Licence Appeal Tribunal File Number: 21-006347/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:
Haref Berat
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Lisa Yong
APPEARANCES:
For the Applicant: Elvis Viskovic, Counsel
For the Respondent: Hussein Pirani, Counsel
HEARD: In Writing
OVERVIEW
1Haref Berat, the applicant, was involved in an automobile accident on November 26, 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, Economical Insurance, 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 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”)?
ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Advanced Healthcare Management Inc in a treatment plan (“OCF-18”) denied on May 21, 2019?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant sustained a “minor injury” as defined in s. 3 of the Schedule and is therefore subject to the MIG.
4As a result of the above, I find the applicant is not entitled to the OCF-18 for psychological assessment that was denied on May 21, 2019.
5The applicant is not entitled to interest or an award.
6This application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
7Section 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.”
8An 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.
Did the applicant sustain injuries that warrant removal from the MIG?
9I find that the applicant has failed to prove, on the balance of probabilities, that he suffers from injuries that are not predominately minor as defined in the Schedule as a result of the accident. He remains in the MIG and the monetary limit for medical and rehabilitation benefit is $3,500.00.
10The applicant submitted no medical evidence to demonstrate that he sustained anything other than minor injuries as a result of the accident. The applicant did not make specific submissions as to why the applicant should be taken outside of the MIG, but rather provided a chronology of events, and summarised the findings from the clinical notes and records of his family physician and medical reports.
11The applicant submits that, on the day of the accident, the emergency department at St. Joseph’s Healthcare Hamilton Hospital diagnosed the applicant with a concussion. I disagree that the emergency department notes provide a definitive concussion diagnosis. Dr. Roland Wong, the treating doctor at the emergency department, reported that the applicant presented “post MVA accident with concussion”. After examination and review of x-rays of the cervical spine and chest, Dr. Wong diagnosed the applicant with a “minor head injury”. The x-ray of cervical spine concluded that there were no fractures, and the chest x-ray was normal. The applicant was discharged home with a prescription for Naproxen. I find that Dr. Wong’s note was an interim query of a concussion because the post-accident medical record does not indicate any ongoing reports of a concussion or concussion-like symptoms.
12During the first post-accident visit to the family doctor on December 17, 2018, Dr. Roya F. Dehghani Yar diagnosed the applicant with headache and neck pain with mild improvement but did not prescribe any medication. He noted that the applicant “is using Advil, but did not have it today”. Dr. Yar did not diagnose the applicant with a concussion and did not send the applicant to undergo further tests for investigation. I find that these are all indications of a minor injury.
13In the electromyography (EMG) report from Hamilton Health Medical Diagnostic Unit dated February 21, 2019, Dr. Ruth Smith, a physician, concluded that the applicant’s symptoms “are more likely… whiplash and soft tissue injuries and it is reassuring that there are no signs of nerve damage today.”
14The CNRs from Dr. Yar revealed that the applicant regularly saw his family doctor between July 17, 2019 to January 29, 2020, however the applicant made no complaints about any post-accident concussion symptoms, back pain, neck pain, headache or any complaints relating to the accident that required medical attention. This further indicates that the applicant suffered only a minor injury as a result of the accident and even if there were injuries sustained, they may have all recovered at this point in time.
15On January 25, 2020, the applicant attended the emergency department at St. Joseph Healthcare Hamilton Hospital, where it was reported that the applicant’s chief complaint was “back pain”, but Dr. Gregory John Rutledge diagnosed the applicant with “… possible piriformis pain symptomatic treatment for now no trauma… prescription for Naprosyn follow up [with] family doctor for MRI if symptoms persist.” On February 5, 2020, Dr. Yar diagnosed the applicant with sciatica and referred the applicant to “physio and back exercise yoga” and advised the applicant regarding “how to prevent sciatica with his routine of exercise 20 min”. There were no complaints of any accident-related injuries.
16Dr. Yar’s CNR noted that in a telephone consultation on April 13, 2021, the applicant was involved in a motor vehicle accident of which he was a passenger in his daughter’s vehicle (“2021-accident”). He complained of “mostly pain in upper back and neck and head. (sic) is able to walk and no issues other than above”. During an in-person consultation on the following day on April 14, 2021, Dr. Yar subsequently diagnosed the applicant with “back pain and neck whiplash” and prescribed pain and muscle relaxant medication and pain relief gels. He also recommended physiotherapy and massage.
17The applicant continued to see Dr. Yar on a regular basis between May 25, 2021 and March 23, 2022 with no physical or cognitive complaints for injuries relating to the subject accident nor the 2021-accident. As such, I find that the applicant has not provided sufficient evidence to establish that he sustained a concussion, or any other non-minor physical impairments.
18With respect to psychological impairments, the applicant submitted two s. 25 psychological reports dated February 7, 2017 (“2017 psychological report”) and September 6, 2019 (“2019 psychological report”). The applicant made no specific submissions with regards to the relevance of the 2017 psychological report. I find that the 2019 psychological report to be of little weight for the following reasons:
i. The report was conducted by Dr. Ivan Staroversky, psychotherapist, and supervised by Dr. Erin Langis, psychologist. Dr. Staroversky, as a psychotherapist, is unable to diagnose mental health conditions. It is unclear as to the involvement of Dr. Langis in this psychological assessment process and hence I am unable to put weight on the conclusions drawn in this report;
ii. A Pain Patient Profile (P-3) test was used to test the applicant, but the result was an “invalid profile” which was due to “over-endorsement of items and elevated endorsements on the validity scale”;
iii. The diagnosis given to the applicant was a “Class 3 – Moderate Impairment”, which is the same diagnosis as the above-mentioned 2017 psychological report. However, I find that there had been no prior psychological complaints with the family physician nor any medical records that shows any consistency or corroborating evidence to support any psychological impairments; and
iv. It was noted that “no documents were provided for review” as part of the psychological assessment. I note that Dr. Staroversky did not mention in his report that he also conducted a prior psychological assessment of the applicant in 2017. I find that the conclusion and diagnosis made in this report are based solely on the applicant’s subjective self-reports and the psychometry tests results. While I am alive to the opinions expressed in the report, I find that a comparison of the applicant’s pre and post-accident psychological condition is missing to strengthen Dr. Staroversky’s diagnosis in the report. Given the above reasons, I give little weight to this report.
19On the contrary, I find the s. 44 psychological report by Dr. Amena Syed, psychologist, dated December 17, 2019 to be more persuasive. She reviewed the above-mentioned 2019 psychological report and the OCF-18 claim forms for various treatment plans, administered several psychometry tests and concluded that “the present psychological examination found no objective evidence to substantiate Mr. Berat’s subjective self-report of psychological impairment related to the subject motor vehicle accident. As such he does not require treatment outside of the Minor Injury Guideline.” The reported observations and findings appear to be consistent with the CNRs of the applicant’s family doctor, as there had been no report of any psychological symptoms or issues after the 2018 accident at all. Hence, I do not find the applicant to be suffering from any psychological impairments which would take the applicant outside of the MIG.
20Finally, with respect to pre-existing impairments, based on the CNRs tendered, there is evidence showing that the applicant has pre-existing conditions of hypertension, brain surgery and a prior accident in 2016. It is noted that the applicant underwent several MRI scans of the head on April 12, 2019 and May 6, 2019, however I find that these MRI scans are follow up appointments from a brain surgery that occurred in 2016, which is unrelated to the accident. In the s. 44 psychological assessment report dated December 17, 2019, the applicant self-reported that “he was 100% prior to the subject accident” despite suffering from hypertension. Despite the compelling medical evidence of pre-existing conditions of hypertension, prior brain surgery and possible injuries sustained from the 2016 accident (if any), I note that none of the doctors indicated in the medical evidence, after the 2018 accident, that any of the applicant’s pre-existing medical conditions would prevent the applicant from achieving maximal recovery under the MIG. Hence, the secondary component of s. 18(2) of the Schedule is not satisfied.
21For reasons above, I find that the applicant did not sustain any injuries that fall outside of the MIG.
Is the applicant entitled to $2,486.00 for a psychological assessment in an OCF-18 dated May 29, 2019?
22At the case conference, the parties agreed that the monetary limits for treatment within the MIG have not been exhausted. In submissions, the respondent notes that $3,361.32 has been exhausted of the MIG limit of $3,500.00. This leaves $138.68 remaining under the MIG. The amount remaining within the MIG is not referenced in the applicant’s initial submissions, and the amount specified by the respondent is not addressed in reply. However, the treatment plan in dispute proposes treatment outside of the MIG. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to the treatment plan in dispute.
23As I find the applicant to be within the MIG, I find that the applicant is not entitled to the psychological assessment and no interest is payable.
Award
24The applicant 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.
25The applicant only submitted a general statement that the respondent was pestering Main Street Health Clinic by invoking s. 46.2 of the Schedule in accordance with the pre-approved treatment confirmation form (OCF-23) dated March 11, 2019, but there was no corroborating evidence, clarification or explanation to substantiate his claim for an award. Submissions alone cannot be evidence. The applicant did not lead any evidence to show that the respondent behaved in a way that would trigger the threshold for granting an award. Therefore, I find that the applicant is not entitled to an award.
Interest
26Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
27As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
ORDER
28I find that the applicant’s injuries are “minor” as defined within s. 3 of the Schedule and therefore remain within the monetary limits of the MIG.
29The applicant is not entitled to the OCF-18 for psychological assessment dated May 29, 2019.
30The applicant is not entitled to interest or award.
31The application is dismissed.
Released: August 4, 2023
__________________________
Lisa Yong
Adjudicator