Licence Appeal Tribunal File Number: 21-012609/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:
Jasmyn Kaur Gill
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Elena Pelz, Counsel
For the Respondent: Shelby Chung, Counsel
HEARD: In Writing
OVERVIEW
1Jasmyn Kaur Gill, the applicant, was involved in an automobile accident on July 29, 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 the respondent, Allstate 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:
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 respondent confirmed in submissions that it had paid $3,455.12 in medical and rehabilitation benefits to the applicant.
ii. Is the applicant entitled to the following treatment plans proposed by Prime Health Care:
a. $2,879.13 for physiotherapy services in a treatment plan/OCF-18 (“plan”) submitted on November 6, 2019?
b. $1,878.56 for physiotherapy services in a treatment plan/OCF-18 (“plan”) submitted on February 25, 2020?
c. $2,000 for a psychological assessment in a treatment plan/OCF-18 (“plan”) proposed by Prime Health Care on April 10, 2020?
d. $4,055.69 for psychological services in a treatment plan/OCF-18 (“plan”) submitted on August 7, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met her burden to prove that her injuries fall outside of the MIG.
4The applicant is not entitled to the treatment plan. Since no benefits are payable, no interest is owed.
ANALYSIS
Applicability of the Minor Injury Guideline
5Section 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.”
6An 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.
7Here, the applicant submits that as a result of the accident, she had pain in her neck, back and shoulders, and developed anxiety and sleep issues. She further submits that she was diagnosed with psychological disorders, as follows:
i. Adjustment Disorder with depressive and anxiety features;
ii. Somatic Symptom Disorder with predominant pain persistent type; and
iii. Specific Phobia (travelling in and around a vehicle).
8She relies on a disability certificate from physiotherapist (“PT”) Nikolay Zagrebailov at Prime Healthcare, a pre-assessment and evaluation report from psychologist Dr. Shaul at the same clinic, an emergency room (“ER”) record from Mississauga Hospital, and selective clinical notes and records (“CNRs”) of Drs. Gerges and Yakub of Urgent Care Clinic.
9The respondent submits that none of the applicant’s reported injuries fall outside of the definition of minor injury under the Schedule. It relies on s. 44 reports from physiatrist Dr. Boulias, occupational therapist (“OT”) Jeff Perrier, and psychologist Dr. Dumitrascu.
The applicant’s injuries are minor as defined by the Schedule.
10I find that the applicant’s injuries fall within the definition of minor as defined in s. 3 of the Schedule.
11The applicant submits that immediately following the accident, she had pain in her neck, back, and shoulders. She points to her treatment at Urgent Care Clinic and Prime Healthcare in support of her claim. The applicant’s OHIP summary indicates that she met with Dr. Gerges at Urgent Care Clinic two days after the accident. A CNR for this date was not provided that would confirm her complaints or diagnosis. The applicant sought physiotherapy treatment at Prime Healthcare, and on October 24, 2019, PT Zagrebailov wrote a disability certificate. He documented her injuries from the accident as sprain/strain of the shoulder, cervical, and lumbar spine, with stress, anxiety, and sleep difficulties. Mr. Zagrebailov assessed the applicant as being unable to carry on with the normal activities of living and perform housekeeping tasks.
12The applicant’s next visits to the Urgent Care Clinic were over two years later on October 7 and 14, 2021. The first time she met with Dr. Gerges and reported back, neck and shoulder pain, referencing the subject accident. Dr. Gerges referred the applicant for physiotherapy. A week later the applicant was evaluated over the phone by Dr. Yakub, who recorded the applicant’s reports of neck and back pain, referenced the accident, and recorded that the applicant had tendonitis and neck sprain. The applicant’s next visit was a year later on October 7, 2022, where she requested an x-ray for her neck, shoulders, and lower back due to ongoing pain. There are no further references to the subject accident in either Dr. Gerges or Dr. Yakub’s records.
13The applicant submits that there were several other appointments between the date of the accident on July 29, 2019, and her visit to Dr. Gerges on October 7, 2021. However, the respondent rightly points out that there are no supporting CNRs available for any of these appointments. The appointments are listed on the applicant’s OHIP summary; however, the summary indicates they were for an “intermediate assessment/well baby care”. Without the CNRs I am unable to conclude these appointments relate to the subject accident. While I acknowledge that the applicant’s counsel requested these records from the medical clinic several times, they were not released. As a result, there are gaps in the evidential record that make it difficult to corroborate the applicant’s reported symptoms following the accident.
14For its part, the respondent relies on the s. 44 report of Dr. Boulias, physiatrist, who assessed the applicant on July 14, 2020. The applicant reported to Dr. Boulias that she had not been referred to any specialists or had any diagnostic imaging studies. She also reported that the passive and active treatments at Prime Healthcare had not resulted in much improvement of her symptoms. Dr. Boulias found that despite some pain in her neck, back, shoulders, and low back, she had suffered minor, uncomplicated soft tissue injuries from the accident and had an excellent prognosis. He referenced the findings of OT Perrier in a companion s. 44 in-home assessment, who found that she had a normal range of motion other than a slight limitation in her back flexion.
15Dr. Boulias documented that she was independent with regard to personal care and able to manage all her housekeeping chores. Subsequent to the accident, he notes that she was able to return to driving, socializing, and work. Given that she resumed many of her activities of daily living, he concluded that she did not suffer a complete inability to carry on a normal life as indicated on the disability certificate from Prime Healthcare.
16I find that the applicant has not established that her injuries are more than minor. There is a lack of corroborating evidence of the applicant’s self-reported symptoms due to gaps in the CNRs from Urgent Care Clinic, and neither the s. 44 reports nor the disability certificate from Prime Healthcare identify any injuries that fall outside of the definition of minor under the Schedule.
17The applicant has not established that her injuries are more than minor and warrant treatment outside the MIG.
Psychological impairment
18I find that the applicant did not suffer a psychological impairment as a result of the accident.
19The applicant submits that she suffers from a psychological impairment that would remove her from the MIG. She relies on the referral from PT Zagrebailov and subsequent diagnoses from psychologist Dr. Shaul at Prime Healthcare, as well as the emergency room (“ER”) record from Mississauga Hospital. At Prime Healthcare, she underwent a pre-screening psychological interview, and based on the results and her responses to psychometric testing measures, a full evaluation was recommended. The full evaluation was to gather additional details, using objective measures, confirm symptoms, and help determine if a diagnosis was warranted. The evaluation report dated July 17, 2020, indicated test scores in the severe range for both depression and anxiety, leading the assessor to conclude that the applicant was experiencing severe levels of emotional distress.
20However, the conclusions of Dr. Shaul at Prime Healthcare are inconsistent with Dr. Boulias’ assessment and the other medical documentation from Drs. Gerges and Yakub. Dr. Shaul found that the applicant was fearful and had anxiety while travelling in a vehicle, was less social, and was limited in her ability to do household tasks and personal care. In contrast, s. 44 assessors Dr. Boulias and OT Perrier found she had returned to work after the accident, continued to drive, and was able to socialize. Also, there were no psychological complaints or significant physical limitations recorded in the available CNRs of Drs. Gerges and Yakub. Thus, the findings of the treatment providers at Prime Healthcare, who authored the OCF-18s, are uncorroborated.
21In further support of her claim, the applicant points to an incident on December 27, 2020, approximately a year and a half after the accident, to demonstrate her psychological impairment from the accident. On that date, the applicant attended Mississauga Hospital due to an anxiety attack. However, the documentation from the hospital does not fully support her assertion. The intake history recorded that the applicant has a history of anxiety following the death of her brother in a car accident. The emergency room (“ER”) doctor’s clinical impression was Anxiety and Alcohol Abuse. There was no mention of the subject accident anywhere in the hospital record. The applicant was interviewed by a social worker from the hospital’s crisis intervention team who referred her to a rapid access addiction clinic upon discharge. ER doctor, Dr. Sina, specifically documented that no psychology follow-up was necessary.
22The respondent submits that there is no evidence that the applicant sustained a psychological injury that requires treatment outside the MIG as a result of the accident. At a s. 44 assessment with psychologist Dr. Dumitrascu on July 27, 2020, the applicant reported that she had not had any assessment or treatment of a psychological nature as a result of the accident. She was unable to recall any details about the OCF-18s submitted from Prime Healthcare, for either the psychological assessment or psychological services treatment plans. The applicant does not address this memory gap in her submissions and no explanation is offered.
23Whether or not the applicant may have issues with anxiety and insomnia, there is insufficient evidence that they stem from the accident. Although the psychologists at Prime Healthcare concluded that the applicant was under significant emotional distress, neither the s. 44 assessors, the staff at the hospital, nor her treating physicians thought likewise. None of them made a referral or recommendations for any psychological treatment.
Conclusion
24The applicant has not provided compelling evidence to support the claim that she suffered either physical or psychological impairment as a result of the accident. Although the healthcare providers at Prime Healthcare recommended treatment plans, none of the three s. 44 assessors, the ER doctor or social worker at the Mississauga hospital, or Drs. Gerges and Yakub came to a similar conclusion.
25As a result, she has not met her burden to prove that her injuries from the accident fall outside the definition of minor under the Schedule.
The applicant is not entitled to the treatment plans.
26I find that the applicant is not entitled to any of the four treatment plans in dispute.
27Each OCF-18 indicates that the treatment is for a non-minor injury and therefore proposes treatment outside of the MIG limit. Therefore, having found that the applicant’s injuries are properly treated within the MIG, it is not necessary for me to determine if the plans are reasonable and necessary.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
29As no benefits are payable, no interest is owed.
ORDER
30The applicant has not met her burden to demonstrate that treatment beyond the MIG is warranted.
31She is not entitled to any of the disputed treatment plans or interest.
Released: December 22, 2023
Bonnie Oakes Charron
Adjudicator