Licence Appeal Tribunal File Number: 20-014748/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:
Issam Terkie
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Matthew Frontini
APPEARANCES:
For the Applicant:
Matthew J. Gervan, Counsel
For the Respondent:
Darrell March, Counsel
HEARD:
By Way of Written Submissions
REASONS FOR DECISION
BACKGROUND
1The applicant was involved in an automobile accident on October 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)1 (the “Schedule”).
2The applicant sought funding for medical benefits beyond the $3,500.00 funding limit of the Minor Injury Guideline (“MIG”). Wawanesa Mutual Insurance, the respondent, denied the applicant’s claims for both psychological and physical treatments and the cost of medication because, it determined that all of the applicant’s injuries fit the definition of “minor injury” found in s. 3(1) of the Schedule.
3The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The applicant’s position is that his injuries do not fit the definition of “minor injury” within the MIG. If he is correct, I must then address whether the medical treatments and medication expenses claimed are reasonable and necessary.
ISSUES
4The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and subject to the $3,500.00 limit and the MIG?
Is the applicant entitled to $4,262.80 for physiotherapy services, proposed by Quality Care Physiotherapy in a treatment plan (OCF-18) submitted on March 26, 2019?
Is the applicant entitled to $3,198.90 for chronic pain treatment, proposed by Seekers Centre in a treatment plan (OCF-18) submitted on October 30, 2018?
Is the applicant entitled to $2,144.93 for psychological services, proposed by Dr. Marc Carriere in a treatment plan (OCF-18) submitted on February 10, 2020?
Is the applicant entitled to $407.30 for medications denied on June 24, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s.10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
5I find that the applicant sustained a minor injury and is subject to the MIG funding limit of $3,500.00. As he has already exhausted the limit, the applicant is not entitled to the further benefits in dispute.
6As the applicant is not entitled to any of the medical benefits, no interest is payable and the applicant is not entitled to an award under s. 10 of O. Reg 664.
ANALYSIS
THE MINOR INJURY GUIDELINE
7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
8A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.
9The applicant bears the burden of establishing that his injuries are not minor, and that the MIG and the related funding limit, should not apply.
10In this case, the applicant claims to suffer from psychological injuries and a chronic pain disorder. The applicant submits these injuries are outside the MIG. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.
Psychological Impairment and the MIG
11The applicant relies on the psychological evaluation dated August 9, 2019 by Dr. Pierre-Louis, psychologist. Dr. Pierre-Louis’ clinical notes summarize the applicant’s self-description of his mood, chronic pain, anxiety and poor sleep. Dr. Pierre-Louis ultimately diagnosed the applicant with PTSD, major depression and chronic pain. Dr. Pierre-Louis’ evaluation does not make reference to any objective testing or scoring and does not mention any validity testing.
12The applicant also relies on the psychological assessments of Dr. Carriere, psychologist, in reports dated October July 24, 2020 and October 23, 2021. Dr. Carriere diagnosed the applicant with “somatic symptom disorder, predominant pain and major depressive disorder, with anxious distress, moderate.” Dr. Carriere also noted that the applicant appeared to have difficulty understanding the test items, for example endorsing both high levels of social interest and low levels of social interest.
13With respect to Dr. Pierre-Louis’ diagnosis of PTSD, I note that Dr. Carriere’s first assessment of the applicant specifically indicated that the applicant did not meet the clinical criteria for PTSD. Dr. Carriere’s second assessment noted that the applicant’s symptoms appear to be much more severe and he now meets the diagnosis for PTSD.
14Dr. Carriere’s assessment notes the applicant’s tendency to endorse a high scoring for psychological symptoms and impairments. Dr. Carriere noted that this tendency may be explained by the applicant desiring to appear more ill than would objectively be case. Also, while Dr. Carriere’s second report notes that the applicant’s symptoms have not improved since the first assessment, it does not comment or provide a rationale for the increase in symptomatic reporting during the second assessment.
15The respondent relies on the psychology examination report and addendum of Dr. Ronald Frey to support its position that the applicant has not sustained a psychological injury that would warrant removal from the MIG.
16Dr. Frey assessed the applicant twice as described in reports dated January 7, 2019 and September 11, 2019. He ultimately did not diagnose the applicant with a psychological injury, but, rather opined that the applicant was feigning a psychological injury. Dr. Frey provided a DSM-V diagnosis of malingering.
17Inconsistencies in the applicant’s test scores and clinical presentation were noted by Dr. Frey during his first assessment of the applicant. These inconsistencies were even more pronounced during his second assessment of the applicant. The applicant’s test scores were inconsistent with his clinical presentation. For example, the applicant’s scores were more consistent with an individual that had experienced traumatic brain injury resulting in significant neurological impairment, which was inconsistent with the applicant’s presentation or his own description of his impairments.
18As noted above, the diagnoses provided by Dr. Pierre-Louis were not based on objective psychometric testing, and so I place less weight on them compared to the opinions of Dr. Carriere and Dr. Frey. Further, Dr. Pierre-Louis’ diagnosis of PTSD was not supported by either the psychological testing of Dr. Carriere or Dr. Frey.
19Dr. Carriere’s opinion is based on self-reporting by the applicant, which he acknowledges appears to be reflective of a more serious illness than would objectively be expected. Dr. Carriere’s reports and addendum do attempt to provide an explanation for the applicant’s high scores as a cry for help. However, they do not address the specific inconsistencies detailed by Dr. Frey related to the applicant’s reporting, compared to his clinical presentation and observable neurological functioning.
20Overall, I prefer the evidence of Dr. Frey over Dr. Carriere and find the applicant has not suffered a psychological injury which warrants treatment beyond the funding limit provided by the MIG.
Chronic Pain Disorder and the MIG
21The applicant claims that he is experiencing chronic pain as a result of the accident. Based on the applicant’s reporting, several heath care practitioners have indicated that the applicant has chronic pain.
22Two weeks after the accident, the applicant’s family doctor, Dr. Adbulkarim, referred the applicant for a chronic pain assessment.
23The applicant was specifically assessed for chronic pain by the Centres for Pain Management on June 7, 2019. The report does not indicate the specific practitioner that performed the assessment on behalf of the Centres for Pain Management, or that individual’s qualifications. The assessment concluded that the applicant had chronic pain, although it did not refer to the AMA Guides. I note that the report does not provide any information regarding the reliability of the assessment. It is vague.
24As mentioned above, Dr. Pierre-Louis also diagnosed the applicant with somatic symptom disorder and predominant pain. As previously discussed, Dr. Pierre-Louis’ assessment does not make reference to any objective testing or scoring, and does not mention any validity testing.
25Dr. Carriere also diagnosed the applicant with having chronic pain on the basis of meeting three of the six criteria as a major characteristic of chronic pain from the AMA Guides. These three criteria were: (1) excessive dependence on health care providers, spouse, or family; (2) withdrawal from social milieu, including work, recreation, or other social contracts; and (3) development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviours.
26The first two criteria above appear to be completely based on the applicant’s self-reporting to Dr. Carriere. The third criteria is based on Dr. Carriere’s diagnosis of psychological impairments resulting from the accident. As described in the section above, I am persuaded by the respondent’s evidence establishing that the applicant has not suffered a psychological impairment. Accordingly, at best, the applicant only meets two of the AMA Guides criteria for chronic pain, which does not support a finding of chronic pain.
27The respondent’s assessments by Dr. Frey and Dr. Boucher also provide compelling reasons to be critical of the applicant’s reported chronic pain.
28Dr. Boucher, a medical doctor specializing in the management of long-term impact injury in chronic form, initially assessed the applicant on December 7, 2018. Despite subjective complaints by the applicant, Dr. Boucher did not identify any objective evidence of injury beyond soft tissue injuries to his spine and noted near normal range of motion testing. Dr. Boucher also noted the inconsistencies between the clinical observations and the applicant’s reported pain, suggesting symptom magnification/claim focus. For example, simulation tests based on movements that the applicant reported causing pain without actually causing that movement.
29Dr. Boucher assessed the applicant again on August 27, 2019 and noted that the assessment was “replete with evidence of pain amplification along with non-physiologic findings.”
30I note that the chronic pain assessment conducted by Centres for Pain Management relied on by the applicant, does not detail any testing for symptom magnification as reported by Dr. Boucher.
31Dr. Boucher’s and Dr. Frey’s reports provide substantial evidence of pain and symptom magnification. Dr. Carriere also observed the applicant’s tendency to report symptoms at a very high level that would be higher than objectively expected, while the chronic pain assessment the applicant relies on does not address this issue at all. In comparing the totality of the evidence, I prefer the respondent’s evidence, and find the applicant has not suffered chronic pain which warrants treatment beyond the funding limit provided by the MIG.
32Based on the evidence before me, the applicant has not established that he suffered anything other than minor injuries. He is subject to the MIG funding limit of $3,500.00.
33As the MIG funding limit has been exhausted, it is not necessary to determine whether the remaining treatment plans are reasonable and necessary.
Interest and Award under section 10 of Regulation 664
34I reviewed the evidence in its entirety and found the applicant’s injuries fall within the MIG. As a result, the applicant is not entitled to the disputed benefits, interest thereon, or an award.
ORDER
35I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, a determination of whether the treatment plans are reasonable and necessary is not required;
iii. The applicant is not entitled to an award pursuant to s. 10 of Regulation 664, nor interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
36The application is dismissed.
Released: February 15, 2023
__________________________
Matthew Frontini
Adjudicator