Licence Appeal Tribunal File Number: 21-007335/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:
Eduardo Bossio
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Ryan Bowes, Counsel
For the Respondent:
Eric Grossman Laila Khalil, Counsel
HEARD: In Writing
OVERVIEW
1Eduardo Bossio, the applicant, was involved in an automobile accident on November 25, 2016, 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, Intact 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,260.00 for a chronic pain assessment proposed by Dr. Grigory Karmy in an OCF-18/treatment plan (“plan”) dated July 9, 2020?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Dr. Hal Brian Scher in a plan dated October 11, 2020?
iv. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are not minor as defined by the Schedule. Therefore, he is no longer subject to the MIG funding limit.
4The applicant is entitled to the treatment plan for a chronic pain assessment in the amount of $2,260.00.
5The applicant is entitled to the treatment plan for a psychological assessment in the amount of $2,200.00.
6The applicant is entitled to interest in accordance with s. 51 on any overdue payments.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7I find that the applicant’s injuries are not minor as defined by the Schedule.
8Section 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 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.”
9An insured person 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal 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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
10The applicant submits that as a result of the accident he suffers from chronic pain and psychological conditions. He relies on the clinical notes and records (“CNRs”) of his primary healthcare provider, physiotherapy clinic, and regional health centre (“PRHC”), as well as s. 25 reports from Drs. Karmy (chronic pain assessment) and Scher (psychological assessment).
11The respondent submits that the applicant’s injuries are minor. It relies on the medical evidence in the applicant’s CNRs and the findings of two insurer’s examinations (“IEs”).
Chronic Pain
12I find that the applicant has demonstrated that he has chronic pain with a functional impairment.
13The applicant submits that his injuries are not minor based on extensive and widespread chronic pain, a formal diagnosis of Chronic Pain Syndrome (“CPS”), and a prognosis that a full recovery is unlikely due to functional impairment. He relies on the medical evidence from RN Crump, Physiotherapist Roy (“PT”), and chronic pain specialist Dr. Karmy, to establish his pain symptomology following the accident.
14RN Crump recorded the applicant’s physical injuries as widespread pain throughout his body at an appointment post-accident on January 5, 2017. She noted low back pain radiating to his foot, upper back discomfort, right shoulder pain, and driving-related anxiety. In the following months, she referred him for a medical marijuana license to manage pain, and for imaging which found degenerative disk disease in his spine. The following year in September 2018, further imaging revealed bilateral degenerative changes in the shoulder, a previous injury to the left shoulder, and the accident-related injury to the right shoulder. Between January 2017 and September 2018, the observations of RN Crump are supported by Physiotherapist (“PT”) Roy at Newcastle Village Physiotherapy, who diagnosed the applicant with low back pain, whiplash associated disorder, and muscle strain.
15On July 9, 2020, Dr. Karmy assessed the applicant for chronic pain, diagnosed CPS, and observed the following: chronic headaches, neck/shoulder/back pain, neuropathic symptoms in the upper and lower limbs, morning stiffness, sleep disturbances, cognitive difficulties, anxiety, mood issues, and weight loss. He opined that the applicant sustained post-traumatic fibromyalgia, a mild Traumatic Brain Injury (“TBI”), chronic post-traumatic headache, chronic mechanical pain in his neck/shoulder/back, CPS, sleep disorder, phobia of driving, and weight loss.
16Dr. Karmy’s report concluded that the prognosis for a full recovery with functional restoration was poor given the length of time since the accident and the wide-ranging and integrated nature of the applicant’s impairments.
17The respondent submits that the applicant’s injuries from the accident are minor, and points to a series of life events that negatively affected the applicant’s health and well-being both before and after the accident. It relies on the findings of s. 44 assessor Dr. Belfon and the findings of Dr. Karmy.
18The respondent notes that in the years surrounding the accident, the applicant suffered a workplace injury in 2014, was in a separate motor vehicle accident in February 2018, and was involved in an altercation inside his car in October 2018. Further, in addition to these adverse events, it notes that he developed degenerative facet joint disease in his spine and used marijuana for over 30 years.
19The respondent also points to the results of the insurer’s examination (“IE”) with Dr. Belfon on December 5, 2020. Dr. Belfon conducted a musculoskeletal MIG Evaluation and diagnosed sprain/strain of the cervical spine, lumbar spine, and both shoulders. He opined that degenerative changes in the spine were typical of an older adult and found that the applicant had reached maximal medical recovery. As such, he concluded that any further facility-based treatment would not likely be of any benefit.
20Lastly, the respondent disputes the findings of Dr. Karmy on the basis that the assessment was completed virtually and there was a lack of psychometric testing. It also questions Dr. Karmy’s expertise as a chronic pain specialist given that he is a general physician by training and lists no specialty on the College of Physicians and Surgeons of Ontario registry. The respondent adds that Dr. Karmy diagnosed several injuries that were not documented in any of the CNRs from the applicant’s other treatment providers, including chronic Post-Traumatic headaches and a mild Traumatic Brain Injury.
21While I agree with the respondent that difficult life circumstances were likely a contributing factor, I find that the subject accident was the primary cause of the applicant’s struggle with chronic pain. As Dr. Karmy points out, the applicant did not suffer from musculoskeletal pain before the subject accident but did so afterward. Further, although I recognize that Dr. Belfon’s musculoskeletal MIG Evaluation diagnosed sprain/strain-type injuries of the cervical spine, lumbar spine, and both shoulders, it is important to note that he also acknowledged the applicant’s continuing pain symptomology.
22Lastly, although the respondent questions Dr. Karmy’s methodology and credentials, I find that he conducted a thorough assessment that included a direct interview, observations (telemedicine), and a review of the applicant’s medical history and documentation. Dr. Karmy presents his credentials from the Canadian Academy of Pain Management at the outset of his report and asserts that he has extensive experience conducting chronic pain assessments and testifying as an expert witness. The also states that the telemedicine appointment met all professional and regulatory requirements for standards of practice. In my view, his findings are valid regardless of the virtual setting.
23Despite the arguments put forward by the respondent, I am persuaded that the applicant suffers from chronic pain. Although the applicant sought help and received facility-based treatment, his pain became chronic and resulted in significant functional impairment which impacted all aspects of his life, particularly his ability to find and sustain full-time work. The pain has endured long past the typical time for healing from a minor injury, he has a diagnosis of CPS, and his struggles with pain and decreasing functional capacity were documented by both Dr. Karmy and Dr. Belfon. RN Crump even referred him for a medical marijuana licence in 2017.
24Regarding his functional limitations, Dr. Karmy records the following:
i. His lower back pain is aggravated by bending forward, sustaining a stooped position, heavy lifting/carrying, as well as by prolonged sitting, standing, or walking.
ii. He has a limited range of motion in his neck on rotation to the right.
iii. He has sustained serious impairments to important bodily functions and as a result developed chronic mechanical neck, bilateral shoulder, upper, mid and lower back pain.
Dr. Karmy underlines how these impairments amount to a condition different from the injuries which triggered it.
25I find Dr. Karmy’s report both credible and thorough. The assessment was conducted through the lens of a practitioner focused on evaluating chronic pain as an integrated experience with both physical and psychological elements. I prefer his report over that of Dr. Belfon, who concluded that the applicant’s injuries had been thoroughly treated and stabilized, despite his ongoing pain. Dr. Karmy’s report provides a clear definition of CPS, outlines in detail how the physical and psychological aspects of CPS impact a person’s ability to function, and offers comprehensive recommendations for multimodal, multidisciplinary support to manage the applicant’s chronic pain and functional impairments.
26The applicant is no longer subject to the MIG as he has established that he has chronic pain with a functional impairment.
Psychological Impairment
27I find that the applicant’s psychological symptoms do not rise to the level of a psychological impairment but are sequelae from the injuries sustained in the subject accident.
28The applicant submits that he has a history of anxiety and relies on the CNRs of RN Crump and the psychologists at the PRHC, as well as the diagnosis from Dr. Scher.
29The respondent submits that the IE assessment of psychologist Dr. Seon concluded that there were no objective findings to support a psychological diagnosis that would remove the applicant from the MIG.
30While I have regard for the conclusion of Dr. Seon that her examination did not result in enough objective evidence to make a psychological diagnosis, she did find, as did Dr. Scher, that the applicant had driving-related anxiety. However, I prefer the finding of Dr. Scher who felt there was enough evidence to support an objective finding of anxiety and depression, secondary to CPS. He found that the applicant’s depressive symptoms were extensive and likely to persist and cause suffering, anxiety, low mood, and substantial functional impairment.
31The applicant was diagnosed by Dr. Karmy with CPS. Dr. Scher reinforces this diagnosis with a finding of moderate anxiety and depression “secondary to CPS”, adding that both conditions contribute to the applicant’s decreased functional capacity. While I do not think the applicant’s psychological condition rises to the threshold of a psychological impairment in and of itself, Dr. Scher’s examination does reinforce Dr. Karmy’s report and diagnosis. The applicant’s struggles with anxiety are well-documented but Dr. Scher’s report provides a means to better understand his psychological conditions in the context of CPS.
Conclusion
32I find that the applicant has demonstrated that his injuries are not minor and that he suffers from chronic pain with a functional impairment as a result of the accident. The psychological conditions are a relevant but only secondary factor. Accordingly, he is no longer subject to the $3,500.00 treatment limit of the MIG.
The treatment plan for a chronic pain assessment is reasonable and necessary.
33I find that the treatment plan for a chronic pain assessment is reasonable and necessary.
34To receive payment for a treatment and assessment plan under s. 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;
indicate how the goals would be met to a reasonable degree; and
show that the overall costs of achieving them are reasonable.
35The applicant submits that the assessment is reasonable and necessary because it establishes that he suffers from chronic pain with a functional impairment, thereby enabling him to seek treatment outside the MIG. He relies on the diagnosis of CPS from Dr. Karmy, supported by the findings of Dr. Scher and the CNRs from RN Crump and PT Roy.
36The respondent argues that the applicant has failed to provide evidence of a condition that would necessitate a chronic pain assessment. It questions the findings of Dr. Karmy and relies on the s. 44 report of Dr. Belfon who opined that there was no objective evidence of a substantial physical impairment, despite the applicant’s lingering myofascial pain. He also concluded that it was unlikely that further treatment would provide any gains.
37I agree with the applicant and find that the assessment is reasonable and necessary because it establishes a comprehensive plan for treatment and rehabilitation to improve the applicant’s quality of life and prevent any further degeneration. This is in contrast to Dr. Belfon’s conclusion that the applicant cannot make any further gains in his recovery and should pursue an independent stretching and conditioning program and use a pharmacological approach for pain management.
38First, there is sufficient objective medical evidence of his ongoing pain symptomology following the accident to provide a basis for seeking a chronic pain assessment. Despite the respondent’s focus on Dr. Belfon’s finding that there was a lack of objective evidence, I am persuaded otherwise by the findings of Dr. Karmy, supported by the CNRs of RN Crump and PT Roy. Dr. Karmy identifies that the applicant’s high levels of pain are chronic, which interferes with his normal functioning.
39Second, the assessment establishes a formal diagnosis of CPS with functional impairment, which gives the applicant grounds to be removed from the MIG. Dr. Karmy evaluated the applicant’s pain symptomology and declining functional abilities with a multifaceted lens suited to the nature of CPS.
40Third, the assessment identified treatment options to address the applicant’s impairments and access appropriate care. Dr. Karmy’s recommendations are consistent with the standard evidence-based treatment options used to treat patients with CPS, as described in his report. His multidisciplinary approach addresses the physical, mental, and emotional functioning of the applicant post-accident.
41The applicant has demonstrated entitlement to the treatment plan for a chronic pain assessment.
The treatment plan for a psychological assessment is reasonable and necessary.
42I find that the applicant has met his onus to prove entitlement to the treatment plan for a psychological assessment.
43The applicant submits that the assessment is required to properly evaluate his persistent anxiety after the accident. He relies on the CNRs of RN Crump, the findings of the psychologists at PHRC, and the diagnoses of Dr. Scher.
44The respondent submits that the applicant has failed to provide evidence of a condition that would necessitate a psychological assessment, given that he was already assessed by Drs. Colborne and Swift who did not recommend any treatment, and s. 44 assessor Dr. Seon who opined that there were no objective findings to support a psychological diagnosis that would indicate the need for a psychological assessment.
45I find that the assessment is reasonable and necessary because the applicant’s medical records establish that he suffered from anxiety following the accident, none of Drs. Colborne, Swift, or Seon addressed that anxiety in the context of CPS, and Dr. Scher’s assessment provides a comprehensive treatment approach that addresses the applicant’s complex mental, emotional, and physical issues.
46First, the assessment confirms what was already documented in the CNRs of RN Crump and the psychologists at PHRC – the applicant suffered from driving-related anxiety post-accident, which impacted his mental and physical functioning. RN Crump referred the applicant for two consultations at PHRC. Dr. Colborne found in 2017 that the applicant met the criteria for a driving phobia and Dr. Swift confirmed Dr. Colborne’s diagnosis a year later in 2018. Although each doctor made suggestions for possible treatments, neither followed through with an actionable treatment plan and the applicant continued to suffer anxiety as recorded in the April 2, 2020 report of RN Crump.
47Second, in contrast, Dr. Scher reported on the applicant’s psychological state in the context of his physical pain and declining functional capacity. He diagnosed the applicant with CPS and offered some additional precision about how the applicant’s anxiety and depression were secondary conditions to the primary syndrome. Dr. Scher’s diagnosis of Adjustment Disorder with Anxiety and Depression (“ADAD”), secondary to CPS, shows how two interrelated conditions work together to impact his functional capacity.
48Lastly, Dr. Scher recommended a structured plan for further treatment and rehabilitation, thereby creating a path forward for the applicant. Despite the other psychological consultations, a comprehensive plan that recognized and addressed both his ADAD and CPS was elusive. Dr. Scher presents a systematic approach to treating the full spectrum of the applicant’s mental and emotional functioning which were both altered by the accident.
49The applicant is entitled to the treatment plan for a psychological assessment.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
51In accordance with s. 51, the applicant is entitled to interest on overdue payment of benefits for:
the chronic pain assessment in the amount of $2,260.00.
the psychological assessment in the amount of $2,200.00.
Award
52The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
53The applicant submits that despite substantial medical evidence otherwise, the respondent unreasonably withheld payment for the assessments on the basis that the applicant’s injuries were minor as defined by the Schedule, making him ineligible for further treatment.
54The respondent submits that the applicant has not provided any particulars regarding the basis for an award. It argues that its denial of the assessments was based on the medical evidence available and the findings of its s. 44 assessors, noting that a wrong conclusion in and of itself does not rise to the level of unreasonable conduct.
55I agree with the respondent. There is no evidence before me to indicate that the respondent’s adjustment of the file was unreasonable. Rather, it relied on the findings of its s. 44 assessors.
56I find that the applicant has not demonstrated entitlement to an award.
ORDER
57The applicant is no longer in the MIG due to chronic pain with functional limitation.
58The applicant is entitled to:
the chronic pain assessment in the amount of $2,260.00; and
the psychological assessment in the amount of $2,200.00.
The applicant is entitled to interest in accordance with the Schedule.
59The applicant is not entitled to an award.
Released: December 14, 2023
Bonnie Oakes Charron
Adjudicator