21-000433/AABS

Licence Appeal Tribunal File Number: 21-000433/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:

Cinzia 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

[ 1 ] The 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.

[ 2 ] The 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

[ 3 ] The issues to be decided are:

a. 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?

b. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Pilowsky Psychology in treatment plan/OCF-18 (“plan”) dated July 23, 2020?

c. Is the applicant entitled to $2,004.96 for physiotherapy services, proposed by Activa Clinics in a treatment plan dated November 18, 2020?

d. Is the applicant entitled to $3,259.48 for psychological treatment, proposed by Pilowsky Psychology in a treatment plan dated August 17, 2020?

e. 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?

f. Is the applicant entitled to $2,460.00 for an orthopedic assessment, proposed by Dr. Ogilvie-Harris in a treatment plan dated February 10, 2021?

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

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

BACKGROUND

[ 4 ] On March 7, 2020, the applicant was the seat-belted front passenger of a vehicle traveling on the highway. In the vehicle were her husband, who was driving, and her three children. While slowing for traffic, the applicant’s vehicle was struck from behind which caused her vehicle to strike the vehicle in front of hers. The applicant’s vehicle was then struck a second time from the rear.

[ 5 ] The applicant did not attend at hospital immediately following the accident but did see her family doctor, Dr. Thurairajan Light, on March 9, 2020. Dr. Light’s clinical notes and records (“CNRs”) for this visit note that the applicant complained of left-side upper back pain and pain in her epigastric region when coughing. Dr. Light diagnosed left side trapezius and parascapular strain. Dr. Light recommended massage, over-the-counter medications and heat and ice as treatments.

[ 6 ] There are two pre-accident entries in the CNRs of Dr. Light which do not indicate any significant health conditions, injuries or illness for the applicant.

RESULT

[ 7 ] I 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?

[ 8 ] The 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.

[ 9 ] An insured person 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.

[ 10 ] The applicant has not provided compelling evidence that she suffered injuries that are not minor as defined in the Schedule.

[ 11 ] I am not persuaded by the OCF-3 completed on May 11, 2020, Dr. Joy Simon, a chiropractor with Activa Clinics Kitchener. This OCF-3 lists the applicant’s accident-related injures as whiplash associated disorder (WAD3) with complaints of neck pain with neurological signs, sprain and strain of cervical spine, sprain and strain of thoracic spine, disorders of initiating and maintaining sleep. Dr. Simon notes that the applicant had sustained a complete inability to carry on a normal life, that she sustained a substantial inability to engage in caregiving activities and that she sustained a substantial inability to perform housekeeping and home maintenance activities. There are no accompanying diagnostic images or explanation of investigations employed to determine these diagnoses, and the diagnosis of sleep disorders is not in the scope of practice of a chiropractor. These diagnoses and disabilities are not consistent with Dr. Light’s CNRs of March 9, 2020.

[ 12 ] The applicant next had an appointment with Dr. Light on December 10, 2020. This is approximately nine months following the accident. At this visit, Dr. Light notes that the applicant complained of mid-back pain that radiates up to her left shoulder blade and runs down her arm and causes numbness and tingling. Dr. Light referred the applicant to Dr. Kathryn Giles, a neurologist.

[ 13 ] On January 11, 2021, the applicant was examined by Dr. Giles whose report is found within the CNRs of Dr. Light. Dr. Giles diagnosed the applicant’s accident-related injuries as whiplash and soft-tissue injuries of her neck. Dr. Giles saw no evidence of radiculopathy. Dr. Giles noted that the applicant had full range of motion in her neck and that the applicant reported to Dr. Giles that she continues to work. Dr. Giles also noted in the report that the applicant does not take medication on a regular basis. The numbness and tingling of her left hand that the applicant was experiencing at the time was diagnosed as the beginning of carpal tunnel syndrome. No causation for the carpal tunnel syndrome was indicated in Dr. Giles’ report.

[ 14 ] On March 15, 2021, the applicant participated in an orthopedic assessment with Dr. Darrell J. Ogilvie-Harris, an orthopedic surgeon. This assessment was conducted over the telephone and a report was authored by Dr. Ogilvie-Harris dated March 1, 2021.

[ 15 ] Dr. Ogilvie-Harris notes that the applicant reported pain in her neck and into her shoulder blades, also in her left arm and hand. She also reports pain and numbness in her left thigh. She reported to Dr. Ogilvie-Harris that she has trouble sleeping and takes medications for pain and sleeping. The applicant reported to Dr. Ogilvie-Harris that she was working but work does aggravate her pain symptoms.

[ 16 ] Dr. Ogilvie-Harris diagnosed the applicant’s accident-related injuries as soft tissue injuries to the cervical, thoracic, and lumbar areas. In the report, Dr. Ogilvie-Harris opines about what the applicant may be experiencing as a result of these injuries, concluding that the applicant has developed chronic pain and features of chronic pain syndrome. These diagnoses however are made without an in-person examination based mostly on the applicant’s self-reporting.

[ 17 ] I am more persuaded by the report of Insurer’s Examination (IE) assessor, Dr. Tonya Ballard, a physical medicine and rehabilitation specialist. Dr. Ballard conducted an in-person examination of the applicant on April 22, 2021 and authored a report dated April 30, 2021.

[ 18 ] Dr. Ballard notes that the applicant complained of intermittent neck, left shoulder and constant mid-back pain as a result of the accident, and did report some improvement in these injuries. She reported to Dr. Ballard that she takes the medications Tylenol and Lyrica. She reported to Dr. Ballard that she had returned to her residential cleaning business with self-modified duties and hours. She has also returned to paced household chores and limited walking and hiking activities.

[ 19 ] Dr. Ballard completed a physical examination of the applicant. Dr. Ballard diagnosed the applicant with cervical sprain/strain, WAD Grade 2 with no evidence of radiculopathy, left shoulder pain with no intrinsic pathology identified, likely myofascial pain, and thoracic spine sprain/strain with possible left costotransverse joint dysfunction. Dr. Ballard concluded that the applicant’s accident-related injuries fall within the definition of minor, as found in the MIG, and from a musculoskeletal perspective she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. Dr. Ballard also asserts that the treatment for the applicant’s accident-related injuries should be within the MIG limitations.

[ 20 ] The applicant next had an appointment with Dr. Light on November 8, 2021 and complained of neck and middle back pain that carries through to her left shoulder. Dr. Light noted that the applicant had full range of motion in her neck and shoulders with tenderness. Dr. Light diagnosed a cervical spine muscular strain.

[ 21 ] In November 2021, the applicant became the patient of a new family physician, Dr. Dried Jamal. The applicant visited Dr. Jamal on November 15, 2021. In the CNRs of this visit, Dr. Jamal noted that the applicant complained of a history of neck pain with paresthesia of the left hand and fingers and pain in her interscapular area. Dr. Jamal diagnosed scoliosis and ordered an x-ray. There is no notation of the accident in this record.

[ 22 ] In Dr. Jamal’s CNRs is an x-ray report, dated November 23, 2021, from Simcoe Diagnostic Imaging authored by Dr. C. Mann. In this report, Dr. Mann’s opinion is that the applicant has mild lower thoracic scoliosis convex the left. In the clinical notes and records there is no comment relating this scoliosis diagnosis to the accident.

[ 23 ] I am not convinced that the applicant sustained injuries from the accident that are more than minor as defined by the Schedule. The evidence in the clinical notes and records indicates that the applicant sustained soft tissue injuries including sprains and strains. Dr. Light conducted in-person physical examination of the applicant two days following the accident and diagnosed a strain as the injury sustained. Dr. Light did not order any diagnostic imaging at that time and did not prescribe any medications.

[ 24 ] I do not find the OCF-3 of Dr. Simon, completed May 11, 2020, to be compelling evidence of an accident-related injury diagnosis. This OCF-3 has no supportive documentation and Dr. Simon makes diagnoses such as sleep difficulties that are not within the expertise of a chiropractor and are based on the applicant’s self-reporting.

[ 25 ] I find the report of neurologist Dr. Giles to be persuasive. Dr. Giles conducted an in-person examination and diagnostic testing of the applicant and diagnosed the applicant with whiplash and soft-tissue accident-related injuries, with no evidence of radiculopathy. Dr. Giles’ investigation of the applicant’s left-hand numbness indicated that the applicant may have carpal tunnel syndrome but no nexus to the accident was made regarding this symptom.

[ 26 ] Dr. Ogilvie-Harris also diagnosed the applicant with accident-related soft-tissue injuries. However, I find this report less compelling. Dr. Ogilvie-Harris’ examination was conducted over the phone and thus is not based on a physical examination or observation of the applicant. The diagnoses of chronic pain and features of chronic pain syndrome are not useful as these are based on Dr. Ogilvie-Harris’ interpretation of the applicant’s self-reporting.

[ 27 ] As stated, I give more weight to the IE assessor report of Dr. Ballard who was able to conduct a physical examination of the applicant and make observations in-person. Dr. Ballard diagnosed the applicant’s accident-related injuries as being minor according to the definition in the Schedule.

[ 28 ] I find that the applicant sustained predominantly minor accident-related injuries, as defined by the Schedule.

Does the applicant have accident-related chronic pain?

[ 29 ] The Tribunal has also determined that chronic pain with functional impairment may be reason to remove the applicant from the limitations of the MIG. In this case, I find that the applicant has not provided evidence that her ongoing pain has caused a functional impairment such that she should be removed from the MIG.

[ 30 ] The applicant submits that she has developed features of chronic pain syndrome and relies upon the report of Dr. Ogilvie-Harris in support of this submission. The respondent submits that the applicant has not shown that her ongoing pain has caused a functional impairment.

[ 31 ] The applicant reported to Dr. Ogilvie-Harris and Dr. Ballard that she had stopped working after the accident for a period of four months. However, she provided a more thorough explanation to psychologist Dr. Judith Pilowsky on August 7, 2020 where she advised Dr. Pilowsky that she stopped working due to the COVID-19 pandemic but had returned to work in approximately June of 2020. This is consistent with her reporting to Dr. Ogilvie-Harris and Dr. Ballard that she had returned to work at the time of their respective assessments. This is also consistent with what she reported to IE assessor, psychologist Dr. J. Bacchiochi on May 5, 2021.

[ 32 ] The applicant reported to Dr. Ballard that she had returned to doing paced household chores and limited her recreational activities to walking and hiking. Dr. Ballad noted that the applicant had reported some improvement in her accident-related injuries, but Dr. Ballard also asserted that the applicant’s recovery is ongoing, and she had not yet reached maximal medical recovery.

[ 33 ] I do not assign a significant amount of weight to the report of Dr. Ogilvie-Harris. The conclusions in the report that the applicant developed chronic pain and features of chronic pain syndrome are not supported by an in-person examination and rely mostly on the applicant’s self-reporting.

[ 34 ] The applicant submits that there is evidence to support that her accident-related pain meets at least three of the six criteria found in the American Medical Association Guides for a diagnosis of chronic pain.

[ 35 ] The Tribunal recognizes, in some cases, the application of the American Medical Association Guides, 6^th 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. 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.

[ 36 ] The applicant submits that her “ongoing issues and difficulties with her employment, family, social, recreational activities of daily life she is dependent physiotherapy, she limits her activities due to fear of aggravation and further injury” are evidence that three of the AMA Guides criteria are met.

[ 37 ] I disagree with this submission because the applicant self-reported to Dr. Ogilvie-Harris, Dr. Ballard, Dr. Giles, and Dr. Bacchiochi that she had returned to work. The clinical notes and records of Dr. Light and Dr. Jamal contain no notations of her pain being disruptive of her employment or recreational activities. Dr. Ballard noted that the applicant reported that her accident-related injuries had improved, and Dr. Ballard concluded that her recovery was still advancing towards maximal medical recovery. She also advised Dr. Ballard she had returned to some recreational activities including walking and hiking although she had not returned to biking and volleyball.

[ 38 ] I find there is no evidence that the applicant is using prescription medication beyond what is recommended by her healthcare providers. The applicant does report that at times she does rely upon some assistance from her family in completing some household chores, I do not find that this reporting indicates an excessive dependence. There is no evidence in the medical documentation that the applicant has experienced physical deconditioning because of her accident-related injuries. The applicant reported to Dr. Jason Bacchiochi that she has several friends that she communicates with on a regular basis, online due to the COVID protocols, as this assessment took place in May 2021, during the pandemic . As indicated the applicant reported to a number of healthcare providers that she continues to work and participate in some recreational activities. I find that the applicant has not demonstrated that three of the criteria in the AMA Guides have been met to establish a diagnosis of chronic pain.

[ 39 ] I find that the applicant has not proven on a balance of probabilities that her accident pain has caused her functional impairment that would cause her to be removed from the MIG.

Does the applicant have a psychological impairment warranting removal from the MIG?

[ 40 ] The Tribunal has also determined a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

[ 41 ] The CNRs of the applicant’s family physicians do not contain any notations of complaints or observations of any psychological difficulties associated with the accident. Accordingly, no psychological assessment or treatment is recommended by either Dr. Light or Dr. Jamal.

[ 42 ] The applicant participated in a psychological assessment conducted by Dr. Pilowsky on August 17, 2020. A report in relation to this assessment is dated September 21, 2020. Dr. Pilowsky is a licensed clinical and rehabilitation psychologist.

[ 43 ] Dr. Pilowsky conducted the assessment via teleconference and acknowledges in the report that the clinical presentation was limited. Dr. Pilowsky notes that the applicant reported feeling or experiencing several psychological symptoms, including depressed mood and despondency; apathy and withdrawal; overwhelmed with guilt and shame; difficulty sleeping; accident flashbacks accompanied by headaches sweaty palms, stomach discomfort and heart palpitations; diminished cognitive ability; and vehicular anxiety. Again, these complaints were not made to either of the applicant’s family doctors.

[ 44 ] Dr. Pilowsky diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood based on the applicant’s self-reporting and the completion of psychometric testing over teleconference call.

[ 45 ] I am more persuaded by the psychological assessment report dated May 19, 2021 of IE assessor, Dr. Bacchiochi, who assessed the applicant on May 5, 2021 via online videoconference. Dr. Bacchiochi is a registered clinical psychologist. I find the conclusions of Dr. Bacchiochi are more consistent with the CNRs of the applicant’s family doctors and what she reported to other healthcare providers in this case. Dr. Bacchiochi found that the applicant’s psychological symptoms are accident-related sequelae but do not meet the threshold of a psychological diagnosis and would fall within the MIG.

[ 46 ] Dr. Bacchiochi notes in the report that when asked directly if she felt that she needed psychological treatment she replied that she did not believe so, responding, “I think I’m fine.” Dr. Bacchiochi notes that the applicant continued to work full-time hours at her cleaning business, that she provides care-giving activities for her family and that she completes household chores and walks her dog. Dr. Bacchiochi notes that some of these activities are completed with the assistance of family at times. Dr. Bacchiochi also reports that the applicant advised she experiences memories of the accident once a month, that she does have some anxiety when driving but not to a degree where she cannot drive. She described herself as being more cautious and vigilant when she drives.

[ 47 ] I find that the applicant has not demonstrated that her accident-related psychological symptoms warrant her removal from the MIG.

[ 48 ] It is the Tribunal's understanding that the limits under the MIG have been exhausted. Having determined that the applicant's accident-related injuries 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

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

Award

52In her submissions the applicant claims she 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 plus interest 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.

53I 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 minor and therefore within the MIG. I find the evidence supports that an award is not appropriate in this case.

ORDER

54The 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