Citation: Squire v. BelairDirect, 2023 ONLAT 21-005387/AABS

Licence Appeal Tribunal File Number: 21-005387/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:

Tresnaiis Squire

Applicant

and

BelairDirect

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Hermia Leung, Paralegal

For the Respondent: Christine Anne Haddad, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Tresnaiis Squire (the “applicant”) was involved in a motor vehicle accident on November 30, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). BelairDirect (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 certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. 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?
2. Is the applicant entitled to $1,826.85 for chiropractic treatment in a treatment plan/OCF-18 recommended by Centennial Rehab Centre and denied on July 16, 2019?
3. Is the applicant entitled to $753.00 for chiropractic treatment in a treatment plan/OCF-18 recommended by Centennial Rehab Centre and denied on September 18, 2019?
4. Is the applicant entitled to $2,552.47 for psychological treatment in a treatment plan/OCF-18 recommended by Dalton Practice Management Ltd. and denied on December 20, 2019?
5. Is the applicant entitled to $2,200.00 for a psychological assessment in a treatment plan/OCF-18 recommended by Dalton Practice Management Ltd. and denied on May 21, 2019?
6. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

3I have changed the type of treatment listed in issues #4 and #5 above from what was listed in the Case Conference Report and Order (“CCRO”) dated March 9, 2022. Witten submissions from both parties note that these two treatment plans were for psychological services and a psychological assessment, respectively, not the chiropractic treatment listed in the CCRO.

RESULT

4I find that:

i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule, or that he suffers from a pre-existing condition that would preclude recovery if kept within the MIG. He remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG and the treatment plans in dispute propose treatment outside of the MIG, he is not entitled to the treatment plans in dispute, nor interest.

iii. The respondent is not liable to pay an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

5Section 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 it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological impairment may warrant removal from the MIG.

6The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. Here, the applicant argues that he suffers from a pre-existing injury that has contributed to his accident-related injuries, constant physical pain, and an ongoing psychological impairment, all of which necessitate his removal from the MIG to obtain further treatment. He relies primarily on the clinical notes and records (“CNRs”) from Hamilton General Hospital, medical diagnostic imaging reports, treatment summaries from Centennial Rehab Centre and Dalton Practice Management, a psychological assessment report dated October 24, 2019, that was completed by Irina Murariu, psychologist, and the treatment plans in dispute.

7The respondent takes the position that the applicant sustained soft-tissue injuries in the accident that fall within the MIG. BelairDirect further argues that if the applicant were to be removed from the MIG, the treatment plans in dispute have not been proven to the reasonable and necessary and that it is not liable to pay interest or an award. It largely relies on the CNRs of the applicant’s family physician, Dr. Margaret Goodacre, and two s. 44 insurer’s examination (“IE”) reports, both dated November 12, 2019—a physical assessment completed by Dr. Charanijit Sandhu, internist, and a psychological assessment completed by Dr. David Prendergast, psychologist.

8In addition, the respondent notes in submissions that $116.32 was remaining under the MIG limit as of May 21, 2022. The applicant makes no mention of the MIG amount remaining in his submissions. However, all of the treatment plans in dispute are for injuries that are not minor in nature and propose treatment outside of the MIG. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to any of the treatment plans in dispute here.

Has the applicant sustained injuries that warrant removal from the MIG?

9I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from an injury or impairment that is not predominantly minor in nature as defined in the Schedule. I also find that the applicant has failed to prove that he suffers from a pre-existing condition that would preclude his recovery if kept within the MIG. He therefore remains within the MIG and is subject to its $3,500.00 limit on treatment.

10I am not convinced by any of the applicant’s claims. He advances three linked reasons for requiring treatment outside of the MIG, none of which have been supported by sufficient medical evidence:

i. A pre-existing functional head and postural tremor likened to cervical dystonia, a condition where neck muscles contract involuntarily, that precludes his full recovery if held within the MIG.

ii. Daily neck and back pain as a direct result of the accident.

iii. Residual anxiety and depression as a result of this pain that requires psychological treatment.

Pre-Existing Cervical Dystonia

11Below, I address each of his claims in order.

12Insufficient medical documentation has been presented to support the applicant’s claim that his pre-existing cervical dystonia was exacerbated by the accident or that it would impede his recovery if he were held within the MIG.

13The applicant has documented the existence of this condition as early as January 2016 through the CNRs of Dr. Goodacre and an OHIP Summary showing that he underwent head MRI examinations, consulted a neurologist, and received treatment in the form of botulinum toxin injections and a prescription for the anti-anxiety medication clonazepam. But this condition has not been linked to the accident nor been shown to have had any impact on his resulting treatment. Cervical dystonia is only mentioned once in Dr. Goodacre’s CNRs, and this regarded an appointment on January 10, 2018, nearly a year before the subject accident. Also, in his physical IE assessment of the applicant, Dr. Sandhu found no evidence that cervical dystonia or features of a functional tremor would result in a more prolonged course of recovery that would require removal from the MIG.

14So, while I accept that the applicant suffered from cervical dystonia before the accident, there is no evidence supporting his claim that this disorder precluded successful treatment within the MIG.

Constant Pain

15Similarly, the applicant has not corroborated his submission that he suffers from “a state of constant pain” as a result of the accident.

16While chronic pain with a functional limitation has long been held by this Tribunal to warrant removal from the MIG, the applicant does not make such a contention here. Instead, his submissions allude to him suffering from daily pain in his neck and back that have caused physical limitations. However, he has submitted minimal medical evidence to support these assertions. While he was transported to Hamilton General Hospital from the scene of the accident, and then returned to that same hospital for emergency treatment of neck pain on December 2, 2018, he was diagnosed only with soft-tissue injuries and advised to take over-the-counter pain medication. X-rays and a CT scan revealed nothing abnormal.

17In addition, the applicant never mentioned the accident or any physical injuries or sequelae resulting from the accident to his family physician, Dr. Goodacre, even though he visited her on three occasions for unrelated issues from 2018 through 2020. The applicant was diagnosed on December 6, 2018, with a suspected WAD 2 (whiplash) injury and low back sprain/strain by Lisa Fortunato, chiropractor, and the resulting report sent to Dr. Goodacre. But there is no evidence of any follow-up by Dr. Goodacre, so I assign this report little weight as it stands unsupported by objective medical evidence. Also, the chiropractic assessment documented only soft-tissue injuries, all of which are defined as minor in the Schedule.

18I prefer the opinions of Dr. Sandhu, who noted in his physical IE report that he diagnosed the applicant with myofascial sprains to the cervical and lumbar spine and shoulders, soft-tissue injuries that fall within the MIG. Dr. Sandhu’s report is the most comprehensive physical assessment of the applicant before me and is in alignment with the hospital CNRs and diagnostic imaging reports, so I see no reason to doubt his conclusions.

19In all, this evidence demonstrates that the applicant suffered minor injuries in the accident, not chronic pain with a functional limitation that would necessitate his removal from the MIG.

Psychological Sequelae

20I also find that the applicant has not met his burden and proven that he suffers from a psychological impairment as a result of the accident.

21While this contention is supported by the diagnoses of severe depression and anxiety in the psychological report of Ms. Murariu, psychologist, I assign this report little weight. The results of Ms. Murariu’s clinical interview and observations do not seem to match her test results. For example, even though the applicant reported some mood changes and driving anxiety as a result of the accident, he denied feeling hopeless, helpless, useless, worthless, or guilty, and he noted that he was still driving, working, and socializing as he was before the accident. Yet Ms. Murariu still diagnosed the applicant with severe depression and anxiety, apparently almost entirely due to test results. As these results do not appear to fully match how the applicant presented himself to the psychologist during the assessment, I have some doubt as to their reliability. I also note that Ms. Murariu did not test the applicant for symptom amplification.

22Also, this assessment was called into question by the applicant himself during his psychological IE assessment with Dr. Prendergast. Even though this examination took place on November 5, 2019, just a month after the applicant apparently saw Ms. Murariu on October 3, 2019, the applicant told Dr. Prendergast that he did not recall speaking to Ms. Murariu or anyone else from the Dalton Practice Management Clinic. Further, Dr. Prendergast wrote in his report that the applicant was unwilling or unable to discuss himself in “any significant or informative manner,” that he stated that he did not want any mental health counselling, and that he participated in just three brief tests before declining to participate in any further testing and abruptly but politely leaving the office. As a result, Dr. Prendergast explained in his report that his diagnoses would not reflect a comprehensive mental health examination. However, he still concluded that the applicant did not suffer from any diagnosable psychological impairment as a result of the accident and fell within the MIG.

23Despite the incompleteness of the examination, I still accord significant weight to Dr. Prendergast’s report, which tells me more about the applicant’s psychological condition post-accident than the report of Ms. Murariu. The applicant’s comments to Dr. Prendergast that he did not want psychological treatment and that he did not even want to acknowledge his assessment by Ms. Murariu (which I infer did happen, on the basis of the report that has been entered into evidence), along with his unexpected mid-examination departure, undermine his argument that he suffers from a psychological impairment outside of the MIG.

24Accordingly, I find that the applicant has not demonstrated that he suffers from a psychological impairment as a result of the accident that would warrant his removal from the MIG.

Conclusion

25For the reasons noted above, I find that the applicant has not met his burden and demonstrated that he suffers from physical injuries or a psychological impairment that would warrant his removal from the MIG, or a pre-existing condition that would preclude his recovery within the MIG.

The Treatment Plans

26As the applicant has been found to remain within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, it follows that he is not entitled to these plans, or interest.

AWARD

27As there are no benefits owing, the respondent is not liable to pay an award.

ORDER

28The 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, or that he suffers from a pre-existing condition that would preclude his recovery if held within the MIG. He remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, he is not entitled to these plans, or interest.

iii. The respondent is not liable to pay an award.