Licence Appeal Tribunal File Number: 21-004203/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Sondy Pierre
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Anna Korolkova, Counsel
For the Respondent: Theomarcus Giannou, Counsel
HEARD: By way of written hearing
OVERVIEW
1Mr. Sondy Pierre, the applicant, was involved in an automobile accident on April 20, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule—Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in Section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”)?
ii. Is the applicant entitled to physical therapy in the amount of $3,251.17, proposed by 101 Physio in a treatment plan dated December 16, 2019, and denied on December 23, 2019?
iii. Is the applicant entitled to psychological treatment in the amount of $4,912.80, proposed by 101 Assessments in a treatment plan dated February 11, 2020, and denied on March 5, 2020?
iv. Is the applicant entitled to a psychological assessment in the amount of $2,460.00, proposed by 101 Assessments in a treatment plan dated March 13, 2019, and denied on April 15, 2019?
v. Is the applicant entitled to a chronic pain assessment in the amount of $2,460.00, proposed by 101 Assessments in a treatment plan dated December 13, 2019, and denied on December 23, 2019?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained predominantly minor injuries and is therefore subject to treatment within the $3,500.00 limit of the MIG.
4The applicant is not entitled to any of the treatment plans in dispute.
5Since no benefits are payable, interest is not payable.
ANALYSIS
Removal from the MIG
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” 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.”
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant submits that removal from the MIG is warranted by chronic pain syndrome and multiple psychological injuries that include a somatic symptom disorder (with predominant pain, severe), chronic adjustment disorder with mixed anxiety and depressed mood, and a specific phobia (situational: vehicular).
9I find the applicant has failed to demonstrate that his injuries are not predominantly minor as defined in section 3(1) of the Schedule, and are therefore subject to treatment within the $3,500.00 limit of the MIG.
Psychological injuries
10I find there is insufficient evidence of psychological impairment that would warrant removal from the MIG.
11Psychological injuries, if established, may fall outside of the MIG because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show he sustained a psychological impairment because of the accident.
12The medical evidence concerning the psychological impairments claimed by the applicant focuses largely on two reports. The first report is a psychological MIG assessment—completed on behalf of the respondent—by Dr. Terra Seon (psychologist) that is dated May 27, 2019. The second report, completed roughly eight months later, is a psychological assessment report (dated February 6, 2020) completed by Ms. Lital Grinberg (associate psychologist) under the supervision of Dr. Peter Waxer (psychologist), on behalf of the applicant.
13I prefer Dr. Seon’s assessment over that performed by Ms. Grinberg because it is better corroborated by the evidence.
14Ms. Grinberg’s report indicates the applicant’s psychological difficulties are “sufficiently severe that psychological treatment would ordinarily be considered necessary and reasonably required.” Ms. Grinberg offered diagnoses of somatic symptom disorder, chronic adjustment disorder and a situational specific phobia. She proposed 16 psychotherapy sessions in addition to 12 “mindfulness-based” therapy sessions, a cognitive assessment, and a driving evaluation to address the applicant’s psychological injuries.
15Conversely, Dr. Seon concluded the applicant’s current presentation was not of the magnitude to warrant a psychological diagnosis, and added that the applicant subjectively denied any significant psychological impairment that negatively interfered with his social, occupational, or overall level of functioning. Dr. Seon also noted the applicant denied the need for, or want to, engage in psychological services at the time of his assessment.
16On January 21, 2020—about eight months after Dr. Seon’s report and six days before his assessment with Ms. Grinberg—the applicant reportedly reiterated that he was not interested in counselling at this time to Dr. Ullanda Neil (family physician). A subsequent note in Dr. Neil’s chart, dated February 10, 2020 (two weeks after the applicant’s session with Ms. Grinberg), indicates the applicant again declined counselling. This is consistent with Dr. Seon’s report that the applicant did not need and did not want psychological counselling, and it is inconsistent with Ms. Grinberg’s opinion that the applicant is motivated to treat his psychological condition via counselling, or that his psychological injuries require counselling.
17According to Dr. Seon’s May 2019 report, the applicant shared he was not experiencing significant change in his emotional functioning and denied struggling with negative feelings like frustration, anger, irritability, hopelessness, helplessness, or worthlessness related to the accident. In fact, the applicant reported his feelings of sadness and emotional difficulties were unrelated to his accident. He attributed his stress to “financial concerns” like “thinking about my bills and maybe returning to school.” I prefer this evidence because there is corroboration in the clinical notes and records of Dr. Neil, who noted on December 30, 2019, that the applicant was “worrying about not having money to pay his car insurance (has 2 cars) or his phone bill, lives with parents.”
18But when Ms. Grinberg questioned the applicant during the assessment on January 27, 2020, the applicant agreed he was experiencing “depression … irritation, anger, worry, or other personal or social problems …” caused by or related to the accident. The applicant also agreed he was experiencing anxiety that was unrelated to vehicles or driving. Although there are several mentions of “Major Depression – Acute” in Dr. Neil’s clinical notes and records (January 13, 2020, to February 10, 2020) from the same period as Ms. Grinberg’s report, none of Dr. Neil’s entries relate the applicant’s psychological symptoms to his accident. As such, Ms. Grinberg’s report strikes me as an outlier that is not supported by the evidence in Dr. Seon’s earlier report, nor in the clinical notes and records documented later by Dr. Neil.
19Ms. Grinberg’s report goes on to mention the applicant complaining about cognitive difficulties like concentration and memory difficulties. However, I was not pointed to objective medical evidence that confirmed and qualified the applicant’s claimed cognitive difficulties, nor their relationship to the accident, and therefore gave this evidence little weight in my decision.
20Ms. Grinberg documented the applicant’s self-reports of moodiness, which negatively affect his interpersonal relationships, as well as tendencies to isolate himself from others. But I did not find this evidence to be persuasive because the applicant’s submissions do not point me to any corroborating evidence of social difficulties caused by the accident, and Dr. Seon’s report notes the applicant does not have the tendency to socially isolate or avoid social interactions, and continues to attend church weekly and enjoys socializing.
21Ms. Grinberg’s report also details the applicant’s claim of sleep disturbances caused by his mental and physical symptoms. She noted the applicant slept “2 to 3 hours” and had trouble both falling asleep and resuming sleep upon frequently awakening during the night. The applicant’s mental symptoms were described as “ruminations” (about the direction of his life) and occasional nightmares. However, I did not find this evidence to be persuasive because I was not pointed to objective medical evidence, such as a sleep study, to confirm the applicant’s sleep issues and ascertain their relationship to the accident. Further, Dr. Seon reports the applicant denied having nightmares, and there is no mention of any sleep disturbances owing to psychological reasons. As well, Dr. Neil’s records say the applicant “sleeps when stressed” (December 30, 2019), and that he falls asleep easily, but does have trouble staying asleep (February 10, 2020).
22In conclusion, for the above reasons, I accept Dr. Seon’s opinion and find the applicant has not proven he has psychological impairments arising from his accident that would warrant removal from the MIG. There is insufficient corroborating evidence to support the applicant’s self-reports to Ms. Grinberg. Ms. Grinberg’s report is inconsistent with the contemporaneous records of Dr. Neil. I find the filed evidence overall is more consistent with the information provided in Dr. Seon’s report.
Chronic pain
23I find the applicant’s pain does not warrant removal from the MIG.
24Chronic pain is not included in the definition of a minor injury in the Schedule. To be removed from the MIG, the applicant must prove, on a balance of probabilities, that he suffers accident-related chronic pain resulting in functional impairment. There must be medical evidence that shows accident-related chronic pain is the cause of the functional impairment and is not sequelae resulting from accident injuries.
25The applicant claims he has chronic pain syndrome arising from the accident. He claims pain started in his chest and back the day after the accident. The applicant also claims to experience headaches. The applicant’s claim relies on the treatment plan completed by Dr. Michael Gofeld (physician) on December 13, 2019, and specifically his findings therein of symptomology consistent with chronic pain syndrome.
26I find the applicant has failed to prove his pain is causing functional impairment because there is insufficient corroborating medical evidence of pain-related limitations sustained by the applicant.
27In Part 8 of the December 2019 treatment plan, Dr. Gofeld was unable to assess whether the applicant’s accident-related injuries affect his ability to carry out his tasks of employment. And while Dr. Gofeld indicates the applicant’s injuries do affect his ability to pursue activities of normal life, he does not describe the activities limited by the impairment, or its impact on the applicant’s ability to function. Dr. Gofeld offers only that the applicant’s pain is exacerbated by attempts to increase daily activities, which, to me, is not clear evidence of functional impairment. The applicant’s submission leaves me uncertain as to whether Dr. Golfed physically examined the applicant to prepare the proposed treatment plan, or what file information his findings may otherwise be based on.
28Further to this treatment plan, the applicant submits it aims to increase his range of motion and strength as well as return him to pre-accident work activities and daily living activities. But the applicant’s submissions do not identify any corresponding medical evidence to show his range of motion, strength, and ability to do work and daily life activities is impaired. Therefore, I put little weight on the treatment plan as evidence of functional impairment owing to the applicant’s pain.
29According to the evidence presented at the hearing, the applicant’s physical injuries include chest pain (unspecified); headache; and sprain and strain of cervical spine, joints and ligaments of neck, lumber spine, and pelvis, thoracic and lumbar spine, thorax, knee, and shoulder girdle as indicated in the treatment plan proposed by Dr. Wayne Coghlan (chiropractor) on December 16, 2019. These were the same injuries listed in the OCF-3 (the “disability certificate”) completed by Dr. Coghlan on June 1, 2018, and are all within the definition of minor injuries as set out in section 3(1) of the Schedule.
30The applicant’s disability certificate indicates he suffered a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident. But again, I was not pointed to sufficient medical evidence that substantiates these limitations. For example, I do not know what housekeeping and home maintenance services the applicant did prior to his accident. Dr. Coghlan does not indicate if he performed a physical examination, nor does he provide an objective analysis as to how his findings correlate with the applicant’s self-reported limitations. Put differently, Dr. Coghlan did not establish whether the applicant’s functionality is objectively consistent with the limitations claimed by the applicant (i.e., not being able to play soccer), nor that the applicant’s limitations in housekeeping and home maintenance are, in fact, a result of chronic pain owing to the accident. I therefore cannot conclude the applicant suffers functional limitations arising from chronic pain due to the accident.
31The applicant relied on a referral to Dr. Stephen James (physician) of CPM Centres for Pain Management. The report of this pain consultation is dated November 6, 2019. During the examination, the applicant described low back pain that began suddenly, worsened over time, had no alleviating factors, and was aggravated by repeated movements as his chief complaint. Dr. James diagnosed lumbar facet dysfunction with discogenic back pain, sacroiliitis, and myofascial pain. He recommended the applicant take magnesium and proposed a trial of Cymbalta. I do not find this evidence to be persuasive because Dr. James—who did not diagnose chronic pain syndrome—did not recommend any activity restrictions or note functional limitations arising from the applicant’s pain. The applicant declined Dr. James’ additional recommendation for nerve blocks, epidural steroid injections and rhizotomy—instead requesting a referral for medical cannabis, and specifically CBD oil for pain management. Almost two months later, on December 30, 2019, the applicant told Dr. Neil he was reluctant to try the CBD oil he requested from Dr. James due to cost and previous bad experiences with marijuana. I find there is no evidence the applicant tried any of the treatments proposed by Dr. James to treat his pain.
32The applicant’s submission also points to Dr. Neil’s records as evidence of chronic pain. There are ongoing complaints of accident-related pain associated with his minor injuries from May 3, 2018, to February 10, 2020. As well, the applicant reported persistent chest pain, difficulty breathing, persistent back pain and spasms, intermittent neck pain, and frequent headaches to Ms. Grinberg during the January 2020 psychological assessment. But again, there is insufficient evidence of functional limitations here. The applicant says he is not going to play soccer on weekends, but does not attribute this to limitations caused by his pain. The applicant does not point to any objective examinations of his functionality by a medical professional that produce findings consistent with impairment due to pain.
33The records of Drs. Neil and James, as well as Ms. Grinberg’s report, establish the applicant has consistently voiced complaints of pain since his accident. However, Dr. James did not describe the applicant’s pain as chronic and Dr. Neil’s multiple references to chronic pain fail to rule out the applicant’s symptoms as a clinically associated sequalae of the minor injuries he sustained in the accident.
34Ms. Grinberg says the applicant reports he was unable to resume employment for two weeks after the accident, and that his hours and duties were modified upon his return due to pain-related limitations, such that he was working just two days per week at the time of his January 2020 assessment. In fact, the applicant told Ms. Grinberg that before the accident, he was able to work seven days per week, whereas he is currently only able to work two days. The applicant credited his neck and back pain with interfering with his ability to work long hours during his visit with Dr. Neil on December 30, 2019.
35But a musculoskeletal assessment report (completed February 28, 2020) by Dr. Neetan Alikhan (family physician) on behalf of the respondent says the applicant returned to his regular hours and duties two weeks after the accident, but reported that his shifts were reduced to two days a week because “the company is slow.” Similarly, Dr. Neil’s record (dated December 30, 2019) indicates the applicant was frustrated that his current workplace doesn’t give him enough shifts.
36Taken together, I find the evidence of Drs. Alikhan and Neil to be more persuasive than Ms. Grinberg’s report because there is corroboration in the records of two separate medical professionals at two different points in time that overlap the period of Ms. Grinberg’s assessment. As such, I am not convinced the applicant’s work duties were modified to accommodate his pain or any functional limitations, nor do I accept the applicant’s reduced work hours were attributable to his pain or any functional limitations.
37Speaking further to functional impairment in a workplace context, the applicant’s disability certificate indicates—contrary to the applicant’s submissions—that he is not substantially unable to perform the essential tasks of his employment, and does not suffer a complete inability to carry on a normal life. I was not pointed to any evidence from the applicant’s employer as to his duties or hours. Given all this, I am not satisfied that the applicant’s employment was affected to any great degree by functional limitations owing to pain.
38The applicant has failed to meet his burden of proof to be removed from the MIG. I am not persuaded the applicant suffers from accident-related chronic pain that results in functional impairment. His submissions on chronic pain were not supported by the medical evidence put before me. I therefore cannot find the applicant should be removed from the MIG due to chronic pain.
The treatment plans are not reasonable and necessary
39The respondent’s submission notes the applicant has been approved for medical benefits up to the MIG statutory limits of $3,500.00, and that $3,390.75 of this has already been paid out. This leaves a balance of $109.25 that remains available to fund treatment already approved by the respondent.
40Considering the applicant has already been approved for treatment up to the MIG limits, and that his appeal to be removed from the MIG has failed, it is not necessary to adjudicate the reasonableness or necessity of the disputed treatment plans.
No interest is payable
41The applicant is not entitled to any outstanding medical benefits. Therefore, no interest is owing.
ORDER
42For the above reasons, I find the applicant has not met his onus to prove, on a balance of probabilities, that he has suffered an injury that falls outside the definition of minor injury. The treatment plans are not reasonable and necessary, and no interest applies. I therefore dismiss the application.
Released: October 31, 2023
Michael Beauchesne
Adjudicator