Citation: Ekubor v. Economical Insurance Company, 2023 ONLAT 20-006028/AABS

Licence Appeal Tribunal File Number: 20-006028/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:

Tracy Ekubor

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on November 5, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues in dispute are:

i. Are the applicants’ 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”)?

ii. Is the applicant entitled to income replacement benefits for the period from May 11, 2018 to December 31, 2018, and if so, in what amount per week?

iii. Is the applicant entitled to a rehabilitation benefit in the amount of $174.60 ($1,299.31 less $1,124.71) for physiotherapy recommended by Physio Fix & Fitness in a treatment plan (“OCF-18”)?

iv. Psychological services recommended by Imperial Medical Assessments in an OCF-18?

v. Is the applicant entitled to $2,486.00 for a psychological assessment recommended by Imperial Medical Assessments in an OCF-18?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the OCF-18s in dispute are not payable;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

4Resolved – the applicant’s claim for income replacement benefits was withdrawn prior to the written hearing.

ANALYSIS

The Minor Injury Guideline

5The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

6Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹

8The applicant has already exhausted the $3,500.00 MIG treatment limit. The Applicant submits that she has a pre-existing condition which precludes her recover within the MIG. Alternatively, she submits she sustained a psychological injury, which is not included in the definition of a minor injury.

Pre-Existing Condition and the MIG

9I am not persuaded the applicant has established on a balance of probabilities that she suffered any pre-existing condition, which would otherwise preclude her recovery is subject to the MIG and the $3,500.00 funding limit on treatment.

10It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

11Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

12To establish she suffered from pre-existing back pain, the applicant relies on a pre-accident clinical note and record by Dr. Bandukwala dated August 10, 2017. It was noted the applicant was suffering from mechanical back pain, but there were “no back red flags”.² Dr. Bandukwala recommended physiotherapy and weight loss.³ The issue of back pain was raised by the applicant with regard to correspondence to Toronto Community Housing dated August 10, 2017, in which she sought medical priority for housing. Specifically, it was noted she had been suffering intermittent mechanical lower back pain for eight years and was not capable of climbing multiple flights of stairs.⁴

13Otherwise, there was one additional comment in Dr. Bandukwala’s clinical notes and records on November 15, 2018, noting pre-existing back pain, however, exacerbation of this pain was not linked to the accident.⁵ Similarly, when she visited Dr. Anthony Di Fonzo at the Releva Chronic Pain Centre on January 7, 2019, more than a year post-accident, she noted upper back and lumbar pain for only the previous three months.⁶ In reporting her past medical history to Dr. Di Fonzo, she made no report of pre-existing back pain prior to the accident in November 2018.

14The applicant also failed to report her pre-existing back pain to the majority of the medical assessors. It was not listed in Dr. Sarvin Ghadam’s Psychological Assessment Report dated April 20, 2018 relied upon.⁷ Nor was pre-existing back pain mentioned in any of the reported medical history provided to the Insurer’s Examination (“IE”) assessors in four separate expert reports.

15The clinical notes and expert medical reports provide an inconsistent and conflicting history of reports related to the applicant’s alleged pre-existing back pain. Although the correspondence to Toronto Community Housing notes an eight-year history of back pain, this is not evident in any of the other records. The applicant has also failed to provide any link between her alleged pre-existing back pain and how it may prevent maximal recovery within the MIG. Nor did the family physician make any recommendations for further treatment, or referrals related to the applicant’s alleged back pain post-accident.

16Given the evidence tendered, I find that the applicant has not established she suffered a pre-existing medical condition prior to the accident, which would otherwise remove her from the MIG.

Psychological Impairment and the MIG

17Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of a “minor injury.” I am not persuaded the applicant has adduced sufficient evidence to establish she suffered an accident-related psychological impairment.

18The clinical notes and records provided include no diagnosis of psychological impairment, nor was the applicant prescribed any medications related to potential psychological issues. The reporting of anxious symptoms was sporadic between August 2017 and November 2020 and fall below the level of severity warranted to find that she sustained a psychological injury as a result of the accident.

19Specifically, the applicant described pre-accident feelings of anxiety to Dr. Bandukwala on August 10, 2017, about three months prior to the accident.⁸ At that time the notes indicate a potential referral for cognitive behavioural therapy. However, there has been no evidence presented that the applicant attended any psychological counselling as a result. Other references in the clinical notes indicate her feelings of being “stressed out” on December 12, 2017⁹, or worsened mood on May 28, 2018.¹⁰ On November 4, 2020, she noted feeling depressed, but it was linked to her weight gain, and not to the subject accident.¹¹ When the potential of counselling was raised by Dr. Bandukwala on July 10, 2018, the applicant declined “for now”.¹²

20Otherwise, I find the psychological assessment report by Dr. Ghadam, clinical psychologist, dated December 22, 2019, relied upon by the applicant, uncompelling. Dr. Ghadam diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, specific phobia (situational passenger type), and features of pain disorder associated with psychological factors and a generalized medical condition.¹³ These diagnoses were based on a clinical interview and the psychometric testing. However, this report failed to consider any documentary sources of information, including the extensive clinical notes and records. It appears Dr. Ghadam relied solely on the applicant’s self-reporting regarding her ongoing depressive symptoms, background, and medical information. Given the inherent weaknesses in this report, I place little weight on Dr. Ghadam’s finding that the applicant’s psychological diagnoses were materially triggered by the subject accident.

21The respondent relies on two separate Psychological Assessment Reports provided by Dr. Arnold Rubenstein, Clinical and Forensic Psychologist. The first report dated April 20, 2018 concluded that the results of the psychometric testing were not reliable based on the applicant’s symptom amplification.¹⁴ As a result, Dr. Rubenstein opined that the applicant had not sustained any diagnoseable psychological impairment as a direct result of the accident.¹⁵ However, like Dr. Ghadam’s report, this assessment was based largely on the applicant’s self-reporting related to her symptoms and previous medical history.

22Dr. Rubenstein’s second Assessment Report dated December 11, 2019, is persuasive. Like the April 20, 2019 report, this report indicated invalid findings due to symptom amplification across all validity scales for the psychological testing administered.¹⁶ As a result, Dr. Rubenstein again opined that there was no diagnosable psychological impairment as a direct result of the subject accident.¹⁷ However, in this instance, Dr. Rubenstein conducted a thorough review of the applicant’s clinical notes and records, including the notes of Dr. Bandukwala, treatment records from the physiotherapy provider, and the other IE reports. Thus, I am able to conclude that his opinions were not based solely on the applicant’s self-reporting, but based on the clinical interview, objective psychometric testing, and a review of the applicant’s medical history.

23Given the lack of consistent reporting of psychological symptoms, the weaknesses of Dr. Ghadam’s report, and the strength of both of Dr. Rubenstein’s reports, I find that the applicant has not established she suffered a psychological impairment as a result of the accident. As a result, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of minor injuries.

Chronic Pain and the MIG

24The applicant must demonstrate on a balance of probabilities that she suffers from a chronic pain condition whereby her functionality has been affected in order to find that she sustained an injury that is not included in the minor injury definition. In this matter, I have been provided little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on her functionality.

25The applicant refers to the American Medical Association Guides (“AMA Guides”)¹⁸ to establish she suffers from chronic pain as a result of the accident. The AMA Guides state that at least three of the following criteria must be met for a diagnosis:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

26The applicant is not required to demonstrate that she meets these criteria. Rather, they provide helpful guidance as an interpretative tool for understanding how pain affects an individual’s functional capacity.

27In relation to the AMA Guide criteria, I am only satisfied that the applicant has demonstrated that she withdrew from her previous store and seamstress business as a result of potential pain symptoms. She repeatedly reported this to various assessors and to Dr. Bandukwala. However, I am not satisfied that the applicant meets any of the other of the five criteria listed above in order to establish chronic pain as a result of the accident.

28The applicant was referred to Releva Chronic Pain Centre and Dr. Di Fonzo on January 7, 2019. The applicant described constant pain negatively affecting her mood, memory, sleep, energy, concentration, resulting in stress and anxiety, irritability, frustration, and anger.¹⁹ The applicant indicated that physiotherapy, chiropractic, and massage treatment had no benefit regarding her pain. Following this consultation, Dr. Di Fonzo diagnosed the applicant with mechanical neck and back pain with myofascial features.²⁰ Notably, he did not diagnose the applicant with chronic pain or chronic pain syndrome, nor make any further comment regarding her pain symptoms in relation to the subject accident.

29Although a diagnosis of chronic pain or chronic pain syndrome is not required for removal from the MIG treatment limits, the applicant must still demonstrate a chronicity of pain symptoms. Although Dr. Bandukwala commented that her impression was “chronic mechanical back pain” after reviewing the report from Dr. Di Fonzo on June 11, 2018, no further treatment was recommended or administered regarding the applicant’s pain symptoms.²¹ The applicant’s reports of pain were sporadic to Dr. Bandukwala between November 2017 and September 2020. Specifically, on September 16, 2020, she again noted “no red flags for cauda equina, infection, traumatic injury”.²²

30The evidence demonstrates that the Applicant remains functional. The Physiatry IE Report provided by Dr. Steven Baker, dated April 20, 2018, indicated the applicant was independent with all of her personal care tasks.²³ Following a physical assessment, Dr. Baker concluded the applicant’s lower back pain was secondary to mild lumbar strain and noted no functional impairments. From a strictly musculoskeletal perspective Dr. Baker noted no limitations or restrictions that may delay or prevent the applicant from reaching full recovery, citing only uncomplicated soft tissue injuries.²⁴ Similarly, the Functional Abilities Evaluation IE Report by Zachary Bain, Chiropractor, dated April 20, 2018 concluded the applicant demonstrated ranges of motion, strengths, and functional tolerances to meet or exceed the physical requirements of her pre-accident work.²⁵

31The totality of the evidence, including the notes of Dr. Bandukwala, X-rays taken in November 2017, the records of Physio Fix & Fitness, and all of the assessment reports – detail only sporadic reports of soft-tissue pain related to the accident. The applicant has not otherwise demonstrated a functional impairment as a result of this pain, particularly related to the AMA Guide criteria.

32As a result, I find the applicant has failed to demonstrate on a balance of probabilities that her injuries fall beyond the MIG treatment limits due to chronic pain.

OCF-18s and Assessment at Issue

33Given that the $3,500.00 treatment limit was previously exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

Interest

34Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

35The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. The OCF-18s in dispute are not reasonable and necessary because they propose treatment beyond the MIG and the $3,500.00 funding limit on treatment;