Licence Appeal Tribunal File Number: 21-014442/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:
Diksha Verma
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Francesco Blasi, Paralegal
For the Respondent: Zachary Berg, Counsel
HEARD: By way of written submissions
OVERVIEW
1Diksha Verma, the applicant, was involved in an automobile accident on January 5, 2021, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
Issues
2The issues to be decided in the hearing 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 limit (“MIG”)?
ii. Is the applicant entitled to services proposed by Complete Rehab Centre, as follows:
a) $202.15 for chiropractic sessions, in a treatment plan submitted on July 27, 2021 and denied on August 10, 2021;
b) $1,483.01 for chiropractic sessions, in a treatment plan submitted on October 21, 2021 and denied on November 22, 2021; and
c) $2,400.00 for a psychological assessment, in a treatment plan submitted on December 5, 2021 and denied on December 8, 2021?
iii. 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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
Result
3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.
4The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. The applicant is not entitled to any treatment plans in dispute.
5The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
6Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Minor Injury Guideline: Pre-existing Injuries
7I find that the applicant has not met her burden to show that she sustained injuries that require removal from the funding limits of the MIG.
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. In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae.
9Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.” The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that his injuries are not minor, or the applicant has a pre-existing condition that would prevent maximal recovery within the MIG. In all cases, the burden of proof lies with the applicant.
10The applicant did not provide submissions regarding the existence of a pre-existing condition that would remove her from the MIG. The respondent submits that the applicant has not provided any clinical notes and records, or other documents, to confirm pre-accident medical conditions. Following the accident, on January 22, 2021, the applicant attended physician Dr. Augustine Opara, of describing accident-related symptoms with no stated pre-existing medical conditions. The applicant did not seek medical treatment subsequently for her accident-related injuries until May 20, 2022, when examined by Dr. Sherif Paul Nessim. She did not describe any pre-existing conditions in May 2022, or thereafter to Dr. Nessim.
11For the purpose of his Insurance Examination, the applicant did not report or identify to Dr. Ahmed Mian, General Practitioner, any pre-accident medical condition preventing her from maximal recovery within the MIG. I find that the applicant did not meet her burden to show that she has any pre-existing conditions that would prevent her from reaching maximal medical recovery if she is kept within the funding limits of the MIG.
Evidence of Physical Injuries
12I find that the applicant has provided insufficient medical evidence to meet her burden to prove that the accident caused physical injuries preventing her from reaching maximal medical recovery (“MMR”) within the limits of the MIG. The few CNRs provided by the applicant do not support the applicant’s contention that her accident-related injuries require treatment outside of the MIG nor that any pre-existing medical conditions were aggravated by the accident pursuant to section 18(2). As stated, she attended Dr. Augustine Opara’s family practice on January 22, 2021, describing accident-related symptoms and then the applicant did not seek medical attention for accident-related symptoms from another family physician, Dr. Sherif Paul Nessim until approximately a year and a half afterwards. The delay of a year and half before seeking medical treatment for accident-related symptoms does not support the applicant’s contention that her injuries are outside the MIG. Dr. Ahmed Mian, completed an Insurance Examination dated January 6, 2022, opining that there were no objective findings to support ongoing musculoskeletal, osseous, or neurological impairments as a result of the subject accident approximately one year after the accident on September 16, 2018.
13The applicant submits that injuries caused by the accident will prevent her from reaching MMR if she is limited to the MIG funding limit. The respondent submits that the applicant has not discharged her burden to prove that she suffered an injury outside the MIG and relies on the section 44 Insurance Examination of Dr. Ahmed Mian.
14Within a few weeks of the accident, Rahim Jessa, chiropractor, prepared an OCF-3 disability certificate. The treatment plan dated January 20, 2021, describes the applicant experiencing sprain and strain of the cervical spine, thoracic spine, lumbar spine, and hip. The anticipated duration of the disability is stated in the treatment plan to be nine to twelve weeks. The OCF-3 states that the applicant has a substantial inability to perform housekeeping and home maintenance services. Following the accident, on January 22, 2021, the applicant attended Dr. Augustine Opara, of Inspire Medical Clinic, describing lower back pain, in the lower lumbar area addressed by non-prescription Advil. The applicant denied to Dr Opara experiencing any injury as a result of the accident.
15Based on the applicant’s reported accident-related injuries, X-rays of the applicant’s cervical, thoracic and lumbar spine were taken on July 13, 2022. The X-rays showed the applicant’s vertebral bodies, disc spaces, facet joints and alignment as entirely normal. The clinical notes and records (CNRs) of Dr. Nessim describes that the applicant had a telephone appointment on July 25, 2022, where Dr. Nessim reviewed the results of the X-rays with the applicant as being normal. The CNRs reference that the applicant will seek a further assessment from Dr. Nessim, if her accident-related symptoms persist however the applicant did not follow up with Dr. Nessim. There are no further records following the appointment with Dr. Nessim on July 25, 2022. Considering the outcome of the diagnostic X-rays of the applicant’s spine being normal and showing no injuries, and the applicant’s failure to return to Dr. Nessim for medical treatment, I find that the applicant’s accident-related injuries are properly addressed within the MIG.
16I find that the section 44 IE assessment by Dr. Ahmed Mian corroborates the medical diagnosis in the CNRs of Dr. Sherif Paul Nessim, that the applicant’s accident-related injuries are minor as defined in section 3 of the Schedule as myofascial strains of the cervical, thoracic and lumbar spine. The IE s. 44, physician’s assessment of Dr. Ahmed Mian, dated January 6, 2022, states that the applicant experiences soft tissue injuries to the lumbar spine and developed pain in the thoracic spine. Dr. Mian opined that there were no objective findings to support ongoing musculoskeletal, osseous, or neurological impairments as a result of the subject accident approximately one year after the event. Dr. Mian found that the soft tissue injuries described by the applicant to her lumbar and thoracic spine had no neuropathic components to anchor the pain symptomology, which pain he opined was localized and subjectively reported by the applicant. Dr. Mian opined that the applicant experienced thoracic and lumbar sprain/strain as a result of the accident with an excellent prognosis of healing and maximal medical recovery without therapy within eight to twelve weeks following the date of the accident.
17As stated, in addition, I find that the gap of close to one and a half years before the applicant seeks medical treatment for her accident-related injuries does not support the applicant’s submission that her injuries require treatment outside the limits of the MIG. After January 22, 2021, the applicant did not seek medical treatment again for her accident-related injuries until May 20, 2022, by Dr. Sherif Paul Nessim who diagnosed the applicant with myofascial strain of the cervical spine, in addition to strain of the thoracic and lumbar spine. Dr. Messim’s diagnosis fits squarely within the s. 3(1) definition of minor injury sequelae in the Schedule.
18Likewise, Dr. Mian concluded that the applicant’s injuries were minor sequelae treatable within the limits of the MIG. I note that both the CNR’s of Dr. Augustine Opara, and Dr. Sherif Paul Nessim, do not include any diagnosis suggestive of the applicant’s physical injuries requiring treatment beyond the limits of the MIG, in order for the applicant to reach MMR. I do not find that the applicant has provided sufficient medical evidence to meet her burden that the accident caused physical injuries preventing her from reaching maximal medical recovery within the limits of the MIG.
Chronic Pain Syndrome
19I find there is insufficient evidence that the accident impacted the applicant’s functionality in order for her to meet her onus that the pain and injuries she contends are not treatable within the MIG. The applicant does not make the submission that she experiences chronic pain syndrome nor provide submissions regarding the accident affecting her functionality for the purpose of a chronic pain diagnosis. The applicant described to Dr. Mian that she is completely independent in her activities of daily living. The CNRs of Dr. Augustine Opara and Dr. Sherif Paul Nessim do not include a diagnosis of chronic pain nor describe that the applicant’s functionality was impacted by the accident. As stated, the section 44 IE assessment by Dr. Ahmed Mian corroborates the medical diagnosis in the CNRs of Dr. Sherif Paul Nessim, to the effect that the applicant’s accident-related injuries are minor sequelae consisting of myofascial strains of the cervical, thoracic and lumbar spine.
20The respondent submits that the Tribunal decision in 16-000438 v. Personal Insurance, 2017 CanLII 59515, described the necessary requirements for a diagnosis of chronic pain to move an insured outside the MIG (paragraphs 28 and 29):
For chronic pain to be more than mere sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effects on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae. Unless the applicant provides evidence that the pain she experiences contains these elements, I find the pain is mere sequelae of the minor injury.
21The respondent submitted that in YSL v. Security National, 2017 CanLII 149039, the Tribunal determined that chronic pain did not take the applicant out of the MIG where there was no effect on the applicant’s functionality. It was noted that a treating physician’s mention of a chronic pain condition, be it a “syndrome” or specific use of the term “chronic pain”, was not enough in establishing the impact on functionality.
22The respondent submits that the applicant has not discharged her burden to prove that she suffered an injury outside the minor injury guideline. The applicant submits that she was prescribed the pain medication ketorolac by Dr. Augustine Opara, on January 22, 2023, approximately two weeks following the accident. There is no evidence that the applicant was prescribed additional pain medication afterwards. When she attends an examination with Dr. Mian, she describes taking non-prescription Advil when she requires pain relief. I find that the applicant has not presented sufficient evidence that her pain is chronic, in addition for reasons that follow in the section regarding psychological impairments, I am not persuaded that the applicant has a somatic symptom disorder with predominant pain based on the section 25 psychological assessment by Sandeep Kaur and Dr. Sedigheh Naisi, dated March 30, 2022.
23I find that the applicant has failed to meet her burden by reason of the medical evidence provided being insufficient to demonstrate that she experiences chronic pain which is not treatable within the MIG. As described, the applicant has failed to establish that any of the submitted pain that she suffers from affects her functionality and is not “mere sequelae” of soft tissue injuries treatable within the MIG. As stated, the medical evidence in the CNRs of Dr. Augustine Opara and the CNRs of Dr. Sherif Paul Nessim do not diagnose the applicant with chronic pain nor mention her functionality being affected by the accident.
24Based on the s. 44, IE general practitioner’s assessment, Dr. Mian opined that there were no objective findings to support ongoing musculoskeletal, osseous, or neurological impairments. I do not find that the applicant has provided sufficient medical evidence to meet her burden that the accident caused physical injuries preventing her from reaching maximal medical recovery within the limits of the MIG.
Psychological Injuries
25I find that the applicant has not provided sufficient medical evidence to demonstrate that she suffered any psychological impairments as a result of the accident, which would justify removal from the MIG. The Tribunal has determined that a psychological condition may warrant removal from the MIG. The burden of proof lies with the applicant.
26The applicant submits that she experienced psychological injuries caused by the accident which can not be treated within the limits of the Minor Injury Guideline (MIG). The applicant relies on the s. 25, psychological report of Dr. Sedigheh Naisi, Psychologist, and Sandeep Kaur, Registered Psychotherapist, dated March 30, 2022, which diagnose the applicant with major depressive disorder, somatic symptom disorder, with predominant pain, and specific phobia situational, as evidence to meet her onus. The respondent submits that the CNRs donot corroborate that the applicant experienced major depressive disorder, somatic symptom disorder, with predominant pain, and specific phobia situational, as a result of the accident.
27I place little evidentiary weight on the findings in the s. 25 psychological report dated March 30, 2022, because the report does not conform or corroborate with the bulk of the medical evidence as described where the applicant does not mention psychological impairments post-accident. I accord the s. 25 psychological report of Dr. Sedigheh Naisi and Sandeep Kaur, little evidentiary weight because the report contains diagnoses that are not corroborated elsewhere in the CNRs of Dr. Augustine Opara or Dr. Sherif Paul Nessim. On January 22, 2021, two weeks post-accident, the applicant did not mention psychological injuries to Dr. Augustine Opara, and she stated that she did not experience any injuries as a result of the accident. Approximately a year and a half afterward, the CNRs of Dr. Sherif Paul Nessim mention that the applicant was anxious and stressed without associating the experience with the accident and without requesting a referral to a psychologist or psychiatrist. The referrals made by Dr. Sherif Paul Nessim were for the purpose of conducting X-rays of the applicant’s spine as opposed to addressing any psychological or psychiatric issue.
28The respondent submits that the s. 44, psychological report of Dr. Marc Mandel is reliable evidence, which I agree with. The diagnosis offered in the s. 25 psychological report is not corroborated in the CNRs, which CNRs make no mention of the applicant experiencing depression or the symptomology of phobias and somatic symptom disorder post-accident. The applicant submits that she did not have an interpreter for the purpose of the section 44 psychological assessment with Dr. Mandel, however, the applicant did not request the services of an interpreter, nor did she have interpretation services for the purpose of the assessment by Sandeep Kaur and Dr. Sedigheh Naisi. Dr. Marc Mandel mentions in his report that the applicant chose to proceed without requesting the services of an interpreter.
29Dr. Mandel’s opinions are corroborated in the CNRs. Dr. Mandel offered the opinion that a treatment plan dated November 3, 2021, for a psychological assessment, proposed by Dr. Sedigheh Naisi, was not a reasonable and necessary expense. Dr. Mandel concluded in response to his clinical interview and psychological testing of the applicant that there was a lack of consistent objective information that would support a poor prognosis, DSM 5-TR diagnosis or suggest that the applicant suffers from clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the accident. As stated, the diagnosis of Dr. Mandel in his psychological assessment conforms with the CNRs.
30Considering the evidence, and on a balance of probabilities, I find insufficient compelling medical evidence of an impairment due to psychological injuries caused by the accident, as claimed by the applicant, which would justify funding outside the limits of the MIG.
31The applicant has failed to meet her burden to demonstrate that her experiences of chronic pain or psychological injuries caused by the accident, would remove her from the MIG.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
33Where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664
34Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
35As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
36Similarly, where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.
ORDER
37I find that the applicant sustained minor injuries, as a result of the accident, that are treatable within the MIG.
38The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
39Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
40The applicant is not entitled to an award.
41The application is dismissed.
Released: December 11, 2023
Janet Rowsell Adjudicator