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.
Mercy Mathew
Applicant
And
Economical Insurance
Respondent
DECISION
VICE-CHAIR:
Nancy Aquilina
APPEARANCES:
For the Applicant:
Sergey Logunov, Counsel
For the Respondent:
Krista M. Groen, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mercy Mathew, the applicant, was involved in an automobile accident on September 22, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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”)?
Is the applicant entitled to a medical benefit in the amount of $1,553.72 for chiropractic services, proposed by Total Care Management in a treatment plan/OCF-18 (“treatment plan”) submitted on May 26, 2021, and denied on June 3, 2021?
Is the applicant entitled to a medical benefit in the amount of $2,809.17 for a psychological assessment, proposed by Dr. Jacqueline Brunshaw in a treatment plan submitted on September 16, 2021, and denied on September 28, 2021?
RESULT
3Based on the totality of the evidence before me, I find:
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 MIG funding limit.
As I have found that the applicant’s injuries are within the MIG, and the treatment plans in dispute propose treatment outside the MIG, the applicant is not entitled to these plans.
ANALYSIS
The applicant’s injuries fall within the MIG
[4] I find that the applicant has not established that, on a balance of probabilities, her injuries are not predominantly minor as defined in s. 3 the Schedule.
5The MIG establishes a framework available to insured persons who sustain a minor injury as a result of an accident.
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 in accordance with the MIG. 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.”
7It has been determined by the Tribunal that an applicant may be removed from the MIG if they provide evidence of chronic pain with a functional impairment or a psychological condition or a pre-existing injury but in all cases the burden of proof lies with the applicant to establish that the removal is warranted.
8The applicant submits that she suffered significant physical injuries as a result of the accident. Dr. Paul Wang, family physician, and Dr. Tejinderpaul Dhotar, chiropractor with Total Care Management (Peel), identify her injuries as being as follows: head contusion, cervical sprain, whiplash associated disorder, and sprains and strains of the thoracic and lumbar spine, and trapezius. In addition, strains and sprains of the lumbar spine, ribs and sternum and a whiplash associated disorder are identified in the clinical notes and records of High Tech Physiotherapy produced by the applicant.
9The respondent submits that the applicant’s injuries are soft tissue in nature and relies on a Physiatry Insurer’s Examination (“IE”) conducted on December 7, 2017, by Dr. Seyed Hossein Hosseini that found that the applicant had sustained post-traumatic headaches and strains and sprains of the cervical spine, lumbar spine, right shoulder, and a right upper chest contusion. The respondent further contends that Dr. Hosseini reported that the applicant demonstrated full and pain free range of motion of the shoulders, as well as full forward flexion in the cervical and lumbar spine and that it was anticipated that the applicant’s injuries would improve with stretching exercises.
10The injuries as set out by Dr. Wang, Dr. Dhotar and High Tech Physiotherapy are in line with Dr. Hosseini’s findings of sprains, strains, contusions, and a whiplash related disorder that fall squarely within the MIG. I acknowledge that the applicant raised complaints of head and jaw pain at the time of the accident, however, the CT scan of the applicant’s head conducted at Lakeridge Health that day found no hemorrhage or fractures. In addition to this, no loss of consciousness was noted by Lakeridge Health. Accordingly, I have not been provided with compelling medical evidence that the applicant’s physical injuries do not fall within the MIG.
The applicant’s pre-existing medical conditions do not remove her from the MIG
11I do not find that the applicant’s pre-existing medical conditions warrant removal from the MIG.
12Section 18(2) of the Schedule states that the MIG limit does not apply to the applicant if a health practitioner determines and provides compelling evidence that she has a pre-existing medical condition that was documented before the accident and that will prevent her from achieving maximum medical recovery from the minor injury if she is subject to the limit.
13The applicant submits that she suffered from pre-existing medical conditions including hypertension and dyslipidemia that were exacerbated post-accident. In response, the respondent submits that the applicant has not provided any compelling evidence to support that her pre-existing conditions would impact her ability to recover within the confines of the MIG.
14I have not been pointed to compelling medical evidence that demonstrates the applicant’s pre-existing conditions preclude her recovery within the MIG funding limit. I acknowledge that the clinical notes and records of Dr. Paul Wang stated the applicant has had hypertension and hypercholesterolemia since 2014. The applicant reported high blood pressure and high cholesterol to Dr. Hosseini during the Physiatry IE and the Disability Certificate Form/OCF-3 prepared by Dr. Dhotar, mentioned hypertension. However, the applicant did not provide evidence to indicate these conditions worsened post-accident or that her recovery from her accident-related injuries would be impacted by these conditions.
15Therefore, I find that the applicant has not established that she would be prevented from achieving maximum medical recovery if kept within the MIG based on her pre-existing medical conditions.
The applicant’s psychological impairments do not remove her from the MIG
16I do not find that the applicant’s psychological impairments justify removal from the MIG.
17The applicant contends that she suffers from insomnia, anxiety and nervousness and relies on the psychological pre-screening interview of Dr. Jacqueline Brunshaw, psychologist, conducted on September 10, 2021, to substantiate her psychological impairments.
18The respondent relies on Dr. Arnold Rubenstein’s psychological IE conducted on January 10, 2018, to deny Dr. Brunshaw’s psychological assessment. Dr. Rubenstein opines that the applicant did not sustain any diagnosable psychological impairment as a result of the accident and that her injuries continue to fall within the MIG.
19In addition to this, the respondent takes the position that the Tribunal has repeatedly rejected pre-screen interviews as providing sufficient evidence of a psychological impairment, particularly where there is a lack of corroborating medical evidence to support it. The respondent relies on S.N. and TD, 2020 CanLII 34466 (ON LAT) where Adjudicator Lake placed little weight on a psychological pre-screening for several reasons but one being that the applicant did not report any psychological symptoms to their family physician and that no explanation was provided for the absence of psychological complaints until three years post accident.
20I agree that the circumstances as set out in S.N. and TD are akin to this case in that there is no explanation provided for the absence of contemporaneous psychological complaints. Based on the medical evidence, it appears that the first mention of psychological complaints is in the psychological pre-screening that is completed four years post accident.
21I do not find the psychological pre-screening interview of Dr. Brunshaw persuasive. Firstly, it is based on the applicant’s self reporting and not on psychological testing. In addition to this, it is unclear to me if the applicant’s medical evidence had been reviewed by Dr. Brunshaw prior to the completion of the pre-screening interview.
22I give greater weight to Dr. Rubenstein’s Psychological IE as it is based on psychological testing. The testing yields below average scores in the domain of depression, and anxiety and an average level score in the area of somatization and concludes, upon review of the testing and the medical records, that based on these findings the applicant does not meet any criteria warranting a diagnosis of any psychological disorder according to the DSM-IV.
23The opinion of Dr. Rubenstein is consistent with the clinical notes and records of Dr. Wang who records no psychological complaints and makes no psychological diagnosis. In Dr. Wang’s clinical notes and records, I note that there is no mention of anxiety, nervousness or tension while riding in cars during any of her visits, in contrast with those described in the psychological pre-screening. In the Psychological IE, Dr. Rubenstein states that the applicant denied any accident-related emotional problems, commenting that she did not require counselling in this regard.
24For these reasons, I find that the applicant did not meet her onus to demonstrate she sustained psychological impairments that would remove her from the MIG.
The applicant’s chronic pain does not remove her from the MIG
25I find that the applicant has not met her evidentiary burden to prove that she suffers from chronic pain that causes functional impairment.
26The applicant states that her constant pain has limited her ability to perform nearly all her pre-accident activities of daily living including lifting objects, bending, sitting for too long, standing in one place, walking for long periods of time, climbing, and descending stairs, and reaching overhead. She submits that she has difficulties with household chores and grocery shopping and continues to take Tylenol to manage her ongoing pain to her head, neck, shoulder, and lower back.
27The respondent cites Y.X.Y v. The Personal Insurance Company, 2017 CanLII 595155 (ON LAT) and takes the position that the mere presence of pain is not sufficient for a finding of chronic pain and that there is insufficient evidence to satisfy the applicant’s onus that she should be removed from the MIG based on chronic pain and with no chronic pain diagnosis.
28In addition to this, the respondent relies on the physiatry IE of Dr. Hosseini where the applicant reports that post accident, she is independent with all her pre-accident personal and housekeeping tasks and continues to participate in weekly church activities and gatherings with friends and family. In summary, the respondent submits that there is no evidence of functional impairment due to pain.
29Based on the medical evidence before me, I find the applicant’s ongoing pain has not caused functional impairments as a result of the accident. Although the applicant submits that the accident has limited her ability to perform nearly all her pre-accident activities, the applicant reports to Dr. Wang that she gardened just over a month post-accident. In the Physiatry and Neurology IEs of Dr. Hosseini and Dr. Desai, it is noted that she returned to full-time work on November 13, 2017, less than two months after the accident. The applicant reported to Dr. Hosseini that she was able to resume her pre-accident personal and housekeeping tasks and that she participates in weekly church activities and gatherings with friends and family. Likewise, she reported to IE assessor Dr. Desai on November 27, 2017, that she is independent in carrying out her personal care and she can perform her pre-accident home maintenance duties such as cutting the grass.
30Lastly, the clinical notes and records of Dr. Wang do not make a referral to a chronic pain specialist and there is no objective evidence of a chronic pain diagnosis.
31The applicant has not met her onus to prove that she has chronic pain, because other than her submissions of chronic pain, I have not been directed to medical evidence of chronic pain with functional impairment or a diagnosis of chronic pain syndrome to warrant removal from the MIG on this ground.
32In their submissions, the parties dispute whether the MIG funding limit has been exhausted. The applicant refers to an OCF-23 completed by High Tech Physiotherapy dated October 2, 2017, and a treatment plan partially approved to $1,300.00 completed by Total Care Management (Peel) dated October 23, 2017. The applicant contends that she did not complete treatment at High Tech Physiotherapy and submits an OCF-24 dated October 5, 2017, along with an email from the respondent dated September 15, 2021, noting payment of $1,074.50 towards medical treatment to substantiate her claim that the limit has not been exhausted.
33The respondent contends that it has not been presented with evidence that the applicant withdrew or did not complete treatment at High Tech Physiotherapy and that the applicant has already been approved for treatment up to the $3,500.00 limit under the MIG. The respondent submits an explanation of benefits dated November 13, 2017, that states that the Total Care Management (Peel) treatment plan dated October 23, 2017, was partially approved to $1,300.00 and the OCF-23 completed by High Tech Physiotherapy totalling $2,200.00 dated October 2, 2017, along with the respondent’s response on October 13, 2017, to support its claim.
34I find that an email along with a submission of an OCF-24 is not sufficient evidence that the MIG limit has not been exhausted. It is clear to me that the MIG funding limit has been approved up to $3,500.00 based on the evidence submitted but it is not clear if it has been exhausted. Nonetheless, the OCF-23 dated October 2, 2017, and treatment plan dated October 23, 2017, are not properly before the Tribunal, and therefore, I have no authority to address them.
35As the applicant has been found to remain within the MIG and $3,500.00 has been approved in treatment, I find that the applicant is not entitled to the May 26, 2021 and September 16, 2021 plans properly before me as they propose treatment outside the MIG.
ORDER
36For the reasons outlined above, I find the following:
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 MIG funding limit.
As I have found that the applicant’s injuries are within the MIG, and the treatment plans in dispute propose treatment outside the MIG, the applicant is not entitled to these plans.
Released: December 12, 2023
Nancy Aquilina
Vice-Chair