Jabbour v. Economical Insurance Company
Licence Appeal Tribunal File Number: 21-002589/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:
Yara Jabbour
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Yara Jabbour, Applicant Zahra Ahmad, Paralegal
For the Respondent: Economical Insurance Company Hermina Nuric, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yara Jabbour, the applicant, was involved in an automobile accident on August 4, 2018, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant stated that police, ambulance, and emergency services did not arrive on the scene following the accident; that she was transported from the accident site by a family member, while the applicant’s car was taken to a collision centre. The applicant described to Dr. Mile Stefanac, who prepared a section 44 Insurer’s Examination Medical Evaluation on June 11, 2019, that at the time of the accident she had no immediate symptoms, and she was capable of exiting her vehicle of her own volition. The applicant also told Dr.Mile Stefanac that she did not develop pain in her neck, shoulder, and lower back area until three weeks following the accident.
ISSUES
3The issues in dispute 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 (MIG)? The MIG was exhausted at the time of the denials.
ii. Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,200.00, recommended by Dr. Nadir Al Jazrawi of Novo Medical Services Inc., in a treatment plan/ OCF-18 dated June 29, 2020?
iii. Is the applicant entitled to the cost of a psychological/ driving reintegration assessment in the amount of $2,021.72 recommended by Dr. Ilya Gladshteyn of Novo Medical Services Inc., proposed in a treatment plan/OCF-18 dated July 28, 2020?
iv. Is the applicant entitled to physical therapy services in the amount of $2,195.00 recommended by Rachna Multani (Physiotherapist), of Good Health Rehab Centre, proposed in a treatment plan/OCF-18 dated on April 8, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant has not met her burden of proof by demonstrating, on a balance of probabilities, entitlement to treatment for her injuries beyond the $3,500.00 MIG limit.
5Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
6Similarly, where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.
7Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
8The application is dismissed.
ANALYSIS
9The Minor Injury Guideline (MIG) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule which includes sprains, strains, whiplash associated disorders, contusion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
10If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
11Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.”
12In the event that the applicant’s injuries fall within the definition of minor injuries, the applicant can be removed from the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:
a. He has a pre-existing medical condition;
b. The pre-existing medical condition was documented by a health practitioner before the accident; and
c. The person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3500.00 limit under the MIG.
13The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that the injuries are not minor or they have a pre-existing condition that would prevent maximal recovery within the MIG.
14The Tribunal has held that the characterization of an applicant’s pain as chronic does not, by itself, exclude the applicant from the MIG and the $3500.00 monetary limit for medical and rehabilitation benefits. Ongoing or chronic pain does not automatically remove the applicant from the MIG but rather, a significant reduction in the applicant’s functionality does potentially remove a person from the MIG. In terms of functionality, the applicant reported to Dr. Mile Stefanac, when she was examined for the purpose of an Insurer’s Examination on June 4, 2019, that since the accident, she continues performing her daily living activities independently without assistance. The applicant reported to Dr. Stefanac, that she resumed driving after the accident, and she reported no limitations performing personal care and household maintenance actitivies. She did not describe that her functionality was in any way limited following the accident by pain or otherwise.
15The applicant underwent an x-ray on October 15, 2021, of her pelvis/lumbar spine and SI joint to investigate reported back pain. The results of the x-ray showed no compression fracture; that her soft tissues were within normal limits and her vertebral and intervertebral disc spaces were maintained and that there was normal alignment of her lumbar spine. The diagnostic report states that no cause of pain was identified. A further x-ray on October 1, 2022, showed the lumbar spine well-maintained and minimal mild early degenerative disc disease, which is the result of the aging process as opposed to being an accident-related injury.
16The applicant’s first medical appointment following the accident was at physiotherapy on August 23, 2018. The applicant’s first appointment with her family physician Dr. Rachita Gurtu, following the accident was over a month later, on September 25, 2018, where the applicant reported accident-related back pain. She did not return to her family physician Dr. Gurtu until six weeks past on November 7, 2018, when she did not mention accident-related injuries. The applicant did not describe back pain to her family physician Dr. Gurtu again until July 4, 2019, almost one year following the accident. The applicant did not describe any psychological impairments after the accident or fear avoidance behaviour to Dr. Gurtu. There is no record in the clinical notes and records taken by Dr. Gurtu or subsequently by Dr. Mohamed Khzam of psychological impairment being mentioned by the applicant to her family physician.
17The applicant did not receive pain medication prescribed to her after the accident according to the disclosed medical benecaid, benefits statement of account until November 1, 2021. Her first prescription for Naproxen claimed following the accident took place over two years after the event. The applicant described at the time of the examination by Dr. Mile Stefanac that she takes non-prescription ibuprofen when she has pain symptoms in her back.
18The explanation of benefits dated July 13, 2020, and dated August 10, 2020, refers to the GP Insurer Examination completed by Dr. Mile Stefanac dated June 11, 2019, offering the opinion that the applicant suffered a cervical sprain/ strain, bilateral shoulder strains and lumbar spine sprain following the accident and that her prognosis was good. Dr. Stefanac found no evidence of any ongoing accident-related musculoskeletal impairment at the time of the evaluation. Dr. Stefanac opined that the insured sustained an injury as a direct result of the accident that is a minor injury. He opined that he did not identify any factors that would prevent the applicant from achieving maximal medical recovery nor did he find compelling evidence that the insured person did not come within the Minor Injury Guideline because of a pre-existing medical condition that was documented by a health practitioner before the accident.
19The respondent submits that the applicant does not support the reasonableness of the treatment plan for a chronic pain assessment with reference to the criteria in the American Medical Association Guide (AMA Guide).1 The Tribunal has adopted the American Medical Association Guide (AMA Guide) as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guide states that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(ii) Excessive dependence on health care providers, spouse, or family;
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;
(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and;
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
20The respondent submits, and I agree, that the applicant has not provided compelling medical evidence or an explanation why a chronic pain assessment is reasonable and necessary when the applicant has not consistently reported accident-related pain to either of Dr. Gurtu or Dr. Khzam; nor demonstrated a desire to take pain medication; nor been functionally impacted by her reported ongoing pain in any discernable manner. With reference to the noted AMA guide criteria: The applicant has not used prescription medication beyond the recommended duration; she has not demonstrated an excessive dependence on health care providers or family members; she has not engaged in disuse or fear avoidance of physical activity; nor demonstrated that she has withdrawn from work, social milieu, recreation, or social contact (criteria one to four of the AMA Guide do not apply to the applicant). In addition, the applicant has stated to Dr. Stefanac that she returned to her pre-injury function immediately following the accident with no reporting of psychosocial sequelae including anxiety, fear-avoidance, depression, or nonorganic illness behaviours (criteria five and six of the AMA guides do not apply to the applicant). The applicant has not referenced the AMA Guide, however, as stated, her evidence does not meet the burden of demonstrating by means of compelling medical evidence that she has any functional limitations or pre-existing injuries that would prevent maximal recovery within the MIG.
21As submitted by the respondent, the applicant has not provided medical evidence demonstrating that she disclosed to Dr. Stefanac or to her family doctor Dr.Gurtu that she was experiencing psychological impairments following the accident, nor any fear and avoidance of driving a vehicle. The psychological and driver’s reintegration assessment is not reasonable and necessary when the applicant admitted to Dr. Stefanac returning to driving without interruption after the accident and she did not describe experiencing any driving anxiety in the clinical notes and records of the family physician Dr. Gurtu, subsequent to the accident. There is no compelling medical evidence supportive of the reasonableness and necessity of a driver’s reintegration assessment/psychological assessment.
22As stated, the applicant’s submissions and evidence do not include reference to pre-existing medical conditions interfering with her maximal recovery in relation to accident-related injuries. The applicant’s medical evidence respecting pre-existing medical conditions pertains to personal concerns related to breast and reproductive issues that have no nexus to the accident-related injuries otherwise addressed in the treatment plans in dispute. The applicant mentioned to Dr. Stefanac that in the year 2015, she was in a motor vehicle accident where she experienced a whiplash injury, however, she described that the injury resolved within one or two weeks. I agree with the respondent insurer’s submissions that the applicant has not met her burden of proof by providing compelling evidence of documented pre-existing medical conditions which will prevent maximal recovery from the minor injury if the person is subject to the $3500.00 limit under the MIG.
23Considering the evidence in the GP Insurer Examination completed by Dr. Mile Stefanac dated June 11, 2019, to the effect that the applicant’s injuries fall within the Minor Injury Guideline and that the applicant did not experience any functional limitations following the accident; in addition, considering the clinical notes and records with intermittent references to accident-related pain experienced by the applicant as described to Dr. Gurtu and Dr. Khzam, and in the absence of compelling medical evidence in support of the applicant’s claims; finally in the absence of documented pre-existing medical conditions which would prevent the applicant’s maximal recovery from minor injuries, I find that the applicant has not met her burden of demonstrating on a balance of probabilities that she can not reach maximal recovery within the limits of the Minor Injury Guideline (MIG).
24I have found that the applicant’s physical and psychological injuries as a result of the accident fall under the minor injury guideline definition and are subject to the MIG and the $3500.00 funding limit on treatment.
25Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
26As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
27Similarly, where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.
ORDER
28I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG has been exhausted.
29The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
30Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
31The respondent is not liable to pay an award under Regulation 664.
32The application is dismissed.
Released: July 28, 2023
Janet Rowsell
Adjudicator