Licence Appeal Tribunal File Number: 20-011781/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:
Rita Belfrutto
Applicant
and
Unifund Assurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Julia Fogarty
APPEARANCES:
For the Applicant:
Anuran Sivakumaren, Counsel
For the Respondent:
Farzana Merchant, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1The applicant, Rita Belfrutto, was involved in an automobile accident on July 14, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (Schedule) from the respondent, Unifund Assurance Company. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent denied the applicant’s claims because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG). The applicant disagreed and proceeded with an application before this Tribunal for resolution of the dispute.
ISSUES
3As set out in the June 1, 2021 case conference report and order, the following issues are to be decided:
a. 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?
b. Is the applicant entitled to the chiropractic services recommended by Revive Health Centres Inc., as follows:
i. $1,508.37 for chiropractic services, in a treatment plan dated February 4, 2019; and
ii. $1,423.76 for chiropractic services, in a plan dated July 2, 2019?
iii. $1,423.76 for chiropractic services, in a plan dated November 21, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been exhausted. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans.
5No interest is owed. No costs are awarded.
ANALYSIS
The applicant’s injury are subject to the Minor Injury Guideline
6The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule 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”. Under section 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.
7To request treatment above the $3,500.00 funding limit, the applicant must prove that their injuries do not fall within the definition of a “minor injury”. The applicant can establish this by:
a. Establishing an impairment sustained in the accident that is not a predominantly minor injury; or
b. Producing compelling evidence, provided by a health practitioner(s) that documents a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit.
8The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG. The applicant argues that she should be removed from the MIG on three grounds: pre-existing back and neck pain exacerbated by the accident, chronic pain and psychological issues. The issue of chronic pain and her pre-existing pain are intermingled.
Section 3 – Minor Injury Guideline
9Section 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.”
10An 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.
11On September 22, 2015 Dr. Nancy Abram diagnosed the applicant with WAD-II with cervical cephalgia and thoracic strain. She concluded that these were minor injuries as outlined in the MIG. She also concluded that the applicant did not present with any pre-existing conditions that would require treatment outside the MIG.
12The applicant does not advance that due to the nature of her physical injuries she should be removed on this basis. As there is no debate here, I will focus my analysis on to the contested ground for the removal of the applicant from the MIG, more specifically – pre-existing injury paired with chronic pain and psychological sequelae or chronic pain with psychological sequelae.
13First I will assess if there is a pre-existing medical condition based on the evidence before me.
Section 18(2) – Is there a pre-existing medical condition which would make recovery under the MIG impossible?
14To rely on section 18(2) of the Schedule the applicant must show that:
a. She suffered from a pre-existing medical condition that was documented by a health practitioner before the accident; and
b. The pre-existing condition will prevent her maximal recovery if she is subjected to the $3,500.00 limit.
15The applicant has brought forward no compelling evidence, provided by a health practitioner that documents a pre-existing condition prior to the accident that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit, pursuant to s. 18(2).
16In the applicant’s submissions, it is noted that the applicant suffers from a pre-existing condition of chronic pain. The applicant submits that her chronic neck and back pain were exacerbated as a result of the accident. She provides the copy of a note dated July 4, 2017 by Dr. Daniel Toledano, which states, “history of chronic pain in her neck and back”. The accident took place on July 14, 2014, approximately three years prior to the note of Dr. Toledano.
17The applicant relies on this note to evidence that the applicant had a pre-existing chronic pain condition. I do not draw the same conclusion because the note is made nearly three years after her accident and it does not provide sufficient detail to determine if the history it refers to began before or after the accident. This doctor did not see the applicant before the accident, which makes it more likely that the note is based on the applicant’s self-reporting of chronic pain to a new family physician.
18Section 18(2) makes it clear that the pre-existing condition must be documented prior the accident. As such, the note being generated significantly after the accident fails to meet that test.
19The assertion of the applicant that she had pre-existing injuries which would limit her recovery is also not in line with the uncontradicted assessors’ evidence of Dr. Abram, who states there is no indication of any pre-existing condition during the assessment with the applicant on September 22, 2015. This assessment took place two years prior to the note of Dr. Toledano.
20I therefore find there is insufficient medical evidence before me that establishes that the applicant should not be subject to the MIG because of any pre-existing medical condition being an impediment to recovery.
Does the applicant have a psychological impairment as a result of the accident?
21I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from a psychological impairment as a result of the accident justifying treatment beyond the MIG. The weight of the evidence is that while the applicant has experienced some psychological issues, however, these issues are not severe and they may be associated with job-related stress rather than her accident.
22Following her accident, in assessments dated September 29, 2015. October 19, 2018 and July 2, 2020, the applicant was seen by psychological assessors Dr. Rockman or Dr. Bradbury.
23At her September 2015 assessment with Dr. Rockman, the applicant denied any anxiety symptoms, she relayed she did not want any psychological treatment and she reported that she was sleeping 6 to 8 hours per night on a normal day without any nightmares. At this assessment, the applicant’s only complaint was some driving anxiety which was rated as mild and that her mood was low but only when she was in pain. Dr. Rockman concluded that her apprehension was normal and not severe enough to be an impairment or a disorder and that she did not suffer from a diagnosable psychological impairment subject to the accident. Specifically, her presenting symptoms and complaints did not satisfy the DSM criteria for adjustment disorder, pain disorder, mood disorder, primary anxiety disorder, panic disorder, specific phobia, generalized anxiety disorder or post traumatic stress disorder.
24At the next assessment on October 19, 2018, this time with Dr. Bradbury, she again relayed that she did not feel as though she needed any psychological supports as a result of her accident. She described herself as a positive and optimistic person who experiences some mild feelings of increased caution with regards to travelling in a car but that she has not experienced any significant post-accident psychological issues. Dr. Bradbury confirmed the conclusion of Dr. Rockman in 2015: that the applicant does not suffer from a diagnosable psychological impairment related to her car accident and she does not meet the DSM criteria for any major depressive disorder, manic or hypomanic episode, mood disorder, clinical anxiety disorder, psychological adjustment disorder or post traumatic stress disorder associated with her car accident.
25Two years later, the applicant was again seen by Dr. Bradbury on July 2, 2020. This third assessment did not yield substantially different findings to those in 2015 and 2018. Again, the applicant self-reported that she did not need any psychological evaluation or treatment as a result of her car accident. She also advised that she no longer had any driving anxiety. The clinical interview confirmed and supported Dr. Bradbury’s prior position in 2018.
26The opinions and findings of Dr. Bradbury and Dr. Rockman were not contradicted by the applicant’s experts. The applicant has maintained through her clinical interviews throughout many years that she does not suffer from psychological issues related to her accident which is corroborated by the expert reports. The assertions set out in the applicant’s submissions are not in line with the records or the applicant’s own interviews with psychological experts. I find the severe driving anxiety is noted as very mild and has since resolved.
27The burden of bringing forward persuasive medical evidence of her alleged psychological impairment as a result of the accident is on the applicant and she has not met her burden. Her meetings with various mental health professionals show her to be recovering well and improving over the time following the accident until her initial symptoms have resolved completely.
Does the applicant have chronic pain as a result of the accident?
28I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain as a result of the accident justifying treatment beyond the MIG. A review of her medical history shows that through the years her subjective complaints to assessors are not corroborated by the objective findings during their assessments. At each step the assessor notes malingering and that her movements when observed informally are far better than those during the assessments.
29Although not binding, the Tribunal has consistently applied the American Medical Association’s six criteria as a useful interpretive tool to determine if the applicant has chronic pain. The AMA requires at least three of the following to be present:
a. Is the applicant abusing prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances?
i. This is not met by the evidence.
ii. When applying this to the applicant, I do not see that this is corroborated by the records and the applicant does not demonstrate a reliance on pain medication or other drugs. This was not advanced by the applicant.
b. Is there excessive dependence on health care providers, spouse, or family?
i. This is not met by the evidence.
ii. The applicant is divorced so there is no reliance on a spouse, but she does indicate she has a large family and friend support network. There is no information that indicates that she excessively relies on her support network for help.
iii. The applicant’s MVA-related medical visits are sparse and she is not dependent on health care providers.
iv. For a period of in or around six years, despite seeing Dr. P. Hanna consistently, the applicant only pursued one MVA-related visit on July 15, 2014 and then never again between July 2014 to June 2020. This conduct is inconsistent with a person experiencing chronic pain, when suffering from significant pain we look for evidence that they are using or abusing medications or heavily relying on medical professionals. One visit relating to the MVA in six years shows that the applicant did not need pain or other medications on a regular basis or that they did not seek help or treatment if issues existed.
v. On July 4 ,2017, approximately 3 years after the accident, the applicant began to see her family doctor, Dr. Toledano. At this visit she subjectively reported neck and lower back pain. She then did not again revisit the issue of pain with Dr. Toledano until July 19, 2018, nearly a year later, where Dr. Toledano noted the possibility of fibromyalgia. After bloodwork the applicant was noted to be in good health and no referrals were made for other testing related to fibromyalgia.
vi. The next MVA-related visit to a doctor was approximately 7 months later on March 9, 2019 where she attended Mackenzie Richmond Hill Hospital with a complaint of back pain.
c. Is there secondary deconditioning due to disuse and/or fear-avoidance of physical activity due to pain?
i. This is not met by the evidence.
ii. Dr. Abram relays that there is no objective evidence of orthopaedic sequelae in assessments in 2015, 2018, and 2020 despite significant malingering during the assessments themselves in comparison to her movement while not being assessed.
iii. On September 22, 2015, Dr. Abram found no objective evidence of orthopaedic sequelae, contrary to the note of Dr. Toledano on July 4, 2017. Dr. Abram even specifically noted that, informally, the applicant was able to move freely, including turning over on the examination table, which ran contrary to her conduct during the assessment where she was very guarded of her physical movements.
iv. The applicant indicates that she used to take 2 hour walks but that’s been shortened to increments of 1 hour or less. She has returned to the practice of yoga.
d. Withdrawal from social milieu, including work, recreation, or other social contacts?
i. This may be partially met on a recreational or social basis only.
ii. The applicant returned to work one day after the accident and continued to work in this field for approximately five years. This time also saw the applicant receive various promotions and thrive professionally.
iii. On a personal level she is a divorcee and primary caregiver for her son. In her psychological assessment with Dr. Hannah Rockman, on September 29, 2015, she found the applicant to be friendly and extroverted with a large social as well as familial support network.
iv. The applicant relayed that she cannot attend more physical activities with her friends but that she sees them for coffee. In the report of Dr. Cheryl Bradbury dated July 2, 2020 the applicant relays that she’s started back with yoga.
v. Her coffee outings and return to yoga are demonstrative of someone who’s not withdrawn socially and who’s increasing her level of recreational activity.
e. Failure to restore to pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs?
i. This is not met by the evidence.
ii. Due to the applicant’s near immediate return to work it is confirmed that she was able to conduct her work related tasks. She does not advance an argument on the basis of family or recreational tasks however she’s returned to yoga so she’s seen an increase in her activities since the accident.
iii. A further examination on September 24, 2018 by Dr. Abram further confirmed the lack of evidence of impairment from a mechanical standpoint. Dr. Abram again noted evidence of malingering during her assessment, predominantly that her movements outside the examination were fluid and during the examination those symptoms seemed magnified. Dr. Abram concluded that her 2015 MIG diagnosis was still valid and that the three years of subjective complaints by the applicant did not correlate with her objective findings.
iv. The applicant was again seen by Dr. Abram on July 2, 2020 where no physical functional or mechanical issues were observed. Again Dr. Abrams noted significant malingering, contrasting the applicant’s fluid movements to significantly magnified symptoms even to the lightest touch during her exam of the applicant. Dr. Abram concluded that, again, there were no objective findings to support the applicant’s ongoing subjective complaints and that she remained appropriately treated within the MIG.
v. Dr. Abram’s executive summary dated October 21, 2015; November 9, 2018 and July 30, 2020 all confirm that the applicant’s injuries are predominantly physical in nature and restricted to uncomplicated soft tissue injuries.
f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours?
i. This is not met by the evidence.
ii. The applicant asserts in her hearing submissions that she suffers from anxiety and other psychosocial sequelae. This is not in line with the records of Dr. Bradbury or Dr. Rockman, the psychological assessors, who the applicant self-reported improvement up to full recovery during the assessments.
30When applying the facts of this matter to the AMA Guide for chronic pain the applicant is unable to meet 3 of the criteria to demonstrate chronic pain. The respondent suggests that any pain the applicant experiences now is related to an unrelated medical condition, fibromyalgia pain syndrome:
a. For approximately 20 months, from March 10, 2019 to December 2020, the applicant did not see Dr. Hanna nor Dr. Toledano for any further MVA related visits. Since April 2019 the applicant stopped all mention of MVA or any related impairments to both Dr. Hanna and Dr. Toledano.
b. On November 12, 2019 the applicant went off work about 5 and a half years after the MVA for short term disability where her listed diagnosis is fibromyalgia pain syndrome and she checked off “no” to if this condition was the result of an accident.
31The burden of bringing forward persuasive medical evidence of her alleged chronic pain as a result of the accident is on the applicant and she has not done so. Rather, I find her medical history illustrates a party without complicated issues who only later had an unrelated issue which resulted in her taking time off work nearly 6 years after accident.
32At each step in the juncture where the applicant could have raised the issue of pain with her physicians she did not do so. There are no requests for pain medications, no reliance on medical professionals to assist with her pain or other indicators that she is suffering from chronic pain and she lives a mostly normal life until she develops an unrelated medical condition that leads to her leaving work for short term disability five and a half years after her accident.
33When applying the chronic pain assessment criteria from the 6th Edition of the American Medical Guides she did not meet any of the criteria. When viewing that, paired with her history of visits, I do not find that she suffered from chronic pain as a result of her accident.
CONCLUSION
34I do not find that the applicant suffers from a previous medical condition that would preclude recovery within the minor injury guidelines.
35I do not find that the applicant suffers from chronic pain.
36I do not find that the applicant suffers from psychological sequelae.
37The applicant has not met the burden of proof to establish that she should be removed from the minor injury guideline.
COSTS
38Rule 19 of the Tribunal’s Common Rules of Practice and Procedure provides that to the Tribunal may make a cost award in favour of one or more parties where the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith.
39The respondent submits that costs should be awarded due to the lack of evidentiary support for the applicant’s position in advancing her claim. The respondent cites no caselaw and does not provide fulsome submissions on costs or any detail whatsoever in the request beyond the blanket statement that the applicant lacked evidence.
40The applicant’s materials do not mention costs whatsoever. However, the applicant’s thoughtfully prepared materials on the substantive issues demonstrate a good faith effort to advance her claim.
41Being unsuccessful, on its own, does not rise to the level of meeting the test under Rule 19. As such, the respondent’s request for costs is rejected.
ORDER
42The applicant’s application is dismissed.
43No costs are awarded to either party.
Released: June 19, 2023
Julia Fogarty
Adjudicator