Brooks v. BelairDirect, 2023 CanLII 65764

Citation: Brooks v. BelairDirect, 2023 ONLAT 21-003521/AABS

Licence Appeal Tribunal File Number: 21-003521/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:

Erica Lee Brooks

Applicant

and

BelairDirect

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Lyle Miller, Counsel

For the Respondent: Jeremy Ruffolo, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Erica Lee Brooks (the “applicant”) was involved in a motor vehicle accident on November 17, 2019 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 $2,464.00 for physiotherapy in a treatment plan/OCF-18 recommended by Apexx Injury Rehab denied on August 23, 2020?

3. Is the applicant entitled to $2,533.45 for a chronic pain assessment in a treatment plan/OCF-18 recommended by Excel Medical Diagnostics denied on October 5, 2020?

4. Is the applicant entitled to $2,200.00 for a psychological assessment in a treatment plan/OCF-18 recommended by Excel Medical Diagnostics denied on October 9, 2020?

5. Is the applicant entitled to $3,566.29 for a psychological services in a treatment plan/OCF-18 recommended by Excel Medical Diagnostics denied on January 6, 2021?

6. Is the applicant entitled to $9,141.20 for a chronic pain program in a treatment plan/OCF-18 recommended by Excel Medical Diagnostics denied on February 22, 2021?

7. Is the applicant entitled to $3,566.29 for a psychological services in a treatment plan/OCF-18 recommended by Excel Medical Diagnostics denied on April 30, 2021?

8. Is the applicant entitled to $2,294.75 for a return-to-work assessment in a treatment plan/OCF-18 recommended by Excel Medical Diagnostics denied on August 12, 2021?

9. Is the applicant entitled to $1,865.50 for physiotherapy in a treatment plan/OCF-18 recommended by Apexx Injury Rehab denied on October 21, 2021?

10. Is the applicant entitled to $2,302.42 for assistive devices in a treatment plan/OCF-18 recommended by Health Bound Health Network denied on November 17, 2021?

11. Is the applicant entitled to $3,438.00 for medical cannabis in a treatment plan/OCF-18 recommended by Health Bound Health Network denied on November 19, 2021?

12. 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?

13. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

3The applicant confirmed in submissions that she has exhausted her benefits within the MIG limit of $3,500.00. As a result, she must be found to be outside of the MIG to be entitled to any of the treatment plans in dispute listed above.

RESULT

4I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She 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, she is not entitled to the treatment plans in dispute, nor interest.

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.”

6An 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 condition may warrant removal from the MIG.

7The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.

8The applicant submits that she suffers from psychological disorders as well as a chronic pain syndrome with functional impairment as a direct result of the accident, and therefore warrants removal from the MIG.

9The respondent counters that the applicant sustained soft-tissue sprain/strain physical injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. It submits that the applicant has not demonstrated she suffers from a chronic pain condition as a result of the accident, and has not shown that her psychological issues are related to the accident. Correspondingly, the respondent asserts that the applicant should be held within the MIG.

Does the applicant’s condition warrant removal from the MIG?

10I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from physical injuries that are not predominantly minor in nature as defined in the Schedule, or from a psychological condition that would warrant her removal from the MIG. Correspondingly, she remains within the MIG.

Chronic Pain

11I find that the applicant’s claims to suffer from a chronic pain condition as a result of the accident have not been substantiated by medical evidence. Most of the objective medical evidence before me documents that the applicant suffered minor injuries in the accident, with no indication that these injuries progressed to chronic pain with a functional impairment.

12After being transported to Michael Garron Hospital in Toronto from the scene of the accident on November 17, 2019, the applicant complained largely of mid-sternum chest pain while denying head pain, dizziness, or other neurological symptoms. A chest x-ray taken at the time was unremarkable. The OCF-3 completed on February 11, 2020 by Urvashi Krishnan, physiotherapist, noted a diagnosis of whiplash associated disorder (“WAD 2”), sprain and strain of the thoracic and lumbar spine, and muscle strain of the pelvic region and thigh, along with some functional restrictions such as limited tolerance for sitting, standing, and walking, and reduced lifting capability. Everything here points to the applicant suffering minor injuries as a result of the accident.

13Family doctor CNRs do not substantiate the presence of chronic pain for the first 16 months after the accident, largely because there are no family doctor CNRs for the first 16 months after the accident. The applicant reported in submissions that her former family doctor retired in late 2019 and that she did not become a patient of Dr. Aaron Wong, family physician, until late 2020. While I accept that lengthy waiting times are a common issue when trying to secure a new family doctor, the fact remains that there is no record of the applicant visiting any physician with regard to accident-related injuries between the day of the accident and the record of a telephone appointment with Dr. Wong on March 18, 2021.

14Further, Dr. Wong’s notes from the March 18, 2021 appointment detail essentially just the applicant’s self-reported claims of ongoing lower back pain and buttock-area pain, issues that she told the doctor were due to the 2019 accident. She also reported to the family physician that this pain had been radiating on the left side to her knee with a numbing/burning sensation and sharp/electric shooting to her foot. While Dr. Wong did write “[c]hronic LBP with radiculopathy” in his notes from this appointment, this was clearly not a formal diagnosis, given both the wording and because the appointment took place via telephone. Dr. Wong prescribed naproxen for pain relief and cyclobenzaprine for muscle spasm, both of limited duration without refills.

15A back MRI was ordered as a result of this appointment, based in part on the suggestion of the applicant’s physiotherapist. This MRI was conducted on July 21, 2021 and indicated early degenerative disc disease, apparently unrelated to the accident. Dr. Wong also referred the applicant for neurological and EMG testing at this time. These tests, which were conducted on June 8, 2021, provided unremarkable results. Again, nothing here supports the applicant’s claims to suffering from chronic pain with a functional limitation that would warrant her removal from the MIG.

16Most of the applicant’s evidence regarding her physical injuries is contained in treatment records from Apexx Injury Rehab Centre, where she sought treatment on a regular basis from November 22, 2019 until at least 2021. These records show that the applicant received a significant amount of physiotherapy treatment following the accident, but I find that they are insufficient to prove that she suffered from chronic pain in the absence of supporting medical evidence.

17Given the absence of objective medical evidence submitted by the applicant, her chronic pain argument largely rests on an s. 25 chronic pain assessment report completed by Dr. Stephen Brown, anesthesiologist, dated February 7, 2021 (the video examination of the applicant that informed this report was conducted on November 27, 2020). Dr. Brown concluded that the applicant suffered from chronic pain syndrome, chronic pain in her lumbar spine, and a sleep disorder (insomnia with possible sleep apnea), resulting in her work performance suffering “considerably.” However, I assign these conclusions little weight. They were largely based on the self-reporting of the applicant. A number of the applicant’s concerns and impairments were noted to be rooted in issues unrelated to the accident. And Dr. Brown’s conclusions were not supported by objective medical evidence, such as the diagnostic imagining noted above.

18For example, Dr. Brown concluded that the applicant’s symptoms were directly related to the subject accident without citing any evidence for this finding outside of the applicant reporting this to be the case. He noted a number of other health issues experienced by the applicant both before and after the accident, including obesity, suspected sleep apnea contributing to insomnia, and psychological stress and anxiety not connected to the accident—yet did not analyze them in relation to what the applicant experienced post-accident. To me, this resulted in a limited assessment of the applicant that did not fully take into account all of her health-related challenges.

19Also, Dr. Brown concluded that the accident directly affected the applicant’s work performance without any proof that this was the case other than the applicant’s own reporting. The physician provided no specifics comparing the applicant’s work functionality before and after the accident. Dr. Brown described some general impairments, but this was again based on a straightforward recounting of the applicant’s comments to him during the clinical interview. Most of Dr. Brown’s notations are generic, as in the section where he wrote of the applicant’s enjoyment of work being diminished, how her “competitive advantage” had been negatively impacted along with (potentially) her employability, and how this entire situation had negatively affected her psychological well-being.

20While I do not challenge Dr. Brown’s chronicling of the applicant’s concerns, I find these observations to be insufficient support for his diagnosis that the applicant suffered from chronic pain. His report is too reliant on subjective self-reporting, it is not supported by objective medical evidence and diagnostic imaging, and it does not satisfactorily document a functional impairment of the sort necessary to warrant the applicant’s removal from the MIG.

21In addition, the applicant has not established that she suffers from a functional impairment related to chronic pain. I am not persuaded by the return-to-work report of Boris Potoyants, occupational therapist, dated October 21, 2021, largely because he based his conclusions on the applicant’s “[c]oncussive symptoms such as cognitive changes, headaches, nausea, dizziness, blurred visions, photo, and phonophobia.” No medical evidence before me supports that the applicant sustained a concussion or suffered from concussive symptoms as a result of the accident, and Mr. Potoyants is not qualified to make such a diagnosis regarding either a neurological condition or psychological impairment. Accordingly, I assign this report minimal weight.

22Additionally, no definitive evidence was provided—in the report of Mr. Potoyants or elsewhere—that the applicant was away from her employment as an intake worker for a community drop-in centre for any length of time following the accident, or what modifications she required when she returned and for how long. Given what she reported to assessors, it seems that she may have taken a short period of time off, but then returned to full-time work with minor modified duties. However, none of this is substantiated with documentation from the workplace or supportive medical evidence. As a result, I find that she has not demonstrated the existence of a chronic pain-related impairment that is required to warrant removal from the MIG.

23I prefer the s. 44 IE physical assessment completed by Dr. Paul Tepperman, physician, dated October 7, 2020 and his subsequent four paper reviews dated October 14, 2020, March 17, 2021, October 1, 2021, and December 1, 2021. He concluded that the applicant suffered uncomplicated soft-tissue injuries with no substantial evidence of musculoskeletal or neurological impairment, and that all accident-related injuries had had time to heal by the time of his examination. Dr. Tepperman further found that the applicant did not suffer from any physical injuries or chronic pain requiring removal from the MIG. He believed that the applicant’s symptomatology was the result of deconditioning. This observation accorded with that of Dr. Brown, who similarly noted that the applicant’s issues with obesity were contributing to her overall health issues. Lastly, I find Dr. Tepperman’s report to be best supported by the objective medical evidence, and as a result, is a more reliable assessment than that of Dr. Brown.

24Lastly, the applicant has failed to demonstrate that she meets the test outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6^th Edition (the “Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

2. Excessive dependence on health care providers, spouse, or family.

3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

4. Withdrawal from social milieu, including work, recreation, or other social contracts.

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

25At most, the applicant meets one of the six criteria described above. The CNRs of Dr. Wong along with the reports of Dr. Brown and Dr. Tepperman indicate that the applicant experienced a level of secondary physical deconditioning post-accident that contributed to obesity and possible sleep apnea. Other than this, the applicant does not meet any of the criteria found in the Guides. There is no evidence of the use or misuse of prescription drugs or other substances, as the applicant seems to have taken just two forms of prescription medication to deal with pain. She did not demonstrate an excessive dependence on health care providers or family. No objective evidence has been adduced supporting that the applicant withdrew from social activities or that she did not restore pre-injury function. Conversely, she seems to have continued to work almost entirely uninterrupted post-accident. And although some evidence has been submitted to indicate the development of psychosocial sequelae, I am not convinced that these issues were related to the accident (see below).

26Accordingly, and for the reasons described above, I find that the applicant has not established that she suffers from a chronic pain condition with functional impairment warranting removal from the MIG.

Psychological Impairment

27I further find that the applicant’s claims to suffer from a psychological condition as a result of the accident have not been supported by sufficient evidence to warrant removal from the MIG.

28As with the chronic pain claim described above, there is minimal support for the assertion that the applicant suffered a psychological condition as a result of the accident. The applicant did not seek out any treatment outside of physiotherapy for roughly 16 months after the accident. As noted above, she did not discuss the accident with a physician until she saw Dr. Wong in 2021, and even then there is no indication that she reported any psychological or emotional concerns to the family doctor. Also, the applicant’s account of the accident and the diagnostic tests conducted post-accident indicated that the applicant did not suffer a head or neurological injury potentially indicative of the development of psychological impairments.

29Again, as with the chronic pain argument advanced by the applicant, her position relies almost entirely on an s. 25 report, which I also again assign limited weight. In this instance, said report resulted from an in-person psychological assessment conducted by Fahimeh Aghamohseni, psychologist, with the help of Shelbie-Rae Thompson, registered psychotherapist, on October 27, 2020 (resulting in a report dated October 28, 2020). Although Ms. Aghamohseni diagnosed the applicant with major depressive disorder, single episode; somatic symptom disorder with predominant pain, persistent, at moderate levels; and specific phobia, vehicular, I find that she did not substantiate that these issues were related to the accident. Ms. Aghamohseni placed too much importance on the self-reporting of the applicant and did not fully take into account the impact of other stressors on the applicant’s psychological condition.

30Records of the applicant’s 11 sessions of psychotherapy with Ms. Thompson that took place between January 8, 2021 and April 9, 2021 show that the applicant was not concerned about the accident. In her record of the first session on January 8, 2021, Ms. Thompson wrote that she discussed the accident in detail with the applicant and helped her complete a desensitization exercise around certain moments related to the accident. However, the accident was not directly mentioned again during these sessions. Instead, the appointments focused on the applicant’s concerns about COVID-19, her worries about being exposed to the virus at work, and breathing exercises to deal with workplace anxiety. All of this demonstrates that the applicant’s psychological issues were largely if not entirely unrelated to the accident.

31This supposition is supported by the s. 44 psychological IE report of Dr. Rod Day, psychologist, dated November 25, 2020 and supplemented by paper review addendums dated January 26, 2021 and July 26, 2021. Dr. Day found no evidence of any accident-related psychological condition, or a pre-existing psychological condition that would warrant the applicant being removed from the MIG. In addition, Dr. Day wrote that the applicant reported that she did not believe that her issues with tearfulness to require any psychological intervention, pointedly saying “I don’t think I need to see anyone.” Although self-reporting in such circumstances is not always definitive, I accept the applicant’s comments here at face value, as they accord with the records of her psychotherapy sessions with Ms. Thompson.

32As a result, I find that the applicant has not demonstrated that she suffers from a psychological condition that warrants her removal from the MIG.

The Treatment Plans

33As the applicant has been found to remain within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that she is not entitled to the plans in dispute, nor interest.

Award

34Pursuant to section 10 of O. Reg. 664, the applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.

35Having concluded that the applicant sustained a minor injury and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

36The application is dismissed and I find that:

i. The applicant sustained a predominantly minor injury as a result of the accident. She remains subject to the MIG and its $3,500.00 limit.

ii. As the applicant remains within the MIG and its $3,500.00 limit, which has been exhausted, she is not entitled to the plans in dispute, nor interest.