Licence Appeal Tribunal File Number: 21-003491/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:
Bateer Bateer
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Gerard Tillmann
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Monika S. Korona, Counsel
HEARD:
In Writing
OVERVIEW
1Bateer Bateer, the applicant, was involved in an automobile accident on June 20, 2017, 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 certain benefits by the respondent, Unifund Assurance Company, based on the respondent’s determination that the applicant’s injuries fell within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are:
a. 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 Minor Injury Guideline (“MIG”)?
b. Is the applicant entitled to $4,656.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 submitted on April 1, 2020?
c. Is the applicant entitled to $3,681.76 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 submitted on April 1, 2020?
d. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 submitted on August 3, 2020?
e. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not provided sufficient evidence to show that his injuries fall outside the MIG;
ii. Given that each of the disputed treatment plans exceeds the MIG funding limit of $3,500.00, none of the disputed treatment plans/OCF-18s are payable; and
iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
ANALYSIS
The applicant has not established that removal from the MIG is merited
4I find that the applicant has not provided sufficient evidence to show that his injuries fall outside the MIG.
5Section 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.”
6An 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.
7It is the position of the applicant that he has suffered chronic injuries/pain and psychological injuries as a result of the accident which do not fall within the definition of a “minor injury” and thus warrant removal from the MIG. He relies upon the records of MacKenzie Health, the clinical notes and records of Enhanced Care Clinic, the clinical notes and records of Dr. Vinod Verna, his family physician from before the accident to September/October 2019, the clinical notes and records of Dr. Larry Tan, his family physician from September/October 2019 onward, the records and OCF-18 of Total Recovery Rehab Centre-Dr. Georgia Palantzas, Chiropractor, and the records of Somatic Assessments & Treatment Clinic-Dr. Sharlene McDowell, Psychologist in support of his position.
8The respondent takes the position that the applicant’s injuries are minor and that the injuries suffered do not remove him from the provisions of the MIG. The respondent relies upon three diagnostic imaging reports, an X-ray on June 20, 2017 at MacKenzie Health, a further X-ray on October 7, 2019 at EXR Medical Imaging and an ultrasound on May 14, 2020 at Hitek Medical Imaging, the decoded OHIP summary between October 17, 2017 and September 23, 2019, the Insurer Examination Report of Dr. David Mula dated July 10, 2020, the Insurer Examination Executive Summary Report of Dr. David Mula and the Insurer Examination Report of Dr. Mansour Alvi dated November 17, 2021 with respect to the issue of chronic injury/chronic pain.
9I find that the applicant has not provided sufficient evidence to show that he (a) suffered chronic injuries/chronic pain as a result of the accident or (b) suffered psychological injuries as a result of the accident, either of which would cause his injuries to fall outside of the MIG.
The applicant has not demonstrated that he suffers from chronic pain that warrants removal from the MIG
10I find that the evidence provided by the applicant does not support his position that he suffered chronic injuries/chronic pain as a result of the accident which would remove him from the MIG and the $3,500.00 funding limit on medical benefits.
11In my view, the contemporaneous clinical notes and records of the applicant’s health care providers do not support his claim that he experienced chronic injuries/chronic pain as a result of the accident.
12On the day of the accident, the applicant attended at MacKenzie Health hospital. X-rays were completed of his chest and left shoulder. The left shoulder x-ray revealed a “7mm x 3mm calcified density superior to the left hip humeral head and greater tuberosity. This may represent either old fracture fragment or calcified tendinitis. No definite acute fracture was demonstrated. Alignment is normal.”
13He attended at the hospital’s fracture clinic on June 29, 2017 and the clinical note indicates “soft tissue injury” as a result of the accident.
14The applicant first attended Enhanced Care Clinic (“Enhanced”) on June 21, 2017. Enhanced received and reviewed the records from MacKenzie Health. Treatment of the left shoulder began on June 26, 2017 and continued to December 11, 2017. There was a total of 15 treatments. It is noted that the applicant returned to China for four weeks in the Summer of 2017.
15The notes for December 11, 2017 indicate that the applicant reported “no pain in left shoulder now” and full range of motion was observed. The notes indicate that there is still “1 physio left from ocf 18”. There is no record that the applicant returned for the one remaining treatment.
16It appears from the decoded OHIP summary and the clinical notes and records of Dr. Vinod Verma, the applicant’s family physician at the time of the accident, that the applicant first saw Dr. Verma on October 4, 2017, nearly four months post-accident. He mentioned that he had been in a motor vehicle accident (MVA) on June 17, 2017. No plan for follow up was required.
17He next sees Dr. Verma on October 18, 2017 to discuss lab results which are not related to the MVA. There is no discussion of the MVA or injuries related to the MVA.
18The applicant does not see or contact Dr. Verna again until September 23, 2019, almost two years since his last visit with her. Dr. Verna notes that he is back after almost two years since his last visit, that he is now an Uber driver, that he is complaining of heartburn and being anxious, that he does not appear to be in acute distress and there is no definite tenderness on examination.
19At a further appointment on October 11, 2019, current x-rays of his left shoulder, completed on October 7, 2019 are discussed. It is noted that he injured his left shoulder in an MVA two years ago. On examination there is full range of motion of the left shoulder with some pain. Dr. Verma refers the applicant to Allied Health Professionals for physiotherapy. She notes that there is a history of left shoulder injury from an MVA two years ago. She notes that the applicant is complaining of pain on full range of motion and that there is an old partial tear.
20There is no reference in Dr. Verma’s clinical notes and records of the Enhanced Care Clinic physiotherapy treatment.
21I am not persuaded that the applicant’s self-reported pain more than two years post accident are related to the subject MVA.
22At his first visit with Dr. Tan on October 16, 2019, the applicant tells Dr. Tan “injury to left shoulder 2 years ago after MVC, had PT, improved”, “in last 1 month, sudden pain without obvious triggers, days when there is no movement”, “had U/S done and x-ray, showed no major tears/OA”, “still feeling nervous now after MVC, some post-traumatic”, and “has to drive for job”. Dr. Tan observes that the applicant is alert and in no apparent distress.
23He returns to Dr. Tan on November 20, 2019 for a follow-up. There is no abnormality detected and he is no apparent distress.
24The next reference to pain in Dr. Tan’s Records occurs on March 30, 2020 which is a telephone appointment, “pt noticing ongoing discomfort in left shoulder starting again after CNY”. It is my understanding that “CNY” is short form for Chinese New Year which would have been one to two months before this appointment.
25Although the applicant continued as a patient of Dr. Tan, there is no further note regarding pain in the left shoulder with the exception of the ultrasound results on May 14, 2020. The reason given for the ultrasound is “pain”.
26While Dr. Tan refers to physiotherapy treatment following the accident, he does not note the provider of the treatment, the type of physiotherapy, the duration of the physiotherapy treatment or the outcome of the physiotherapy treatment. There is no indication that he ever received or reviewed any physiotherapy treatment records.
27The records of Total Recovery Rehab Centre are restricted to one Initial Clinical Note and an OCF-18 both dated April 1, 2020, both completed by Dr. Georgia Palantzas, chiropractor.
28The Initial Clinic Note does note a chief complaint of persistent pain, that the area of the complaint is the left shoulder and “rotator cuff syndrome and tear”. In the OCF-18 at Part 8-Activity Limitations, Dr. Palantzas notes “severe left shoulder pain with tendon tear”.
29By April 1, 2020, X-rays had been completed of the applicant’s left shoulder on two occasions, the first on June 20, 2017, the day of the accident, and the second on October 7, 2019. Neither of these X-rays identified a definite acute fracture or a full tear. Dr. Palantzas does not refer to any diagnostic imaging that identified a complete tear of the tendon. It is only a complete tear which removes the applicant from the MIG. The diagnostic imaging does show a possible partial tear which pre-dated the motor vehicle accident.
30There is no reference in the Total Recovery Rehab Centre notes to the treatment or records provided by Enhanced Care Clinic. I assume Dr. Palantzas did not know of this treatment.
31Dr. Palantzas includes a definition of “chronic pain” in the OCF-18. It defines “Chronic Pain” as “pain that persists past the normal time of healing and/or when the pain persists for 3-6 months or longer”. Dr. Palantzas does not refer to and is likely not aware of the results of the Enhanced Care Clinic treatment (i.e. no pain/pain free) which occurs in December of 2017 and the absence of complaints and treatment between December of 2017 and September of 2019. The applicant’s situation, as shown by the existing medical records at the time, do not fit within the definition provided by Dr. Palantzas.
32Although the applicant takes the position that he suffers from chronic pain in his left shoulder as a result of an injury to his left shoulder in the accident, I find:
i. the clinical notes and records of Enhanced Care Clinic state, on December 11, 2017, after a series of physiotherapy treatments, that the applicant “reports no pain in his left shoulder now” and full range of motion is noted. He still has one further treatment session remaining but the applicant never returns for that session;
ii. there is no mention of, or treatment for, left shoulder pain from December 11, 2017 to September 23, 2019 in any of the records submitted by the applicant;
iii. in his first visit with Dr. Tan on October 16, 2019, which is over two years and three months after the accident, he tells Dr. Tan that within the last month he has experienced sudden pain in his left shoulder; and
iv. neither of two separate x-rays of his left shoulder, the first on June 20, 2017 and the second on October 7, 2019, show a complete tear of the tendon in the left shoulder but rather reveal an old fracture fragment. The ultrasound done by Hitek Medical imaging on May 14, 2020 does not establish that there is a fracture or a complete tear of the tendon.
33While the applicant takes the position that he has pain in his left shoulder, he has not demonstrated that he has a functional impairment as a result of the pain from the accident. He continues to work. He tells his physiotherapist in December of 2017 that he has no pain in his left shoulder and demonstrates full range of motion. There are no complaints of pain in his left shoulder until October 2019, almost two years since the applicant advised the physiotherapist that he was pain free. Further, his description of the pain in October 2019 is “sudden pain within the last two months”.
34Even though the applicant takes the position that he makes numerous visits to his family physician and complained of the pain in his left shoulder on each visit, the records the applicant has provided do not support this position. According to the records provided, the applicant visited his family physicians some 12 times between October of 2017 and January of 2021. He complained about pain at fewer than six of those visits.
35The applicant has not demonstrated that he has a functional impairment as a result of pain which is a result of the accident.
36Accordingly, I find that the applicant did not meet his onus to demonstrate, on a balance of probabilities, that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.
The applicant has not demonstrated that he suffered psychological injuries that warrants removal from the MIG
37I find that the evidence provided by the applicant does not support his position that he suffered psychological injuries as a result of the accident which would remove him from the MIG.
38The applicant submits that he suffers from psychological injuries as a result of the accident and relies upon the clinical notes and records of Dr. Larry Tan, the letter of Dr. Larry Tan dated September 16, 2021, the Treatment and Assessment Plan (OCF-18) of Dr. Georgia Palantzas, Chiropractor, of Total Recovery Rehab Centre, dated April 1, 2020, and the clinical notes and records of Somatic Assessments & Treatment Clinic-Dr. Sharlene McDowall in support of his position. It is his position that he suffers post-traumatic stress disorder as a result of the accident which causes anxiety, depression, vehicular anxiety as a driver, passenger and pedestrian, and which affects his sleep.
39The respondent argues that the applicant’s injuries are within the MIG and that the injuries suffered do not remove him from the funding limit of the MIG. The respondent relies upon the decoded OHIP summary between October 17, 2017 and September 23, 2019, and the s. 44 Insurer Examination Reports of Dr. Howard Waiser dated August 10, 2020 and November 17, 2021 with respect to the issue of psychological injuries.
40I find that the medical evidence has not proven that the applicant’s psychological challenges are related to the subject accident. The clinical notes and records and conclusions reached rely heavily upon the applicant’s self-reporting which is inconsistent and varies depending upon whom the applicant is speaking with and being assessed by. Further, the clinical notes and records do not support the applicant’s assertions that he has been diagnosed with a psychological impairment as a result of the accident.
41But for the Somatic Assessments OCF-18 dated October 16, 2017, which is not medical evidence, there is no reference to any psychological issues or injuries or treatment for more than two years following the accident.
42The applicant’s reporting of his symptoms and treatment to the various health care providers is inconsistent at best, in that:
i. He does not tell Dr. Verna, his family physician for some two years and three months following the accident, of any complaints about psychological problems;
ii. It is not until October 29, 2020, some six months after his assessment by and the beginning of treatment with Somatic Assessments, that he tells Dr. Tan that he has had an assessment from a psychiatrist and that “the insurance company advised to have GP write letter to confirm diagnosis”. Dr. Tan advises the applicant to have the psychiatrist send a report to him and he will write the letter. Dr. Tan notes that the plan is to “await the psychiatric assessment for PTSD”;
iii. Dr. Tan’s clinical notes and records indicate that he continues to ask the applicant to ask the psychiatrist for the report and even though the applicant tells Dr. Tan that he has asked for a report to be sent to Dr. Tan, one is never provided to or received by Dr. Tan;
iv. There is no record of the applicant requesting that Somatic Assessments provide Dr. Tan with a report, yet it is Somatic Assessments that has provided the psychological diagnosis and treatment;
v. There is no indication in the Somatic Assessments OCF-18 of October 16, 2017 that the applicant mentioned the recent death of his father, the nightmares following his father’s death and their affect on his sleep, or his trip back to China in the Summer of 2017 shortly after his father’s death;
vi. He does tell Somatic Assessments in March/April 2020 of the death of his mother in February of 2020 and that he has had a very difficult time since her passing. He does tell Somatic Assessments about the death of his father following the MVA and also talks about the subsequent bad dreams following his father’s death but there is no mention of nightmares following the death of his mother;
vii. He does tell Dr. Waiser about the death of his father shortly after the MVA and his bad dreams and nightmares following his father’s death. He does tell Dr. Waiser about the death of his mother in February 2020 and the bad dreams and nightmares following her death;
viii. He does tell Dr. Waiser at his assessment with Dr. Waiser, which was about 3 ½ months after his assessment with Dr. McDowall, that his sleep was much better, that he was able to fall asleep and may awaken because of pain a very few times, his nightmares were better and now occurring about once a month and that his sleep was now back to about eight hours per night. He felt much better and rested in the mornings.
ix. He does tell Dr. Waiser that he was working full time however his work had been significantly diminished because of COVID-19.
x. He initially told Dr. Waiser that he had not been involved in any counselling, then advised that he had been referred to counselling at the North York General Hospital but had not attended because of COVID-19 and then advised that he had fourteen, 30-minute sessions of telephone counselling in Mandarin, which counselling he believed had started in April of 2020 and which he had found to be very helpful.
43With the exception of one occurrence in October of 2017 (Somatic Assessment OCF-18), he made no mention to anyone of any psychological concerns, complaints or issues until September/October of 2019, more than two years after the accident.
44On more than one occasion, the applicant requests that Dr. Tan write a letter to the insurance company to confirm the diagnosis. As noted above, Dr. Tan continually requests the applicant to have his psychiatrist write a report and send the report to Dr. Tan. No such report is ever received by Dr. Tan.
45On September 16, 2021 Dr. Tan writes a letter to “To Whom It May Concern”. This is Dr. Tan’s letter for the insurance company. In that letter, Dr. Tan opens with the statement that “Mr. Bateer has been experiencing symptoms of post traumatic stress and anxiety since the motor vehicle collision of June 2017”. Dr. Tan then goes on to repeat what the applicant has told him regarding the PTSD and anxiety.
46With respect to Dr. Tan, I find that:
i. Dr. Tan did not start seeing the applicant until October of 2019. The first reference in his notes to post traumatic stress and anxiety is March 30, 2020, nearly three years post-accident;
ii. Dr. Tan has Dr. Verma’s clinical notes and records but there is no mention of any psychological issues in Dr. Verma’s notes to corroborate Dr. Tan’s statement in his letter that the applicant has been experiencing symptoms since June 2017 and prior to the applicant seeing him;
iii. Dr. Tan has been told by the applicant that the applicant has seen a psychiatrist and Dr. Tan has been asking the applicant to have the psychiatrist send him a report. Dr. Tan has made this request several times and over a period of eleven months (October 29, 2020 to September 26, 2021) no such letter has been provided to Dr. Tan, so it is unclear what his opinion in the letter is based on other than the applicant’s self-reporting;
iv. There is no record of the applicant ever making a request of Dr. McDowall or Somatic Assessments to provide a report to Dr. Tan despite his advising Dr. Tan that he had requested that this be done;
v. The first reference to psychological issues in any clinical notes and records of any OHIP funded health care provider is, at best, in September/October of 2019, some two years and three months after the accident occurred; and
vi. Despite Dr. Tan’s note that he will await the psychiatric assessment for PTSD, the assessment report is never received by Dr. Tan before he writes the letter of September 16, 2021.
47For these reasons, I find Dr. Tan’s letter of September 16, 2021 is restricted to what he has been told by the applicant. He does not start seeing the applicant until September/October of 2019, more than two years post-accident, yet he states that the applicant has been experiencing symptoms of post-traumatic stress since the accident in 2017. He does not seem to be aware that there have been no complaints of or treatment for any psychological symptoms for at least two years since the accident. He provides this letter even though he has not received or been provided with any third party reports or test results to support the statements in his letter of September 16, 2021.
48The Treatment and Assessment Plan (OCF-18) dated April 1, 2020 of Total Recovery Rehab Centre was completed by Dr. Georgia Palantzas, Chiropractor. She diagnoses symptoms and signs involving an emotional state, a state of emotional shock and stress and anxiety and sleeping problems. She proposed psychological counselling for anxiousness and emotional issues.
49This OCF-18 makes no mention of the death of the applicant’s father which occurred shortly after the MVA in 2017, nor of the death of his mother in February 2020, nor of the bad dreams or nightmares which the applicant suffered from following the death of his father and the death of his mother.
50I would note that Dr. Palantzas is a chiropractor. She has not been trained to provide nor is she qualified to provide a psychological diagnosis or treatment for the same. In any event, it is well-settled that OCF-18s themselves are not medical evidence.
51Further, the clinical notes and records do not support the applicant’s assertions that he has been diagnosed with a psychological impairment as a result of the accident in that they are inconsistent regarding the information provided by the applicant and the psychological testing administered within four months of each other, first by Dr. McDowall and then by Dr. Waiser, which are noticeably different. For example:
i. Dr. McDowall finds that the results of the testing lead to the conclusion that he suffers from a severe level of depression and anxiety as a result of the accident. She makes no mention of the possibility of any contribution of the deaths of his parents to his bad dreams and nightmares and subsequent anxieties or in contributing to his psychological complaints.
ii. Dr. Waiser, who examines the applicant at the request of the respondent pursuant to s. 44 of the Schedule, found that the results of the testing were not indicative of emotional distress. His scores were in the mild range. Further, while the applicant was experiencing some emotional distress, this could not be attributed to the accident. Shortly after the accident he lost his father and more recently his mother. It was Dr. Waiser’s opinion that these dynamics affected his well being more than feeling distressed as a result of the accident. Further, a psychological diagnosis could not be assigned to the applicant as a result of the accident. It was Dr. Waiser’s opinion that no further psychological intervention was necessary as a result of the accident.
52Dr. Waiser considered the affects of the deaths of the applicant’s parents on the applicant. Although Dr. McDowall knew about the deaths of the parents and the nightmares, she makes no mention of what affect, if any, these deaths had upon the applicant.
53I find that the applicant provided more information to Dr. Waiser and that the information, along with the medical documentation and reports provided to Dr. Waiser, was more complete than the information provided to either Dr. McDowall or to Dr. Tan.
54For these reasons, I give more weight to the tests, conclusions and reports of Dr. Waiser.
55While Dr. Tan does note “PTSD” in his clinical note of September 16, 2021, this is a question not a diagnosis. There is nothing in Dr. Tan’s clinical notes about the death of the applicant’s parents, his dreams and nightmares or the nature of his dreams. Dr. Tan did not administer any psychological tests. He did not have the opportunity to review any psychiatric or psychological assessments. Accordingly, I am unable to give much weight to Dr. Tan’s clinical notes and records or letter of September 16, 2021.
56I find that the applicant has not provided sufficient evidence to support his position of psychological injuries resulting from the accident, as submitted by applicant in his submissions, to remove him from the MIG.
OCF-18s in dispute will not be analyzed as each exceeds the MIG funding limit
57The applicant sustained a minor injury as defined in s. 3 of the Schedule and is subject to the $3,500.00 funding limit on treatment. An analysis of the disputed treatment plans is unnecessary because either plan individually exceeds the $3,500.00 funding available for a minor injury.
INTEREST
58Having found that the applicant is not entitled to any of the disputed treatment plans, it follows that he is not entitled to any interest.
ORDER
59For the reasons set out above, I find that:
a. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline;
b. The applicant is not entitled to $4,656.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 submitted on April 1, 2020;
c. The applicant is not entitled to $3,681.76 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 submitted on April 1, 2020;
d. The applicant is not entitled to $3,981.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 submitted on August 3, 2020; and
e. The applicant is not entitled to interest on any overdue payment of benefits.
60The application is dismissed.
Released: November 21, 2023
Gerard Tillmann
Adjudicator