Licence Appeal Tribunal File Number: 21-000149/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:
Joe Bonnah
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Paul Omeziri, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Joe Bonnah (the “applicant”) was involved in a motor vehicle accident on August 18, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Wawanesa Mutual Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied benefits on this basis. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant submits that he suffers from depression and anxiety as a direct result of the accident, which warrants treatment outside of the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on benefits. He also claims entitlement to two treatment plans and interest. He further asserts that the treatment plan in dispute for a psychological assessment is payable as the insurer acted in contravention of s. 38(8) of the Schedule in its denial.
3The respondent takes the position that the applicant sustained minor injuries in the accident and has failed to provide sufficient evidence that he suffers from a psychological impairment. It maintains that he should be treated within the MIG. Wawanesa further argues that the treatment plans have not been proven to be reasonable and necessary, so the applicant is not entitled to them, or interest, even if he is found to be outside of the MIG.
4In submissions, the respondent notes that $3,455.94 of the $3,500.00 MIG limit has been paid in medical rehabilitation benefits. This is not disputed by the applicant. As this leaves just $44.06 remaining under the MIG limit, and as the plans before me in dispute are each valued at more than this amount, the MIG is functionally exhausted for the purposes of this decision. The applicant must be found to warrant treatment outside of the MIG to be entitled to either of the treatment plans in dispute.
ISSUES IN DISPUTE
5The following issues are in dispute:
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 of the MIG?
Is the applicant entitled to $211.00 for medical services, recommended by Dr. Mahendra Kumar Jain in a treatment plan/OCF-18 submitted August 30, 2018?
Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Reddys Physio Rehab in a treatment plan/OCF-18 submitted November 18, 2019?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
6Issues #3, #4, and #6 as listed in the Case Conference Report and Order dated November 23, 2021 that set this matter down for a hearing were withdrawn by the applicant in his written submissions.
RESULT
7I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule, and as a result he remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as the MIG limit has been exhausted, he is not entitled to the treatment plans in dispute, nor interest.
ANALYSIS
The Minor Injury Guideline (“MIG”)
8I find that the applicant remains within the MIG, as he has failed to prove that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule.
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.” 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.
10The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside the MIG. In this instance, the applicant argues that he experienced psychological issues as a direct result of the accident. To demonstrate these claims, he relies on:
- the clinical notes and records (“CNRs”) of Dr. Mahendra Kumar Jain, family physician, dated August 2019 to February 2020;
- a psychological report completed by Dr. G. B. Fiati, psychologist, dated December 27, 2019; and
- the treatment plans/OCF-18s in dispute.
11The respondent’s position that the applicant has failed to demonstrate injuries that would warrant his removal from the MIG relies on:
- CNRs of Dr. Joseph Losomba Kayumba, the applicant’s most recent treating family physician, dated May 2020 to May 2021;
- an insurer’s examination (“IE”) psychological assessment report completed by Dr. Tatiana Dumitrascu, psychologist, dated October 19, 2021;
- an IE physical assessment report completed by Dr. Eric Silver, family physician, dated August 18, 2019; and
- a “Snapshot Analytic Report” detailing the social media footprint/recent activity of the applicant, conducted by AFIMAC and dated June 7, 2021.
12Given the applicant’s argument that a psychological impairment warrants his removal from the MIG, the crux of this dispute is the difference of opinion as expressed in the reports of Dr. Fiati and Dr. Dumitrascu. Where Dr. Fiati diagnoses the applicant as having psychological injuries that fall outside of the MIG, Dr. Dumitrascu finds the respondent has no diagnosable psychological issues and thus should be treated within the MIG.
Has the applicant sustained a psychological impairment that warrants removal from the MIG?
13I agree with the respondent. The applicant has not proven, on a balance of probabilities, that he suffers from a psychological impairment that would entitle him to treatment outside of the MIG and its $3,500 limit.
14I am not convinced by the applicant’s medical evidence regarding his claim to a psychological impairment. The CNRs of both of the applicant’s family physicians indicate that his primary complaints were soft-tissue physical injuries sustained in the accident, namely to his neck, upper and lower back, and left shoulder. While notations of the applicant’s complaints about anxiety and insomnia are consistent features of Dr. Jain’s reports, they are covered very briefly. Moreover, Dr. Jain describes the applicant with an anxious but “stable” mood, indicating that the physician’s primary concern was with the applicant’s physical injuries and pain. Dr. Jain recommends physiotherapy, for example, and prescribes Tylenol with codeine and Naproxen to address the applicant’s physical injuries. She does not recommend that the applicant seek psychological assistance, nor does she prescribe medication for the applicant’s anxiety or sleep issues. It is apparent to me that Dr. Jain did not find that the applicant’s psychological issues required additional treatment.
15Further, the applicant’s psychological issues are not mentioned in the CNRs of Dr. Kayumba. All of these records deal with unrelated health issues. The accident is noted only once by Dr. Kayumba, in the record of an appointment that took place on June 22, 2020, and this is a passing mention of the applicant’s history of lower back pain due to an “MVA last year.” This indicates that the applicant’s psychological issues had been resolved by mid-2020, or had at least been addressed to such a significant degree that the applicant was no longer mentioning them to his doctor. In all, there is limited medical evidence from the applicant’s primary care practitioners to demonstrate that he suffered from a psychological impairment to the point where he required medical or pharmacological assistance that would support his removal from the MIG.
16I am unpersuaded by the psychological report of Dr. Fiati for two primary reasons.
17First, Dr. Fiati’s psychological assessment came about due to the recommendation of the applicant’s chiropractor, not a medical doctor, as noted in the first sentence of the report. While the content of the report matters more than its provenance, I find it significant that this referral came from a chiropractor and not the applicant’s family doctors. This buttresses my comments about the CNRs of Dr. Jani and Dr. Kayumba. If the applicant was experiencing such significant psychological issues as those recounted by Dr. Fiati, there should have been some record in the family doctors’ CNRs.
18Second, I find that Dr. Fiati’s report conclusions are not supported by the overall medical record. There is no mention in the report of her reviewing any medical documents, so she does not seem to be aware of the family doctors’ CNRs noted above. At any rate, she accepts the applicant’s self-assessments in a multi-dimensional pain inventory that he is experiencing neck and back pain at a consistent 9/10 (“excruciating”) level, and that his overall chronic pain has resulted in fatigue, the almost complete lack of the ability to do his job and housework, and no enjoyment in life. This is reflected in the applicant’s other test results, which Dr. Fiati notes showed him to have severe levels of depression, high levels of anxiety, and a high distressing category of post-traumatic stress. She did not test the applicant for symptom magnification or malingering. As a result of the above, Dr. Fiati diagnosed the applicant with adjustment order with depressed mood, anxiety disorder, major depression, chronic pain, and post-traumatic stress.
19However, none of Dr. Fiati’s conclusions have been substantiated in the medical evidence before me. As I have already noted, there is little in the CNRs of the family physicians to indicate that the applicant suffered from psychological issues sufficient enough to warrant psychological intervention. Outside of this report, the evidence that I have been directed to by the applicant demonstrates that he sustained soft-tissue physical injuries in the accident that were treated appropriately with physical therapy. Correspondingly, I assign Dr. Fiati’s report minimal weight, as it is an outlier when compared with the other evidence.
20I prefer the IE report of Dr. Dumitrascu. It is comprehensive in its review of medical documents, not as reliant on self-reporting, and more in line with the totality of the medical evidence. Dr. Dumitrascu reviewed all relevant information regarding the applicant’s claims, including some 120 separate documents. She clearly took a more wide-ranging approach in the context of writing her report than Dr. Fiati. Dr. Dumitrascu’s clinical interview was also broader in scope, with the psychologist delving further into the applicant’s symptoms and their causes. This added context to comments that were taken at face value by Dr. Fiati. For example, the applicant explained to Dr. Dumitrascu that he performed some light housekeeping tasks, that his mood was “okay” although he felt down when bothered by pain, and that his anxiety did not prevent him from driving or riding in a vehicle (although he experienced anxiety when near the scene of the accident). The end result of this style of questioning is a more thorough and, to me, more believable self-assessment that aligns with the objective medical evidence.
21In addition, Dr. Dumitrascu’s testing did not elicit the severe results as reported by Dr. Fiati. She also concluded that the applicant magnified his symptoms. Dr. Dumitrascu wrote in her report that testing was suggestive of “some mild situational symptoms on the Clinical Assessment of Depression and the Beck Anxiety Inventory,” but that even this was likely due to the applicant’s tendency to symptom magnification as shown by the Structured Inventory of Malingered Symptomology. In her closing, Dr. Dumitrascu did not diagnose the applicant with any psychological impairments as a result of the accident and found that he did not display any conditions that would support the applicant’s removal from the MIG. I see no reason to doubt these conclusions, as they are well founded and supported by both her report and the medical evidence.
22For the above reasons, I find that the applicant has failed to demonstrate that he sustained a psychological impairment as a direct result of the accident. As a result, he remains within the MIG.
The Treatment Plans
23As the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute, nor interest.
24Also, I further find that the respondent did not act in contravention of s. 38(8) of the Schedule in its denial of the treatment plan in the amount of $2,200.00 recommending a psychological assessment, dated November 18, 2019, as claimed by the applicant in submissions.
25Section 38(8) of the Schedule holds that: “[w]ithin 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”
26The applicant argues that Wawanesa acted in contravention of this provision of the Schedule when it denied this treatment plan in correspondence dated November 26, 2019 because its explanation of reasons for the denial omitted the applicant’s psychological complaints to Dr. Jain and therefore was not “an accurate medical reason.” The applicant submits that this contravention triggers s. 38(11) of the Schedule, which mandates that an insurer failing to provide notice in accordance with s. 38(8) shall pay for all goods, services, assessments, and examinations in connection with the treatment plan in question starting on the 11th business day after the insurer receives the application and ending on the day the insurer gives a proper notice.
27The respondent did not refer to the applicant’s allegations in its submissions.
28Regardless, I do not find that the respondent contravened s. 38(8) of the Schedule in its denial of this treatment plan. This provision calls on an insurer to provide “medical reasons and all of the other reasons” in its denial notices, not “an accurate medical reason” as noted in the applicant’s argument. Wawanesa provided proper notice of its medical reasons for this denial. The insurer focused on the main factors in Dr. Jain’s CNRs in its letter, which were the applicant’s soft-tissue physical injuries, not his psychological concerns. Since Dr. Jain barely refers to psychological issues, I cannot fault Wawanesa for omitting this in its denial letter.
29For all of the above reasons, the applicant is not entitled to any of the treatment plans in dispute, nor interest.
ORDER
30The application is dismissed and I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG and as the MIG limit has been exhausted, he is not entitled to the treatment plans in dispute, nor interest.
Released: June 16, 2023
__________________________
Brett Todd
Vice-Chair