Loeffler v. Co-operators General Insurance Company, 2023 CanLII 101115

Loeffler v. Co-operators General Insurance Company, 2023 CanLII 101115

Citation: Loeffler v. Co-operators General Insurance Company, 2023 ONLAT 21-012406/AABS

Licence Appeal Tribunal File Number: 21-012406/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:

Jacob Loeffler

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Jacob Loeffler (the “applicant”) was involved in a motor vehicle accident on May 30, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Co-operators General Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment, and denied four treatment plans/OCF-18s. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In submissions, the respondent notes that as of January 2020, $3,331.27 of the MIG limit of $3,500.00 had been expended, leaving $168.73 remaining. The applicant does not comment on the MIG limit in his submissions. As a result, I accept the respondent’s submission.

SUBSTANTIVE ISSUES IN DISPUTE

3The following substantive issues are in dispute:

1. 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 of the MIG?

2. Is the applicant entitled to $3,661.44 for chiropractic services recommended by Mediwise Health Care Centre in a treatment plan submitted November 19, 2019 and denied December 5, 2019?

3. Is the applicant entitled to $1,920.53 for a psychological assessment recommended by Mediwise Health Care Centre in a treatment plan submitted November 19, 2019 and denied December 5, 2019?

4. Is the applicant entitled to $3,963.64 for psychological services recommended by Mediwise Health Care Centre in a treatment plan submitted February 12, 2020 and denied February 26, 2020?

5. Is the applicant entitled to $3,084.14 for chiropractic services recommended by Mediwise Health Care Centre in a treatment plan submitted February 24, 2020 and denied February 27, 2020?

6. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

4I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

6An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Removal from the MIG can also be warranted if there is documentation of a pre-existing condition combined with compelling medical evidence stating that this condition precludes recovery from the accident-related minor injury if the insured person is kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

7The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

8The applicant submits that he sustained a psychological impairment and persistent symptoms of pain as a direct result of the accident, both of which warrant his removal from the MIG.

9The respondent counters that the applicant’s injuries fall within the MIG definition of a minor injury, and that he has not provided medical evidence to substantiate a psychological impairment or chronic pain.

The applicant has not demonstrated that he should be removed from the MIG

10I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG. I am not persuaded by the applicant’s medical evidence, which is slight with regard to supporting his claims of suffering a psychological impairment and chronic pain as a result of the accident.

Psychological impairments

11Initially, I will review the applicant’s claims of psychological impairment. This is the principal focus of the applicant’s argument regarding removal from the MIG, but he submits minimal medical evidence to support this claim.

12The applicant relies largely on two reports. The first is a psychological status evaluation/pre-screening report completed by Mitasha Bhalla, qualifying psychotherapist, under the supervision of Dr. Harinder Mrahar, psychologist, dated June 20, 2019. In this report, a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood was noted. And the second is a psychological assessment report completed by Bruce Cook, psychological associate, dated January 30, 2020. Mr. Cook diagnosed the applicant with post-traumatic stress disorder (“PTSD”) and major depressive disorder (severe), and recommended 16 1.5-hour sessions of psychotherapy.

13However, I assign minimal weight to each report for the following reasons.

14The psychological status evaluation is based entirely on the self-reporting of the applicant, which is of little value in the absence of supportive objective medical evidence. This report is constituted of an interview with the applicant, with the resulting provisional diagnoses being based solely on this conversation. It is also difficult to determine the rationale for such a pre-screening, given that the applicant had yet to see his family physician, Dr. Hernan Boniolo, regarding the accident. The applicant did not visit Dr. Boniolo until July 31, 2019, two months post-accident, and he told the doctor at this time that he denied suffering from depression. The applicant did not mention any psychological concerns to Dr. Boniolo in subsequent appointments, either. (Granted, he did visit the physician just twice more according to the clinical notes and records (“CNRs”) entered into evidence, on September 10, 2019 and November 29, 2019.)

15I find the psychological assessment to be more thorough, as it includes the results of psychometric testing in addition to a clinical interview. But it is deficient in key areas. Mr. Cook did not review medical documentation on the file, so he did not take into account the applicant denying symptoms of depression at the Dr. Boniolo appointment. Mr. Cook wrote in his summary that the applicant’s self-worth was “significantly compromised due to the fact that he cannot attend work at this particular time,” where earlier in the report he noted that the applicant was employed as a supermarket butcher at the time of the interview and had been for the past five years.

16Much of this report also seems to have been based on the subjective reporting of the applicant. This resulted in Mr. Cook speculating about possible psychological symptoms that the applicant “may” or was “likely” to be experiencing. The section on clinical features, for example, consists almost entirely of Mr. Cook’s conjecture. This is far from definitive enough to support claims of a psychological impairment that warrants removal from the MIG—a conclusion that I would also say is befitting of the entire report.

17I prefer the insurer’s examination (“IE”) psychological assessment, completed by Dr. Cheryl Bradbury, psychologist, and dated July 21, 2020. This report is comprehensive and more in line with the objective medical evidence provided in the CNRs of Dr. Boniolo. Dr. Bradbury reviewed all other medical documentation, including the assessment of Mr. Cook. She conducted a detailed interview where the applicant reported that he did not feel he required “formalized psychological supports” and that his most predominant concern regarding the accident was residual physician pain. The applicant also told Dr. Bradbury that he had resumed driving and felt more in control when driving, although he had some lingering anxiety. While Dr. Bradbury noted that the applicant displayed some signs of social anxiety unrelated to the accident, she concluded that he did not meet any diagnostic criteria for depression, PTSD, or any other psychological impairment as a result of the accident.

18In all, the evidence adduced by the applicant does not support his claim to suffering from psychological impairments that warrant removal from the MIG.

Persistent pain

19Now, to address the applicant’s claims of ongoing pain. The applicant does not directly argue that he is suffering from a chronic pain condition. He does not fully describe these symptoms, although he refers throughout submissions to persistent pain that has shown limited improvement with treatment and has had a negative impact on his daily activities.

20But I find that there is no medical evidence supportive of such an assertion. The applicant’s claims of persistent pain have not been substantiated to the point where the symptoms rise to the level of chronic pain with a functional impairment that would merit removal from the MIG.

21The applicant’s medical evidence demonstrates only that he sustained soft-tissue physical injuries as a result of the accident. While he relies on the CNRs of Dr. Boniolo to support his claims of persistent pain, as noted above, he only saw the family physician on a handful of occasions regarding the accident. Further, Dr. Boniolo noted in his CNRs from the July 31, 2019 appointment that the applicant showed signs of paravertebral muscle tenderness and spinal pain with palpation, recommended that he continue with physiotherapy, ordered spinal x-rays (conducted on August 7, 2019, and found nothing remarkable), and discussed a trial on Robaxacet (which the CNRs from September 10, 2019 indicated that the applicant did not take). All of these observations and treatment recommendations are consistent with the care generally provided to address minor injuries as defined in the Schedule.

22Medical records from Mediwise Healthcare Centre indicate that the applicant suffered from soft-tissue injuries. The Disability Certificate/OCF-3 completed by Dr. Bohdan Osoba, chiropractor, on June 18, 2019 also notes minor injuries as defined by the Schedule, including acute pain, myalgia, muscle strain, and muscle and tendon injury.

23In addition, I agree with the respondent’s contention that chronic pain has been long established by this Tribunal as a severe, debilitating condition that is distinct from ongoing or persistent pain. The applicant has not met his onus to demonstrate such a severe level of pain and impairment in his submissions, which deal solely with the latter.

24Finally, I am persuaded by the IE report of Dr. James Stewart, physician, dated July 21, 2020, because it involves a thorough review of the medical evidence and an in-person examination. The conclusions therein are also in accordance with the CNRs of Dr. Boniolo, the records of Mediwise, and the OCF-3. I therefore assign significant weight to Dr. Stewart’s diagnosis that the applicant suffered a thoracolumbar spine sprain/strain in the accident that is within the definition of a minor injury in the Schedule.

25Accordingly, the applicant has not substantiated his claim to suffering from chronic pain that would warrant removal from the MIG.

Conclusion

26For the above reasons, I find that the applicant has not demonstrated that he suffers from a psychological impairment or chronic pain that would fall outside of the Schedule’s definition of a minor injury. He remains within the MIG.

The Treatment Plans

27Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

28Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and the benefits in dispute are deemed reasonable and necessary. Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ORDER

29I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

iii. The application is dismissed.