Citation: Raduga v. Economical Insurance, 2023 ONLAT 20-014767/AABS

Licence Appeal Tribunal File Number: 20-014767/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:

Andrey Raduga

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Daniella Cohen, Paralegal

For the Respondent:

Stephen Whibbs, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Andrey Raduga (the “applicant”) was involved in an automobile accident on November 28, 2019, 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 Economical Mutual Insurance Company (the “respondent”) 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to the following treatment and assessments recommended by the Toronto Healthcare Clinic:

1. Chiropractic services in the amount of $2,581.08, proposed in a treatment plan (the “OCF-18”) submitted on November 29, 2019;

2. Chiropractic services in the amount of $615.72, proposed in an OCF-18 submitted on February 12, 2020;

3. Chiropractic services in the amount of $1,617.98, proposed in an OCF-18 submitted on March 3, 2020;

4. Chiropractic services in the amount of $1,800.00, proposed in an OCF-18 submitted on July 14, 2020;

5. Psychological assessment in the amount of $2,000.00, proposed in an OCF-18 submitted on July 15, 2020;

6. Chiropractic services in the amount of $1,255.74, proposed in an OCF-18 submitted on August 4, 2020;

7. Chronic pain assessment in the amount of $2,000.00, proposed in an OCF-18 submitted on July 18, 2020;

8. Functional impairment evaluation in the amount of $1,340.20, proposed in an OCF-18 submitted on August 4, 2020;

9. Psychological services in the amount of $3,285.98, proposed in an OCF-18 submitted on March 9, 2021;

10. A chronic pain program in the amount of $11,782.00, proposed in an OCF-18 submitted on March 27, 2021; and

11. A chronic pain assessment in the amount of $2,226.00, proposed in an OCF-18 submitted on March 23, 2022?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not met his onus to demonstrate his accident-related injuries and impairments warrant removal from the MIG. The applicant is not entitled to the OCF-18s in dispute, and no interest is payable.

ANALYSIS

Applicability of the MIG

4I find the applicant has failed to show her injuries are not minor as defined by the Schedule.

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.” In this case, the applicant seeks to be removed from the MIG due to chronic pain and psychological impairment arising from the accident. The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG because neither are defined as a minor injury by the Schedule. In both cases, the burden of proof lies with the applicant.

6The applicant’s submissions convey that removal from the MIG is warranted because, as a result of the accident, the applicant sustained severe physical and psychological injuries that include chronic neck and back pain, bilateral shoulder pain, headaches, anxiety, depressed mood, sleep deprivation, and emotional distress. The applicant relies on clinical notes and opinions from Dr. Rizwanali Momin (physician) at Mackenzie Health Hospital, his family physician Dr. Svitlana Lukin, Dr. Val Ginzburg (specialty not specified) at the Markham Stouffville Urgent Care Centre, the Wilderman Medical Clinic, the Toronto Healthcare Clinic, and Dr. Domenic Minnella (chiropractor).

7The applicant also points to two section 25 assessments. The first is from Dr. Jacqueline Brunshaw (psychologist) of the Toronto Healthcare Clinic, who diagnosed an adjustment disorder with mixed anxiety and depressed mood and specific phobia (being a passenger and pedestrian). The second is from Dr. Dimitri Louvish (general practitioner), who diagnosed accident-related impairments that consisted of cervical whiplash myofascial injury; bilateral shoulder myofascial injury; thoracic spine myofascial injury with post-traumatic discogenic pathology causing left-sided T4-T5 radiculopathy; lumbar spine myofascial injury with post-traumatic discogenic pathology causing left-sided L5-S1 radiculopathy; post-traumatic migraine type headaches; psychological distress (anxiety, stress, fear and hypervigilance when he is a driver or a passenger in a vehicle, and depressed mood); post-traumatic sleep disturbance; difficulties with memory and concentration; and new onset of hypertension.

8The respondent’s submissions argue that it has correctly maintained the applicant’s injuries are minor, and that the applicant failed to establish his accident-related injuries merit removal from the MIG. The respondent relies on two section 44 reports. The first is from Dr. Yuri Marchuk (physiatrist), whose examination showed the applicant presented as completely normal, save for minor range-of-motion reductions in his neck and tenderness around the shoulders and middle back. The second assessment was performed by Dr. Janet Clewes (psychologist), who found the applicant did not present with any psychological injuries.

The applicant does not suffer accident-related chronic pain that causes impairment

9I find the applicant has not demonstrated that he has chronic pain as a result of the accident that is causing impairments. The physical injuries listed in Part 5 of the OCF-3 completed by Dr. Minnella on December 29, 2018, are all contusion and sprain and strain-type injuries that fall squarely within the definition of a minor injury under the Schedule. While Part 6 indicates the applicant suffers a complete inability to carry on a normal life, and a substantial inability to perform housekeeping and home maintenance that he normally performed before the accident, the applicant’s submissions provide insufficient objective medical evidence to substantiate impairment. Dr. Minnella does not indicate what medical information was relied upon to assess the applicant’s injuries or disability on the OCF-3, so I place little weight on this evidence. The Mackenzie Richmond Hill Hospital report does not corroborate Dr. Minnella’s disability findings, and, in fact, indicates the applicant’s range of motion in his neck on the day after the accident was good despite his pain complaints. The x-ray of the applicant’s neck ordered by Dr. Momin at the hospital did not produce concerning results. Dr. Momin prescribed a muscle relaxant and did not recommend any limitations in activity owing to the applicant’s complaints of pain in his neck, left shoulder, left flank, or otherwise. I find this evidence does not support chronic pain or any related impairment.

10The applicant’s submissions do not point me to any evidence of chronic pain-related impairment in the clinical notes of Dr. Lukin, and the respondent submits there are no notations of functional impairments in these records. Similarly, the applicant does not speak to any evidence of impairment in the records of Dr. Ginzburg. The applicant’s submissions on his treatment at the Toronto Healthcare Clinic speak to providing some temporary relief from his symptoms, but offer no insight into whether the treatment addressed functional limitations owing to chronic pain-related impairments. The applicant did not specify what aspects of Dr. Wilderman’s objective examination led to a recommendation for a chronic pain assessment, or whether Dr. Wilderman found evidence of pain-related impairment owing to the accident. When I consider all this evidence in concert with the three diagnostic imaging tests—pointed to by the respondent and performed on the applicant’s spine between June 2020 and May 2021—I find little evidence to substantiate that accident-related pain was causing impairment. Indeed, all three tests showed mild and minor degenerative changes that were not attributed to the accident or related to any impairment in the applicant’s function.

11I find that Dr. Louvish’s report (dated March 19, 2021) fails to provide convincing evidence of chronic pain-related impairment. The applicant’s submissions speak to Dr. Louvish’s observations of the applicant appearing to be in pain and looking uncomfortable, as well as walking slowly, constantly shifting and changing sitting positions, and being slow and cautious while undressing and dressing. The applicant made similar reports to Dr. Brunshaw in October 2020 and January 2021, disclosing that pain interferes with his daily activities and household chores, presenting specific difficulties with putting on shoes, bathing, cutting nails, changing sheets, cleaning the tub, and making the bed.

12However, the applicant does not point to any objective examinations performed by Dr. Louvish to determine whether the applicant’s presentation or earlier complaints are consistent with Dr. Louvish’s findings. The applicant does not demonstrate that any of Dr. Louvish’s treatment recommendations aim to address functional limitations or impairments, and I was not presented with evidence that Dr. Louvish found the applicant was impaired by pain or was experiencing functional limitations.

13I find Dr. Marchuk’s physiatry assessment of May 7, 2022, to be more convincing. This is because Dr. Marchuk’s findings are more consistent with the hospital records and diagnostic imaging tests than Dr. Louvish’s findings. As well, I agree with the respondent that Dr. Marchuk’s assessment appears to have been better informed by file information than Dr. Louvish’s. Dr. Marchuk found the applicant’s active range of motion in his neck was reduced by only five per cent in all directions, and that he was tender around the shoulders and spinal area of his mid-back; neither finding was attributed to any functional impairments or limitations.

14The applicant also submits he developed chronic pain syndrome as noted by Dr. Louvish. But I prefer the respondent’s argument, which is that a clear diagnosis of chronic pain syndrome was not offered by Dr. Louvish. As the respondent points out, Dr. Louvish says only that the applicant “appears” to have developed chronic pain syndrome, which, on balance, is more indicative of an impression, rather than a diagnosis. The applicant did not point me to evidence of testing performed by Dr. Louvish, an analysis of the chronic pain criteria in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (which the Tribunal has relied on in the past to determined if chronic pain rises to the threshold of chronic pain with impairment), or an opinion that the applicant’s pain is more than what it should be for his injuries. Further, Dr. Louvish did not include chronic pain syndrome in the diagnosis section of his report, where he clearly specifies nine diagnoses. So, while I recognize that a diagnosis of chronic pain syndrome is not required to prove chronic pain, I do not accept such a diagnosis was conclusively made (with the requisite functional impairment) as claimed by the applicant.

15In conclusion, I disagree with the applicant’s position that his pain symptoms are chronic. While I accept the applicant is experiencing pain, I am also mindful that the Tribunal has consistently held that for chronic pain to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. The applicant has not shown a clear diagnosis of chronic pain syndrome, and, on a balance of probabilities, has not established with medical evidence that his pain is accompanied by functional impairment and disability. I therefore find the applicant has failed to show me he should be removed from the MIG because of chronic pain.

The applicant did not sustain psychological impairment resulting from the accident

16I find there is insufficient evidence of psychological impairment that would warrant removal from the MIG.

17Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show he sustained a psychological impairment because of the accident.

18The applicant submits that the OCF-3 lists symptoms and signs involving his emotional state, including emotional and sleep disturbances. The applicant also relies on the psychological diagnoses offered in Dr. Brunshaw’s reports of October 9, 2020, and January 20, 2021. The respondent says Dr. Brunshaw did not review any treatment records while preparing her report, and that she never directly met with the applicant—instead relying on Ms. Helen Ilios (psychotherapist) to conduct the clinical interview and administer the testing.

19The reports submitted by the applicant do not convince me that the applicant sustained a psychological impairment as a result of the accident. The applicant’s submissions do not indicate what medical information Dr. Minnella relied on to document psychological symptoms on the OCF-3. So, I give this evidence little weight.

20I preferred Dr. Clewes’ report to that of Dr. Brunshaw’s because I agree with the respondent that it is better informed by a file review and direct interactions and observations. Dr. Clewes directly assessed the applicant, so her analysis was informed by data she personally obtained during interactions with the applicant. Dr. Brunshaw indirectly assessed the applicant, in that she reviewed and interpreted the outcomes of a clinical interview and psychometric testing administered by Ms. Helen Ilios (psychotherapist). Dr. Clewes consulted a broader scope of relevant file information than Dr. Brunshaw, whose report indicates she reviewed only the OCF-3 and the disputed OCF-18 for chiropractic services proposed by Dr. Minnella on November 29, 2019. In fact, Dr. Clewes prepared and performed her examination after consulting 30 different documents, and notably the chronic pain and psychological reports prepared by the applicant’s experts, the clinical notes and records of the applicant’s family physician, Mackenzie Richmond Hill Hospital, and Toronto Healthcare Clinic, as well as the section 44 assessment completed by Dr. Marchuk. For these reasons, I find Dr. Clewes’ report to be more persuasive.

21The applicant’s self-reports of his psychological symptoms vary greatly between the reports of Dr. Brunshaw and Dr. Clewes. Dr. Brunshaw’s report says the applicant reports feeling irritable, easily frustrated, and depressed with low tolerance and patience owing to constant pain and “so many limitations.” Dr. Clewes’ report states the applicant denied any accident-related psychological symptoms, such as depressed mood, anxiety, trauma, or being overly pain-focused. I find Dr. Clewes’ report is more consistent with the other evidence in this case because the applicant’s submissions do not reference complaints of psychological symptoms in any clinical notes or records prior to Dr. Brunshaw’s October 2020 assessment. Although both clinicians performed psychological tests, I agree with the respondent that only Dr. Clewes’ testing was interpreted with confidence owing to validity measures, and I therefore put more weight on Dr. Clewes’ findings that the applicant does not suffer from any accident-related diagnostic condition.

22In conclusion, when I analyze the medical evidence on a balance of probabilities, I find the applicant has failed to produce compelling evidence that shows he suffers from psychological impairment as a result of his accident. I therefore decline to remove him from the MIG on the basis of psychological impairment.

The disputed OCF-18s

23The applicant remains in the MIG, so an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required. The parties agree that $136.60 remains in the MIG. Section 40(8) of the Schedule provides that if it is determined the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary. Therefore, the applicant is entitled to benefits, once incurred, up to the remaining amount of the MIG limit, as such benefits are deemed reasonable and necessary pursuant to the Schedule.

Interest

24There are no benefits payable, therefore no interest is owing.

ORDER

25Section 40(8) of the Schedule applies. The application is otherwise dismissed.