Citation: Mayers v. BelairDirect Insurance Company, 2023 ONLAT 20-005659/AABS Licence Appeal Tribunal File Number: 20-005659/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:

Keturah Jael Mayers Applicant

and

BelairDirect Insurance Company Respondent

Amended DECISION

ADJUDICATOR: Derek Grant

APPEARANCES: For the Applicant: Ryan Turner, Counsel For the Respondent: Matthew Stanley, Counsel

HEARD: By way of written submissions

OVERVIEW

1Keturah Jael Mayers (“KJM”), the applicant, was involved in an automobile accident on October 6, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). KJM was denied benefits by the respondent, BelairDirect, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The following preliminary issue is in dispute:

i. Is KJM barred from proceeding with issues 3(vii) and 3(viii) listed below, due to an alleged failure to comply with s. 56 of the Schedule?

ISSUES

3The issues in dispute are:

i. Are KJM’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 (the “MIG”)?

ii. Is KJM entitled to an income replacement benefit in the amount of $400.00 per week from December 6, 2018 to date and ongoing?

iii. Is KJM entitled to $1,981.20 for psychological services proposed by Toronto Healthcare Clinic in a treatment plan (OCF-18) dated June 19, 2019?

iv. Is KJM entitled to $2,581.08 for medical services proposed by Toronto Healthcare Clinic in an OCF-18 dated July 6, 2018?

v. Is KJM entitled to $3,335.98 for psychological services proposed by Toronto Healthcare Clinic in an OCF-18 denied May 13, 2019?

vi. Is KJM entitled to $1,254.25 for medical services proposed by Toronto Healthcare Clinic in an OCF-18 dated February 1, 2019?

vii. Is KJM entitled to $1,340.20 for a functional abilities assessment proposed by Toronto Healthcare Clinic in an OCF-18 dated June 23, 2018?

viii. Is KJM entitled to $785.10 ($1,225.10, less $440.00 approved) for physiotherapy services proposed by Toronto Healthcare Clinic in an OCF-18 dated May 16, 2018?

ix. Is KJM entitled to $1,465.10 for physiotherapy services proposed by Toronto Healthcare Clinic in an OCF-18 dated June 23, 2018?

x. Is KJM entitled to $2,000.00 for a psychological assessment, proposed by Toronto Healthcare Clinic in an OCF-18 submitted November 22, 2018?

xi. Is KJM entitled to $2,000.00 for a chronic pain assessment, proposed by Toronto Healthcare Clinic in an OCF-18 dated March 6, 2019?

xii. Is KJM entitled to $2,000.00 for a chronic pain assessment, proposed by Toronto Healthcare Clinic in an OCF-18 dated July 6, 2020?

xiii. Is BelairDirect liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to KJM?

xiv. Is KJM entitled to interest on any overdue payment of benefits?

DISCUSSION

Issues not in dispute

4In a Motion Order dated May 13, 2022, on consent of the parties, the adjudicator ordered that issue 3(iv) above is no longer in dispute, as the OCF-18 has been approved.

5Further, in her reply submissions, KJM withdrew issues 3(vi) and 3(vii) above. KJM also clarified that issue 3(viii) was inadvertently listed incorrectly. She submits that the cost of services for the functional abilities assessment was listed when her intention was to dispute the OCF-18 for physiotherapy services. In this regard, she points to her application where the type of services is listed as ‘medical services” and not a functional abilities evaluation. As such, she requests that the Tribunal consider the dispute for the denial of the OCF-18 dated June 23, 2018 as an issue in dispute.

6Having raised the issue in her reply submissions, BelairDirect did not have an opportunity to respond in its responding submissions. I note that KJM’s position was that BelairDirect would not be prejudiced if the Tribunal considers the June 23, 2018 OCF-18 with the remaining issues in dispute. In this vein, KJM submits that BelairDirect’s position is that KJM suffered predominantly minor injuries, and if the Tribunal finds accordingly, the OCF-18 will be denied regardless of the limitation issues raised by BelairDirect.

7After considering KJM’s submissions on the June 23, 2018 OCF-18, I find that the administrative error on the part of her counsel, is not a ground to deny the disputed OCF-18 from being considered as an issue in dispute with the remaining issues in dispute. I agree with KJM that BelairDirect would not be prejudiced by my consideration of the OCF-18.

8Accordingly, this decision will focus on the remaining preliminary and substantive issues in dispute.

RESULT

9I find that KJM has not demonstrated that her accident-related injuries warrant removal from the MIG. Having found that KJM’s injuries are predominantly minor, the preliminary issue is moot.

10KJM is not entitled to an IRB.

11No interest is payable.

ANALYSIS

Applicability of the MIG

12Section 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 in accordance with the MIG. 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 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.

13An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The Tribunal has also determined that chronic pain with functional impairment may justify removal from the MIG.

14KJM bears the onus to establish entitlement to coverage beyond the $3500.00 limit for minor injuries on a balance of probabilities.

Did KJM suffer soft tissue injuries as a result of the accident?

15I find that KJM suffered soft tissue injuries as a result of the accident.

16KJM submits that the impairments she sustained as a result of the accident warrant treatment beyond the MIG because she has developed chronic pain syndrome, she suffers from an adjustment disorder with severe anxiety, moderate depression, and specific phobia (travelling in a vehicle). She further submits that these injuries have resulted in functional impairments.

17In support of her claims, KJM relies on an April 13, 2018 Disability Certificate (OCF-3), noting her injuries as―lumbar, cervical and thoracic spine strain/strain; post-traumatic headache; dizziness, shoulder girdle sprain/strain; acute pain; pain – multiple sites; and behaviour signs and symptoms involving emotional state. These injuries are captured within the definition of ‘minor’. In addition, she relies on the CNRs of King Dufferin Family Medical Clinic and Toronto Healthcare Inc.

18In response, BelairDirect argues that KJM’s. injuries are soft tissue in nature and are captured within the definition of minor injuries under the Schedule. BelairDirect relies on the reports of its s. 44 insurer examination (“IE”) assessors, who concluded the following: Dr. Kabila, general physician (July 6, 2018 – sprain/strain injuries and July 16, 2018 paper review – no evidence to support further treatment outside the MIG); Dr. Goldstein, general physician (February 25, 2019 – sprain/strain injuries as a result of the accident, MIG and March 26, 2019 – no functional impairments ); and Dr. Silver, general physician (August 18, 2020 – no objective evidence of ongoing accident-related physical injury or impairment, MIG); and Robert Bullard, occupational therapist (no functional impairments).

19I agree with BelairDirect. On the evidence, I find the injuries listed in the OCF-3 fall squarely within the definition of minor injuries under the Schedule. Further, I agree that KJM’s injuries are soft tissue in nature. Under Part 6 of the OCF-3, which outlines the disability test, Dr. Minnella, chiropractor, indicates that KJM does not suffer a complete inability to carry on a normal life; can return to work on modified hours/duties and noted a disability duration of more than12 weeks.

20There is no evidence from the OCF-3 or the CNRs, that distinguishes these injuries from typical sprain and strain types of injuries. In this regard, KJM reported to Dr. Kabila very minimal functional or physical limitations as a result of her accident-related injuries. She reported physical limitations in relation to her work activities, however, I note that she reported an immediate post-accident return to work (working from home), with reduced hours. Dr. Kabila opined that the functional and physical limitations were not consistent with the observed functional limitations during the assessment, with the exception of occasional discomfort of sitting on her left buttock. Further, the CNRs of King Dufferin Family Medical Clinic and Toronto Healthcare Inc., confirm the predominantly minor nature of KJM’s injuries.

21I do not find KJM’s submissions and arguments on her physical injuries requiring removal from and treatment beyond the MIG persuasive. First, she reports and has been assessed to have a high level of function. Second, she has only reported a 15% improvement in her symptoms, despite receiving facility-based treatment. Lastly, KJM reported that her personal care and recreational activities were not affected by the accident, she was not taking any medications (except for Tylenol as needed) and her accident-related back pain had resolved.

22For these reasons, I do not find that KJM’s physical injuries warrant treatment beyond the MIG limits.

Did KJM suffer psychological impairments as a result of the accident?

23KJM purports to suffer from psychological symptoms. KJM relies on the February 14, 2019 pre-screen report of Dr. Shaul, in which she reported suffering from depression and anxiety, that she is easily overwhelmed, trouble with her sleep and has lost to participate in pre-accident activities. Dr. Shaul diagnosed her with adjustment disorder with mixed anxiety, depressed mood, and specific phobia – travelling in a vehicle. Dr. Shaul recommended 14 counselling sessions to address the symptoms that are impeding her overall level of function and an assessment to better understand her driving anxiety. Dr. Shaul opined that as a result of her psychological symptoms, these impairments fall outside of the MIG. Dr. Shaul noted that KJM’s psychological condition has reached a level of impairment that prevents her from performing her activities of daily living and would prevent her from reaching maximal medical recovery within the confines of the MIG.

24In response, BelairDirect relied on the February 25, 2019 s. 44 report of Dr. Campbell, psychologist, in support of its determination that KJM did not suffer any psychological impairment as a result of the accident. Notably, after having been assessment by Dr. Shaul approximately one month earlier, KJM reports no psychological symptoms as a result of the accident. KJM reported that she was unhappy, as a result of her employment situation, but not as a result of the accident. She denied feeling anxious or unduly preoccupied with any current pain symptoms. Interestingly, KJM denied that the accident negatively impacted her personal relationships, despite reporting to Dr. Shaul that she does not feel like socializing; that her friends are often busy with their lives and families she is not interested in socializing.

25I also note that KJM reported to Dr. Campbell that she had not requested psychological services since the accident and was unaware of who referred her to Dr. Shaul. While she did endorse that she would be interested in receiving psychological treatment, she indicated that her interest was for the purpose of being happier and less stressed, with no direct connection to the accident. As far as her daily activities are concerned, KJM reported that she has resumed the entirety of her usual housekeeping responsibilities and is able to perform her usual personal care tasks independently.

26Dr. Campbell opined that testing results indicated that KJM was not presenting with clinically significant accident-related psychological impairment. Accordingly, Dr. Campbell was not able to provide a DSM-5 diagnosis. Dr. Campbell concluded that as KJM has not suffered any significant psychological impairment, her accident-related injuries fall within the treatment parameters of the MIG.

27Noting the contradictory self-reporting between Dr. Shaul’s pre-screen report and the s. 44 psychological report of Dr. Campbell, I find that KJM has not demonstrated that she suffers psychological impairment that would remove her from the MIG. The applicant’s inconsistent reports to the assessors casts doubt on the reliability of any accident-related psychological impairment. As a result, the applicant has not met her onus in proving on a balance of probabilities that she sustained a psychological impairment as a result of the accident that warrant treatment beyond the MIG limit.

Did KJM suffer chronic pain as a result of the accident?

28KJM alleges she suffers from chronic pain as a result of the accident. In this regard, she relies on the September 2, 2020 chronic pain report from Dr. Karmy. However, I am not persuaded that the evidence supports that she suffers from chronic pain syndrome as a result of the accident.

29KJM reported to Dr. Karmy that her primary complaints regarding her accident-related pain, was headaches, neck pain, bilateral shoulder pain, upper and mid-back pain and lower back pain. As a result of this pain, KJM noted that her injuries made it difficult to sit for more than 30-45 minutes and to stand or walk for more than 30 minutes. I note that Dr. Karmy’s report was conducted by way of videoconference and was not in person.

30While BelairDirect does not point me to a chronic pain report of its own, I place little weight on Dr. Karmy’s report for several reasons. First, there is no notation of how Dr. Karmy was able to base his diagnoses from a lack of any physical examination without seeing KJM in person. Second, in the list of documents reviewed, Dr. Karmy lists several OCF-18s, the OCF-3 and Dr. Shaul’s psychological report. There is no objective documentation, including any pre- or post-accident CNRs from any of KJM’s regular treatment providers, that supports Dr. Karmy’s diagnoses. Third, despite Dr. Karmy’s diagnoses, there is no explanation as to how his examination led him to make the conclusions he does. Fourth, Dr. Karmy diagnoses a psychological impairment, which is outside his scope of practice. Lastly, Dr. Karmy discusses case law in relation to chronic pain, which I find weakens Dr. Karmy’s credibility as an independent assessor. In my view, an assessor should not be relying on case law in support of their reports, as it is seen as being biased.

31On a balance of probabilities, I find that KJM has not demonstrated that she suffers from chronic pain as a result of the accident.

Is KJM entitled to an income replacement benefit of $400.00 per week from December 6, 2018 to date and ongoing?

32KJM did not put forward any submissions addressing this issue. Accordingly, I find that the eligibility requirements have not been satisfied. Therefore, KJM has not established entitlement to the benefit.

Are the OCF-18s reasonable and necessary?

33Having found that KJM suffered injuries that are captured within the MIG limits, and the MIG limits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required.

ORDER

34KJM has not demonstrated, on a balance of probabilities, that her injuries warrant removal from the MIG. As the MIG limits have been exhausted, KJM is not entitled to payment for the disputed OCF-18s. Further, the preliminary issue is moot.

35KJM is not entitled to an IRB.

36No interest is payable.