Licence Appeal Tribunal File Number: 21-001670/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:
Paula Cares
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Devika Maharaj, Paralegal
For the Respondent:
Leah Dick, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Paula Cares (“P.C.”), the applicant, was involved in an automobile accident on December 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). P.C. was denied benefits by the respondent, Belair Direct (Intact), 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 P.C.’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 P.C. entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from December 15, 2019 to date and ongoing?
iii. Is P.C. entitled to medical benefits, recommended by Downsview Healthcare Inc. as follows:
a) $2,438.30 for psychological services, in a treatment plan (OCF-18) submitted September 29, 2020?
b) $1,946.07 for physiotherapy services, in an OCF-18 submitted September 7, 2020?
c) $2,575.12 for chiropractic services, in an OCF-18 submitted December 17, 2019?
d) $1,896.00 for physiotherapy services, in an OCF-18 submitted June 6, 2020?
e) $2,200.00 for a psychological assessment, in an OCF-18 submitted April 28, 2020?
iv. Is Intact liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to P.C?
v. Is P.C. entitled to interest on any overdue payment of benefits?
3On June 23, 2022, P.C. filed a Motion with the Tribunal. The June 24, 2022 Motion Order confirmed the addition of an OCF-6 for chiropractic services, in the amount of $105.00, dated April 13, 2022 to the proceeding. I note that P.C. made no submissions on this issue. I further note that P.C. made no submissions addressing the NEB issue in dispute. As a result, Intact confirms that it has not made any submissions regarding the NEB.
4Accordingly, this decision will focus on the MIG and OCF-18s in dispute.
RESULT
5I find that P.C. has not demonstrated that her accident-related injuries warrant removal from the MIG. Accordingly, the disputed OCF-18s are not reasonable and necessary.
ANALYSIS
Pre-accident health
6Although P.C. submits, she had a “clean bill of health” pre-accident, the clinical notes and records of North Park Medical Centre indicate that P.C. underwent psychological counselling as a result of anxiety and panic attacks. According to the records, in the years prior to the accident, her psychological issues appeared to have resolved.
Post-accident well-being
7In the Disability Certificate (OCF-3) dated December 23, 2019, Dr. Pivtoran, chiropractor, noted several accident-related injuries, those being―cervical/lumbar sprain and strain; hip and thigh sprain and strain of joints and ligaments (right leg); radiculopathy; shoulder sprain and strain of joints and ligaments; chest contusions; acute stress reaction; symptoms and signs involving emotional state; non-organic sleep disorders; and post-traumatic headaches. These injuries are considered minor under the Schedule.
Did P.C. suffer predominantly minor injuries?
8Section 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant.
9P.C. submits that she suffers from both physical and psychological injures as a result of the accident, which she notes to be―bursitis, chronic pain disorder and adjustment disorder with mixed anxiety and depressed mood, as well as undiagnosed hip, leg and lower back pain and weakness. She submits that her diagnoses warrant removal from the MIG, which has resulted in ongoing pain. She relies on the clinical records of Dr. Rajmohammed, family physician; a January 3, 2020 right knee ultrasound; a January 14, 2021 hip ultrasound; an April 21, 20021 x-ray of the pelvis; an April 19, 2021 consultation note from a fracture clinic practitioner, Dr. Seligman; and psychology records from Rosa Cervantes Perez, counsellor.
10In response, Intact submits that P.C. sustained minor injuries that do not require treatment beyond the MIG. Its position is that P.C. has failed to prove that she suffered a physical or psychological injury or impairment that requires further treatment beyond the MIG. It points to P.C.’s evidence that she first saw her family physician 18 days post-accident, who only noted right knee pain at the January 2, 2020 visit. It further submits that the second visit to the family physician was December 18, 2020, over one-year post-accident, complaining of right hip pain. There is no link between the accident and the December 2020 visit. Intact relies on the s. 44 Insurer’s Examination (IE) reports of physician, Dr. Tepperman (August 4, 2020 and addendum January 5, 2022―which determined there was no evidence of musculoskeletal or neurological impairment; soft tissue injuries) and psychologist, Dr. Marino (July 24, 2020 and addendum October 2, 2020―who opined there was no significant psychological impairment or diagnosis in relation to the accident).
11I agree with Intact. P.C. has not provided compelling evidence to justify removal from the MIG; Dr. Tepperman opined that P.C. suffered a left shoulder strain and a myofascial strain of her upper right leg as a result of the accident. This is in line with the sprain/strain injuries noted in the OCF-3. Dr. Tepperman’s addendum report, in which he reviewed new medical records, confirmed his prior opinion that P.C. suffered soft tissue injuries. I find Dr. Tepperman’s opinion is consistent with the medical evidence such as the sporadic visits to the family physician and diagnostic imaging which were normal.
12P.C. submits that she suffered a psychological impairment as a result of the accident that requires treatment beyond the MIG. She relies on an August 20, 2020 progress report from psychotherapist, Ms. Illios. I place little weight on this report. First, the test results revealed that P.C. reported mild depression and minimal anxiety. Despite these findings, Ms. Illios diagnosed P.C. with an adjustment disorder and specific phobia, with no objective analysis of how mild and minimal levels could have resulted in the said diagnoses.
13I note that Dr. Marino considered Ms. Illios’s report in his October 2, 2020 report, noting that his assessment was two days prior (July 14, 2020) to that of Ms. Illios’ (July 16, 2020), at which time, P.C. did not present with any significant psychological impairment. However, Ms. Illios’ diagnosis was made despite the fact that test results were mild and there was no utilization of any validity measures. Interestingly, whereas Dr. Marino directly conducted the assessments, P.C. stated that she did not recall ever meeting or speaking to Dr. Brunshaw, the psychologist allegedly supervising Ms. Illios. The August 2020 report does not clarify whether Dr. Brunshaw ever met with P.C. directly or if he relied entirely upon Ms. Illios’ findings. This ambiguity reduces the probative weight of Dr. Brunshaw’s findings since the report does not clarify the extent to which Dr. Brunshaw supervised Ms. Illios or the degree to which each of them contributed to the final diagnosis. The issue that arises is not as a result of Dr. Brunshaw’s and Ms. Illios’ chosen method of collaboration, but with respect to whether Dr. Brunshaw relied upon direct evidence from a clinical examination or upon second hand information from his colleague. Lastly, P.C. told Dr. Marino she was not interested in any psychological treatment.
14While P.C. submits that she suffers from chronic pain disorder, there is no objective evidence that points to a diagnosis of chronic pain, whether it be a disorder or symptom. As such, it is difficult to find that her subjective complaints are evidence of a chronic pain condition that warrants removal from the MIG. Where her family physician and the OCF-3 author, diagnosed her with minor injuries that are treatable within the MIG. I find there is no contemporaneous evidence to support P.C.’s position that she suffers from chronic pain or to refute Dr. Tepperman’s opinions.
15Based on the limited medical evidence before me, I see no reason to interfere with Intact’s determination that P.C.’s accident-related impairments are predominantly minor injuries that are treatable within the MIG.
Are the treatment plans reasonable and necessary?
16It is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
17P.C. did not make any submissions addressing the NEB. Consequently, she did not meet her onus in proving her entitlement to the benefit.
Award
18P.C. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
19As no benefits are owing, Intact cannot have been found to have unreasonably withheld or delayed payment of benefits. No award is payable.
ORDER
20P.C. has not demonstrated that her injuries warrant removal from the MIG or that the OCF-18s are reasonable and necessary.
Released: July 6, 2023
Derek Grant
Adjudicator