Tsisana Maizuradze v. Unica Insurance Inc., 2023 CanLII 15049

Licence Appeal Tribunal File Number: 20-005374/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:

Tsisana Maizuradze

Applicant

and

Unica Insurance Inc.

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Sevda Guilyeva, Paralegal

For the Respondent: Olga Zemlinsky, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by the Unica Insurance Inc, (the “respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “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 treatment limit under the Minor Injury Guideline (“MIG”)?²

b. Is the applicant entitled to $1236.85 (partially approved up to $1052.10) for chiropractic services, proposed by Dr. Alexander Yu in a treatment plan (“OCF-18”) dated June 11, 2018?

c. Is the applicant entitled to $3090.09 for chiropractic services, proposed by Dr. Tam Pham in an OCF-18 dated June 28, 2018?

d. Is the applicant entitled to $3020.36 for chiropractic services, proposed by Dr. Alexander Yu in an OCF-18 dated August 21, 2018?

e. Is the applicant entitled to $4164.59 for psychological services, proposed by Dr. Svetlana Gabidulina in an OCF-18 dated October 3, 2018?

f. Is the applicant entitled to $2681.92 for chiropractic services, proposed by Dr. Rudi Chan in an OCF-18 dated October 25, 2018?

g. Is the applicant entitled to $1845.72 for a psychological assessment, proposed by Dr. Svetlana Gabidulina in an OCF-18 dated June 28, 2018?

h. Is the applicant entitled to $2000.00 for a chronic pain assessment, proposed by Dr. Getahum Tajedin in an OCF-18 dated February 12, 2019?

i. 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 the treatment within the $3500.00 limit of the MIG;

b. The treatment plans in dispute are not payable; and

c. The applicant is not entitled to interest.

ANALYSIS

4The applicant was injured in a motor vehicle accident, when rear-ended by another vehicle while coming to a stop at an intersection. There was no airbag deployment, and the applicant was able to exit her vehicle independently. The applicant did not require immediate medical attention and did not attend a hospital after the accident.

APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)

5The 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.”

6Section 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.

7An 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.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

9The MIG limit of $3,500.00 has been exhausted.

Does the applicant have pre-existing condition that warrant the removal from the MIG?

10I find that the applicant has not met her onus to demonstrate that she has pre-existing injuries that would preclude her recovery if limited to the MIG.

11The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

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

b. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit on treatment costs under the MIG.

13It is the applicant’s position that she has a pre-existing condition of osteoporosis and documented issues with her back, and knees since 2015 which cannot be treated within the MIG.

14The applicant relies on the clinical notes and records (“CNRs”) of Dr. Naguib Milad, family physician, April 1, 2015, that provide the applicant gets constant palpitations and complaints of chest discomfort center and left side of chest, no other symptoms. The applicant also relies on the April 8, 2015 CNRs of Dr. Milad that state the applicant as osteoporosis. An April 4, 2016 CNR notes that the applicant has back and knee leg pain and constant fatigue with chest discomfort.

15The respondent submits that without compelling and documented medical evidence that the applicant has a pre-existing condition precluding recovery if she is kept within the MIG, the applicant has not satisfied her onus under s. 18(2).

16The respondent takes issue with the applicant’s use of the CNRs of Dr. Milad to demonstrate a pre-existing condition. The respondent provides that the CNRs note palpitations and osteoporosis in 2015, and back/ knee pain and fatigue in 2016, and the applicant did not provide evidence to suggest that these conditions persisted up until the accident. There were no complaints of these conditions noted in Dr. Milad’s CNRs in 2017 or 2018 before the applicant’s accident.

17The respondent cites Siddiqui v. Unica⁴ as an analogous decision. In Siddiqui the adjudicator found an applicant’s ongoing pre-accident concerns of heart disease, allergies, asthma and plantar fasciitis did not remove him from the MIG, as there was no indication these conditions would prevent maximal recovery from soft tissue injuries within the MIG. The Tribunal held that it was not clear from the post-accident records whether any of these conditions were exacerbated by the accident. In this matter, the applicant’s pre-accident conditions are only mentioned once in Dr. Milad’s CNRs, and post-accident records do not demonstrate that these conditions were exacerbated by the accident.

18In reviewing the CNR’s of Dr. Milad, I cannot see how any of these conditions would prevent the applicant from achieving maximal medical recovery from soft tissue injuries if the applicant is subject to the MIG limit. Each of the conditions raised by the applicant were scarcely mentioned in pre-accident records. Furthermore, although the findings in Siddiqui are not binding on me am persuaded by, by the analysis and findings and apply it to this matter.

19I find there is no compelling evidence that the applicant’s conditions would prevent her from reaching maximal recovery if limited to the MIG.

Did the applicant suffer psychological injuries that warrant the removal from the MIG?

20An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

21In 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.

22I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

23The applicant relies on the pre-screening report dated May 9, 2018, by Dr. Svetlana Gabidulina, psychologist. During this assessment the applicant reported post accident sleep disturbances, difficulty with daily living activities, avoidance being in a car as both a driver and a passenger and thereby was self-isolated at home, overall, the applicant described her mood as anxious and nervous.⁵ The applicant attended LifePoint Medical and had a full psychological assessment, Dr. Gabidulina opined that the applicant had anxiety, and diagnosed the applicant with situational (isolated) phobias, severe (automobile anxiety – driver/passenger).⁶

24The applicant also relies on the functional abilities’ evaluation report of Dr. Zachary Bain, chiropractor, dated July 25, 2018, which opined that the applicant has anxiety with driving.⁷ I find the Dr. Bain’s findings outside the scope of a chiropractor.

25The respondent submits that the applicant did not provide any compelling evidence or supporting documentation to document any accident-related psychological issues.

26The respondent relies on the section 44 Insurer Examination (“IE”) psychological assessment by Dr. James Murray, psychologist, dated August 14, 2018. Dr. Murray administered the Trauma Symptom Inventory tests for posttraumatic stress and other psychological sequelae of traumatic events, including, anxiety, depression, and avoidance issues. Dr. Murray also took into account a variety of non-accident factors impacting the applicant’s psychological functioning: not having seen her children since 2012 as they remain in Georgia; uncertainty about her Canadian status as she has a refugee hearing later in August 2018; and her husband being in Georgia grieving the death of his mother.⁸ Dr. Murray opined that the applicant did not present with symptoms of depression, and the testing yielded significant embellishment, exaggerated, and invalid self-reporting. Dr. Murray found no psychological impairments or symptoms and concluded that the MIG limit is appropriate. The applicant submits that Dr. Murray did not review the pre-screening report by Dr. Gabidulina in his psychological assessment.

27The respondent calls into question the reliability of Dr. Gabidulina’s report, submitting inconsistencies with other evidence filed with the Tribunal. This includes a finding in the report that the applicant avoids being in her car, which is inconsistent with the fact that the applicant was driving and involved in another accident on April 28, 2018.⁹

28Lastly, the respondent submits that the applicant did not report any psychological issues to her family physician, Dr. Naguib Milad, whom she saw several times after the accident. The respondent relies on the Tribunal decision in GMK v. Aviva¹⁰ where the adjudicator found the lack of reporting of psychological symptoms to a family doctor significant and concluded that the applicant did not suffer a psychological impairment as her psychological assessor had claimed.

29After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers from a psychological impairment that would remove her from the MIG. In the present case, I am persuaded by the findings of Dr. Murray over Dr. Gabidulina, having found that Dr. Murray completed a holistic assessment of the applicant including taking into account a variety of non-accident factors impacting the applicant’s psychological functioning. Furthermore, the CNRs of Dr. Milad demonstrate that he never referred the applicant to a specialist for any psychological symptoms. Taken together, I find no compelling evidence to demonstrate that the applicant suffered a psychological injury as a result of the accident.

Did the applicant suffer physical injuries that warrant the removal from the MIG?

30I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition for the following reasons.

31The applicant submits that her accident-related injuries require treatment beyond the MIG. In support of her position that her physical injuries are not minor, the applicant relies on the CNRs of Dr. Milad, family physician.

32The applicant saw Dr. Milad post accident on April 16, 2018, complaining of neck, lower back, right and left shoulder pain, right and left knee pain, stiffness, headache and overall stress from the accident. The CNRs of Dr. Milad reveal that the applicant was re-assessed on June 7, 2018, and October 25, 2018, with similar complaints of pain. Dr. Milad diagnosed the applicant with stiff and tender back and neck pain.

33The section 44 IE assessment by Dr. Seyed Hossein Hosseini, physiatrist, diagnosed the applicant with post-traumatic headache query bilateral occipital neuralgia, cervical spine sprain/strain – whiplash associated disorder grade 2, thoracolumbar spine sprain/strain, right knee ligament sprain, strain – nonspecific.¹¹

34The respondent submits that there was no evidence supporting that the applicant has injuries beyond those that would be considered “minor” or soft tissue injuries. Notably relying on the IE assessment of Dr. Hosseini who opined that the injuries sustained by the applicant were predominately minor injuries.

35The respondent also references the Treatment Confirmation Form (“OCF-23”) submitted on behalf of the applicant by Dr. Pham Tam, chiropractor, dated April 18, 2018, which provides the applicant’s injuries are strain and sprain. The respondent also references the Minor Injury Treatment Discharge Report (“OCF-24”) completed by Dr. Alexander Yu, chiropractor dated June 8, 2018 indicating that the applicant’s impairments are predominately minor injury as referred to in the MIG.

36When reviewing the medical evidence of Dr. Milad and Dr. Hosseini, I note that the doctors do not provide any indication of any accident-related complaints aside from soft tissue sprains and strains. This is further supported by both of the chiropractors’ evidence, that the applicant’s injuries are minor.

37The 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.

Chronic Pain

38For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

39The applicant submits that that she has not recovered physically from the accident, her injuries have become chronic, and she requires a chronic pain assessment for further investigation on appropriate treatment. The applicant submits that the duration of the injuries in itself is suggestive of a chronic condition.

40Although the applicant references chronic pain, after considering the evidence before me, I find that there is no evidence of any impairment on the applicant’s functionality nor a diagnosis of chronic pain. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

41The applicant did not provide specific evidence to support a chronic pain argument, there is no evidence from her family physician, Dr. Milad or any other physician regarding chronic pain.

42I further find that the applicant failed to provide evidence demonstrating that she developed or suffers from chronic pain resulting from the accident. In addition, the applicant also failed to refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).¹² The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims.

43The respondent made reference to the AMA Guides and provides compelling arguments that the AMA Guides are not met in this case. The respondent submits that the applicant: is not dependent on prescription drugs; there is no evidence of excessive dependence on health care providers, spouse or family; the applicant has returned to pre-accident self employment as a cleaner and as evidenced by tax records; and there is no evidence of withdrawal from social contacts or recreational activities, but rather the opposite when the applicant travelled to Armenia for over a month in 2020.

44For all the above reasons, the applicant has not met her onus in proving on a balance of probabilities that her accident impairments do not fit within the MIG.

THE DISPUTED TREATMENT PLANS

45The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

46Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.

ORDER

47The application is dismissed, and I 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 an award or interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 42022 CanLII 11145 (ON LAT).
5. 5Psychological Pre-screening, Dr. Gabidulina, dated June 22, 2018.
6. 6Psychological pre-screening, Dr. Gabidulina, dated June 22, 2018
7. 7Insurer’s Functional Abilities Evaluation, Dr. Bain, dated July 25, 2018.
8. 8Psychology Assessment, Dr. Murray, dated August 14, 2018
9. 9Psychology Assessment, Dr. Murray, dated August 14, 2018.
10. 102019 CanLII 101459 (ON LAT).
11. 11Insurer’s Physiatry Assessment, Dr. Hosseini, August 1, 2018.
12. 12American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.