Citation: Persaud v. BelairDirect, 2022 ONLAT 20-009839/AABS

Licence Appeal Tribunal File Number: 20-009839/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:

Ryan Persaud

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Marc Golding, Paralegal

For the Respondent:

Leah Dick, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ryan Persaud, (“the Applicant”), was involved in an automobile accident on November 19, 2018, and sought benefits from BelairDirect, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016), (“the Schedule”).

2The Respondent determined that the Applicant sustained a minor injury, subjected him to the Minor Injury Guideline, (“the MIG”), and denied him entitlement to certain treatment and assessment plans. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute for this hearing are:

1. 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 and in the Minor Injury Guideline?

2. Is the Applicant entitled to a medical benefit in the amount of $3,696.50 for physiotherapy services recommended in a treatment plan dated November 26, 2018?

3. Is the Applicant entitled to a medical benefit in the amount of $2,520.00 for an orthopaedic assessment recommended in a treatment plan dated February 1, 2019?

4. Is the Applicant entitled to a medical benefit in the amount of $2,055.32 for a psychological assessment recommended in a treatment plan dated February 1, 2019?

5. Is the Applicant entitled to a medical benefit in the amount of $1,977.05 for physiotherapy services recommended in a treatment plan dated May 15, 2019?

6. Is the Applicant entitled to a medical benefit in the amount of $1,384.70 for physiotherapy services recommended in a treatment plan dated July 12, 2019?

7. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment recommended in a treatment plan dated July 20, 2020?

8. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule. He is not entitled to the benefits claimed because they propose goods and services that are not contemplated in the MIG and exceed the $3,500.00 funding limit for medical and rehabilitation benefits for minor injuries.

BACKGROUND

5The Applicant was the driver of a vehicle which was struck on the side by another vehicle that was exiting a commercial plaza in an urban area. No police or ambulance attended at the scene of the accident. The Applicant sought no medical attention the day of the collision but went to his family physician, Dr. S. Ralh, eight days later with complaints of low back, left knee, and right shoulder discomfort. Dr. Ralh diagnosed the Applicant with musculoskeletal discomfort, advised him to continue with physiotherapy, prescribed Naprosyn, referred the Applicant for x-rays, and advised to return to the clinic if required. The x-rays conducted showed no bony injury or abnormality, and the Applicant never returned to Dr. Ralh’s office for any accident-related follow-up care after the initial visit on November 26, 2018.

ANALYSIS

6The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule, or that he has a pre-existing health condition which would preclude him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

7The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the Applicant’s entitlement to the treatment and assessment plans in dispute is contingent on a finding that his injuries are not included in the minor injury definition. If so, the Applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.

MINOR INJURY GUIDELINE (“MIG”)

8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “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. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

9Pursuant to section 18(2) of the Schedule, the $3,500.00 funding limit for minor injuries does not apply if the Applicant can demonstrate that he had a documented pre-existing medical condition which would prevent him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit.

10The Applicant claims that he sustained a psychological impairment as a result of the accident. He submits that various reports establish that he presents with depression and anxiety as a result of the accident, which are not included in a minor injury. The Respondent disagrees and submits that some psychological issues can be expected as clinical sequalae of minor, soft tissue injuries and that the onus is on the Applicant to demonstrate that these complaints are not merely psychological sequalae.

11I find that the Applicant has not met his onus to demonstrate that his injuries are not included in the “minor injury” definition in section 3 of the Schedule.

Psychological Injuries

12Psychological injuries are not included in the minor injury definition. The onus is on the Applicant to demonstrate that he sustained a psychological injury as a result of the accident and that the injury is more than sequelae of his soft tissue injuries.

13I find that the evidence demonstrates that the Applicant’s accident-related psychological complaints do not rise to the level to find that he sustained a psychological injury as a result of the accident. Thus, I conclude that he sustained a minor injury as defined in section 3 of the Schedule.

14The disability certificate by Dr. P. Porco, chiropractor, dated November 26, 2018 is uncompelling and contradicts the initial assessment of Dr. Ralh. Dr. Porco assessed the Applicant and completed a disability certificate identifying that the Applicant sustained a dislocation, sprain and strain of the lumbar spine and pelvis, sprain and strain of the cervical and thoracic spine and sacroiliac and shoulder joints. Dr. Porco opined that the Applicant is unable to perform the essential tasks of his employment as a result of the accident and is unable to carry on a normal life. The document notes that the Applicant’s injuries continuously prevent him from engaging in normal activities of daily living such as bending, twisting, lifting, and recreational activities. The anticipated duration of disability is 9-12 weeks. Yet, Dr. Ralh’s assessment of the same date noted that the Applicant’s primary complaints were low back, left knee, and right shoulder discomfort. Dr. Ralh found that the Applicant had full range of motion (“ROM”) throughout his body with only some discomfort during end range of motion testing of the lumbar spine. There is no indication or suggestion in Dr. Ralh’s clinical notes and records (“CNRs”) that the Applicant’s accident-related sprain and strain injuries impair him from completing his tasks of daily living or employment in any material way.

15The Applicant reported no significant physical or psychological symptoms to Dr. A. Kopyto, physician. Dr. Kopyto assessed the Applicant and issued an insurer’s examination, (“IE”), report dated Jan 25, 2019. Dr. Kopyto noted in the report that the Applicant complained of pain in the neck, right shoulder, and low back which is aggravated by cold weather and prolonged sitting and standing. The Applicant reported that his mood was “here and there” but had no complaints. On examination, the Applicant demonstrated normal active ROM in the neck, lumbar spine, hips and knees as well as full ROM in both shoulders. Dr. Kopyto concluded that the Applicant sustained a minor injury. Dr. Kopyto completed addendum reports dated January 31, 2019 and February 25, 2019 whereby Dr. Ralh’s CNR’s and the x-rays were reviewed, and maintained that the Applicant sustained a predominantly minor injury as a result of the accident.

16No significant, accident-related, impairments were identified in other IE reports. The Applicant was assessed by Dr. Kruger, physician, who issued an IE report dated November 13, 2020. Dr. Kruger noted that the Applicant complained of neck, low back, and left knee pain as well as difficulty initiating and maintaining sleep with associated fatigue. All examinations were normal but for some pain at end ranges of movement at the neck and low back. Dr. Kruger concluded that the Applicant sustained sprain and strain injuries, which are consistent with a minor injury. Dr. M. Khaled, physician, assessed the Applicant and issued IE report dated June 22, 2021. The report noted that the Applicant’s primary complaint is intermittent low back pain sleep disturbance, and mood fluctuations. Dr. Khaled’s assessment of the Applicant was completely normal. Dr. Khaled concluded that he was unable to attribute residual pain to the subject accident.

17Dr. Proco listed several symptoms in the disability certificate that were not identified by Dr. Ralh during an assessment the same day. The disability certificate notes tension-type headaches, other sleep disorders, nervousness, and irritability and anger as accident-related injuries. Dr. Proco used the document to recommend that the Applicant participate in an orthopaedic or neurological assessment, a functional abilities evaluation and in-home assessment to determine the Applicant’s need for attendant care and housekeeping assistance, and a psychological assessment to address his psychological healing barrier. Whereas Dr. Ralh assessed the Applicant and made note of no psychological complaints and referred the Applicant for x-rays only and not for any further consultation with specialists. I prefer the opinions and recommendations, or lack thereof, from Dr. Ralh, a family physician who is more qualified than a chiropractor to identify and assess psychological injuries and make referrals to the appropriate specialists.

18The psychological pre-screen report with A. Potrzebski, psychotherapist, under supervision of Dr. I. Gladshteyn, psychologist, dated Feb 1, 2019 is uncompelling evidence of accident-related psychological injuries. The pre-screen report states that the Applicant reported hypervigilance and nervousness in a vehicle, social withdrawal, and finds little pleasure in life. The pre-screen report states that physical and emotional problems interfere with the Applicant’s present daily functioning. But, similar to the disability certificate by Dr. Porco, the reports in the psychological pre-screen report are different than the reports to other assessors and to the family physician, Dr. Ralh.

19Dr. R. Ratti, psychologist, assessed the Applicant and issued an IE report dated April 8, 2019, and found that the Applicant sustained no psychological impairment as a result of the accident. Dr. Ratti noted that the Applicant completes his activities of daily living independently, has a normal social life, works full time, and continues to drive. Psychometric testing conducted with the Applicant revealed scores in the moderate range for depression and anxiety, but Dr. Ratti concluded that those symptoms were related to past familial relationship issues and not as a result of the accident. In fact, Dr. Ratti felt that the Applicant’s familial relationship issues were significant enough to meet the criteria for Major Depressive Disorder, Mild and Recurrent. The Applicant suggests that Dr. Ratti’s diagnosis is correct, but the cause is incorrect. Yet, the evidence does not support the Applicant’s claim nor such a conclusion. I find Dr. Ratti’s report to be persuasive considering the test results and absence of any accident-related psychological symptoms documented in Dr. Ralh’s CNRs.

20The psychological symptoms reported to psychotherapist V. Sukhoveyeva appear to be amplified relative to the reports to other assessors. Psychotherapist Sukhoveyeva interviewed and assessed the Applicant under the supervision of Dr. I. Gladshteyn, and issued a report dated August 6, 2020. Psychotherapist Sukhoveyeva, after conducting a clinical interview and psychometric testing, diagnosed the Applicant with an Adjustment-Like Disorder with Prolonged Duration of More than Six Months and Specific Phobia, vehicular. The report is uncompelling because the Applicant’s self-reported symptoms are amplified relative to the other reports and the conclusion of the report is anomalous to the testing conducted during the assessment. For example, the report states that the Applicant experiences constant neck, hand, and upper and lower back pain as a direct result of the accident, but Dr. Ralh’s CNRs includes only one accident-related visit and diagnostic imaging conducted thereafter found no abnormalities. The Sukhoveyeva report attributes the Applicant’s use of compression stockings to ongoing foot pain, yet Dr. Ralh’s CNRs and Dr. R. Day’s IEs report dated June 7, 2021, which I will address later, clearly note that the Applicant’s use of compression stockings is related to thrombosis. Psychologically, the report by psychotherapist Sukhoveyeva notes, the Applicant complained of the following as a result of the accident; feeling sad, depressed, generally unhappy, irritable, hopeless, anxious, worries, impatient, angers faster than usual – especially when experiencing headaches. However, these complaints are not in any of Dr. Ralh’s CNRs, nor in the various IE reports by Dr. Ratti, Dr. Kopyto, Dr. A. Kruger, physician, Dr. Khaled, physician, and, Dr. R. Day, psychologist.

21Psychometric testing conducted by psychotherapist Sukhoveyeva revealed no material accident-related psychological injury. Psychometric testing conducted as part of the August 6, 2020 report found that the Applicant scored in the mild range for depression, anxiety, and vehicular phobia during one set of testing and that the Applicant scored below average on other depression, anxiety, and somatization evaluations during another test. The test results indicate that the psychological symptoms experienced by the Applicant do not rise to the level to conclude that he sustained a psychological injury as a result of the accident. Yet, psychotherapist Sukhoveyeva concludes from the testing and interview that the Applicant sustained an Adjustment-Like Disorder with Prolonged Duration of More than Six Months and Specific Phobia, vehicular.

22Lastly, the Applicant was assessed by Dr. R. Day, psychologist, who concluded that the Applicant suffered no psychological injury as a result of the accident. The IE report dated June 7, 2021 highlighted that the Applicant developed health challenges following, but unrelated to, the subject accident. Dr. Day noted that in May 2020 the Applicant sought treatment for deep vein thrombosis in his left leg and later, in January 2021, he was hospitalized for 15 days due to occlusions in his chest and lung. Dr. Day noted that the Applicant’s presenting complaints were related to his recent medical problems. The Personality Assessment Inventory test was conducted whereby the Applicant noted ruminative concerns about his physical functioning and health matters, but Dr. Day felt that the concerns are understandable considering the Applicant’s current medical condition as it relates to the deep vein thrombosis and occlusions. Otherwise, Dr. Day noted that the Applicant’s responses were within the average range and that the Applicant did not appear to be suffering from significant phobias or other anxiety issues. Likewise, other test results did not reveal difficulties consistent with depressive symptomology. The Pain Patient Profile was administered, and Dr. Day concluded from it that the Applicant’s scores for depression, anxiety, and somatizations were all in the below average range, compared to other individuals with ongoing pain. Dr. Day addressed symptoms of post-traumatic stress disorder (“PTSD”) and concluded that the accident does not satisfy the necessary stressor criteria for PTSD.

23Dr. Day issued an addendum report dated November 3, 2021. The addendum report was conducted following review of the September 6, 2021 report by N. Zhukova, psychotherapist. Notably, the Zhukova report was never provided as evidence for this hearing. Nevertheless, Dr. Day disagreed with the diagnostic formation in the Zhukova report and wrote that the subject accident does not satisfy the stressor criteria for PTSD. Dr. Day highlighted that the Applicant returned to work on a full-time basis, is able to complete his work tasks, and is not pain focused for a somatic disorder. Dr. Day maintained the opinion in the June 7, 2021 report whereby it was determined that the Applicant did not meet the diagnostic criteria for any accident-related psychological disorder.

24The evidence demonstrates that the Applicant exhibited no remarkable psychological symptoms following the accident. The disability certificate, psychological pre-screen, and the psychological assessment report provided by the Applicant are uncompelling as they are inconsistent with the other reports and appear to amplify the Applicant’s physical and psychological complaints. Further, the pre-screen report and the psychological assessment report conducted primarily by psychotherapists are outweighed by the IE reports by psychologists Dr. Ratti and Dr. Day. The IE reports are also compelling in light of the lack of psychological complaints to Dr. Ralh and the Applicant’s ability to continue driving and return to work as a mechanic/service tech. The IE reports indicate that any accident-related psychological symptoms were not of a magnitude to consider them to be an injury that falls outside of the minor injury definition. Specifically, it appears that, at most, the accident-related psychological symptoms are sequalae of his predominantly minor injury.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS AND INTEREST

25The Applicant sustained a predominantly minor injury as a result of the accident. He is bound by the MIG and the $3,500.00 funding limit on treatment. The disputed treatment and assessment plans proposed goods and services which exceed the funding limit. Thus, an analysis on whether the treatment and assessment plans in dispute are reasonable and necessary is unwarranted.

26Likewise, pursuant to section 51 of the Schedule, interest is only payable on the overdue payment of benefits. Having found no benefits payable, it follows that no interest is payable as well.

CONCLUSION

27The Applicant sustained a predominantly minor injury as a result of the subject accident and is subject to the $3,500.00 funding limit on medical and rehabilitation benefits.

28The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside the MIG and beyond the funding limit.

29No interest is payable because no payments went overdue.