Citation: Dooman v. TD Insurance Meloche Monnex, 2023 ONLAT 21-014937/AABS

Licence Appeal Tribunal File Number: 21-014937/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:

Sharukin Dooman

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Alim Ramji, Counsel

For the Respondent:

Thulasi Kandiah, Counsel

HEARD:

By written submissions

OVERVIEW

1Sharukin Dooman, the applicant, was involved in an automobile accident on May 25, 2020, 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, TD Insurance Meloche Monnex, 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit? The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $1,533.13 for physiotherapy services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted March 8, 2021 and denied March 19, 2021?

iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Complete Rehab Centre in a treatment plan submitted March 26, 2021 and denied March 31, 2121?

iv. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Complete Rehab Centre in a treatment plan submitted March 16, 2021 and denied March 31, 2021?

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

3In submissions, the applicant withdraws issue 2 from the Case Conference Report and Order.

RESULT

4This application is dismissed.

ANALYSIS

MIG

5I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

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 s. 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.

8According to the applicant, he meets 3 of the 6 criteria in the American Medical Association Guides 6th edition (Guides) for establishing chronic pain. He also notes that his pre-existing neck and left shoulder pain was aggravated by the accident. The applicant further notes that he has a diagnosable psychological condition caused by the accident. For all these reasons, his accident related injuries cannot be considered minor and he should be removed from the MIG.

9The respondent submits that the applicant only sustained soft tissue injuries in the accident and that his ongoing pain complaints are the result of his degenerative conditions. The applicant does not meet the criteria in the Guides for establishing chronic pain syndrome. Moreover, the evidence does not show that the applicant’s left shoulder and neck pain was exacerbated by the accident, nor that he has a diagnosable psychological condition. Consequently, the applicant has not established that his accident related injuries justify removal from the MIG.

10I find that the applicant does not meet 3 of the 6 criteria in the Guides for establishing chronic pain.

11I agree that the methodology in the Guides is helpful in evaluating whether of not an insured person has chronic pain. The Guides require a person to meet at least 3 of the 6 criteria to be found to have chronic pain. The six criteria are:

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 de-conditioning due to disuse and/or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contracts;

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;

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.

12The applicant submits that criteria 3, 5, and 6 apply.

13For criterion 3, the applicant submits that he no longer participates in physical recreational activities due to fear of injury. He cites the Chronic Pain Assessment of Dr. Grigory Karmy, physician, dated June 10, 2021 which states that he has been less physically and socially active since the subject accident, due to pain and functional limitations. He is no longer able to enjoy playing hockey or football.

14The respondent points out that the applicant returned to work as a hairstylist after the covid shutdown ended, and is independent with self-care and household chores. Moreover, the applicant has told assessors that resumed playing tennis and rollerblading. The evidence does not support a finding that he meets the requirements of criterion 3.

15The part of criterion 3 on which the applicant relies requires the avoidance of physical activity to be based on fear. The examples taken from Dr. Karmy’s report, of being unable to enjoy football and hockey, are not persuasive as there is no indication in the report that the applicant’s avoidance of these sports is fear-based.

16The Psychological Report of Dr. Jacqueline Brunshaw, psychologist, was completed for the applicant. His results on the Pain Catastrophizing Scale (PCS), a psychometric test, show that the applicant “does not fixate on his pain and its negative consequences…” This does not support the premise that the applicant avoids physical activity due to fear of pain.

17Overall, the applicant is quite functional and engages in a fairly high level of physical activity despite his pain symptoms. This is also inconsistent with fear-avoidance of physical activity due to pain. For all these reasons, I find that criterion 3 does not apply to the applicant.

18The applicant also relies on criterion 5, the 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. The two examples cited by the applicant are that he has not returned to recreational activities such as hockey and football, and has not returned to working full-time.

19Again, the examples given by the applicant are not persuasive. The applicant is able to work part-time as a hairstylist. As such, his physical capacity is sufficient enough to pursue work. The applicant is unable to play football or hockey. However, he is able to engage in recreational activities such as playing tennis and rollerblading. In the insurer’s examination (IE) of Dr. Sadiq Hasan, psychiatrist, the applicant advises that he has also socializes with family and friends. In my view, the evidence does not support a finding that the applicant meets the requirements of criterion 5.

20The applicant does not meet two of the three factors on which he relies for a chronic pain determination under the Guides. For this reason, I find that he does not have chronic pain as per the Guides.

21The applicant has pre-exiting conditions in his neck and left shoulder. His neck has a degenerative condition in his cervical spine. As well, an ultrasound report dated May 27, 2019 confirms that he has an impingement in his left shoulder. The applicant points to two clinical notes of Dr. Redouane, his family doctor, from 2023 and the report of Dr. Karmy which document increases in pain since the accident. According to the applicant, this establishes that his pre-existing conditions were exacerbated by the accident.

22The applicant did not report any left shoulder pain to his family doctor until three years after the accident. Moreover, the applicant did not report neck pain to his family doctor until six months after the accident. In his reply, the applicant agrees that he did not mention his accident related impairments to his family doctor at the outset. However, he did mention them to Complete Rehab Centre.

23The applicant makes no pinpoint references in the clinical notes and records from Complete Rehab Centre, whose records mostly consist of illegible handwritten notes. Under these circumstances, there is no way to tell if the applicant made any pain complaints after the initial intake during the first six months of treatment. As such, these notes are of little evidentiary value.

24The applicant must provide compelling evidence that his pre-exiting conditions were exacerbated by the accident and cannot be treated within the MIG. The only evidence cited by the applicant is a post-accident increase in neck and left shoulder pain. This evidence is not supported by the previously mentioned chronological gap in pain reporting.

25Moreover, the applicant has a high level of functioning in regard to completing his ADLs, household tasks, enjoying leisure time, and in his ability to work part-time as a hair stylist. Even if there was evidence of him consistently reporting neck and left shoulder pain since the accident, he does not have a functional impairment that would justify removal from the MIG. For these reasons, the evidence cited by the applicant is not compelling and does not establish, on a balance of probabilities, that his pre-exiting conditions were exacerbated by the accident and that he should be removed from the MIG.

26In regard to the applicant having a psychological impairment caused by the accident, Dr. Brunshaw’s psychometric testing reveals that the applicant is experiencing low levels of depression and anxiety. However, clinical interview suggests that his level of anxiety is more significant than what is represented in his test responses. She diagnoses him with an adjustment disorder with anxiety and specific phobia – driving based on the information provided by the applicant in his interview.

27The psychometric testing IE of Dr. Hasan revealed similarly low levels of depression and anxiety, and a below normal level of emotional distress associated with pain. The applicant reported that he resumed driving and experiences mild symptoms of anxiety when travelling as a passenger in a motor vehicle. Dr. Hasan determined that the applicant’s symptoms are not significant enough to warrant the diagnosis of a psychological disorder.

28I note that Dr. Brunshaw did not interview the applicant. She did not have an opportunity to observe how he answered questions. Instead, she relies on interview notes taken by someone else. Those notes contradict what the information provided directly by the applicant in his testing. Despite this, she accepts the interview notes at face value but provides no reasons for doing so. This unresolved contradiction undermines the reliability of Dr. Brunshaw’s report. As such, I prefer the findings of Dr. Hasan. His determination is consistent with the applicant’s psychometric test scores and does not contain any unresolved contradictions. Consequently, I further find that the applicant does not have a diagnosable psychological disorder.

29For all these reasons, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

30I have found that the applicant’s injuries are predominately minor. As such, he is subject to the MIG limit of $3,500.00.

31The applicant has exhausted his MIG limit of $3,500.00. Under these circumstances, an analysis into whether the treatment plans are reasonable and necessary is not required as he is not entitled to further statutory benefits under the Schedule.

Interest

32As no benefits are owing, no interest is payable pursuant to s. 51 of the Schedule.

ORDER

33This application is dismissed.