Citation: Mateluna v. Scottish & York, 2022 ONLAT 20-001965/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:

Marta Mateluna

Applicant

and

Scottish & York

Respondent

DECISION

ADJUDICATOR: Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant: Ben Fotia, Counsel

For the Respondent: Danielle Ralph, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant, Marta Mateluna, was involved in an automobile accident on May 3, 2018, when the vehicle her spouse was attempting to park was rear-ended by another vehicle. She sought benefits from the respondent, Scottish & York, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline and denied her medical benefits outside the $3,500.00 funding limit available under the Schedule. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 limit in s.18(1) of the Schedule?

b. Is the applicant entitled to $2,575.12 for physiotherapy (chiropractic and massage therapy) services recommended by Oliksandr Pivtoran, chiropractor, in a treatment plan (OCF-18) dated May 31, 2018, submitted July 26, 2018, denied by the respondent on August 7, 2018?

c. Is the applicant entitled to the assessments at Downsview Healthcare, as follows:

i. $2,000.00 for a chronic pain assessment, recommended by Dr. Grigory Karmy, MD, in a treatment plan dated July 5, 2019; and

ii. $2,000 for a psychological assessment, recommended by Dr. Andrew Shaul, psychologist, in a treatment plan dated July 20, 2019?

d. Is the respondent liable to pay an award under s.10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

f. Is the applicant entitled to his costs because the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith?

RESULT

4The applicant has failed to establish, on a balance of probabilities, that she sustained an impairment that warrants treatment outside the Minor Injury Guideline. To date, she has incurred $3,258.99 of the total $3,500.00 to which she is entitled for medical and rehabilitation benefits under the Schedule. This leaves a remainder of $241.01. The treatment plans in dispute each exceed this amount; therefore, they are not payable. Since no benefits are owing, no interest is due. It remains open to the applicant to pursue treatment within the Minor Injury Guideline limit.

5Further, the applicant has failed to establish grounds for an award. She has not made submissions in support of her request for costs. Both requests are accordingly denied.

PROCEDURAL MATTERS

6In her submissions, the applicant raises an issue not listed in the Tribunal’s July 9, 2020 Case Conference Report and Order: a treatment plan proposing a multidisciplinary chronic pain program in the amount of $12,918.49. The applicant submits that this issue was not listed in dispute because at the time the case conference was held, the benefit had not been denied. She seeks an order for the payment of this treatment plan in full.

7I find that the chronic pain program is not an issue properly in dispute before me. This plan was denied on November 23, 2020. The applicant’s submissions in this written hearing were due by December 21, 2020. There is no evidence that the applicant sought by way of motion to have this issue added in the intervening time. Seeking to introduce new issues at the hearing stage is improper as it deprives the opposing party of the opportunity to adequately respond to the claims made against it.

8The Tribunal’s case management process clarifies the scope of a dispute well in advance of the hearing. There is no justification for expanding the scope of the dispute at the hearing stage. Therefore, I do not consider this issue. However, as my reasons below will show, the applicant sustained injuries that are subject to the Minor Injury Guideline and this treatment plan would have not been payable in any event.

ANALYSIS

9To be eligible for the medical benefits she seeks in this application, the applicant has the onus of proving, on a balance of probabilities, that her accident-related injuries are not predominantly “minor” as defined in the Schedule. The term “minor injury” is defined in s. 3(1) 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.”

10If the applicant’s injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident.

The evidence shows only minor, soft tissue injuries as a result of the accident

11The applicant submits that she is entitled to treatment outside the Minor Injury Guideline limit because she sustained non-minor injuries in the accident, including a concussion, psychological impairments, and chronic pain syndrome. She relies on the evidence of her treating chiropractor, family doctor, assessing psychologist, and assessing chronic pain specialist.

12For the following reasons, I find that the applicant has failed to discharge her evidentiary onus. She has not shown that she sustained anything more than minor, soft tissue injuries in the accident.

13The applicant did not receive medical attention at the time of the accident. She was not assessed by her family doctor, Dr. I. Tamari, until approximately three weeks after the accident, when she attended his office for a routine blood pressure check. Dr. Tamari’s notes from the encounter confirm that the applicant sustained no head injury in the accident. The notes document her complaint of left neck and shoulder pain for which Advil provided partial relief.

14Despite routine visits to Dr. Tamari over the next 16 months, there is no further mention of the accident in the clinical notes and records. There are no recorded complaints of any kind related to the accident: no complaints of pain, loss of function, or psychological concerns. Instead, the applicant sought frequent care from Dr. Tamari for unrelated medical conditions.

15The applicant directs the Tribunal to consider the evidence of Dr. O. Pivtoran, a chiropractor. Dr. Pivtoran prepared two disability certificates, one dated June 1, 2019 and the other dated March 9, 2020. Both document a variety of soft tissue sprain and strain injuries and related sequelae. They also identify conditions, such as concussion and chronic pain, that a chiropractor is not qualified to diagnose. I attach no weight to those diagnoses. Nowhere else in the record is a concussion or head injury diagnosed; in fact, Dr. Tamari’s notes specifically rule out head trauma.

The evidence does not support a finding of psychological impairment

16In support of her submission that she suffers psychological impairments requiring treatment outside the Minor Injury Guideline, the applicant refers me to the psychological report of Dr. A. Shaul, dated April 9, 2020. In the report, the applicant is diagnosed with adjustment disorder and specific phobia. I attach minimal wight to this report for three reasons. First, the report is not linked to any objective medical evidence provided by the applicant’s primary care physician. The only documents reviewed in the preparation of the report are the treatment plans and a disability certificate prepared by Dr. Pivtoran. The clinical notes and records of Dr. Tamari, as outlined above, make no mention of the physical and psychological dysfunction described in the report. In the absence of contemporaneous medical evidence from the family doctor, there is little other than the subjective reports of the applicant to support the report’s conclusions as to the causation of her reported complaints.

17Second, it is unclear which of the two contributing practitioners made the diagnoses contained in the report. Dr. Shaul is a clinical psychologist qualified to diagnose psychological disorders. Ms. H. Ilios, identified as the clinical interviewer, is a psychotherapist and therefore not in a position to diagnose the conditions set out in the report. The lack of clarity surrounding the supervisory relationship between Dr. Shaul and Ms. Ilios undermines the weight of its conclusions.

18Third, the report’s conclusions do not appear to be consistent with the author’s clinical findings. The applicant completed three psychometric tests during the assessment which showed depressive symptoms in the minimal range, mild anxiety, and low levels of emotional distress. The author minimizes these findings, stating that the clinical interview suggested a more significant level of psychological distress. The author offers to rationale for this claim or for the rejection of the psychometric results. Other than generalized statements about overall psychological functioning, the report documents few self-reported details to substantiate a finding of significant psychological distress. The applicant reported difficulty with cleaning the bathtub and grocery shopping, trouble sleeping, feeling sad, hopeless, and overwhelmed, and losing interest in going for walks. These reports are, in my view, consistent with the psychometric testing results.

19In sum, the evidence does not support a finding of psychological impairment justifying treatment outside the Minor Injury Guideline. Although there is evidence to suggest that the applicant may have suffered some psychological sequelae, or consequences, of her soft-tissue accident-related injuries, a measure of psychological impact is expected to accompany minor injuries, and is specifically contemplated in the Minor Injury Guideline’s “functional restoration approach.”² The applicant’s psychological concerns, to the extent that there is reliable evidence of them, were not significant enough for her to raise them with her family doctor despite frequent visits to his office in the 16 months after the accident.

20For the reasons I have set out above, I can only conclude, on a balance of probabilities, that the applicant did not suffer a psychological impairment as a result of the accident warranting treatment outside the Minor Injury Guideline.

The evidence does not establish a finding of chronic pain syndrome

21The applicant relies heavily on the August 29, 2019 report of Dr. G. Karmy, a chronic pain specialist, to support her submission that she suffers from chronic pain syndrome and requires treatment outside the Minor Injury Guideline.

22I am unable to place significant weight on Dr. Karmy’s report. It is based on an extremely narrow scope of documentary review limited to the disability certificates and treatment plans of the applicant’s treating chiropractor, Dr. Pivtoran. Dr. Karmy, like Dr. Shaul, did not have the benefit of Dr. Tamari’s clinical notes and records. It is unclear whether those records were ever requested by the applicant. Those records, as I have discussed, suggest a very different clinical presentation than the one Dr. Karmy details in his report. Dr. Karmy lists numerous functional limitations due to pain not reflected in the objective medical evidence. He states that the applicant takes Tylenol for pain but does not find it helpful. Dr. Tamari, a year prior, noted that the applicant found Advil partially relieving of her pain symptoms. Dr. Karmy found that the applicant must hire people to perform most chores, struggles with her personal care, and is completely unable to go for walks. The severity of these complaints is simply not reflected elsewhere in the record.

23The applicant’s submissions on the chronic pain issue focus substantially on the AMA Guides diagnostic criteria for chronic pain syndrome. While I am aware that the Tribunal has found the AMA Guides persuasive in some chronic pain cases, these criteria are not discussed in Dr. Karmy’s report. Dr. Karmy does not articulate a clear diagnostic assessment based on the AMA Guides criteria or any other benchmark. Again, relying solely on the self-reports of the applicant in the absence of objective medical evidence substantially undermines the conclusion that the applicant suffers from fibromyalgia and chronic mechanical pain at numerous sites as a result of the accident. The balance of the evidence does not support the functional limitations, and even the persistence of pain symptoms, upon which these diagnoses are based.

24On the basis of the record before me, I cannot conclude that the applicant suffers from accident-related pain symptoms capable of removing her from the Minor Injury Guideline.

The respondent’s denials complied with s. 38(8) of the Schedule

25The applicant submits that the respondent failed to give proper notice in accordance with s. 38(8) of the Schedule for its denial of her psychological assessment claim. She submits that the medical and other reasons given for the denial were inadequate, and that the respondent is prohibited under s. 38(11) from taking the Minor Injury Guideline position.

26I find that there is no merit to the applicant’s position on this issue. The denial in question was accompanied by reasons set out in clear, straightforward language capable of being understood by a lay person. The denial notice cites the Minor Injury Guideline and refers to the opinion of the treating practitioner who completed the treatment and assessment plan. Reasons such as these are routinely upheld by the Tribunal. They conform to the requirements set out by the Tribunal in M.B. v. Aviva Insurance Canada, which is clear that reference to a specific diagnosis or condition is not a strict requirement under s. 38(8).³

No basis for an award

27The applicant seeks an order for an award under s. 10 of Regulation 664 equal to 50% of the benefits sought in her applicant on the grounds that the respondent unreasonably denied her claims and impeded her recovery process. She submits, without citing any authority for the proposition, that the test for a special award is whether the insurer gave reasonable consideration to all of the information then available to it in assessing a claim.

28The well-established standard for granting an award under Regulation 664 is set out in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co. [Plowright].⁴ An award is appropriate where an insurer has engaged in conduct that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The record before me does not establish conduct of this nature. The respondent properly denied the applicant’s claims for treatment outside the Minor Injury Guideline limit. Absent evidence to suggest conduct of the kind described in Plowright, I am unable to determine that an award is warranted.

No basis for a costs award

29The applicant’s claim for costs is an issue in dispute before me. However, the applicant appears to have abandoned this issue as she makes no submissions directed toward Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, which govern the award of costs in Tribunal proceedings. She has advanced no submissions or presented evidence capable of grounding a finding that the respondent engaged in conduct that is unreasonable, frivolous, vexatious, or in bad faith as is required for a costs order under Rule 19. Accordingly, the claim for costs is denied.

CONCLUSION

30The applicant has failed to discharge her evidentiary onus in establishing, on a balance of probabilities, that she is entitled to treatment outside the Minor Injury Guideline. No benefits are payable, and no interest is owing. There is no basis for an award. There is no basis for a costs order. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Superintendent’s Guideline No. 01/14.
3. 32017 CanLII 87160 (ON LAT).
4. 41993 OIC File No.: A-003985 (FSCO).