Nguyen v. Travelers Insurance, 2023 CanLII 107277

Citation: Nguyen v. Travelers Insurance, 2023 CanLII 107277

Licence Appeal Tribunal File Number: 21-001431/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:

Hoang Son Nguyen

Applicant

and

Travelers Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Antonio Afecto, Counsel

For the Respondent: Stanislav Bodrov, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hoang Son Nguyen (“the Applicant”) was involved in an automobile accident on January 22, 2019, and sought benefits from Travelers Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as a predominantly minor injury and subjected him to the Minor Injury Guideline (“the MIG”), the $3,500.00 funding limit for minor injuries, and denied entitlement to certain treatment and assessment plans. The Respondent also determined that the Applicant was not entitled to income replacement benefits (“IRBs”). The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

3The Applicant introduced new evidence in reply and the Respondent opposed it. The issue was addressed by a motion order and the evidence and corresponding paragraphs were omitted from the hearing record.

ISSUES

4The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit?

ii. Is the Applicant entitled to medical benefits proposed as follows;

a) $2,000.00 for a chronic pain assessment plan, dated May 8, 2020;

b) $2,000.00 for a psychological assessment plan dated May 13, 2020; and

c) $12,911.03 for a chronic pain treatment plan, dated January 8, 2021?

iii. Is the Applicant entitled to IRBs in the amount of $400.00 per week for the period from February 5, 2020, to-date and ongoing?

iv. Is the Applicant entitled to interest on any the overdue payment of benefits?

RESULT

5I find that the Applicant’s injuries are not predominantly a minor injury. As a result, he is not subject to the MIG and the $3,500.00 funding limit for medical and rehabilitation benefits.

6The Applicant is entitled to the costs associated with the chronic pain assessment, plus interest pursuant to section 51 of the Schedule.

7The Applicant is not entitled the psychological assessment and chronic pain treatment plan because he has not demonstrated that they are reasonable and necessary.

8The Applicant has not demonstrated that he is entitled to IRBs for the period from February 5, 2020 to-date and ongoing.

BACKGROUND

9The Applicant was the passenger of a vehicle that was struck perpendicularly by a transport truck in icy conditions on a busy rural highway. He was taken from the scene of the accident to the hospital due to lacerations and complaints of shoulder and neck pain. X-rays revealed no fractures and the Applicant’s lacerations were addressed and he was discharged with instructions to take over-the-counter pain medication as required.

10The Applicant claims that he suffers from chronic pain syndrome and suggests he also sustained psychological injuries as a result of the accident. To him, these are not injuries included in the minor injury definition. He further submits that his chronic pain syndrome and related impairments prevent him from working, entitling him to IRBs.

11The Respondent disagrees and submits that the Applicant is not credible and has not provided sufficient evidence to demonstrate that he sustained an injury that is not a minor injury or that he is entitled to IRBs.

ANALYSIS

Minor Injury Guideline (“MIG”)

12The 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 MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

13The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule, such as a chronic pain condition or a psychological injury.

The Applicant suffers from accident-related chronic pain

14I conclude that the Applicant suffers from a chronic pain condition which is not included in the minor injury definition. As a result, he is not bound by the MIG or the $3,500.00 funding limit on treatment.

15I find the Applicant sustained a non-minor injury by developing a chronic pain condition. While the Applicant appeared, at times, to have exaggerated symptoms, the evidence of this is insufficient to upset the opinions of Dr. D. Simon, orthopaedic surgeon, and Dr. G. Karmy, physician. Insurer’s examination (“IE”) assessor Dr. Simon suggested that the Applicant suffers from a chronic pain condition. Dr. Simon assessed the Applicant and issued a report dated August 17, 2020, a year and a half, post-accident, and concluded he sustained technically minor injuries but has grossly under-rehabilitated his injuries with passive care. Dr. Simon also concluded that the Applicant likely has some underlying pre-existing conditions that could preclude treatment within the MIG.

16I accept Dr. Karmy’s finding that the Applicant suffers from chronic pain. I recognize the Respondent’s submissions that Dr. Karmy’s assessment methodology has some issues, such as including no physical examination due to it being a virtual assessment and failing to review the Applicant’s medical records. Indeed, these can often be factors that discount the weight of an assessor’s opinion. However, I find no compelling opinion that upsets Dr. Karmy’s report. Dr. Simon’s reassessment and report, dated July 23, 2021, concluded that the Applicant’s clinical presentation appeared most attributable to the development of a chronic pain syndrome and psycho-emotional distress. He deferred the diagnosis of a chronic pain disorder to “an appropriate clinician”. Upon review of the Applicant’s medical records, I conclude that Dr. Karmy is that “appropriate clinician”, based on his practice in the field of chronic pain and that he has been accepted by the Tribunal as an expert in chronic pain. Dr. Karmy assessed the Applicant and in the report dated November 23, 2020 concluded that the Applicant suffers from chronic mechanical pain in multiple areas of his body, chronic pain syndrome, and other ailments as a result of the accident. In my view, this evidence demonstrates that the Applicant suffers from a chronic pain condition as a result of the accident.

17I am not persuaded by the Respondent’s submissions and find the report of Dr. P. Bansal, physician, in light of Dr. Simon and Dr. Karmy’s opinions for the reasons that follow.

18First, in my view the medical evidence before me is compelling despite the Applicant’s inconsistent presentation at evaluations. The Respondent asserts that the Applicant is a poor historian and reported to numerous assessors that he lost consciousness in the accident, yet the ambulance and hospital records failed to indicate this. Further, Dr. Bansal reported that the Applicant appeared to exhibit slow and self-limiting movements during the examination but moved fluidly afterward. Similarly, Dr. R. J. Frey, psychologist, in an IE report dated July 23, 2021, stated that the Applicant’s presentation changed remarkably following the assessment, as if he turned a switch on a presented a different man. While I find the behaviour described in these reports to be concerning, I find that these two isolated instances are insufficient to upset Dr. Simon and Dr. Karmy’s conclusions because those conclusions are consistent with the balance of the Applicant’s medical evidence.

19Second, I find Dr. Bansal is not an authority on chronic pain, therefore his findings do not outweigh those of Dr. Karmy. Dr. Bansal’s October 22, 2021 report concluded that the Applicant exhibited no valid signs of musculoskeletal, orthopaedic, or neurological injury, but did not address the findings of Dr. Simon, who found that the Applicant’s clinical presentation appeared most attributable to the development of a chronic pain syndrome and psycho-emotional distress, just three months before. In addition, Dr. Bansal, who does not specialize or practice in the field of chronic pain, did not comment on the report by Dr. Karmy, despite having reviewed it for the assessment. This leaves Dr. Karmy’s report and findings to be the prevailing opinion and I prefer Dr. Karmy’s opinion over Dr. Bansal’s.

20Similarly, I recognize that the Applicant met with Dr. N. Duong, family physician, on an infrequent basis, contrary to typical chronic pain cases, as referred to by the Respondent. However, the absence of visits to Dr. Duong, particularly during the Covid-19 pandemic, does not upset the conclusions of Dr. Karmy and Dr. Simon.

21Having concluded that the Applicant sustained a non-minor injury by developing a chronic pain condition, it is unnecessary to determine whether he sustained a psychological or other injury that is not within the minor injury definition, as it pertains to the characterization of his impairments.

The chronic pain assessment plan is reasonable and necessary

22I find the chronic pain assessment plan to be reasonable and necessary.

23To be entitled to a treatment and assessment plan under section 15 and 16 of the Schedule, the Applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the Applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

24Assessments, by their nature, are speculative. The applicant is not required to prove the condition exists in order to justify his entitlement to the assessment. Rather, he must lead persuasive evidence that supports that he suffers from a condition that the assessment can determine its existence.

25As addressed previously, Dr. Simon noted in the July 23, 2021 IE report, that the Applicant’s current clinical presentation appears most attributable to development of a chronic pain syndrome and psycho-emotional distress. Dr. Simon also reported that confirmation of a chronic pain disorder diagnosis by an appropriate clinician would exclude the Applicant from the MIG. This is exactly what the chronic pain assessment with Dr. Karmy would do. For the same reasons as noted earlier, the opinions of Dr. Simon and Dr. Karmy continue to prevail over that of Dr. Bansal on this issue. As a result, I find the chronic pain assessment to be reasonable and necessary as a result of the accident.

The psychological assessment plan is not reasonable and necessary

26I find that the Applicant has provided no compelling evidence to demonstrate that a psychological assessment is reasonable and necessary.

27With respect to the Applicant’s psychological functioning, I prefer the reports of Dr. Frey, dated July 28, 2020 and July 23, 2021, over Dr. Brunshaw’s report dated November 26, 2020, as Dr. Frey’s reports are more thorough.

28Dr. Frey’s assessments included psychometric testing with validity testing in which the Applicant performed atypically, with high ratings in fields that were inconsistent with his presentation, and which suggested malingering. Dr. Frey concluded that the Applicant was feigning or exaggerating his psychological disorder for unknown reasons. Dr. Frey maintained this opinion following the second assessment report, dated July 23, 2021. In that report, Dr. Frey noted that during the assessment the Applicant exhibited vegetative signs of clinical depression with a flat and blunted affect, but that his behaviour changed remarkably once the assessment was over as if “he turned a switch on and presented a different man; his mood and affect appeared to be completely normal.” Dr. Frey concluded that the Applicant was exhibiting significant symptom exaggeration that made it impossible to conclusively identify a psychological impairment.

29Additionally, Dr. Frey’s findings are consistent with the lack of psychological symptoms identified in Dr. Duong’s CNRs. The Applicant made only one psychological complaint to Dr. Duong, on March 4, 2019, stating he was depressed and experiencing financial and marital problems. Dr. Duong made no recommendation or referral following this visit.

30I prefer Dr. Frey’s reports over Dr. Brunshaw’s report dated November 26, 2020. Dr. Brunshaw’s report relied primarily on the Applicant’s self-reported symptoms and failed to validate those symptoms with the medical evidence or psychometric testing with validity measures. There is no evidence that Dr. Brunshaw reviewed Dr. Frey’s report, which the Applicant had at the time of the assessment, and the report includes no mention of any psychological symptoms in the few documents that were reviewed. This is unlike Dr. Frey’s assessment, which included validity testing which showed that the Applicant was probably exaggerating his symptoms.

31Furthermore, I give no weight to the psychological pre-screen report, dated May 6, 2020. The pre-screen report notes that the Applicant was asked a series of questions during a screening interview, and that a psychological assessment was recommended based on that interview. However, it is unclear what prompted the pre-screen interview and who conducted it. I find that the absence of this information is particularly detrimental to the persuasiveness of the pre-screen report and give it no weight as a result.

32It appears that the Applicant’s primary issue is lingering pain as a result of the accident and that any valid psychological impairments that the Applicant may be experiencing, do not rise to the level to warrant an assessment. For these reasons, I find the applicant is not entitled to the psychological assessment.

The chronic pain treatment plan is not reasonable and necessary

33I find that the chronic pain treatment plan is not reasonable and necessary despite concluding that the Applicant developed a chronic pain condition as a result of the accident.

34The Applicant has not met his burden to demonstrate that the goods and services proposed in the plan, and the associated costs, are reasonable and necessary. The Applicant submits that he is entitled to the plan because he is not subject to the MIG and the Respondent denied funding on the basis that the Applicant was subject to the MIG. However, it is the Applicant who holds the burden of demonstrating that the plan is reasonable and necessary. This includes demonstrating that the costs of the plan are reasonable and necessary.

35Here, the Applicant has not provided any other reason or rationale that the chronic pain treatment plan is reasonable and necessary. A review of the plan shows that it includes fees that the Applicant is not entitled to, such as brokerage fees. The plan also proposes a document fee of $250.00 and an assessment fee of $350.00, which are contrary to the Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”). According to the PSG, the maximum amount payable for the completion of a form is $200.00, which includes all examinations, assessments, and expenses related to professional services that are involved in the completion and submission of the form. Further, the chronic pain treatment plan proposes services billed at a rate per visit or task, rather than by the hour. This denies the Respondent from the opportunity to assess whether the service provider is billing for services in compliance with the PSG. Overall, I conclude that the Applicant has not met his burden given the lack of detail and submissions related to the chronic pain treatment plan.

The Applicant is not entitled to Income Replacement Benefits (“IRBs”)

36I find that the Applicant has not met his onus to demonstrate that he suffers a complete inability to complete the essential tasks of a cabinet maker as a result of the accident.

37In order to be entitled to IRBs, the Applicant must demonstrate on a balance of probabilities that his accident-related injuries preclude him from completing the essential tasks of a cabinet maker.

38It is difficult to assess the Applicant’s entitlement to IRBs given the lack of information regarding his employment at the time of the accident. The Applicant submits that he was employed as a cabinet maker and is required to do heavy lifting, prolonged standing, bending, reaching, pushing, and pulling, but provided no documents from his employer to support this claim, despite being ordered by the Tribunal to do so. Thus, I must rely on the job description and tasks provided in the Physical Demands Evaluation and the Functional Abilities Evaluation by Dr. H. Kaufman, chiropractor, both dated November 8, 2019. The former found that the Applicant’s employment involved medium work/strength demands. The latter noted that the Applicant had range of motion restrictions in the neck and low back, but otherwise had range of motion within normal limits. The Functional Abilities Evaluation also noted that the Applicant demonstrated the ability to perform occasional shoulder reaching, that he declined to kneel and appeared to be self-limiting. From an isometric perspective, Dr. Kaufman concluded that the Applicant demonstrated the ability to perform work at a medium and heavy levels and, from a dynamic lifting perspective, he demonstrated the ability to perform work at sedentary and light levels.

39With respect to the Applicant’s claim for IRBs, I am persuaded by the opinion of Dr. V. Sreenivasan, physiatrist. Dr. Sreenivasan provided the only medical opinion on the Applicant’s ability to work that is based on objective physical testing. Dr. Srinivasan assessed the Applicant, reviewed Dr. Kaufman’s reports, and concluded in the November 8, 2019 report that the Applicant is capable of a graduated and/or modified return to work. It was suggested that the Applicant commence work as a cabinet maker at four hours per day, five days a week, and increase one hour per day per week until such time that he returned to regular work hours. By contrast, the reports by Dr. Karmy and Dr. Brunshaw involved no measurable physical assessment and, instead, relied entirely on the Applicant’s inconsistent reporting.

40The Applicant submits that Dr. Sreenivasan’s report states that it involved a Korean interpreter instead of a Vietnamese interpreter but I find that this does not upset the overall persuasiveness of the report. There is no suggestion in the evidence that there was any issue with communication during the assessment, and there is no evidence that the Applicant ever brought this to the Respondent’s attention anytime before making written submissions for this hearing. If anything, it appears that this was a typographical error when issuing the report.

41The Applicant directs me to no other objective evidence that would cause me to discount the findings of Dr. Sreenivasan and Dr. Kaufman. There is no information in Dr. Duong’s CNRs to indicate the Applicant is disabled from working. In fact, on June 15, 2019, the Applicant asked Dr. Duong for a medical note for a month off of work and Dr. Duong noted that that amount of time was a lot for his condition. Dr. Duong’s comment is in keeping with Dr. Sreenivasan’s conclusion that the Applicant’s accident-related injuries do not impair him from completing the essential tasks of his employment, and he should try a graduated return to work.

42While the Applicant submits that chronic pain precludes him from completing the essential tasks of a cabinet maker, he has not provided objective medical evidence to support these claims. Furthermore, he has failed to provide the employment information he agreed to provide, which would clarify his tasks of employment and what accommodations may be available to him.

43Accordingly, I conclude that he has not met his onus to demonstrate he suffers a substantial inability to complete the essential tasks of a cabinet maker.

Interest is payable with respect to the chronic pain assessment

44Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the chronic pain assessment plan, it follows that he is also entitled to interest on any overdue amounts related to it.

CONCLUSION

45The Applicant developed a chronic pain condition that falls outside the minor injury definition. He is not subject to the MIG and the $3,500.00 funding limit for medical and rehabilitation benefits.

46The chronic pain assessment is reasonable and necessary. The Applicant is entitled to the incurred costs of the assessment, plus interest pursuant to section 51 of the Schedule.

47The Applicant is not entitled to the other benefits claimed.