Licence Appeal Tribunal File Number: 20-007747/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:
Kyran Duncan
Applicant
and
Travelers Insurance
Respondent
DECISION
ADJUDICATOR:
Nishant Nayak
APPEARANCES:
For the Applicant:
Sharndip Singh Khaira, Paralegal
For the Respondent:
Jane Cvijan, Counsel
HEARD:
By Way of Written Submissions
REASONS FOR DECISION
BACKGROUND
1Kyran Duncan, the applicant, was injured in an automobile accident on March 21, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)1 from Travelers Insurance, the respondent.
2The respondent denied the applicant’s claims because it had determined that all 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
3The respondent denied the applicant’s claims for physical therapy, a social work assessment, a chronic pain function evaluation, an orthopaedic assessment, and a chronic pain assessment because the treatment and assessment plans fell outside of the MIG. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of this dispute.
PROCEDURAL ISSUES
4In the applicant’s reply submission, he requests that the insurer’s examination (“IE”) report by Dr. S. Talebizadeh, psychologist, dated June 30, 2021, be excluded as evidence for this hearing. The applicant submits that the respondent missed the document disclosure deadline of June 30, 2021. This report was disclosed two business days later on July 5, 2021. The applicant didn’t allege any prejudice. I have reviewed applicant’s reply submission and I find the applicant is not unduly prejudiced by this minor delay.
5Rules 9.2 and 9.3 of the Tribunal’s Common Rules of Practice & Procedure state that every party must disclose the evidence they intend to rely upon at least 10 days prior to the hearing or as otherwise ordered by the Tribunal. Rule 9.4 states that any party who fails to comply with the Rules or Tribunal’s orders may not rely on that late evidence without the Tribunal’s consent. Rule 3.1 states that the Rules should be interpreted in a liberal way in order to resolve disputes on their merits in a timely, efficient and proportional way.
6I will include Dr. Talebizadeh’s report in the evidence because, first, the delay is not unreasonable and, second, the applicant is not unduly prejudiced by it. I agree that the respondent missed the disclosure deadline of June 30, 2021. However, the delay is attributed to the rescheduling of the IE, at the applicant’s request. The applicant was unable to attend the IE on the originally scheduled date contemplated when the parties agreed to the disclosure deadline. Despite rescheduling the IE, the respondent nevertheless disclosed the corresponding report on July 5, 2021, within two business days of the deadline. I am satisfied that the IE report is relevant, and the disclosure infraction is minor. Without faulting the applicant for requesting to reschedule the IE, I conclude that disallowing this IE report would be a disproportionate outcome.
ISSUES IN DISPUTE
7The 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 within the $3,500.00 limit and in the MIG?
(ii) Is the applicant entitled to $1,250.00 for physical therapy proposed by York Medical in a treatment plan/OCF-18 (“plan”) dated May 22, 2018?
(iii) Is the applicant entitled to $2,300.00 for physical therapy proposed by York Medical in a plan dated July 30, 2018?
(iv) Is the applicant entitled to $2,300.00 for physical therapy proposed by York Medical in a plan dated November 5, 2018?
(v) Is the applicant entitled to $2,300.00 for physical therapy proposed by York Medical in a plan dated January 28, 2019?
(vi) Is the applicant entitled to $2,600.00 for physical therapy proposed by York Medical in a plan dated September 26, 2019?
(vii) Is the applicant entitled to $2,200.00 for social worker assessment proposed by York Medical in a plan dated January 28, 2019?
(viii) Is the applicant entitled to $1,500.00 for chronic pain functional evaluation proposed by York Medical in a plan dated September 26, 2019?
(ix) Is the applicant entitled to $2,200.00 for orthopaedic assessment proposed by York Medical in a plan dated September 26, 2019?
(x) Is the applicant entitled to $3,200.00 for chronic pain assessment proposed by York Medical in a plan dated February 24, 2020?
(xi) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
[8] I find that the applicant sustained psychological injuries which are not a minor injury.
[9] I find that the social worker assessment plan dated January 28, 2019, is reasonable and necessary. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
[10] The applicant is not entitled to the remaining treatment and assessment plans because there is no contemporaneous evidence demonstrating that the goods and services proposed are reasonable and necessary.
ANALYSIS
The Minor Injury Guideline (the MIG)
11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The Schedule and MIG provide that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG. The Tribunal has found that chronic pain syndrome would remove an injured person from the MIG, as this diagnosis is not included in the definition of “minor injury” in s. 3(1) of the Schedule.
12If an insurer determines that an applicant’s injuries to be minor in nature, the onus is on the applicant to establish that the MIG, and the related funding limit, should not apply3.
13The applicant claims that he suffers from chronic pain and psychological injuries, which are not within the definition of a “minor injury”.
14I find that the applicant has met his onus of demonstrating on a balance of probabilities that he suffers from psychological impairments as a result of the accident. Therefore, the Applicant is not subject to the MIG or the $3,500.00 funding limit on treatment.
Psychological Impairment
15Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injury.” I conclude from the assessment reports by Dr. S. Talebizadeh, Psychologist and Mr. S. Joseph, RSW, that the applicant sustained psychological injuries as a direct result of the accident.
16Mr. Joseph assessed the applicant and, from a psychological perspective, concluded that the applicant developed psychological problems related to the accident and recommended psychiatric consultation for poor sleep, fears when travelling in a vehicle, interpersonal difficulties, and the development of appropriate coping skills. The applicant reported to the assessor that he experiences persistent depressed and irritable moods and that his family noticed that he became oversensitive, annoyed, and short tempered. He reported that he cries often and over little things, and overall, according to his own estimate, he “lost his cool”. The reports were corroborated by the psychometric testing conducted. The applicant’s scores indicated a moderate level of depression and anxiety and his posttraumatic stress symptoms scored in the severe range.
17The assessment and report of Dr. Talebizadeh also indicates that the applicant sustained psychological injuries, though it concludes that he didn’t meet the threshold for a formal DSM-V diagnosis. The assessor administered psychometric testing during the assessment, but never reported the applicant’s test scores or results. Instead, in the conclusion of the report, Dr. Talebizadeh notes that the objective findings indicate a number of symptoms while also supporting the applicant’s subjective report/complaints.
18The CNRs from the applicant’s family physician, Dr. N. Nighat, also support a finding that the applicant sustained psychological injuries as a result of the accident. Specifically, on the February 29, 2020, applicant reported still having flashbacks of the accident and Dr. Nighat referred him for a psychological assessment. I acknowledge that there is no record indicating that the applicant followed through with the referral. However, this does not trump the assessment report of Mr. Joseph and the findings in Dr. Talebizadeh’s report and Dr. Nighat’s CNRs.
19Having found that the applicant sustained psychological injuries, I conclude that his impairments are not included in the minor injury definition, and he is not subject to the MIG and the funding limit on treatment. As a result, an analysis of whether his chronic pain falls within the minor injury definition is unnecessary.
The Physical Treatment Plans
20The applicant claims entitlement to five physical treatment plans during the period spanning May 22, 2018, and September 26, 2019. The treatment plans propose mostly multi-disciplinary physical rehabilitation sessions to achieve the goals of pain reduction, increase his ROM and increase his strength so that he could return to activities of normal living.
21I find that the applicant has not provided contemporaneous evidence to support his claims. Thus, he has not met his onus to demonstrate that the five physical treatment plans are reasonable and necessary.
22The applicant’s evidence is not contemporaneous with the period he claims benefits. The applicant saw Dr. Nighat four times since the accident and only twice reported accident-related symptoms, including during the initial consultation on March 22, 2018. At that time, Dr. Nighat diagnosed a neck/back sprain and whiplash associated disorder. The second visit to Dr. Nighat following the accident, on July 13, 2019, related to left wrist pain for the two days prior. Dr. Nighat does not attribute the wrist pain to the accident. The third post-accident visit happened on February 29, 2020, at which time the applicant asked for a psychological referral that was given by Dr. Nighat. The last consultation, on March 12, 2020, details a normal examination. I am unable to find treatment plans to be reasonable and necessary without contemporaneous evidence supporting them.
23I acknowledge the applicant’s pain complaints in the CNR’s from York Medical Centre but find them inconsistent with balance of the evidence and prefer the applicant’s family physician reports and IE reports over the CNR’s from York Medical Centre. The applicant made no specific reference to any information in the CNRs. The CNRs include handwritten notes which are often illegible. Pain is noted on occasion, but this is inconsistent with the applicant’s reports to Dr. Nighat. Dr. Nighat supported physiotherapy shortly after the accident, but no other time.
24The IE reports of Dr. Syed Hossein Hosseini and Dr. Yuri Marchuk dated August 1, 2018, and November 11, 2019, respectively, are unsupportive of the applicant’s claims. Both Dr. Hosseini and Dr. Marchuk determined that the applicant’s injuries were predominantly soft-tissue injuries. The physical examination conducted during each assessment was normal, and identified full functional ROM.
Assessments
25The applicant has the onus of demonstrating that the assessments in dispute are reasonable and necessary. Assessments are speculative in nature and the applicant is not required to prove that he has the condition which he seeks an assessment for. Rather, the applicant is required to demonstrate that there is a likelihood that he has the condition which requires investigation.
Social Work Assessment
26The goals of the social work assessment are to help the applicant through assessment and rehabilitation with problems related to the social environment and certain psychological circumstances, his relations with spouse or partner; and dealing with altered self-image and expectations. The cost of this proposed assessment is $2,200.
27I find that the applicant is entitled to social work assessment plan dated January 28, 2019, because it is reasonable and necessary. The applicant developed psychological symptoms following the accident and continues to experience them to-date. The reports by Mr. Joseph and Dr. Talebizadeh both indicate that the applicant sustained psychological injuries. Mr. Joseph’s report further indicates that the applicant has developed poor sleep, fears when travelling in a vehicle, interpersonal difficulties, and the development of appropriate coping skills. As stated previously, the Applicant reported to the assessor that he experiences persistent depressed and irritable moods, he became oversensitive, annoyed, and short tempered, and cries often and over little things. The Applicant’s family physician CNRs also support a finding that the applicant sustained psychological injuries as a result of the accident. Specifically, on the February 29, 2020, applicant reported still having flashbacks of the accident.
Chronic Pain Functional Assessment and Chronic Pain Assessment
28I find the applicant is not entitled to the Chronic Pain Functional Assessment or the Chronic Pain Assessment. I find insufficient medical evidence demonstrating that the applicant’s accident-related injuries had a detrimental impact on his functionality or adversely affects his well-being.
29The applicant infers that his lingering neck, lower back, left wrist pain, bilateral shoulder pain as well with headaches and knee pain indicate that he requires the proposed chronic pain assessments. However, I find that the Applicant’s lingering pains are sequelae of his soft-tissue injuries. Further, while the applicant reports lingering neck, lower back and left wrist pain, these symptoms are not evidence of a chronic pain condition. Following the accident, the applicant returned to work as a vinyl window installer, a physically demanding job which requires constant lifting, carrying, and pushing and has continued to work in that capacity since. Such functionality contradicts the applicant’s claims of a chronic pain condition. Likewise, there is no evidence to show that the lingering pain causes the applicant to experience any functional impairment.
30I prefer the insurer’s examination (“IE”) reports by Dr. S. Hosseini, physiatrist, and Dr. Y. Marchuk, physiatrist, over the reports of Dr. H. Ta, physician, Dr. R. Castro, physician, Dr. L. Bui, physician, Dr. S. Bui, chiropractor. The IE reports of Dr. S. Hosseini and Dr. Y. Marchuk dated August 1, 2018, and November 11, 2019, respectively, are unsupportive of the applicant’s claims. Both Dr. Hosseini and Dr. Marchuk determined that the applicant’s injuries were predominantly soft-tissue injuries. The physical examination conducted during each assessment was normal, and identified full functional ROM.
31This Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the American Medical Association Guides (AMA Guides). I note, however, that satisfying the criteria in the AMA Guides is not a requirement for the Applicant to be successful with his claim, but the AMA Guides is a helpful tool. The AMA Guides state that at least three of the following criteria must be met for a diagnosis:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
(ii) Excessive dependence on health care providers, spouse, or family.
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
(iv) Withdrawal from social milieu, including work, recreation, or other social contacts.
(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32I find that the applicant does not exhibit the symptomology typically associated with chronic pain cases. There is no evidence demonstrating that he is using prescription drugs beyond the recommended duration. He has no excessive dependence on healthcare providers, considering that he met with Dr. N. Nighat four times since the accident. The applicant returned to work on a full-time basis, and before returning to work, the applicant reported resuming his personal care and homecare activities. The applicant meets criterion (vi) only, in that he developed psychosocial sequelae after the initial incident. Satisfying one criterion suggests that the applicant does not suffer from a chronic pain condition, nor does he need an assessment regarding a chronic pain condition.
Orthopaedic Assessment
33I find that an Orthopaedic assessment is not reasonable and necessary because there is no evidence indicating that the applicant has an orthopaedic injury. All his physical injuries are soft-tissue, he has full functional ROM throughout, and has returned to physically demanding work at full-time hours and capacity.
Interest
33The applicant is entitled to interest related to the social work assessment, pursuant to s. 51 of the Schedule.
CONCLUSION
34For the reasons outlined above, I find that:
(i) The applicant sustained psychological injuries which are not a minor injury. He is therefore removed from the MIG.
(ii) The social worker assessment plan dated January 28, 2019 is reasonable and necessary.
(iii) The applicant is not entitled to the remaining treatment and assessment plans because there is no contemporaneous evidence demonstrating that the goods and services proposed are reasonable and necessary.
(iv) The applicant is entitled to interest related to the social work assessment, pursuant to s. 51 of the Schedule.
Released: September 20, 2022
Nishant Nayak
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).