Licence Appeal Tribunal File Number: 21-001521/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:
Shehla James
Applicant
and
Dominion of Canada General Insurance Company
Respondent
DECISION AND ORDER
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Shehla James, Applicant
Laura Di Paul, Paralegal
For the Respondent:
Dominion of Canada General Insurance Company
Natalie Zamick, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on December 18, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”)1.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The following issues are to be decided:
a. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the $3,500.00 treatment limit under the Minor Injury Guideline (“MIG”)?
b. Is the applicant entitled to $1,995.00 for psychological services, proposed by Scarborough Medical Centre in a treatment plan (“OCF-18”) dated April 10, 2019?
c. Is the applicant entitled to $1,222.16 for chiropractic services, proposed by Scarborough Medical Centre in an OCF-18 dated April 10, 2019?
d. Is the applicant entitled to $2,925.60 for chiropractic services, proposed by Scarborough Medical Centre in an OCF-18 dated July 12, 2019?
e. Is the applicant entitled to $3,963.64 for psychological services, proposed by Scarborough Medical Centre in an OCF -18 dated July 19, 2019?
f. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
a. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
b. The four treatment plans in dispute are not payable; and
c. The applicant is not entitled to interest.
ANALYSIS
4The applicant was in an automobile accident. She did not lose consciousness, but she reported to be disoriented at the time of the accident. The applicant called the police and emergency medical services to the scene but was not transported to the hospital. The applicant returned home after the accident.
5For the reasons outlined below, I find that the applicant’s impairments are predominately minor as defined by the Schedule and subject to the treatment limits of the MIG.
Applicability of the Minor Injury Guideline (“MIG”)
6The 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.”
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
8An 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 in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.2
Did the applicant suffer physical injuries that warrant the removal from the MIG?
10I find that the evidence establishes that the applicant’s physical injuries fall within the definition of a minor injury for the reasons that follow.
11The applicant submits that her accident-related pain requires treatment beyond the MIG. In support of her position that her physical injuries are not minor, the applicant relies on the clinical notes and records (“CNRs”) of Dr. Ghazanfar Siddiqui, family physician, Dan Shlepakov, chiropractor and Dr. Dustin Yen, chiropractor.
12In Dr. Siddiqui’s CNRs dated December 19, 2018, the applicant reports having pain in her neck, shoulders and back as well as headaches. Dr. Siddiqui diagnosed the applicant with whiplash, prescribed painkillers as a form of treatment and referred the applicant for an x-ray. An x-ray was taken of her thoracic and lumbar spine on December 19, 2018. It showed no fracture and concluded “nil acute”.3 The applicant returned to see Dr. Siddiqui on December 21, 2018, with intermittent lower back pain. Dr. Siddiqui’s CNRs note lumbar strain/spasm and advise the applicant to use Tylenol 500mg.
13The applicant relies on a Disability Certificate (“OCF-3”) dated January 25, 2019 completed by Dan Shlepakov, which reports that although the applicant returned to work, she continues to suffer from a variety of physical4 and psychological5 injuries.
14The applicant also relies on the Minor Injury Treatment Discharge Report (“OCF-24”) dated March 30, 2019, completed by Dustin Yen, which provides that in his opinion the applicant is only partially able to complete the essential tasks of her employment, care-giving and housekeeping activities.
15The respondent relies on V.G. v. Aviva Insurance6 which provides that the applicant must prove on a balance of probabilities that ongoing pain is of a significant level or accompanied by some functional impairment or disability and is not merely sequelae or a symptom of minor injuries.
16The respondent submits that there is no evidence supporting the fact that the applicant has injuries beyond those that would be considered to be “minor”. The respondent submits that the applicant did not attend the hospital after the accident, and when she did see Dr. Siddiqui, she was diagnosed with whiplash and her x-ray revealed no fracture. The respondent highlights that any visits to Dr. Siddiqui following December 21, 2018 were to discuss blood test results, life-style measures and diet, and made no mention of any accident-related pain or injuries.7
17The respondent highlights that Dan Shlepakov is a chiropractor, not a medical doctor or physician and submits that all listed injuries citied in the OCF-3 within his field of expertise, are sprain and strain injuries covered by the definition of minor injury.
18Furthermore, the respondent relies on the Insurer’s Examination (“IE”) report by Dr. Abdul Wahab Khan, physiatrist dated September 23, 2019. Dr. Khan opined that the applicant sustained soft tissue sprain/strain injuries, and that in his opinion the applicant reached maximum medical recovery. Dr. Khan’s report also noted that applicant was independent with activities of daily living, personal tasks and household chores. She worked regular hours and exercised at the gym.8
19After considering the evidence and submissions of the parties, I find that the applicant has not met her evidentiary onus. I place more weight upon the conclusions rendered by the two medical physicians, Dr. Siddiqui and Dr. Khan, who determined that the applicant suffered whiplash and a minor strain type injury. This is also supported by the observations of Dan Shlepakov.
20Lastly, I note that at no point, did Dr. Siddiqui refer the applicant to any specialists for further investigation or treatment for physical injuries nor did he diagnose the applicant with non-minor physical injuries as a result of her accident.
21I find that the applicant’s injuries fall squarely within the definition of a minor injury as defined by section 3(1) of the Schedule and therefore, I find that the applicant’s physical injuries do not warrant a removal from the MIG.
Did the applicant suffer psychological impairments that justify the removal from the MIG?
22In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.
23For the reasons that follow, I find that the applicant did not sustain psychological impairments that would remove her from the MIG.
24The applicant relies on the OCF-3 dated January 25, 2019, completed by Dan Shlepakov, which documents psychological9 injuries and recommends that the applicant complete a psychological assessment.10 The applicant submits that the recommendation for a psychological assessment should not be dismissed on the basis that Mr. Shelpakov is not a medical physician. I disagree, finding this recommendation to be outside the realm of his expertise as a chiropractor.
25The applicant also relies on a July 5, 2019, psychological assessment conducted by Dr. Harinder Mrahar, psychologist, who completed a semi-structed clinical interview and administered psychometric testing. Dr. Mrahar opined that the applicant requires psychological intervention.11 Dr. Mrahar did not review any of the applicant’s medical records in preparing the report.
26The respondent submits that the findings of Dr. Mrahar should be given little weight as Dr. Mrahar did not consider or review the CNRs of Dr. Siddiqui which does not reference psychological complaints. In support of its position, the respondent cites B.J. v. Aviva General Insurance, where the Tribunal rejected the diagnosis of the applicant’s psychological assessor when the records of her family doctor made no mention of any psychological complaints.
27The respondent relies on the IE report of Dr. David Direnfeld, psychologist, dated September 23, 2019. Based on the results of the structured clinical interview for DSM-5 and corroborated by the results of the Personality Assessment Inventory and several psychometric measures, Dr. Direnfeld opined that the applicant did not present with a psychological injury or impairment and did not meet diagnostic criteria for any psychological disorder. Dr. Direnfeld concluded that the applicant had not suffered a psychological impairment as a result of the accident.12
28I note that the CNR’s are completely void of any complaint or diagnosis of a psychological impairment. In reviewing the applicant’s medical records there is no indication of psychological symptoms, prescriptions, or referrals.
29When considering the applicant’s evidence, I afford little weight to Dr. Mrahar’s opinion, as I agree with the respondent that the findings were out of line with the applicant’s submissions and CNRs. I am persuaded by the similarities of the matter before me and the finding in B.J. v. Aviva General Insurance. At no point in time did the applicant report symptoms indicating psychological impairments to Dr. Siddiqui, her family physician. To the contrary, the April 5, 2019, CNRs of Dr. Siddiqui indicate that the applicant “would like [him] to sign the form to say that she [the applicant] has no psychological symptoms after accident denies all the questions on the form.” I note that the completed form of Dr. Siddiqui was not included in the applicant’s application.
30I am persuaded by the opinion of Dr. Direnfeld as he had the opportunity to review the applicants CNRs in preparing his report. This allowed him to have a well-rounded understanding of the applicant and to complete a thorough assessment.
31Lastly, I place little weight on the OCF-3 completed by Dan Shlepakov, as I find psychological injuries beyond the scope of practice of a chiropractor.
32I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG when the CNRs from her family physicians are silent in that respect.
the disputed treatment plans
33The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG’s limits. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required. She is not entitled to them.
INTEREST
34Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.
order
35The application is dismissed,
36I find that:
a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500,00 limit of the MIG;
b. The treatment plans in dispute are not payable; and
c. The applicant is not entitled to interest.
Released: January 6, 2023
Monica Ciriello
Vice-Chair
Footnotes
- O. Reg. 34/10 as amended.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
- Armadale X-ray and Ultrasound Clinic, dated December 19, 2018.
- Headaches, malaise and fatigue, nausea, injuries to the entire spine, muscles, and tendons at neck level, injuries to the sacroiliac joint, sprain and strain at the shoulder joint and low back pain.
- Stress and insomnia.
- V.G. v. Aviva Insurance (18-002569/AABS)
- CNRs Dr. Ghazanfar Siddiqui, dated February 8, 2019, April 5, 2019, May 24, 2019, August 2, 2019, August 7, 2019, November 1, 2019, November 8, 2019, January 29, 2020, February 28, 2020, April 8, 2020, August 21, 2020.
- Physiatry Assessment Report, dated September 23, 2019 completed by Dr. Khan.
- Stress and insomnia.
- OCF-3 dated January 25, 2019, completed by Dr. Dan Shlepakov.
- Psychological Assessment Report, dated July 5, 2019 completed by Dr. Mrahar.
- Psychological Assessment Report, dated September 23, 2019, completed by Dr. Direnfeld.```