Citation: Nava v. TD General Insurance Company, 2023 ONLAT 21-006505/AABS

Licence Appeal Tribunal File Number: 21-006505/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:

Jose Nava

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: Maria Bihnam, Paralegal

For the Respondent: Vasiola Bilboli, Counsel

HEARD: In Writing

May 25, 2023

OVERVIEW

1Jose Nava, the applicant, was involved in an automobile accident on June 16, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

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 and in the Minor Injury Guideline?
2. Is the applicant entitled to $7,460.00 for physiotherapy treatment proposed by Physiomed Yorkdale in a treatment plan which was denied on February 18, 2021?
3. Is the applicant entitled to $3,483.00 for physiotherapy treatment proposed by Physiomed Yorkdale in a treatment plan which was denied on May 4, 2021?
4. Is the applicant entitled to $2,200.00 for physiotherapy treatment proposed by Physiomed Yorkdale in a treatment plan which was denied on February 18, 2021?
5. Is the applicant entitled to $2,260.00 for psychological treatment proposed by Physiomed Yorkdale in a treatment plan which was denied on December 10, 2019?

RESULT

3The applicant’s injuries do not warrant removal from the Minor Injury Guideline (“MIG”).

4The applicant is not entitled to the treatment plans in dispute.

5The applicant is not entitled to interest.

ANALYSIS

Removal from the MIG

6The applicant claims that he sustained chronic pain injuries in his back, neck and shoulders which impact his activities of daily living (“ADLs”). He also advises that he suffers from psychological injuries, namely anxiety, depression, nervousness, stress, frustration and irritability, which adversely affects his sleep. His position is that the conditions of chronic pain and/or psychological injuries should remove him from the MIG.

7The applicant submits that his chronic pain and psychological injuries have impacted his social life and recreational activities. The applicant submits that, due to the injuries, his sleep is fragmented which results in low energy and fatigue during the day.

8The respondent submits that the applicant has not met his burden, as he sustained minor injuries as a result of the accident. He submits that while the applicant may exhibit symptomology due to his injuries, he has not withdrawn from social activities, work or recreation and has not altered his activities of daily living or function. The respondent submits that, according to the applicant’s family physician, he has never stopped working as a scaffolder. Taken together, these facts do not support removal from the MIG based on chronic pain or a psychological impairment.

9The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10An 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 pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG.

11The Tribunal has also determined that an applicant may be removed from the MIG if they sustained chronic pain with functional impairments. They can also be removed 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 section 3(1).

Chronic Pain Injuries

12The applicant has not demonstrated on the balance of probabilities that his pain causes functional impairment necessitating removal from the MIG.

13The applicant submits that he suffers from chronic back, neck and shoulder pain as a result of the accident. He submits that the diagnosis of chronic pain entitles him to removal from the MIG.

14To substantiate this physical accident-related impairment, the applicant submitted a Disability Certificate (“OCF-3”) dated July 20, 2019, prepared by Dr. Alexandria Chen, chiropractor, in which Dr. Chen diagnosed the applicant as suffering from WADIII, Sprain/Strain Sacroiliac; Sprain/Strain Lumbar. The applicant also relies upon Treatment Plans (“OCF-18”) from PhysioMed Yorkdale Inc. and from psychologist, Dr. Peter Waxer, as well as a Treatment Confirmation Form (“OCF-23”) from PhysioMed.

15In their OCF-18s dated February 4, 2021 and May 3, 2021 as well as their OCF-23 dated February 4, 2021, Physiomed lists the applicant’s injuries as radiculopathy cervical region, generalized anxiety disorder, nonorganic sleep disorders, sprain and strain of the lumbar, thoracic and cervical spines.

16In his OCF-18 dated November 28, 2019, Dr. Waxer lists the applicant’s injuries as depressive episode, generalized anxiety disorder, irritability and anger, acute stress reaction, headache and nonorganic sleep disorder. In added comments to the OCF-18, Dr. Waxer states:

“The quality of [the applicant’s] life has deteriorated since the MVA due to his physical and psychological symptoms. His symptoms limit him from engaging in activities he used to enjoy prior to the accident such family gatherings, playing soccer, dancing, and going out with friends. In addition, [the applicant] has noticed changes in his mood: he suffers from anxiety, depression, nervousness, stress, frustration, and irritability. Since the MVA, [the applicant] is dependent on others to help him with house chores and other mundane tasks. Furthermore, he is less patient and confrontational with family members and friends. The claimant finds his present situation excessively stressful.”

17In his OCF-18, Dr. Waxer does specify some symptoms which may be present in an individual with chronic pain, such as frequent headaches, pain in the shoulders and back area as well as changes in concentration and memory. However, he fails to make a diagnosis of chronic pain specifically. That is also the case in the forms submitted by Physiomed and Dr. Chen. However, even if the specific identification of chronic pain was included in the OCF-3, OCF-18s and OCF-23, the mention of chronic pain would be of little to no weight because these forms do not, in and of themselves, establish whether an applicant has sustained a non-minor injury. They are forms used in the process of applying for accident benefits and are not a comprehensive assessment of injuries sustained in an accident. While these forms contain the initial appraisals of the applicant’s injuries, corroborating evidence is support of those appraisals is necessary in order for definitively assign the diagnosis of chronic pain to the applicant.

18The applicant also relies upon the clinical notes and records of family doctor, Dr. Gross. However, I failed to see any mention or reference to the diagnosis of chronic pain in these notes. While a diagnosis is not strictly required, in the absence of same, the applicant must demonstrate that the alleged pain is of a severity that it causes functional impairment. The applicant has failed to do so, as the evidence indicates that he has not missed work, and has continued with most of his social activities, albeit with some modifications.

19I prefer the medical evidence of the respondent. It submitted a Multidisciplinary Assessment Report dated April 20, 2021, completed by psychologist Dr. Alfonso Marino, and physiatrist, Dr. Alborz Oshidari, While Dr. Oshidari was not requested to comment on the issue of chronic pain, he noted:

i. [the] assessment did not reveal any structural or physiological abnormality and I found initially as a result of the accident, he experienced sprain/strain of the cervical spine and contusion of the shoulder with tension headache, which fit under the definition of a minor injury and can be treated under the Minor Injury Guideline.

20Dr. Oshidari’s assessment of April 20, 2021 is the only dedicated medical assessment of the applicant’s physical injuries. With no compelling medical evidence to counter the opinion of Dr. Oshidari, I find that the applicant has failed to establish that he is suffering from chronic pain which necessitates his removal from the MIG.

Psychological Impairment

21The applicant has not demonstrated that he has psychological injuries which warrant his removal from the MIG.

22As noted, Dr. Waxer, psychologist, advised that the applicant suffers from anxiety, depression, nervousness, frustration and irritability. He also noted that he has difficulty with memory and concentration. These can be obvious symptoms of psychological impairments. However, there is no indication that these comments are the result of psychological testing, but rather, I find they are reflections of the applicant’s self-reporting of his symptoms. There is very limited corroborating evidence in the clinical notes and records of his treating medical professionals that confirm Dr. Waxer’s comments.

23In the respondent’s Multidisciplinary Assessment Report dated April 20, 2021, psychologist Dr. Marino advised that the following tests were administered: a Structured Inventory of Malingered Symptomatology, a Pain Patient Profile and a Personality Assessment Inventory. Following those tests, Dr. Marino noted:

i. [The applicant] has not participated in any psychological counselling since the index accident and expressed that he does not believe he requires any such treatment. Results of psychometric measures, the clinical interview, and behavioural observations noted would suggest that the claimant currently does not present with any significant psychological impairment or diagnosis…any injuries that he may have experienced from an emotional perspective would be considered minor at this juncture.

24Again, I prefer the more detailed medical analysis provided by the respondent. The assessment of Dr. Marino included the classification and results of the testing performed on the applicant. This contrasts with Dr. Waxer’s OCF-18, in which we have no detailed records of testing or questioning. Based upon detailed medical evidence submitted by the respondent, and the lack of same from the applicant, I find that the applicant has not established on a balance of probabilities that he has sustained a psychological injury which warrants his removal from the MIG required.

25While I am alive to the applicant’s subjective reporting of his symptomatology, there are no thorough examinations or assessments regarding chronic pain or psychological impairments submitted by the applicant.

26Accordingly, I find that the applicant has not led sufficient medical evidence to establish that he has sustained non-minor physical impairments or chronic pain, which would warrant his removal from the MIG.

The Treatment Plans

27As the applicant remains within the MIG, he is not entitled to the treatment plans in dispute, or interest, so an analysis of whether the benefits in dispute are reasonable and necessary is not required.

ORDER

28The applicant remains within the MIG and its $3,500.00 limit on treatment.

29The applicant is not entitled to the treatment plans in dispute.

30The applicant is not entitled to interest.