Citation: Bahadur v. Intact Insurance Company, 2023 ONLAT 21-002866/AABS

Licence Appeal Tribunal File Number: 21-002866/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:

Christopher Bahadur

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Francesco Blasi, Paralegal

For the Respondent:

Maryam Younes, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Christopher Bahadur, the applicant, was involved in an automobile accident on February 10, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (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.

ISSUES

2The issues in dispute are:

i. 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?

ii. Is the applicant entitled to $3,307.98 for chiropractic services, proposed by Prime Healthcare Inc. in a treatment plan (“OCF-18”) dated February 10, 2020?

iii. Is the applicant entitled to $1,926.47 for chiropractic services, proposed by Prime Healthcare Inc. in an OCF-18 dated September 18, 2020?

iv. Is the applicant entitled to $2,200.00 for a Psychology Assessment, proposed by Pilowsky Psychology in an OCF-18 dated September 22, 2020?

v. Is the applicant entitled to $3,259.48 for psychology services, proposed by Pilowsky Psychology in an OCF-18 dated October 22, 2020?

vi. Is the applicant entitled to $2,480.00 for an Orthopaedic Assessment, proposed by All Health Medical Centre in an OCF-18 dated January 21, 2021?

vii. Is the applicant entitled to $2,000.00 for chronic pain treatment, proposed by Prime Healthcare Inc. in an OCF-18 dated November 21, 2020?

viii. In the applicant entitled to $1,417.51 for chiropractic services, proposed by Prime Healthcare in an OCF-18 dated December 4, 2020?

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

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

RESULT

3I find that:

i. The applicant has not met his burden of demonstrating that removal from the MIG is warranted or that the treatment plans in dispute are reasonable and necessary.

ii. As no benefits are owing, no interest is payable.

iii. The respondent is not liable to pay an award under Regulation 664.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.”

5An 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.

The applicant has not established that his physical impairments warrant removal from the MIG

6Although the applicant submits that he sustained physical injuries as a result of the accident, I find that none of the applicant’s physical impairments fall outside the definition of a “minor injury”.

7The clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Karagiozov indicate that post-accident, Dr. Karagiozov diagnosed the applicant with “probable whiplash injury” and soft tissue injury, accompanying his musculoskeletal pain. Such soft tissue injuries fall squarely within the definition of a “minor injury”. The applicant does not direct me to any medical opinion from a treating physician that he sustained physical impairments aside from such soft-tissue strains or any diagnostic imaging indicating physical injury. In fact, when the applicant was assessed by Dr. Yuh at Surrey Medical Centre a few days post-accident, Dr. Yuh noted that there was no value in performing x-rays.

8Both the respondent and the applicant obtained assessments with respect to the applicant’s physical impairments. Dr. Todd Levy conducted a s. 44 assessment and diagnosed with the applicant with strain and sprain type injuries of the thoracic and lumbar spine and WAD I, all of which fall within the MIG. The applicant obtained a s. 25 orthopaedic assessment from Dr. Ogilvie-Harris. Dr. Ogilvie-Harris found that the applicant’s questionnaire results “point to a patient with considerable pain related limitations arising from his musculoskeletal injuries” and opined that the applicant had non-minor injuries. Dr. Ogilvie-Harris recommended further investigations, such as an MRI.

9When comparing the two assessment reports, I prefer the s. 44 assessment of Dr. Levy. Dr. Levy assessed the applicant in person and conducted a clinical examination, including range of motion testing of the cervical and lumbar spine, FABER’s testing and neurological examinations. In contrast, Dr. Ogilvie-Harris conducted a telephone consultation and virtual assessment. Although an interview and questionnaires were provided by Dr. Ogilvie-Harris, no objective testing is referenced. Further, Dr. Ogilvie-Harris references musculoskeletal injuries and does not actually provide a diagnosis of a non-minor physical impairment, but simply recommends further investigation. Finally, I note that Dr. Levy’s conclusions are consistent with that of the applicant’s family physician, Dr. Karagiozov who also only found that the applicant suffered from soft-tissue strains and sprains.

10For the foregoing reasons, I find that the applicant has not met his onus to prove a non-minor physical injury.

The applicant has not established that he sustained psychological impairments that warrant removal from the MIG

11The applicant submits that he has sustained an accident-related psychological impairment, and as such, should be removed from the MIG. He relies on various OCF-3s, which list psychological impairments, pre-screening interviews conducted during the preparation of two OCF-18s for psychological assessments, and a s.25 psychological assessment report of Dr. Sagrati, psychologist, who diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood.

12I agree with the respondent that the applicant has not adduced sufficient evidence that he has sustained a psychological impairment. The applicant submits a number of OCF-3 and OCF-18 forms where psychological impairments are noted, as evidence of such impairment. However, I do not find these forms to be persuasive evidence of a psychological impairment. Firstly, a number of the forms were prepared by chiropractors or physiotherapists, and a psychological diagnosis would be beyond the scope of their expertise. Secondly, while these forms may be used to apply for medical or specified benefits they are not in and of themselves a comprehensive assessment of injuries sustained in an accident. With respect to the pre-screening interviews conducted by psychologists and summarized in two OCF-18s, I agree with the respondent’s submissions that these summaries are based solely on the applicant’s self-reports and as such, are less persuasive that the psychological assessments obtained by the parties.

13With respect to the OCF-3 forms prepared by the applicant’s family physician, the applicant references Dr. Karagiozov notation in the March 16, 2020 OCF-3 of “PTSD Anxiety”, as evidence of a psychological condition. However, I do not find that this notation is comparable to a psychological diagnosis. Firstly, in a subsequent OCF-3 prepared by Dr. Karagiozov, in response to the question of whether the applicant suffered from a psychological impairment as a result of the accident, Dr. Karagiozov replied “no”. In addition, the CNRs of Dr. Karagiozov do not indicate any psychological complaints post-accident, any referrals for psychological treatment or psychological diagnoses.

14Both the applicant and the respondent submit psychological assessment reports. When comparing the s. 25 psychological assessment of Dr. Sagrati to the s. 44 psychological insurer’s examination (“IE”) of Dr. Salerno, I prefer Dr. Salerno’s IE. Dr. Salerno conducted a clinical interview and a number of psychometric tests, and found that the applicant’s scores indicated normal depressed mood, normal anxiety and normal stress. Dr. Salerno found that the applicant did not meet the criteria for a DSM-5 diagnosis. These findings are consistent with the medical record, including the CNRs of the applicant’s family physician, which did not reflect reports of psychological impairments. I also agree with the respondent’s submissions that the applicant’s s. 25 assessment appears to have inconsistencies between Dr. Sagrati’s conclusions and the reported test results. Dr. Sagrati reported that the objective testing reflected minimal levels of anxiety, mild levels of depression and scores below the threshold for PTSD, and yet the applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood. No explanation was provided for the discrepancy between the diagnosis and test results.

15As such, I do not find that the applicant has established a psychological impairment warranting removal from the MIG.

The applicant has not established chronic pain warranting removal from the MIG

16I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

17To establish his chronic pain, the applicant relies in large part on the s. 25 orthopaedic assessment of Dr. Ogilvie-Harris. However, I agree with the respondent that the s. 25 assessment is of limited persuasive value.

18Firstly, Dr. Ogilvie Harris did not conduct an in-person assessment, unlike the respondent’s IE assessor, Dr. Levy. In addition, Dr. Ogilvie-Harris’ conclusion that the applicant’s questionnaire scores “point to a patient with considerable pain related limitations” appears to be inconsistent with the test results themselves. Dr. Ogilvie-Harris reported that the pain disability questionnaire indicated moderate pain related functional limitations, that the central sensitization inventory indicated subclinical central sensitization and that the applicant scored in the lowest 1/3 of the population in the spectrum from no disability to extreme disability. I agree with the respondent that these inconsistencies go to the reliability of Dr. Ogilvie-Harris’ opinion. Further, I note that Dr. Ogilvie-Harris does not formally diagnose the applicant with chronic pain, but rather, reported that the applicant’s complaints were “characteristic of a patient with an early chronic pain syndrome”.

19Most importantly, I do not see that the medical record supports a finding of chronic pain or Dr. Ogilvie-Harris’ conclusions. In the two years post-accident, the applicant only attended at his family physician’s office three times for accident-related complaints, complaining of upper back, shoulder and neck pain. The applicant does not direct me to any evidence that he had to take ongoing prescription medication for pain management, with the applicant reporting to assessors that he took Advil or Tylenol when needed. Nor do the CNRs of Dr. Karagiozov indicate any referrals for specialized pain management or any discussion of chronic pain or a chronic pain diagnosis.

20Even without a formal diagnosis, chronic pain can still be established if there is sufficient evidence of ongoing pain, accompanied by functional impairment or disability. The applicant has provided limited evidence of such functional impairment. He points to his self-reports to various assessors and treatment providers of difficulties bending, lifting, carrying, prolonged sitting and standing, which he asserts affected his ability to carry out his tasks of employment and activities of normal life. However, the applicant has not provided any objective medical evidence corroborating these claims.

21In fact, the applicant confirmed to both Dr. Levy and Dr. Sagrati that he returned to work immediately after the accident. First on modified duties for a few weeks and then back to his pre-accident work duties. The applicant was subsequently promoted at work and given additional responsibility for training new employees. With respect to physical limitations, although the applicant submits that he is limited due to his pain, the CNRs of Dr. Karagiozov and Dr. Yuh do not indicate functional limitations. Dr. Yuh noted just a few days after the accident that while the applicant complained of pain, he had good range of motion (ROM) in his shoulder, full flexion and extension in his lower lumbar. Dr. Karagiozov assessed the applicant on March 12, 2020 and noted tenderness on palpitation, but otherwise full ROM. Dr. Levy also found that the applicant displayed full ROM in all assessments. The applicant has not provided sufficient medical evidence to refute Dr. Levy’s findings of soft tissue injuries and minimal functional impairment.

22For the foregoing reasons, I find that the applicant has not adduced sufficient evidence of chronic pain warranting removal from the MIG.

Are the OCF-18s reasonable and necessary?

23I have determined that the applicant has not demonstrated that his accident-related impairments require removal from and treatment beyond the MIG limit. The applicant submits correspondence that almost the full MIG limit has been exhausted, with only a nominal amount remaining under the MIG. Therefore an analysis of whether the OCF-18s are reasonable and necessary is not required. Consequently, the applicant is not entitled to payment for the OCF-18s in dispute. As no benefits are owing, no interest is payable.

ORDER

24For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans; and

(iii) The applicant is not entitled to interest or an award.

25The application is dismissed.