Citation: Khetchedjian v. Dominion of Canada General Insurance Company (Travelers), 2023 ONLAT 21-003274/AABS

Licence Appeal Tribunal File Number: 21-003274/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:

Khatchig Khetchedjian

Applicant

and

Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Golan Mergui, Counsel

For the Respondent:

Stephanie Seto, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Khatchig Khetchedjian, the applicant, was involved in an automobile accident on November 9, 2019, 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, Dominion of Canada General 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 under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by 101 Assessments in a treatment plan dated November 27, 2019?

iii. Is the applicant entitled to $4,912.80 for psychological services, proposed by 101 Assessments in a treatment plan dated June 29, 2020?

iv. Is the applicant entitled to $3,125.76 for physical treatment, proposed by 101 Physio in a treatment plan dated November 3, 2020?

v. Is the applicant entitled to $225.62 ($1,299.92 less $1,074.30 approved) for physical treatment, proposed by 101 Assessments in a treatment plan dated February 13, 2020?

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

3The applicant withdrew the issue of whether he was entitled to an income replacement benefit.

RESULT

4The applicant suffers from a predominantly minor injury as defined by the Schedule. The applicant is not entitled to any of the treatment plans in dispute, or interest.

ANALYSIS

Application of the Minor Injury Guideline

5Section 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.”

6An 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.

7The applicant submits that his injuries fall out of the MIG as a result of a psychological impairment, chronic headaches, and chronic pain. The respondent disagrees.

8For the reasons below, I find that the applicant has not met his burden of proving on a balance of probabilities that his injuries justify removal from the MIG.

Did the applicant suffer psychological impairments that justify removal from the MIG?

9I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that would remove him from the MIG.

10The applicant went to the hospital on the day of the accident, however he left without being seen by a doctor. He visited his family physician, Dr. Eid, on November 11, 2019, complaining of central cervical and right lower back pain. He was referred for physiotherapy and was prescribed Vimovo and Flexeril.

11On November 14, 2019, the applicant visited Dr. Bill Nikols, chiropractor, who submitted an OCF-3. Dr. Nikols recommended that the applicant begin therapy, receive assistive devices, and undergo a psychological assessment. Dr. Nikols listed a number of sprain/strain injuries, as well as headaches, “other reactions to severe stress”, malaise and fatigue, sleep disorder, anxiety disorder. The next day, Dr. Eid also filled out an OCF-3, and indicated in his notes that the applicant was slightly better and would try to return to work the next week. His OCF-3 listed the following conditions: WAD 2 cervical and shoulders, lumbar strain, and headache. Dr. Eid indicated that no further examinations, investigations, or consultations were required.

12On November 27, 2019, a treatment plan was competed by Dr. Peter Waxer, psychologist, for a psychological assessment, and it included a pre-screen report. The only psychological symptom noted in the pre-screen report was “an increased fear for personal safety when travelling through intersections, namely nervousness when approaching and crossing intersections”.

13The applicant did not see his family physician again until November 5, 2020, when he reported recurrent back pain and told Dr. Eid that he had resumed physiotherapy. He was advised to continue doing exercises regularly, maintain proper postures, and apply heat. Dr. Eid did not make any referrals or provide any prescriptions. The final note from Dr. Eid is from February 8, 2021, when the applicant complained of right popliteal (knee) pain and couldn’t weight bear or walk. He was prescribed an anti-inflammatory. However, there is no indication that this issue was as a result of the accident.

14Dr. Waxer conducted an assessment on June 26, 2020, and noted in his report that the applicant had flashbacks of the accident, but they were quieter. He had resumed driving, but was apprehensive. He was not fearful as a passenger or a pedestrian. He had irritability and poor temper that accompanied pain and sleep impairments, but this had not increased arguments in his household. His greatest difficulty from the accident, from a psychological standpoint, was that he felt significantly more nervous. However, Dr. Waxer stated that the applicant had “a total absence of any clinical anxiety”. Although his score on the Derogatis protocol suggested moderately severe clinical depression, his score on the Beck Depression Inventory was zero. Even so, Dr. Waxer diagnosed the applicant with Chronic Adjustment Disorder with Depressed Mood, and provided a secondary diagnosis of Persistent Somatic Symptom Disorder with Predominant Pain: Moderate. Dr. Waxer noted that the applicant’s psychological impairment interfered with his efforts to return to his previous employment potential as well as many of his previous activities of daily living. He did not explain how the applicant’s psychological impairment interfered with work, or what activities of daily living were impacted. He recommended 12-16 sessions of cognitive behavioural therapy.

15Dr. Amena Syed conducted a s. 44 assessment on September 11, 2020. During her interview with the applicant, he reported that his behaviour initially changed after the accident but had returned to normal. In the two weeks prior to the assessment, he did not experience any headaches, sensory changes, nausea, dizziness, vertigo, or cognitive symptoms. When asked about psychological symptoms specifically, he denied having flashbacks, nightmares, or anxiety while driving; however, he did state: “when I stop at a traffic light, I get a little bit nervous”. He felt he was 0% disabled from a psychological perspective, has good psychological supports in place, and told Dr. Syed that he did not need psychological treatment and was not open, willing, or motivated to undergo psychological treatment. Dr. Syed found that the nature and severity of his psychological distress was below any diagnosable threshold and was subclinical. She was not able to provide any diagnoses, and stated that no further treatment or investigations were warranted.

16Despite the evidence of Dr. Waxer, there is no corroborating evidence of any psychological complaints in the medical records. At no point did Dr. Eid recommend psychological therapy, prescribe medication to assist the applicant with any psychological difficulties, or even note anywhere that the applicant was in psychological distress. It appears that Dr. Nikols was the reason why the applicant was referred for a psychological assessment to begin with. Dr. Nikols is a chiropractor and is not qualified to diagnose psychological conditions. Conversely, Dr. Eid’s OCF-3, completed the day after Dr. Nikols’, did not mention any psychological conditions. I place little weight on the OCF-3 of Dr. Nikols as it pertains to the applicant’s psychological status.

17I find that Dr. Waxer’s diagnosis is inconsistent with the applicant’s self-reporting. It appears that the applicant does have a bit of nervousness in certain vehicular situations. However, neither assessor diagnosed him with anxiety. Dr. Waxer diagnosed the applicant with a chronic adjustment disorder with depressed mood, but there is no indication of what symptoms of depression the applicant is experiencing. Further, one of the tests Dr. Waxer administered showed that the applicant was not experiencing any depression at all. Dr. Waxer described the applicant’s psychological symptoms as interfering with work and other activities, but did not explain in what way. This does not align with the applicant’s self-report that he feels 0% disabled from a psychological perspective. I also note that Dr. Waxer did not review any medical records prior to coming to his conclusion, whereas Dr. Syed did. For those reasons, I prefer Dr. Syed’s conclusions over that of Dr. Waxer.

18The applicant’s psychological symptoms appear to be clinically insignificant and, by his own admission, do not impair him in any way. He does not want any psychological treatment. He describes himself as being only “a little bit nervous” when stopped at a traffic light. I do not find that rises to the level of a psychological injury or impairment such that he should be removed from the MIG.

Does the applicant suffer from chronic pain that justifies removal from the MIG?

19I do not find that the applicant is removed from the MIG as a result of chronic pain.

20The applicant argues that his injuries did not resolve within the 12-week functional restoration model outlined in the Superintendent’s Guideline No. 02/11 (“Guideline”), and they became chronic. That appears to be his only submission with respect to why chronic pain should remove him from the MIG.

21Whether the applicant’s injuries resolved within 12 weeks of the accident is not the legal test to determine whether the MIG does not apply. Nowhere does the Guideline state that if an insured person still has pain after 12 weeks, they are automatically removed from the MIG. The applicant has not directed me to any case law or specific wording in the Guideline to support that assertion.

22In fact, the Tribunal has found that in order for a chronic pain condition to remove an insured from the MIG, they must prove that the pain is accompanied by a functional impairment or disability.¹ Chronic pain is also described as a severe, debilitating condition that is distinct from ongoing or recurring pain.²

23Aside from making the above noted argument, the applicant did not submit any evidence to support that he should be removed from the MIG as a result of chronic pain. He has not been diagnosed with chronic pain. He has not provided evidence of functional impairments caused by chronic pain, the extent of any impairments, or even the frequency of his pain. He does not raise any issues with the s. 44 physiatry report of Dr. Jennifer Gordon, who found that from a musculoskeletal perspective, his injuries fall within the MIG. I find that the applicant has not met his burden of proof in showing that he has developed chronic pain that would remove him from the MIG.

Do the applicant’s headaches justify removal from the MIG?

24The applicant argues that the definition of “minor injuries” in the Schedule does not include symptoms such as headaches or migraines. I find that this argument cannot succeed, as experiencing headaches is not sufficient on its own to justify removal from the MIG.

25There is no evidence that the applicant sustained a concussion or head injury in the accident. In fact, Dr. Waxer stated in his report that the applicant denied symptoms that might suggest any persisting post concussion symptomatology or acquired brain trauma. The applicant underwent a s. 44 assessment with Dr. Garry Moddel, neurologist, who did not find any neurological impairment or diagnosis. The applicant does not make any submissions to dispute Dr. Moddel’s findings.

26In fact, no evidence has been provided by the applicant to indicate why he is experiencing headaches. In order to show that he should be removed from the MIG by virtue of his headaches, he must prove on a balance of probabilities that the headaches are not mere sequelae of his whiplash or sprain/strain injuries. He has not attempted to do so. As noted above, he has also failed to show that his headaches rise to the level of a chronic pain condition such that he should be removed from the MIG.

Are the treatment plans in dispute payable?

27It appears that the applicant has exhausted the $3,500 treatment limit under the MIG. As I have found that the applicant has not proven on a balance of probabilities that he should be removed from the MIG, the treatment plans are not payable.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

ORDER

29The applicant suffers from a predominantly minor injury as defined by the Schedule.

30The applicant is not entitled to any of the treatment plans in dispute, or interest.

31The application is dismissed.

Footnotes

1. 1VG v. Aviva Insurance, 2019 CanLII 22214.
2. 2MK v. Aviva General Insurance Company, 2019 CanLII 43873;