Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-005536/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:
Rahul Kareer
Applicant
and
RSA Insurance
Respondent
DECISION
ADJUDICATOR: Amanda Marshall
APPEARANCES:
For the Applicant: Andrea Seecharan, Counsel
For the Respondent: Michael Rattray, Counsel
HEARD: By way of written submissions
OVERVIEW
1Rahul Kareer, the applicant, was involved in an automobile accident on May 7, 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 the treatment plans in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2The issues in dispute as identified on the Case Conference Report and Order (“CCRO”) dated March 31, 2022 are:
i. 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?
ii. Is the applicant entitled to $2,690.00 for medical services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated May 11, 2020 and denied September 16, 2020?
iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Complete Rehab Centre in a plan dated May 28, 2020 and denied September 16, 2020?
iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Complete Rehab Centre in a plan dated May 28, 2020 and denied June 9, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3Upon review of the parties’ submissions and the application, it appears that issue (ii) above, is not in dispute. Issue (ii) was not on the application nor have the parties’ identified it as an issue in dispute in their submissions. Therefore, issue (ii) will be removed from the hearing.
4Also, issue (iii) is recorded as a chronic pain assessment in the amount of $2,460.00. Both parties identified the cost of the assessment in their submissions as $2,680.00.
RESULT
5The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As a result, he is not entitled to any of the treatment plans in dispute, or interest.
ANALYSIS
Applicability of the MIG
6Section 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.”
7An 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.
8The applicant submits he has pre-existing conditions, that of depression and sport injures, that have been exacerbated by the accident, and that he has been diagnosed with chronic pain syndrome and, therefore, should be removed from the MIG. He relies on the clinical notes and records (“CNRs”) of Dr. Jaspaul Singh Dulku, family physician, Dr. Avtar Dhanoa, family physician, and the independent assessments by Dr. Jacqueline Brunshaw, psychologist, and Dr. Grigory Karmy, physician.
9The respondent submits that the applicant has failed to discharge his onus of demonstrating that his injuries fall outside of the MIG, or that he had a pre-existing medical condition which would prevent maximal medical recovery if contained to the MIG. The respondent relies on the Insurer Examination Reports of Dr. John W. Lee, psychologist and Dr. Lori Feigelson, physician.
The applicant did not suffer injuries that warrant removal from the MIG.
10The Disability Certificate of June 19, 2020 list the applicant’s injuries as injury of the tendon at neck level, sprain/strain of the shoulder joint, sprain/strain of the lumber spine, and sprain/strain of the thoracic spine.
11The physical injuries sustained fall within the definition of a “minor injury” under s. 3(1).
The applicant does not suffer from a pre-existing condition that warrants removal from the MIG.
Depression and substance abuse
12The applicant submits that the CNRs of Dr. Dhanoa indicate the applicant was diagnosed with depression and substance abuse.
13The applicant visited Dr. Dhanoa’s office in May 2017 seeking help for substance abuse. There is one notation from May 24, 2017 regarding depression, however, there is no formal diagnosis nor any further reference to depression in Dr. Dhanoa’s records. The doctor recorded that the applicant is reluctant to follow-up for depression and does not feel the need for counselling. While doctor's notes from May 2017 document the applicant was having issues with substances, the applicant has not provided any medical records from a mental health practitioner or other medical professional with respects to depression or issues with substance abuse.
14The applicant’s independent psychological assessment by Dr. Brunshaw, dated August 26, 2021, noted that the applicant experienced symptoms of depression in 2014 after the loss of his cousin, attended counselling, and is fully recovered.
Sports Injuries
15The applicant submits that the Disability Certificate of June 10, 2019 completed by Chilka Patel, physiotherapist, references his pre-existing sports injuries. Upon my review of the Disability Certificate, Ms. Patel has recorded that the applicant had knee surgeries in 2010 and 2012.
16Under the pre-accident health section of Dr. Brunshaw’s assessment, the sports injuries are mentioned with the applicant self-reporting that he is fully recovered from these injuries. The chronic pain assessment from June 30, 2020 from the applicant’s independent assessor, Dr. Karmy, also documented that the applicant fully recovered from his sport injuries.
17I find that the applicant has not satisfied his onus and has not provided compelling medical evidence that he has a pre-existing condition that precludes recovery if kept within the confines of the MIG. A few notations referenced in the clinical notes and records and on a Disability Certificate do not satisfy the requirements. The applicant must show how his pre-existing condition would prevent him from maximal recovery if kept within MIG limits. The applicant self-reported to his independent assessors that both of his pre-existing conditions have resolved. Even if he had not disclosed such, the applicant has not provided any medical explanation as to why the MIG limits would prevent maximal recovery which is required. Therefore, I find the applicant does not have a pre-existing condition which warrants removal from the MIG.
The applicant does not suffer from a psychological condition as a result of the accident.
18The applicant argues that he sustained psychological impairments as a result of the accident. In support of his position, the applicant relies on the psychological assessment of Dr. Bunshaw which found the applicant suffers from Specific Phobia Situational Type (vehicular: driver, passenger, pedestrian), and an adjustment disorder.
19The respondent relies on the September 9, 2020 psychological insurer examination (“IE”) assessment by Dr. John W. Lee, psychologist, which concluded that while the applicant exhibits some adjustment symptoms, they do not give rise to a DSM-5 diagnosis.
20I am unpersuaded by the applicant’s evidence regarding psychological injuries that would warrant removal from the MIG. The applicant visited his family doctor five times since the accident. None of the visits pertain to any psychological concern. The applicant submits no medical evidence here aside from the psychological assessment of August 2021. In the psychological assessment, Dr. Brunshaw concludes that the applicant suffers from vehicular phobia and an adjustment disorder. However, I assign little weight to the doctor’s conclusion.
21Firstly, there is no mention of the applicant’s depression or substance abuse issues from 2017. The pre-history information contained in the assessment speaks to the applicant’s depression from 2014 only. The doctor did not review the applicant’s medical history in forming her conclusion. Secondly, the applicant’s test results indicated he was experiencing low levels of symptoms of depression, anxiety, and somatic pain but the doctor discounts the results and says that it was the interview with the applicant and not the tests that formed the basis for her conclusion.
22I prefer the IE of Dr. Lee that found that while the applicant did exhibit some adjustment symptoms, it did not meet a DSM-5 diagnosis. Dr. Lee based his conclusions on the analysis of the file information, psychological testing, clinical observation, and the applicant’s self-reporting.
23I find that the applicant did not suffer a psychological injury as a result of the accident.
The applicant does not suffer from chronic pain as a result of the accident.
24The applicant submits that he suffers from chronic pain syndrome and relies on the diagnosis by Dr. Karmy in the assessment of June 2020.
25The respondent relies on the September 9, 2020 physiatry IE report of Dr. Feigelson that found the applicant sustained soft tissue sprain and strain injuries as a result of the accident. Dr. Feigelson found that by the time of the assessment, the applicant’s injuries were healed.
26The applicant has not provided much medical evidence in support of his position. The applicant’s first visit with his family doctor after the accident was not until August 11, 2019. The applicant complained of low back pain and mentioned he was in a motor vehicle accident a few months back. The doctor suggested stretching and strengthening exercises. No medications were prescribed.
27The applicant visited his family doctor in April 2020 for an unrelated ailment. He did not complain of pain at that time.
28On July 19, 2020, the applicant complained to his doctor he was experiencing low back pain. Again, the doctor suggested stretching and strengthening exercises. No medications were prescribed nor was there any suggestion that the back pain was attributed to the accident.
29During the IE assessment, the applicant explained that his low back symptoms improved and seemed to have resolved in November/December 2019 but that he started to experience pain again around February 2020. Dr. Feigelson found that the applicant’s injuries resolved by the time of the assessment in September 2020.
30It is only the independent assessment of Dr. Karmy wherein the applicant was diagnosed with chronic pain syndrome.
31Dr. Karmy did not discuss the criteria under the American Medical Association Guides 6th Edition (“AMA Guides”) for a diagnosis of chronic pain syndrome. Under the AMA Guides, chronic pain syndrome is diagnosed by the presence of three or more of the following criteria:
(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.
32Although I am not bound by the AMA Guides, I find it helpful as an interpretive tool.
33Upon my review, the applicant does not take prescription medication. There is no evidence to suggest that he relies excessively on healthcare providers. He rarely sees his family physician. He does not require assistance with self-care, and only requires help with some heavier housekeeping tasks. While Dr. Karmy noted that the applicant complains he has difficulties playing soccer and going to the gym, there is no indication that he has withdrawn from these activities in their entirety. Nor is there any indication that the applicant has withdrawn from social interactions.
34There is a big discrepancy between what the applicant said about his work to Dr. Karmy and what he said to Dr. Lee. In the independent assessment, the applicant said he was off work after the accident for 1.5 weeks due to pain. However, in Dr. Feigelson’s report, the applicant stated that he was off work for one day after the accident and then went on a pre-planned vacation for his sister’s wedding for 1.5 weeks.
35Based on the sparse evidentiary record before me and the conflicting opinions of Dr. Karmy and Dr. Feigelson, I find that there is insufficient evidence that the applicant meets the AMA Guides criteria for chronic pain. The applicant has failed to demonstrate that he has continuous pain that impacts his functionality. As a result, the applicant has not satisfied his onus to establish that he has chronic pain that may remove him from the MIG.
The psychological assessment and chronic pain assessment are not reasonable and necessary.
36The CCRO of March 31, 2022 stated that the parties agreed that the MIG limits had not been exhausted and that their submissions shall identify the amounts remaining. Neither party has provided any information about what amounts, if any, remain in the MIG.
37Even if the MIG limits have not been exhausted, I have found that the applicant did not sustain a psychological injury from the accident. I have also found that the applicant does not suffer from chronic pain. Therefore, I find that the psychological assessment and the chronic pain assessment are not reasonable and necessary.
Interest
38As there are no overdue benefits, there is no entitlement to interest.
ORDER
39For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries as defined under the Schedule.
ii. The psychological assessment and chronic pain assessment are not reasonable and necessary.
iii. No interest is payable.
Released: July 10, 2023
Amanda Marshall
Adjudicator