Licence Appeal Tribunal File Number: 21-002029/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:
Wahida Ishak
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Richard Warr
APPEARANCES:
For the Applicant: Kateryna Vlada, Paralegal
For the Respondent: Mariam Yusufi, Counsel
HEARD: By way of written submission
BACKGROUND
1The applicant was injured in an automobile accident on July 7, 2018 and sought benefits from the respondent, Intact Insurance Company (Intact), pursuant to the pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant applied for medical and rehabilitation benefits that were denied by Intact because it determined her injuries were predominately minor and therefore subject to the Minor Injury Guideline (“MIG”) and that the treatment and assessments were not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2The issues to be decided are:
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 MIG?
Is the applicant entitled to a medical benefit in the amount of $1,870.20 for physiotherapy treatment, proposed by Dev Wellness and Rehab Clinic in a treatment plan/OCF-18 (“plan”) dated January 26, 2019?
Is the applicant entitled to a medical benefit in the amount of $1,795.20 for physiotherapy treatment, proposed by Dev Wellness and Rehab Clinic in a plan dated November 11, 2019?
Is the applicant entitled to a cost of examinations in the amount of $2,000.00 for a psychological assessment, proposed by Downsview Healthcare Inc. in a plan dated July 12, 2019?
Is the applicant entitled to a cost of examinations in the amount of $2,000.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a plan dated November 22, 2019?
Is the applicant entitled to a medical benefit in the amount of $3,335.98 for psychological treatment, proposed by Downsview Healthcare Inc. in a plan dated November 23, 2019?
Is the applicant entitled to a medical benefit in the amount of $627.92 for psychological treatment, proposed by Downsview Healthcare Inc. in a plan dated August 28, 2020?
Is the applicant entitled to a medical benefit in the amount of $12,918.49 for chronic pain therapy, proposed by Downsview Healthcare Inc. in a plan dated September 11, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant sustained predominantly minor injuries that are treatable within the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary. As no benefits are payable no interest is owed to the applicant.
ANALYSIS
Applicability of the Minor Injury Guideline
4The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. However, if the applicant can demonstrate that she has pre-existing conditions documented by a medical practitioner that prevent maximal medical recovery under the MIG, she may receive treatment outside of the limits pursuant to s. 18(2). The applicant may also escape the MIG if she can demonstrate that she suffers from chronic pain or a psychological impairment that prevents her recovery under the MIG. The applicant she must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find the medical evidence indicates that the applicant sustained minor injuries and has not demonstrated that removal from the MIG is warranted.
5The applicant submits that the impairments she sustained as a result of the accident are described as neck pain, back pain, and headaches, along with an exacerbation of pre-existing psychological impairments described as anxiety, and depression. The applicant also submits that she has developed chronic pain from her accident-related injuries and requires an assistive device to walk. The applicant asserts that these injuries warrant treatment beyond the MIG. The applicant relies on various clinical notes and treating records, a Disability Certificate dated August 27, 2018, a number of expert reports including neurologist reports, psychiatric and psychological reports, and a chronic pain report. The applicant submits that her pre-existing psychological conditions were made worse by the accident and this along with the development of chronic pain are evidence that her impairments are not “minor injuries”. She further submits that the accident caused her a mild traumatic brain injury, fibromyalgia, and radiculopathy and that these diagnoses as well as her pain justify treatment beyond the MIG. Specifically, she submits that removal from the MIG is required in order to return her to her pre-accident level of psychological function and decrease her pain.
6In response, Intact submits that the applicant’s alleged injuries all fall within the definition of “minor injury” under the Schedule. Intact argues that she has not demonstrated any pre-existing conditions that would prevent maximal recovery under the MIG or that her physical impairments affect her function. Further, it submits that she did not report the cause of her pre-existing psychological condition to assessors. Intact asserts that the applicant’s pre-existing anxiety and nervousness relate to a traumatic assault that took place years before the accident and that the accident did not exacerbate these conditions. Intact further submits that the applicant’s reported back and leg pain are as a result of degenerative changes and not accident-related injuries and that she does not require the use of a cane or walker.
7Intact submits that there is no corroborating evidence to support the applicant’s submission that she suffered a mild traumatic brain injury. Intact argues that the applicant has not established that she has developed chronic pain as she has not demonstrated that she meets three of the six criteria for a chronic pain diagnosis in the American Medical Association, 6th Edition Guidelines (AMA Guide). Intact relies on several s. 44 reports including that of a neurologist, independent physicians, and psychologist. Intact further submits that on five occasions the applicant did not complete s. 44 examinations. Intact submits that the applicant is properly maintained in the MIG and that the treatment plans in dispute are not reasonable and necessary.
Physical Injuries
8The applicant has not presented compelling evidence that her accident-related physical injuries were not minor as defined in the Schedule. I am persuaded by the clinical notes and records of Dr. Kakzanov which show significant gaps in the applicant’s complaints of accident-related injuries, and I am also persuaded by the report of Dr. Sandhu who concluded that the applicant’s injuries were within the MIG. I also find that the applicant was inconsistent when reporting her pre-accident medical history to the healthcare providers she has seen post-accident and the assessors’ observations of her use of the cane and walker. I find that the applicant sustained injuries that were pre-dominantly minor as defined by the Schedule resulting from the accident.
9The applicant submits that she has a pre-accident medical history of chronic liver disease, anxiety, depression, and PTSD. This is consistent with the clinical notes and records of the applicant’s family physician, Dr. V. Kakzanov.
10The applicant first sought medical attention for her accident-related injuries on July 9, 2018, two days post-accident, attending a local hospital emergency room. She reported pain in her back and neck, no tingling or numbness and made no reports of a head injury or loss of consciousness. An x-ray was ordered with no acute findings and the applicant was discharged that day. She then attended at her family physician, Dr. Kakzanov, on July 11, 2018, where she reported to her doctor that she had been in an accident four days earlier. She complained of neck and back pain and also headaches that started the day of the accident. Dr. Kakzanov diagnosed muscle strain and prescribed medications for pain.
11I do not assign significant weight to the OCF-3 competed by physiotherapist P. Kiratee of Dev Wellnes completed August 27, 2018. The diagnoses of whiplash associated disorder (WAD 2), injuries of muscles and tendon at neck level, sprain/strain thoracic spine, sprain/strain lumbar spine, sprain/strain of SI joint, injury of muscle and tendon at hip and thigh level, chronic post-traumatic headache, acute stress reaction, nonorganic sleep disorder, malaise, and fatigue seem disproportionate to the findings of the emergency room examination and the examination of Dr. Kakzanov.
12The applicant submits that she experienced a fainting episode which she reported to Dr. Kakzanov in September 2018 and asserts that these symptoms of dizziness and fainting are accident-related conditions. The reported fainting occurred at a hospital just after the applicant was advised that her daughter had been diagnosed with diabetes. Dr. Kakzanov referred the applicant to a neurologist to investigate this syncope. On November 23, 2018, the applicant was examined by neurologist Dr. P. Carlen. Dr. Carlen did not provide any definitive conclusion that this fainting was an accident-related symptom.
13In the weeks and months following there are investigations into complaints of leg pain that the applicant complained of in September of 2018 to Dr. Kakzanov who referred the applicant to Dr. L. Chizen, a physical medicine and rehabilitation specialist. In February 2019, Dr. Chizen diagnosed her leg pain as degenerative type knee pain with no nerve impairment and no comment with regards to the accident. An MRI her lumbar spine in March 2019 showed degenerative changes in the applicant’s spine. Dr. Kakzanov had ordered the MRI but the clinical notes and records of Dr Kakzanov in reference to the MRI following. Dr. Kakzanov does refer the applicant to a neurosurgeon.
14In May 2019, Dr. Kakzanov notes that the applicant had begun using a cane to walk. In the preceding clinical noes and records of Dr. Kakzanov there are no recommendations for the use of any assistive device. In subsequent Insurers Examination (IE) assessments, the applicant is observed with a cane and walker, but observations are made by the assessors that indicate that these assistive devices are not weight bearing.
15On November 28 and 29, 2019, the applicant was examined by neurosurgeon Dr. M. Fehlings and neurologist Dr. M. Bryer respectively. Dr. Fehlings advised the applicant of the possible benefits of a surgery on her back however, provides no insight into the causation of the applicant’s back pain. Dr. Bryer opines that there are no pathological clinical findings, and that the examination was hampered by the applicant’s poor effort and emotionality.
16The respondent relies upon several s. 44 reports. On June 4, 2019, she was assessed by Dr. C. Sandhu and a report of this assessment was issued June 18, 2019. Dr. Sandhu is a certified medical practitioner who specializes in internal medicine and occupational and environmental medicine. Dr. Sandhu notes that the applicant reported no pre-accident health problems including no psychological issues. Dr. Sandhu also noted that the applicant did have a cane when she walked but it appeared unloaded. Dr. Sandhu concluded the applicant’s presentation was that of symptoms of myofascial sprains to her cervical spine, shoulders and lumbar spine and post-traumatic headaches. Dr. Sandhu also concluded that the applicant’s accident-related injuries were within the MIG. In September of 2018, Dr. Sandhu completed an addendum to this report after reviewing additional documentation. This review did not change Dr. Sandhu’s conclusions.
Psychological Impairments
17I find that the applicant has not shown that her documented pre-existing psychological conditions will prevent her from achieving maximal recovery for her minor injuries if she were to be kept within the limitations of the MIG. The applicant submits that she had pre-existing anxiety, depression and PTSD that were exacerbated by the accident and should warrant her removal from the MIG. I agree wit the respondent who submits that the clinical notes and records of Dr. Kakzanov show that these are ongoing symptoms caused by a violent interaction with a tenant in her home in 2014.
18The applicant relies upon the psychiatric report of Dr. J. Park dated July 19, 2019 and psychologist Dr. A. Shaul dated September 28, 2019.
19The pre-accident clinical notes and records of Dr. Kakzanov show that as far back as 2015, the applicant was depressed and having trouble sleeping due to her concern for her liver disease.
20On September 27, 2017, the applicant’s husband contacted Dr. Kakzanov and reported that in 2014 the applicant was assaulted by a tenant in her house, and this was causing the applicant anxiety, nightmares, and sleeplessness. Dr. Kakzanov diagnosed PTSD and started the applicant on Cipralex.
21On June 30, 2018, the applicant reported to Dr. Kakzanov that she felt anxious, nervous, and scared because of the tenant incident. She reported being afraid of being alone and afraid of leaving the house. Dr. Kakzanov diagnosed anxiety and referred the applicant to a social worker for counsel.
22On July 9, 2018, the applicant met with social worker S. Singer. The applicant reported the tenant incident to the social worker and described the event as very scary and that she could not sleep. She advised most of the time she could not be alone, and that she has nightmares, flashbacks, loss of appetite, energy down, and crying for no reason. This appointment was two days post-accident and there is no mention of the accident to the social worker.
23At the applicant’s first visit with Dr. Kakzanov after the accident, she does not mention any psychological symptoms to her doctor. At her July 14, 2018, visit with her doctor, the applicant reports anxiety but does not relate it to the accident and Dr. Kakzanov re-prescribed Cipralex which the applicant had stopped prior to this appointment.
24On August 10, 2018, the applicant again met with social worker Singer with very similar report as in June and again no mention of accident.
25On December 7, 2018, and again on May 24, 2019, the applicant reports to Dr. Kakzanov that her mood is ok, and she is feeling well.
26On July 19, 2019, the applicant met with psychiatrist Dr. Park. Dr. Park diagnosed the applicant with PTSD resulting from the accident as the applicant reported the accident as being the start of her psychological issues. The applicant, however, did not report the tenant assault of 2014 to Dr. Park and instead reported no past psychiatric history and no past trauma.
27On July 22, 2019, the applicant was assessed by psychologist Dr. A. Shaul and a report dated September 28, 2019, followed. Dr. Shaul is a registered psychologist.
28Dr. Shaul diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, specific phobia (travelling in and around a vehicle) somatic symptom disorder with predominant pain, persistent type. Dr. Shaul concluded that these conditions were a result of the accident and based on the applicant’s self-reporting of her symptoms and psychometric testing. The applicant, however, did not report the tenant assault, her pre-accident psychological symptoms resulting from the assault, or any pre-accident health issues. Dr. Shaul noted in the report that she denied any previous serious illness and also that she had not received any pre-accident psychological or psychiatric assistance.
29The respondent submits that the applicant failed to complete two s. 44 psychological assessments. The first on June 18, 2020, and the second on October 28, 2020 both with Dr. M. Mandel, a registered psychologist. Dr. Mandel did issue a report dated May 12, 2021, indicating that his assessment was incomplete, however, I find the report did contain a partial interview of the applicant and again she does not report any pre-accident illness, no history of previous psychiatric diagnosis, that she has never been treated with an anti-depressant and that she was not taking any medications prior to the accident.
30These omissions of her pre-accident physical and metal health diagnoses cause me to question the reliability of the applicant’s reporting. In my view, the applicant’s pre-accident psychological symptoms caused by her chronic liver disease diagnosis and a traumatic assault would be very relevant to the healthcare providers seen by the applicant post-accident and would be especially relevant to the psychiatrist and psychologists conducting post-accident assessments. Their diagnoses in relation to the effect of the accident on the applicant’s mental health would have been informed with that information.
31As a result, I agree with the respondent that the reports of Dr. Park and Dr. Shaul may not be relied upon as the applicant failed to report her pre-accident health issues accurately. The applicant reported that her psychological symptoms started after the accident. The pre-accident clinical notes and records show that the applicant was living with and being treated for anxiety, depression, PTSD and sleeping disturbances prior to the accident.
32I agree with the respondent’s submissions that the applicant has not met her onus under s. 18(2) of the Schedule. The applicant did have documented pre-existing psychological issues caused by traumatic events pre-dating the accident, The applicant, however, has not shown that the accident caused or exacerbated her psychological symptoms and that her pre-existing condition would prevent her recovery while still within the MIG limits. The applicant has not demonstrated that she should be removed from the MIG due to accident-related psychological impairments.
Chronic pain
33The applicant submits that she should be removed from the MIG as she has developed chronic pain from her accident-related injuries. The respondent submits that the applicant has not provided evidence that her ongoing post-accident pain has caused her suffering and distress accompanied by a functional impairment or disability.
34I find there is no evidence beyond the applicant’s own self-reporting that her accident-related pain has caused her functional impairment.
35The applicant attended for a chronic pain assessment on February 14, 2020, with Dr. G. Karmy a pain specialist who issued a report dated February 25, 2020.
36Dr. Karmy obtained the applicant’s pre-accident health history as part of the examination and the health history is consistent with the pre-accident clinical notes and records.
37Dr. Karmy diagnosed the applicant with:
Post-Traumatic Fibromyalgia, caused by the subject accident,
Post-subject accident balance problems, due to severe dizziness, not yet diagnosed, caused by the subject accident
Persisting symptoms following mild Traumatic Brain Injury, caused by the subject accident
Chronic Post-Traumatic Headache, caused by the subject accident
Chronic mechanical neck pain, radiating to the left arm, and likely originating from the cervical discs and facet joints, caused by the subject accident
Chronic mechanical bilateral shoulder pain, likely of myofascial, caused by the subject accident
Chronic mechanical lower back pain, associated with bilateral radiculopathy, caused by the subject accident
Sacroiliac joint dysfunction, caused by the subject accident
Chronic Pain Syndrome, caused by the subject accident
Sleep Disorder, caused by the subject accident
Possible Mood Disorder with symptoms of Passenger Anxiety, and post-traumatic symptoms, caused by the subject accident
38The diagnosis of fibromyalgia is based on the applicant’s self-reporting of pain to Dr. Karmy. No other healthcare practitioner consulted by the applicant, including her family doctor observed signs or symptoms of fibromyalgia. Dr. Karmy states the applicant’s dizziness is undiagnosed but caused by the accident. However, the applicant was assessed by several neurologists who did not conclude that the applicant’s dizziness was accident related, so I afford this opinion no weight. Similarly, the diagnosis of a Mild traumatic brain injury is not corroborated in any of the clinical notes and records or reports. The applicant had pre-accident sleep disorders, PTSD and anxiety so stating these were caused by the accident is also not consistent with the evidence.
39I am not persuaded by the report of Dr. Karmy that the applicant’s ongoing pain following the accident caused the applicant to develop chronic pain syndrome. Dr. Karmy’s report is based heavily on the applicant’s self-reporting, which I find to be inconsistent.
40The respondent submits that the applicant has not provided objective evidence that she has developed a functional impairment from her accident-related pain.
41The applicant is observed using a cane in May 2019 by Dr. Kakzanov despite there being no recommendation from a healthcare practitioner to do so. She is also observed with a cane or walker at several IE assessments, however, there are notations within their reports that the applicant did not bear weight upon the cane or walker.
42I am persuaded by the reports of IE assessors Dr. B. Kucher and Dr. M. Hanna. The applicant was examined on March 18, 2020, by Dr. Kucher, a specialist in adult neurology. Dr. Kucher’s report was issued April 1, 2020.
43Dr. Kucher notes in the report that the applicant did not report any significant pre-accident health issues. Dr. Kucher further notes that the applicant reported being 100% independent in her daily activities, pre-accident. Dr. Kucher further notes that during the examination the applicant did not endorse subjective complaints of headache or dizziness post-accident. The applicant reported to Dr. Kucher that post-accident she needs assistance with her daily activities and does 0% of the household chores.
44Dr. Kucher noted that the applicant did use a walker at the examination, however, she could sit independently and was able to get on and off the examination table without assistance.
45Dr. Kucher concluded that there were no accident-related neurological diagnoses and that during the examination the applicant displayed hypervigilant and over exaggerated pain response to the testing. Dr. Kucher also concluded that the applicant did not suffer a neurological impairment from her accident-related injuries.
46On April 27, 2021, the applicant was examined by Dr. Hanna, an emergency medicine, trauma, and pain specialist. Dr. Hanna issued a report on May 12, 2021.
47Dr. Hanna notes in the report that the applicant denied any pre-accident medical conditions. Dr. Hanna noted that the applicant reported being completely independent in her pre-accident activities including personal care and household chores. She reported that following the accident she needs assistance with all aspects of her personal care and mobility.
48Dr. Hanna observed that the applicant had a four-wheeled walker with her at the examination. Dr. Hanna further observed that the walker did not appear to be bearing any weight and at times the applicant was observed carrying the walker about the examination room. Dr. Hanna also noted that the applicant asked to stand during the examination as sitting caused her pain yet, she was observed by Dr Hanna sitting comfortably in the waiting area prior to the examination.
49Dr. Hanna concluded that it was improbable that the applicant’s symptomology was related to the accident and that her self-reported pain and disability are commensurate with the soft-tissue injuries she sustained in the accident. Dr. Hanna further opined that the applicant’s ongoing reported pain is not-accident related and more related to degenerative disease and osteoporosis which would not limit her ability to achieve maximal medical recovery within the MIG.
50The applicant’s self-reporting of her pre-accident health and ability to perform daily activities to Dr. Kucher and Dr. Hanna again are inconsistent with the pre-accident clinical notes and records of Dr. Kakzanov. I find this inconsistency, combined with the observations made by Dr. Kucher and Dr. Hanna leads me to question the applicant’s self-reporting of her pain and functional impairments.
51I find that the applicant has not provided objective evidence to support her claims that she has developed chronic pain with functional impairment as a result of the accident. Removal from the MIG for these reasons is therefore not warranted.
52It is the Tribunal’s understanding that the limits under the MIG have been exhausted. Having determined that the applicant’s accident-related impairments are properly within the MIG, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary under s.15.
Interest
62Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
63The 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.
Released: March 14, 2023
Richard Warr
Adjudicator