Licence Appeal Tribunal File Number: 21-008592/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:
Melanie Alvarez
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATORS:
Deborah Neilson
Bruce Stanton
APPEARANCES:
For the Applicant:
Melanie Alvarez, Applicant Francesco Vumbaca, Counsel
For the Respondent:
Alexander Dobson, Counsel
Heard by Videoconference:
February 23, 2023
OVERVIEW
1Melanie Alvarez, the applicant, was involved in an automobile accident on May 28, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The applicant claims entitlement to chiropractic treatment, the cost of a psychological examination and a chronic pain assessment. The applicant also claims the respondent unreasonably delayed payment of her benefits.
2The respondent submits that the applicant sustained soft tissue injuries and, therefore, her treatment is limited by the $3,500 policy limits for minor injuries and to treatment within the Minor Injury Guideline (“MIG”). The applicant submits that the MIG does not apply to her because she suffers from chronic pain and psychological impairments a result of the accident.
3Based on the testimony and evidence filed, we agree with the respondent. As the policy limits under the MIG have been exhausted, the applicant’s claims are dismissed.
ISSUES
4The issues in dispute 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 Minor Injury Guideline (“MIG”) limit?
Is the applicant entitled to $1,899.98 for chiropractic services, proposed by Dr. George Charalambous, chiropractor, Alpha-Med Wellness Center Inc. in a treatment plan/OCF-18 submitted to the insurer February 2, 2020 and denied March 3, 2020?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Lena Belyakova, psychologist, Royal Health Evaluations Inc. in a treatment plan dated February 27, 2020 and denied March 9, 2020?
Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Dr. Michael Gofeld, Physician, Pain Management, Hydro Health Evaluations Inc.in a treatment plan submitted to the insurer August 16, 2021 and denied August 20, 2021?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 (“s.10 award”) because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5We find the applicant has not demonstrated, on a balance of probabilities, that her accident-related injuries and impairments are beyond the MIG. She is therefore not entitled to the disputed treatment plans, a s. 10 award, or interest.
ANALYSIS
The applicant’s accident-related injuries are minor as defined in the Schedule
6This case turns on whether or not the injuries and impairments the applicant suffered in the motor vehicle accident are minor, as defined in the Schedule. Section 3(1) defines a “minor injury” as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
7Section 18(1) of the Schedule sets a policy limit of $3,500.00 for the cost of examinations, medical and rehabilitation benefits when the insured’s impairments are predominantly minor. Section 3(1) of the Schedule also defines the MIG as a guideline that establishes a treatment framework in respect to one or more minor injuries.
8The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG. The Tribunal has 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 on a balance of probabilities.
9To determine whether the applicant is out of the MIG, we must determine if the applicant’s reported chronic pain and psychological condition are accident-related, and if so, if they are severe enough to warrant her removal from the MIG.
Are the applicant’s reported chronic pain and psychological impairments sufficient to remove her from the MIG?
Chronic Pain
10We find that the applicant does not demonstrate that she suffers from accident-related chronic pain with functional impairments.
11In her testimony, the applicant did not provide a consistent description of her chronic pain symptoms and how they affected her functional ability. She testified that she had not experienced low back pain prior to the accident but did so afterward, and that her back pain continued to prevent her from standing still or sitting beyond a short period of time. She testified this pain persisted through to 2021, but her family physician’s records do not include pain complaints beyond December 2015, seven months after the accident.
12The applicant submits her pain prevents her from exercising, but in response to questioning, she revealed that she exercises by walking once or twice per day, up to three times per week. Her stated goal is to exercise five days per week. She also exercises following a clinic’s recommendation, 5 to 10 repetitions per day, at least 3 days per week.
13The applicant testified that she needs assistance from other family members for housekeeping, cooking and family duties due to her limitations and accident-related pain. However, on cross-examination she revealed that it was a lack of time that prevented her from cooking, socializing, and organizing social events in the home. There was no evidence submitted by the applicant to demonstrate that she needs assistance because of her accident-related injuries.
14The applicant testified she had ongoing back pain after the accident that reduced her functionality at work as a hotel room attendant. Yet, clinical records of her family physician, Dr. Donald J. MacDiarmid, show complaints of lower back pain persisting only to December 2015, seven months after the accident. Thereafter, across appointments every two to three months, for more than five years, the only other recorded complaint of back pain or any other musculoskeletal injury or pain, was the note dated January 31, 2022. Dr. MacDiarmid assessed that complaint as lumbar strain and noted the applicant was assured as to its benign nature. The lack of any back complaints from December 2015 until 2022 suggest that if the applicant had any low back issues during that time, they were mild at best.
15The applicant testified that she did not complain about back pain beyond December 2015 to Dr. MacDiarmid because his response was simply to take pain medication, get massage therapy, and quit her rooms attendant job.
16We find the applicant’s reasons for allegedly withholding pain complaints from her physician are not credible. Where the applicant’s testimony conflicts with the medical records, we give more weight to the medical records as they were created contemporaneously with events and are, therefore, more reliable than her memory which can fade over time. For this reason, we assign considerable weight to the records of Dr. MacDiarmid. The applicant had numerous visits with him in the period prior to and following the accident and there is no consistent pattern of reported pain complaints related to the accident.
17Dr. MacDiarmid’s clinical records show the applicant to be vigilant about her health: monitoring blood pressure, keeping her prescriptions up, and attending her GP’s office often. She willingly reported other health concerns and renewed prescriptions for hypertension. Given her active attention to her health, we are not persuaded that she would withhold reports of chronic back pain if she were experiencing it, especially if it was reducing her functional ability.
18Dr. MacDiarmid’s diagnosis is supported by an insurer’s examination (“IE”) by Dr. Jose Guerra, orthopaedic surgeon, on October 27, 2015, in which he concluded the applicant sustained myofascial injury to her lumbar spine and a Grade 1, Whiplash Associated Disorder of the cervical spine. Another IE assessment conducted on May 27, 2021, nearly six years later by Dr. Ahmad Belfon, specialist in family medicine, concluded the same: that the applicant’s injuries were minor and although some low back pain persists, she has made a full, functional recovery.
19The applicant relied on the January 26, 2022 report of Dr. Michael Gofeld, anesthesiologist and pain management specialist. Based on the documentation he reviewed (clinical notes and records of the family physician, hospital records, OHIP summaries and treatment plan proposals) and the videoconference interview, Dr. Gofeld diagnosed the applicant with Chronic Posttraumatic Headache and Chronic Low Back Pain. In the video interview of the applicant, Dr. Gofeld screened for what he described as the non-physical conditions of chronic pain, namely psychological and social conditions.
20The respondent submits that Dr. Gofeld stopped short of concluding the applicant’s impairments are beyond the MIG, citing a lack of documentation. Dr. Gofeld stated he needed a lumbar MRI to render a further opinion on whether the applicant’s injuries fall within the MIG. We agree with the respondent. We were not directed to any MRI or imaging record of the applicant’s injuries. Further, we find that the applicant’s chronic back pain or headaches, as diagnosed by Dr. Gofeld, are not severe enough to take her out of the MIG for the following reasons.
21The applicant’s back pain is intermittent and did not stop her from working for five years. According to the applicant’s testimony, her back pain did not prevent her from working, it only made her slower in accomplishing her work tasks. Nor did it prevent her from starting a new business at the same time as she was working full-time. The applicant stopped working allegedly because of her back pain, but her timing coincided with the success of her new cleaning company.
22Where Dr. Gofeld’s opinion conflicts with that of Dr. Guerra and Dr. Belfon, we give less weight to Dr. Gofeld’s assessment for the following reasons. Dr. Guerra and Dr. Belfon conducted in-person assessments while Dr. Gofeld’s assessment was by videoconference interview where he could not test the applicant’s range-of-motion or measure muscle atrophy. Further, the applicant’s reports to Dr. Gofeld of functional disability are not consistent with her oral testimony. As discussed above, she walks and exercises daily, sometimes twice daily; routinely completes clinic-recommended exercises; and reports experiencing back pain only one to three times per week for up to one minute per occasion. When bouts of pain do occur, she testified that her stretching exercise helped relieve the pain.
23For these reasons we find the applicant has not proven that she suffers chronic pain with a functional impairment that takes her out of the MIG.
Psychological Impairment
24The applicant has not proven, in oral testimony, or through documentary evidence, the existence of any psychological impairment arising from the accident.
25The first indication of the applicant’s low mood, depression or anxiety occur in Dr. MacDiarmid’s clinical notes in January 2019, nearly four years after the accident. According to Dr. MacDiarmid’s clinical notes, these psychological symptoms are associated with tensions within her family relationships. There is no reference to these symptoms being related to the accident.
26The applicant testified that the chronic pain she was experiencing caused her to lose patience and become depressed and that she experienced flashbacks and lack of concentration, all within weeks after the accident. When asked whether she advised her physician about her anxiety and depression, she avoided the question and responded that her family physician suggested she could go to group counselling.
27However, the applicant’s oral testimony is not consistent with the medical evidence. Dr. MacDiarmid’s clinical notes only indicate a referral for group therapy and counselling for her low mood and depression due to family conflict at home, not from chronic pain or the accident.
28The respondent relied on the IE report of Dr. Alfonso Marino, psychologist, dated November 3, 2015, where the applicant denied needing any psychological treatment that is directly attributed to the accident. Dr. Marino concluded the applicant does not present with any psychological impairment or diagnosis.
29The respondent also relied on the IE report of Dr. Howard Waiser, psychologist, dated May 7, 2021, in which the applicant reports not being anxious or depressed because of the accident.
30We give the two IE psychological assessments considerable weight because they are consistent with the family physician’s records. Dr. Waiser’s assessment included an extensive document review, and each IE assessment was consistent in its findings across a period from several months after the accident to nearly six years after.
31We find the applicant’s psychological symptoms are unrelated to the accident based on the applicant’s testimony and the medical evidence submitted by both the applicant and respondent, which refute any finding of psychological impairment arising from the accident. For these reasons, we find the applicant has not demonstrated she suffered psychological impairment from the accident.
32Therefore, the applicant has failed to meet her burden in proving her accident-related injuries are outside of the MIG. She is only entitled to the maximum of $3,500.00 for medical and rehabilitation benefits, which the parties agree she has already exhausted.
33Since we have determined that the applicant is not entitled to medical and rehabilitation benefits beyond the MIG limit of $3,500, and the MIG limit is exhausted, the applicant is not entitled to any of the disputed treatment plans.
34As the MIG limit has been exhausted, it is not necessary for us to determine if the three disputed treatment plans are reasonable and necessary. These claims are dismissed.
Section 10 Award
35The applicant sought an award under s. 10 of Reg 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
36As we found the applicant was entitled only to the maximum benefit limit under the MIG, the respondent did not unreasonably delay or withhold payments to the applicant. Accordingly, the claim for a s. 10 award is dismissed.
Interest on overdue payments
37As we have determined the applicant is not entitled to any of the disputed treatment plans, there are no overdue payments and, therefore, no interest is owed.
ORDER
38As the applicant has failed to prove that her injuries are outside of the MIG, which is her burden to do, the application is dismissed.
Released: April 27, 2023
__________________________
Deborah Neilson
Adjudicator
__________________________
Bruce Stanton
Adjudicator