21-000432/AABS

Licence Appeal Tribunal File Number: 21-000432/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:

Jonathan Costa

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Richard Warr

APPEARANCES:

For the Applicant:

Jeton Memeti, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on March 7, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). 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 the dispute.

2The respondent, Co-operators General Insurance Company Canada, found that the applicant’s injuries were predominantly minor as defined in s. 3 of the Schedule and that was the reason for their denial of the benefits.

ISSUES

3The issues to be decided 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 limit and in the Minor Injury Guideline (MIG)?

2. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Pilowsky Psychology in a treatment plan dated July 9, 2020?

3. Is the applicant entitled to $2,004.96 for physiotherapy, proposed by Activa Clinics in a treatment plan/OCF-18 (“plan”) dated November 9, 2020?

4. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by All Health Medical Centre in a treatment plan dated February 10, 2021?

5. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in a treatment plan dated September 27, 2021?

6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

BACKGROUND

4On March 7, 2020, the applicant was the seat-belted driver traveling eastbound on Highway 401 in the Greater Toronto Area. His wife and three children were in the vehicle. While slowing for traffic, the applicant’s vehicle was struck from behind which caused his vehicle to strike a vehicle in front of his. The applicant’s vehicle was then struck a second time from the rear.

5The applicant did not immediately attend for medical treatment or assessment. The applicant submits that he did experience pain in his neck and back following the accident and attended at his family doctor, Dr. T. Light, on March 10, 2020.

6Following this initial visit to Dr. Light, the applicant travelled to Florida on a pre-planned family vacation.

7Prior to the accident, the applicant had visits with Dr. Light. There are notations in Dr. Light’s clinical notes and records that the applicant complained of back pain on April 7, 2017, which Dr. Light described as muscular. There is also a notation on March 4, 2019 of lower back pain with no explanation. On July 23, 2019 there is a notation of an injury to the applicant’s right ankle, sustained while playing soccer, which was diagnosed as a strain. On January 22, 2020, the applicant complained of pain across his shoulder blades radiating up into his head. He relieved this pain with medication and Dr. Light notes that the applicant felt sleepy and unable to work.

RESULT

8I find the applicant sustained predominantly minor injuries that are treatable within the MIG. Accordingly, the treatment and assessment plans in dispute are not reasonable and necessary as the MIG limits have been exhausted. No interest is payable to the applicant and an award is not appropriate.

ANALYSIS

Are the applicant’s accident-related injuries predominantly minor?

9The 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. Minor injuries are subject to treatment limits of $3,500.00 under s. 18 of the Schedule.

10An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

11The applicant has not provided compelling evidence that he suffered injuries that were not minor as defined in the Schedule.

12The applicant submits that his position is that he has demonstrated a series of complaints, following the accident that indicate he should be removed from the MIG.

13At the March 10, 2020 visit with Dr. Light, the applicant complained of back and neck pain, anxiety and was traumatized by the subject accident. Dr. Light diagnosed neck strain with possible whiplash injury, a stress reaction. Dr. Light recommended massage therapy and over the counter medications to relieve the pain symptoms.

14On March 10, 2020, the applicant also completed an OCF-1 in which the applicant advises that his accident-related injuries did not prevent him from working.

15The applicant’s next visit to Dr. Light was April 20, 2020. Again, Dr. Light notes complaints of pain in his neck and back, with no mention of the accident, which Dr. Light diagnosed as muscular. Dr. Light recommended two weeks off work and physiotherapy.

16On May 11, 2020 chiropractor Dr. Joy Simon of Activa Kitchener completed an OCF-3 for the applicant. This listed the applicant’s accident-related injuries as dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, sprain and strain of cervical spine, whiplash associated disorder (WADS) with complaint of neck pain with neurological signs, disorders of initiating and maintaining sleep. These injuries are not consistent with what was reported to Dr. Light following the accident.

17This OCF-3 also asserts in Part 6 that the applicant is substantially unable to perform his employment duties yet also has the comment that the applicant has returned to his job, not on modified duties, which he is performing although his duties could aggravate his injuries. The OCF-3 asserts that the applicant did not suffer a complete inability to carry on a normal life, did not suffer a complete inability to provide caregiving activities, but did suffer a substantial inability to perform housekeeping duties and the duration of this disability was estimated to be 9 -12 weeks.

18On September 28, 2020, the applicant had an appointment with Dr. Light. In the clinical notes and records for this appointment, the applicant complained of intermittent neck pain, that starts after he has been working. The applicant opined to Dr. Light that he believed the neck pain was caused by repetitive work while operating a bus. In these notes there is no reference to the accident.

19On September 30, 2020, the applicant again had an appointment with Dr. Light. Dr. Light’s notations start with a comment that the applicant was involved in an accident in March. This is Dr. Light’s first reference to the accident since the applicant’s March 10, 2020 visit. At this September 30 appointment, the applicant complained of neck pain which runs into his right shoulder blade and excess pain in his lower back from sitting.

20At no time does Dr. Light order any diagnostic imaging for any of the applicant’s accident-related injuries. There are no referrals to any specialist and no other medical investigation is ordered by Dr. Light.

21I find the injuries described and diagnosed by Dr. Light are all within the definition of a minor injury as defined by the Schedule. I find that the applicant has not proven on a balance of probabilities that he sustained injuries that are not predominantly minor injuries resulting from the accident. I find the injuries sustained by the applicant in the accident do not warrant his removal from the MIG.

Did the applicant sustain a psychological impairment as a result of the accident?

22The applicant submits that he should be removed from the MIG because he sustained a psychological impairment from the accident.

23The applicant relies upon a report completed by psychologist Dr. Peplinskie. I am not persuaded by the findings of this report which asserts that the applicant sustained a psychological impairment that would cause him to be removed from the MIG.

24The applicant reported to Dr. Light on March 10, 2020 that he had anxiety and felt traumatized by the accident. The applicant did not mention any psychological or emotional symptoms to Dr. Light again until April 30, 2021, when he reports feeling some stress for ongoing issues post-accident. There is no indication if these ongoing issues are accident-related or if these are issues that occurred after the accident. Dr. Light does recommend some counselling, but no referral is made to a psychologist and no medications to treat psychological symptoms were prescribed.

25On July 9, 2020 an OCF-18 was completed by psychologist Dr. Judith Pilowsky proposing a psychological assessment of the applicant. In Part 6, the OCF-18 lists the applicant’s accident-related injury as adjustment disorders. It asserts that the applicant’s pre-accident diagnosis of diabetes could affect his treatment for adjustment disorder. It also asserts, in Part 8, that the injuries listed in Part 6 affect his ability to work and his activities of daily living and that his ability to function is limited due to his psychological symptoms and pain. However, I find the applicant made no accident-related complaints to his family doctor between April 2020 and April 2021 and Dr. Light’s clinical notes and records show no notations that the applicant’s psychological symptoms were limiting at all, which in my view is inconsistent with Dr. Pilowsky’s OCF-18.

26On August 25, 2020, the applicant was assessed by Dr. K. A. Peplinskie, a Clinical and Rehabilitation Psychologist registered with the Canadian Psychological Association. Dr. Peplinskie authored a report dated October 8, 2020. This assessment was conducted virtually and consisted of a clinical interview and psycho-diagnostic testing.

27In the section of the report titled “Post-Accident Functioning,” Dr. Peplinskie states that the applicant was working as a bus driver and used stretching to relieve discomfort caused by back pain. Dr. Peplinskie further reported that the applicant still gardens and mows his lawn, walks, and rides his bike although not as far as before the accident. The applicant reported to Dr. Peplinskie that all his social activities had decreased due to the COVID pandemic. Dr. Peplinskie noted that the applicant denies feeling any anxiety while operating his bus.

28Dr. Peplinskie concluded that the applicant ruminates about the accident, is depressed, is easily irritated, had an increased appetite, and had gained ten pounds from eating junk food, had trouble sleeping at times, is concerned for the safety of his loved ones and is over-protective of his children, especially when they travel in vehicles, and has anxiety about vehicular travel and when riding his bicycle.

29In the psycho-diagnostic testing the applicant scored minimally for depression, anxiety, and PTSD and did not indicate any malingering.

30Dr. Peplinskie diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and vehicular anxiety.

31On April 29, 2021, the applicant participated in an Insurer Examination (IE) psychological assessment conducted by Dr. Rakesh Ratti. Dr. Ratti is a clinical psychologist registered in the Province of Ontario. This assessment consisted of a clinical interview of the applicant, a review of documentation and psychological testing. Dr. Ratti issued a report on May 11, 2021.

32Dr. Ratti concluded that the applicant exhibited no signs of physical pain and no visible emotional distress during the assessment. Dr. Ratti further concluded that the applicant scored in the mild to low-moderate range for anxiety and that the applicant reports limitations in functioning in some aspects of his life and no limitations in others. Dr. Ratti stated that the applicant does not meet the criteria for a mental health diagnosis and that there is no evidence that the applicant is limited in anyway due to psychological impairments. As a result of this assessment, Dr. Ratti disagreed with Dr. Peplinskie’s diagnosis of adjustment disorder and Dr. Ratti’s opinion was that the OCF-18 proposing a psychological assessment was not reasonable and necessary.

33I am persuaded by the report of Dr. Ratti over the report of Dr. Peplinskie. Dr. Peplinskie’s findings are not supported by any other evidence submitted. Dr. Peplinskie’s diagnosis of vehicular anxiety is inconsistent with the applicant’s self-reporting that he does not feel anxiety when operating a bus.

34The applicant did report feeling some anxiety when driving to Dr. Ratti but also reported that he felt no distress when he returns to the accident location, but Dr. Ratti did not believe this anxiety was significant enough to meet the criteria for a clinical diagnosis. Further, when asked about his emotional state, the applicant reported to Dr. Ratti that he was “managing fine without formal intervention.” I find Dr. Ratti’s conclusions are consistent with the psychological symptoms expressed by the applicant to Dr. Light, which were intermittently reported and not significant enough for Dr. Light to refer the applicant for further psychological investigation or treatment.

35For these reasons, I find that the applicant has not proven on a balance of probabilities that he sustained a psychological impairment that would cause him to be removed from the MIG.

Did the applicant develop chronic pain or Chronic Pain Syndrome as a result of the accident?

36I am not persuaded that the applicant developed chronic pain as a result of injuries sustained in the subject accident.

37In the clinical notes and records of Dr. Light that pre-date the accident there are notations that the applicant did complain, intermittently, of back pain on a few occasions, including the January 22, 2020 visit where the applicant complained of pain across his shoulder blades which radiated into his head.

38Following the accident, the applicant had a number of visits with Dr. Light between September 30, 2020 and April 27, 2021, where he made no complaints of accident-related injuries or pain.

39On March 20, 2021, the applicant was assessed by Dr. D.J. Ogilvie-Harris, an orthopedic surgeon. Dr. Ogilvie-Harris conducted an orthopedic assessment of the applicant. This was a virtual appointment conducted via teleconference.

40The applicant reported to Dr. Ogilvie-Harris that he rides his bicycle but not for long distances. He also reported to Dr. Ogilvie-Harris that he has had to modify his workouts at the gym and as a result his weight had increased by 50 pounds.

41Dr. Light does not note such a significant increase in the applicant’s weight. On April 27, 2021, Dr. Light notes the applicant’s weight at 240 pounds. On April 20, 2020, approximately five weeks after the accident, Dr. Light noted the applicant’s weight at 234 pounds. At the April 26, 2021 IE assessment of Dr. S. Hosseini, the applicant reported his weight as 241 pounds. At the April 29, 2021 IE assessment by Dr. Ratti, the applicant reported that he had lost ten pounds

42The applicant also reported to Dr. Ogilvie-Harris that he slept poorly and woke up unrefreshed. This is consistent with what the applicant reported to Dr. Hosseini. However, I find it is inconsistent with what the applicant reported to Dr. Ratti, who noted that the applicant reported waking feeling rested three nights per week and that he sleeps five to eight hours each night instead of his usual seven to eight hours. There are also no complaints of poor sleep made by the applicant to Dr. Light.

43I find Dr. Ogilvie-Harris’ report becomes speculative when addressing chronic pain. Dr. Ogilvie-Harris did not examine the applicant in-person and accordingly this assessment provides no insight into any observed functional limitations associated with the applicant’s reported pain. Dr. Ogilvie-Harris describes generalized interpretations of the applicant’s pain questionnaire scores. Yet, Dr. Ogilvie-Harris formed the belief that the applicant had developed chronic pain syndrome.

44On April 30, 2021, the applicant had an appointment with Dr. Light who notes ongoing neck and low back pain since the accident. Dr. Light also notes that the applicant drives a bus for a living and that the applicant feels that working makes the pain worse. The applicant also reports some stress with ongoing issues post-accident. Dr. Light recommended counselling, meditation and yoga, and exercise. Dr. Light also specifically noted no pain clinic referral needed and no further nerve block medications needed as the applicant’s pain was “managed and not too troublesome”.

45I am persuaded instead by the report of IE assessor Dr. Hosseini, who conducted a physical examination of the applicant and made in-person observations of the applicant. The applicant was assessed by Dr. Hossieni on April 26, 2021 and a report was issued May 11, 2021.

46Dr. Hosseini is a licensed physiatrist. Dr. Hosseini’s assessment included a review of documents, an interview of the applicant and a physical examination of the applicant.

47Dr. Hosseini diagnosed the applicant’s accident-related injuries as cervical spine sprain and strain and thoracolumbar sprain and strain. Dr. Hosseini concluded that the applicant is independent with personal care, is able to complete household chores, and had returned to limited cycling and walking. Dr. Hosseini also concluded that the applicant had returned to full-time duties and hours at his employment. Dr. Hosseini expected further recovery of the applicant’s accident-related injuries and did not note anything resulting from the assessment that would prevent the applicant reaching maximal recovery.

48The Tribunal recognizes, in some cases, the application of the American Medical Association Guides, 6th Edition (“AMA Guides”) for chronic pain can be a useful interpretive tool in making a determination of chronic pain in the absence of a diagnosis. The AMA Guides state that in order for a healthcare professional to diagnose chronic pain, three of the criteria listed below must be met. In this case, I find that the applicant has not submitted evidence that three of the following six criteria of chronic pain as listed in the AMA Guides have been met. The six criteria are:

(a) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances

(b) Excessive dependence on health care providers, spouse, or family

(c) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain

(d) Withdrawal from social milieu, including work, recreation, or other social contracts

(e) 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

(f) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors

49The applicant has not shown compelling evidence that his accident-related injuries have caused him to become dependent on pain medications. Dr. Light’s clinical notes and records have very few notations of medications being prescribed or recommended for pain. The clinical notes and records of Dr. Light show that the applicant has appointments sporadically and after the accident, the accident-related injuries are addressed intermittently among those visits. Dr. Light and Dr. Hosseini do not note any signs of atrophy or de-conditioning during their physical examinations of the applicant. The applicant did indicate to some of the healthcare providers that his social activities have changed post-accident, but he attributed this to the COVID pandemic. The applicant reported to a number of the medical assessors that he had returned to full-time hours at work and regular duties and that he continues to cycle and walk recreationally. I have already addressed the applicant’s accident-related psychological health, finding that there is no persuasive evidence to support removal from the MIG on this ground.

50The applicant submits that he cannot be treated within the limitations of the MIG because of constant complaints of injuries and impairments following the subject accident. I am not persuaded by this argument. The evidence shows that the applicant did make pain complaints to his family doctor. However, these cannot be characterized as constant or chronic in nature. The applicant was diagnosed by Dr. Light with neck strain and possible whiplash. Dr. Light did not order any diagnostic imaging or any further investigation into the applicant’s accident-related injuries. Dr. Light even commented that referrals for a chronic pain assessment and trigger point injections were not necessary, as the applicant’s pain was managed and not too troublesome.

51The applicant had five visits with Dr. Light between his September 30, 2020 appointment and his April 27, 2021 appointment. There are no notations of pain complaints by the applicant of accident-related injuries.

52On November 29, 2021, the applicant began seeing a new family doctor, Dr. Dried Jamal. In Dr. Jamal’s clinical notes and records for this November 29, 2021 visit, there is no complaint regarding pain or mention of the accident and no complaint of any functional impairment. This furthers a pattern of inconsistent accident-related pain complaints to healthcare providers.

53Accordingly, I find that the applicant has not proven on a balance of probabilities that he has chronic pain which causes him functional impairment as a result of the accident, and therefore he should not be removed from the MIG for this reason.

54The applicant has not provided compelling evidence to show that he should be removed from the MIG.

54Given that the $3,500.00 treatment limit was exhausted, no additional analysis is required to determine if the treatment plan or assessments are reasonable and necessary pursuant to the Schedule.

Interest

55Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

56In his submissions the applicant claims he is entitled to an award under section 10 of Reg. 664 which states the Tribunal may award a lump sum of up to 50% of benefits owing if it finds the insurer acted unreasonably in withholding or delaying benefits to an insured person. In this case the applicant claims that the respondent improperly kept the applicant within the MIG.

57I do not agree with the applicant. There is no evidence to suggest that the respondent acted in bad faith and improperly maintained its position that the applicant’s accident-related injuries were in the MIG. I find the evidence supports that the respondent adjusted the file in a timely manner and that an award is not appropriate in this case.

ORDER

58The 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 and in the MIG.

ii. The treatment plan and assessments are not reasonable and necessary as the $3,500.00 MIG treatment limit has been exhausted.

iii. As there are no overdue payment of benefits, the applicant is not entitled to interest.

iv. The applicant is not entitled to an award under section 10 of Reg. 664