Zikova v. TD General Insurance Company, 2023 CanLII 19834

Citation: Zikova v. TD General Insurance Company, 2023 ONLAT 20-007109/AABS

Licence Appeal Tribunal File Number: 20-007109/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:

Ianna Zikova

Applicant

and

TD General Insurance Company

Respondent

WRITTEN DECISION HEARING

ADJUDICATOR:

Anita John

APPEARANCES:

For the Applicant:

Ianna Zikova, Applicant

Kateryna Vlada, Paralegal

For the Respondent:

Steven Manojlovic, Counsel

Denise Hughes, ADR Representative

Heard in writing:

By Way of Written Submissions

BACKGROUND

1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on May 18, 2017.

ISSUES IN DISPUTE

2The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to $3,948.91 for physiotherapy, proposed by Inline Rehabilitation Centre, in a treatment plan/OCF-18 (“plan”), dated March 5, 2018?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant sustained predominantly minor injuries from the accident in accordance with the Schedule, and that the MIG applies to her. As a result, her claim for the treatment plan and interest is dismissed.

LAW

The Minor Injury Guideline

4Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprains, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

5Subsection 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap 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 a psychological impairment or chronic pain with a functional impairment.

6The onus is on the applicant to show that her injuries fall outside of the MIG¹.

Are the applicant’s injuries out of the Minor Injury Guideline?

7On May 18, 2017, the applicant was rear-ended near the intersection of Highway 401 and Dufferin Road, in Toronto. The applicant was the driver of the vehicle and was at a full stop when she was rear-ended by another vehicle. Neither the police nor an ambulance attended the scene.

8According to the available medical records of the applicant, she did not visit her family doctor (Dr. Eugene Bondarev) until June 1, 2017, 2 weeks following the accident.

9The applicant submitted an OCF-3 on June 1, 2017, completed by Erin Madonia of Inline Rehabilitation Centre. The OCF3 states that, due to the motor vehicle accident, the applicant sustained the following injuries: headaches, sprain and strain of cervical spine, thoracic spine, shoulder joint, lumbar spine, sacroiliac joint post-traumatic stress disorder, other sleep disorders and nervousness.

10On March 28, 2018, an ultrasound was conducted on the applicant’s right shoulder. The shoulder examination was unremarkable as the supraspinatus, infraspinatus and subscapularis tendons were intact without evidence of tear or calcium deposition. The biceps tendon appears normal.

11On March 28, 2018, the applicant’s x-ray was normal as there was no abnormality noted in the bony structure, joint spaces or overlying soft tissues. There is no evidence of arthritis or injury.

12On May 22, 2018, the applicant underwent a s. 44 examination to address the Treatment Plan and applicability of the MIG by physiatrist, Dr. Alborz Oshidari. Dr. Oshidari diagnosed the applicant with right supraspinatus impingement tendonitis and stated that "the injuries fit with the Minor Injury Guideline." As such, he indicated that the treatment plan was not applicable.

13On June 8, 2018, the respondent denied the treatment plan relying on the opinions of experts, Dr. Alborz Oshidari and Dr. Amena Syed.

14On July 5, 2018, the respondent advised the applicant that a total of $3,493.11 had been paid in Medical and Rehabilitation benefits. She had almost reached the $3,500.00 limit.

15I find that the applicant’s physical injuries are “minor injuries” as defined by the Schedule because they can be treated within the MIG.

Does the applicant experience an onset of headaches, disequilibrium, and dizziness due to the accident?

16Concussions and post-concussion issues, if established, fall outside the MIG, because:

i. The MIG relates only to “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition does not include brain injuries.

ii. Concussion and post-concussion syndrome are brain injuries, according to recognized health authorities such as Health Guide Canada and the American Association of Neurological Surgeons (“AANS”) that I find persuasive.

17On June 18, 2017, Dr. Bondarev's notes indicate that the applicant fainted and was unconscious for 1 minute. These notes however do not refer to the motor vehicle accident being the cause of the fainting and unconsciousness.

18On June 21, 2017, Dr. Bondarev’s letter stated that, given the applicant’s history of headaches, which she developed after a motor vehicle accident last year and episode of loss of consciousness, he would refer her for a CT scan of the head to exclude intracranial abnormality.

19On June 28, 2017, the applicant underwent a CT scan of the brain at North York General Hospital, in response to the new onset of headaches. The results of the CT scan were unremarkable as there was no acute intracranial abnormality.

20On July 3, 2018, the applicant was referred to a neurologist due to recurrent dizziness.

21On August 1, 2018, the applicant was assessed by Dr. Prigozhikh who prepared a short report in response to the applicant's complaints of headaches, disequilibrium, and dizziness. The report stated that the applicant presented with a transient mild feeling of disequilibrium, which she developed in mid June 2018 while on vacation in Spain. Her symptoms slowly resolved one month later. “Neurological exam was non-focal today. She is currently asymptomatic.”

22I find that the applicant’s chronic headaches are sequelae of the soft tissue injuries suffered because of the accident. The applicant does not have any neurological diagnosis confirming neurological injuries.

Does the applicant have a psychological impairment?

23The applicant claims that she sustained a psychological injury because of the accident that places her claims outside of the MIG.

24Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments.

25The applicant underwent a s. 44 assessment to address the Treatment Plan and applicability of the MIG by Dr. Amena Syed, Psychologist. The in-person assessment took place on April 16, 2018. The report dated June 5, 2018, outlines the following psychometric tests which were administered to the applicant: Beck Anxiety Inventory (BAI), Beck Depression Inventory II (BDI-II), Davidson Trauma Scale (DTS), Miller Forensic Assessment of Symptoms Test (M-FAST), Million Clinical Multi-Axial Inventory (MCMI), Pain Catastrophizing Scale (PCS-EN), Rey Fifteen-Item Test (Rey-15), Survey of Pain Attitude (SOPA), Wide Range Achievement Test (WRAT-IV), and a Clinical Interview.

26The OCF-3 stated that the applicant suffered from (i) post-traumatic stress disorder, (ii) sleep disorders and (iii) nervousness since the motor vehicle accident.

27In terms of post-traumatic stress disorder, in her interview with Dr. Syed, the applicant categorically denied having distressing memories, nightmares, dissociative reactions, or avoidance issues.

28In terms of sleep, she reported "sometime" having difficulties falling asleep but attributed this to her physical pains. However, she stated she does feel rested when she wakes up in the morning if she gets her complete 6 or 7 hours of sleep. She denies any concerns with fatigue. She also denied experiencing difficulties with her cognitive functions. In short, the objective psychometric testing was found to be “unremarkable for any psychological distress."

29In terms of nervousness and generalized anxiety, the applicant denied experiencing any problems with feeling overly anxious since the accident. During the clinical interview, the applicant denied experiencing any symptoms of depression. The applicant did not complain about any psychological symptoms (“I don’t have any psychological problems and I am able to deal with things fine”), and made minimal references to emotional symptoms, to her treating physicians following the accident. As a result, Dr. Syed opined that the applicant's symptoms of anxiety and depression are subclinical and there was no evidence to indicate the presence of a diagnosable psychological condition.

30In her submissions, the applicant asserts that she suffers the following psychological complaints: passenger anxiety, sleep problems, and isolation from family and friends.

31This is in sharp contrast to her responses in her interview with Dr. Syed. She denied concerns with passenger anxiety. She indicated that she was not suffering from any cognitive difficulties that would result in any interference with her activities of daily living nor her relationship with her family, friends, or community at large.

32In addition, the applicant relies on Tribunal File Decision, 17-002907 v. Aviva Insurance Company² to support her position.

33I find that Tribunal File Decision, 17-002907 v. Aviva Insurance Company, can be distinguished as the applicant in that decision was diagnosed with chronic pain syndrome. In addition, a psychologist also diagnosed the applicant in the severe range for anxiety and depression. This is not the case here.

34Dr. Syed opined that the applicant was not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-V because of the subject accident. Dr. Syed concluded that no further treatment or investigations were warranted from a psychological perspective. The psychological injuries sustained, if any, in the subject accident were considered "minor" as defined in the Schedule.

35Given the evidence of Dr. Syed above, which I find both credible and reliable, I find the applicant does not have a psychological injury that would take her out of the MIG.

Does the applicant have any pre-existing conditions?

36Section 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 cap on benefits. To be removed from the MIG, 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.³

37The standard for excluding an impairment based on pre-existing conditions is well-defined and strict. 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.

38Dr. Oshidari determined that the applicant did not present with any conditions that would be categorized as significant pre-existing conditions to exclude her treatments from the MIG. The applicant reports an unremarkable pre-accident psychological history and denied ever being assessed or treated by a psychologist or social worker prior to the subject accident.

39The applicant has not produced any compelling medical evidence nor any employment records to prove that she is unable to complete certain tasks at work since the accident. By her own admissions to Dr. Oshidari and Dr. Syed, she has returned to performing her pre-accident housekeeping tasks. She has remained independent with performing all her pre-accident self-care as well.

40I find that there is no evidence of a pre-existing medical condition warranting removal from MIG.

Does the applicant suffer from chronic pain?

41The applicant submits that she suffers from chronic pain, which removes her from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

42Based on the medical records, there is currently no formal diagnosis or investigation concluding that the applicant has sustained a chronic pain or chronic pain syndrome, because of the subject motor vehicle accident.

43There is also a considerable gap between the time of the applicant’s complaints of accident-related injuries, and her visit with Dr. Bondarev.

44In his report, dated October 19, 2019, Dr. Bondarev reinforced the minor nature of the applicant’s injuries. He states that she had some intermittent aches and pains in different parts of her body including in the right arm, which is soft tissue and, in her fingers, in her heels and few other areas. However, he emphasized that she did not report any history of any joint swelling. He noted that she does not take medications for pain regularly, but on occasion, has used over-the-counter ibuprofen.

45The respondent directed me to a Tribunal decision which discussed three criteria to determine whether an insured suffers from chronic pain. The respondent relies on the Tribunal Decision, Y.X.Y. v. The Personal Insurance Company, (16-000438/AABS)⁴ which addressed chronic pain with the following criteria:

i. The applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

ii. The applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The applicant’s pain cause functional impairment and disability. It significantly disrupts or disables pre-accident activities of daily living.⁵

46Although I am not bound by this decision, I find the criteria are useful factors in assessing an insured’s claim of chronic pain. I have applied the same criteria:

i. The applicant suffered intermittent pain as she reported to Dr. Bondarev and to Dr. Oshidari. There is no numbness or tingling in the right arm.

ii. The applicant was treated by heat, massage, and TENS. When asked how much improvement she noticed, she stated 80% - 90%.

iii. The applicant’s pain has not caused functional impairment and disability. By her own admissions to Dr. Oshidari and Dr. Syed, the applicant has returned to performing her pre-accident housekeeping tasks. She has remained independent with performing all her pre-accident self-care and continues to drive.

47I find that the applicant’s pain is an obvious aftereffect or sequelae of her soft injuries. I find that pain does not take a person out of the MIG unless it is functionally disabling. This is not the case here.

Are the treatment plans in dispute reasonable and necessary?

48The applicant has not proven that her injuries fall outside of the MIG, and she has essentially exhausted the $3,500.00 limit.

49Given the circumstances, it is not necessary for me to consider whether the treatment plan is reasonable or necessary.

CONCLUSION

50For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, she is not entitled to the treatment plan claimed in this application and no interest is payable.

51The application is dismissed.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635 para.24
2. 22018 CanLII 13153 (ON LAT)
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
4. 42017 CanLII 59515 (ON LAT)
5. 5Criteria and following checklist were derived in from YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)