervision of Dr. Brunshaw, psychologist, and the administration of psychological self-reporting questionnaires. The report also provides no details as to Brunshaw’s supervision involvement and Ms. Ilios is not qualified to diagnose psychological disorders as a psychotherapist. Dr. Brunshaw diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (driving, being a passenger, being a pedestrian) as a direct result of the accident. Dr. Brunshaw recommended 12 counselling sessions and psychotherapy progress report.

27The respondent submits that Dr. Brunshaw’s conclusions are unreliable given that they are based solely on the applicant’s reporting with no consideration given to the lack of psychological complaints noted in Dr. Chacko’s records.

28In contrast, the respondent relies upon two IE reports to support its position that the applicant did not sustain a psychological impairment as a result of the accident. The first IE report was dated May 31, 2019, and was completed by psychologist, Dr. Shahriar Moshiri, to address the disputed psychological assessment. Dr. Moshiri opined that “based on DSM-5 diagnostic categories the identified symptoms are not of the extent and intensity to warrant a formal psychological condition.”

29A second IE psychology assessment dated November 30, 2020, was performed by psychologist, Dr. Amena Syed to address the proposed psychological treatment included in the disputed OCF-18 for $11,281.90. Dr. Syed opined that the applicant did not suffer from any psychological impairment that would warrant a diagnosis as per the DSM-5. Dr. Syed further noted that there was no documented or reported pre-existing psychological condition that could be a barrier to the applicant’s recovery.

30In considering the evidence before me, I place little weight on Dr. Brunshaw’s report primarily because Dr. Brunshaw noted that the applicant reported pain in every single part of his body (40 locations) from his head to his toes. This claim is simply not corroborated by other medical evidence, such as the applicant’s family physician’s clinical notes and records and calls into question the information that supported Dr. Brunshaw’s diagnoses and recommendations. The report also provides no details as to Brunshaw’s supervision involvement of Ms. Ilios. As a result, I have given Dr. Brunshaw’s report very little weight. Further, the applicant’s family physician’s clinical notes and records do not mention any accident-related psychological symptoms that would support Dr. Brunshaw’s findings.

31Therefore, I place more weight on the IE reports as their findings are more consistent with Dr. Chacko’s clinical notes and records and find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

32As of April 27, 2021, the amount of medical and rehabilitation benefits paid by the respondent to the applicant was $3,320.81 out of the $3,500.00 available under the MIG. The second pages of the OCF-18s indicate that each of these treatment plans propose treatment that would exceed the remaining MIG cap. As I have found that that applicant is not entitled to treatment beyond the MIG, I therefore find that the applicant is not entitled to the treatment plans in dispute.

Award

33As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

34As there are no benefits owing, no interest is payable.

CONCLUSION

35For the reasons outlined above, I find that:

(i) The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the treatment plans in dispute propose treatment outside the MIG framework;

(ii) The applicant is not entitled to an award under Regulation 664;

(iii) No interest is payable; and

(iv) This application is dismissed.

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 Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Supra note 1 at page 5, heading 4, “Impairments that do not come within this Guideline”.