Citation: Rak v. Aviva General Insurance Company, 2023 ONLAT 19-013071/AABS

Licence Appeal Tribunal File Number: 19-013071/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:

Ryszard Rak

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Ryszard Rak (“the applicant”), was involved in an automobile accident on January 19, 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 Aviva General Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be determined for the purposes of this hearing are as follows:

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 of the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $238.93 ($1,318.73 less the partially approved amount of $1,079.80) for physiotherapy treatment recommended by Alpha-Med Wellness Centre Inc., in a treatment plan (OCF-18) submitted on April 25, 2019 and denied on May 9, 2019?

iii. Is the applicant entitled to $2,590.84 for physiotherapy treatment, recommended by Alpha-Med Wellness Centre Inc. in an OCF-18 submitted on May 16, 2019, and denied on May 31, 2019?

iv. Is the applicant entitled to $2,226.00 for a psychological assessment, recommended by Royal Health Evaluations Inc. in an OCF-18 submitted on May 16, 2019, and denied on May 31, 2019?

v. Is the applicant entitled to $2,260.00 for a chronic pain assessment, recommended by Hydroactive Aquatherapy & Rehabilitation Inc. in an OCF-18 submitted on February 18, 2020, and denied on February 21, 2020?

vi. Is the applicant entitled to $7,996.95 for a chronic pain treatment program, recommended by Hydroactive Aquatherapy & Rehabilitation Inc. in an OCF-18 submitted on June 5, 2020, and denied on June 9, 2020?

vii. Is the applicant entitled to $4,051.25 for aquatherapy and massage therapy treatment, recommended by Hydroactive Aquatherapy & Rehabilitation Inc. in an (OCF-18) submitted on August 28, 2020, and denied on September 2, 2020?

viii. Is the applicant entitled to $2,460.00 for a social work assessment, recommended by Hydroactive Aquatherapy & Rehabilitation Inc. in an OCF-18 submitted on September 8, 2020, and denied on September 16, 2020?

ix. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

x. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG.

ii. As the full MIG limits on medical benefits has been approved, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

iii. The applicant is not entitled to interest on any overdue payments of benefits, nor is he entitled to an award.

ANALYSIS

Minor Injury Guideline

4Section 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.”

5An 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. The onus is on the applicant to establish that he has a psychological impairment rather than psychological symptoms that are sequelae of a minor injury. In all cases, the burden of proof lies with the applicant.

6The applicant submits that he should be removed from the MIG on the following grounds:

i. He has chronic pain syndrome with a functional impairment as a result of the accident; and

ii. He has psychological impairments, such as depression, mild anxiety, and PTSD.

7The applicant’s submissions did not directly address whether his pre-existing condition of lipoma would remove him outside of the MIG, however as this was mentioned in the submissions and the evidence, I will be considering this below in my decision.

8The respondent has paid $3,299.20 in medical and rehabilitation treatment to the date of the submissions. However, the explanation of benefits (“EOB”) dated March 28, 2019, indicated that the OCF-18 listed as issue ii in this hearing was partially approved to the maximum policy available within the MIG. As such, the respondent has approved the full limits available within the MIG.

The applicant has not established chronic pain warranting removal from the MIG

9The applicant has failed to demonstrate that he has sustained chronic pain that causes a functional impairment that would warrant removal outside of the MIG.

10The applicant submits that he has developed chronic pain syndrome with a functional impairment as a result of the accident warranting removal from the MIG. He relies on the clinical notes and records of Dr. Kozerawski, Alpha Med Wellness Centre, Disability Certificate (“OCF-3”) and Dr. Perry. He did present with complains of pain in his neck, back, left posterior chest region, lower back, left leg, mid-calf region, lumbar muscular strain, occipital pain, headaches, occipital contusion at the site of the previous lipoma, and left trapezius strain in addition to lumbago, sciatica, and coccydynia. These records further indicate that he attended treatment for his neck, back, and shoulders and that he was prescribed Tramacet, Vimovo, and Robaxisal. Further, he relies on the s.25 chronic pain medical assessment of Dr. Igor Wilderman who diagnosed the applicant with chronic pain syndrome, mechanical back pain, and lumbago.

11The respondent submits that the applicant has failed to establish he meets the requirements under the AMA Guides to be diagnosed with chronic pain syndrome. The respondent relies on the s.44 IE General Practitioner Assessment Report of Dr. Todd Walters, dated January 28, 2021 to support its position. The respondent further submits that the diagnoses made by Dr. Wilderman were based entirely on the applicant’s self-reporting.

12I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

13I do not see that the medical evidence of the applicant’s treating practitioners, Dr. Kozeraswki and Dr. Perry supports a finding of chronic pain. I acknowledge the applicant did complain of pain from this accident to Dr. Kozeraswki once and Dr. Perry, 5 times from January to May 2019. However, the applicant has failed to demonstrate that he suffers from chronic pain and not residual pain following the accident. Neither Dr. Kozeraswki nor Dr. Perry concluded that the applicant had a functional impairment as a result of the pain that the applicant was experiencing. In fact, on March 22, 2019, approximately 3 months following the accident, Dr. Perry noted that the applicant’s lumbar muscular strain, occipital contusion at site of the previous lipoma and left trapezius strain were improving. The OHIP Summary further demonstrates that the applicant has not sought any medical attention from any OHIP-Funded physicians from June 2019 to July 2020.

14I acknowledge that on March 22, 2019, Dr. Perry made a diagnosis of sciatica, however, there is no indication whether this was as a result of the accident. Furthermore, there is uncertainty of how this diagnosis was reached as Dr. Perry did not refer to any testing or physical examination to confirm this. It appears that Dr. Perry just used a generic code at the end of his entry with a number of diagnoses for the applicant, which included lumbar strain, lumbago, coccydynia, and sciatica. As such, the applicant has failed to demonstrate that he suffers from sciatica which could remove him outside of the MIG.

15Further, the records of Alpha Med Wellness Centre demonstrate that the applicant did receive treatment from January 29, 2019 to May 30, 2019, however this fails to demonstrate that he suffers from chronic pain in the absence of supporting medical evidence.

16The applicant’s chronic pain argument largely rests on Dr. Wilderman’s chronic pain report, dated February 20, 2020. Dr. Wilderman’s conclusion that the applicant met 5 out of 6 criteria to establish a chronic pain syndrome under the AMA Guides were largely based on the self-reporting of the applicant. I find this report unpersuasive as the other medical evidence does not support that the applicant sustained a chronic pain syndrome with a functional impairment as a result of the accident. Dr. Wilderman did not review the records of Dr. Perry or Dr. Kozeraswki which would have shown that he last saw Dr. Perry in May 2019 for pain complaints.

17Lastly, I disagree with Dr. Wilderman that the applicant meets the test outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th 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 the 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 contacts.

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.

18At most, the applicant may meet two of the six criteria described above. Dr. Wilderman confirmed that the applicant did not meet part 1. The applicant does not have excessive dependant on healthcare providers as his last visit was in May 2019. Further, there is no evidence beyond his self-reporting to Dr. Wilderman that he has excessive dependence on his family members or friends. The applicant has failed to produce any objective medical evidence to support that his activity avoidance of riding a motorcycle resulted in physical deconditioning. Dr. Wilderman’s report was silent with respect to this. While I note that Dr. Wilderman noted that there was restricted range of motion and tenderness in the applicant’s lumbar spine, he did not advise what caused this.

19Lastly, there are inconsistencies with respect to the applicant’s alleged withdrawal from work. The applicant advised Dr. Wilderman that he had closed his cleaning company due to his impairments, however, he advised Dr. Walters that he did not have his cleaning business at the time of the accident. The applicant has failed to provide any objective evidence beyond his self-reporting to Dr. Wilderman that supports he withdrew from his cleaning business as a result of the accident. Further, there is no objective evidence beyond his self-reporting to Dr. Wilderman that supports he withdrew from spending leisure time with his friends, attending social and community events, riding his motorcycle, and performing housekeeping tasks.

20Accordingly, and for the reasons described above, I find that the applicant has not established that he suffers from a chronic pain condition with functional impairment warranting removal from the MIG.

The applicant does not suffer from psychological injuries which would remove him from the MIG

21The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.

22The applicant relies on the clinical note and record entry of Dr. Kozerawski, dated January 23, 2019, OCF-3 completed by chiropractor, Dr. Charalambous, Dr. Perry’s record of February 6, 2019, and Dr. Wilderman’s report of February 10, 2020. He relies on this to demonstrate that he suffers from depression, anxiety, disturbed sleep, PTSD symptoms, loss of interest in previously enjoyable activities, and weight gain.

23The respondent submits that there is insufficient evidence to support a psychological impairment and that both Dr. Charalambous and Dr. Wilderman’s findings of a psychological impairment should hold little weight as they are neither a psychologist nor psychiatrist.

24I agree with the respondent as the applicant at best has demonstrated that he had psychological complaints, however there is insufficient evidence to demonstrate that he has a psychological impairment. The applicant has failed to demonstrate that his complaints of insomnia, anxiety, and poor appetite to Dr. Kozeraswki was not clinically associated sequelae to his physical complaints of headaches, neck pain and back pain. On January 23, 2019, Dr. Kozeraswki diagnosed the applicant with general anxiety however there was no indication of whether his anxiety was a psychological impairment or a sequalae of his physical complaints. Further, Dr. Kozeraswki referred the applicant for treatment for his physical injuries, but no referral was made for a psychologist or psychiatrist.

25I place little weight on Dr. Charalambous’ conclusion that the applicant had a sleep disorder, nervousness, mixed anxiety, and depressive disorder, as it is not within a chiropractor’s scope of practice to comment on psychological impairments or provide a psychological diagnosis.

26I place little weight on Dr. Wilderman’s diagnosis of depression, anxiety, and mild PTSD as there is no objective evidence other than the applicant’s self-reporting that supports this conclusion. The applicant only complained of psychological symptoms once to Dr. Kozeraswki. Dr. Perry’s records do not support the applicant in demonstrating that he has psychological impairments. In fact, on January 30, 2019, Dr. Perry noted that the applicant did not have depression, anxiety, or psychosis. Further, on February 6, 2019, Dr. Perry did not make a determination of what was causing the applicant to have difficulty sleeping, as it was noted that the applicant had severe right sided headaches. Dr. Perry did not diagnose the applicant with psychological impairments, nor was the applicant referred for psychological treatment. The applicant has failed to demonstrate that his complaint to Dr. Perry of difficulty sleeping, and a prescription of nortriptyline, demonstrates that he has a psychological impairment. Dr. Perry did not diagnose the applicant with a psychological impairment, nor did he conclude what was causing the applicant to have difficulty sleeping. I find that Dr. Wilderman’s diagnosis is based on subjective reporting and testing which is not supported by the medical evidence of the applicant’s treating practitioners, Dr. Perry and Kozeraswki.

27Accordingly, the applicant has not demonstrated that he should be removed from the MIG based on a psychological impairment.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

28The applicant is not removed from the MIG as a result of a pre-existing condition, as he has failed to prove on a balance of probabilities that his pre-existing condition would prevent maximal recovery within the MIG.

29The standard for excluding an impairment on the basis of a pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the funding limit imposed by the MIG.

30The records of Dr. Perry indicate that the applicant had a long history of a subcutaneous mass at the back of his head which was suspected to be lipoma. The applicant further submits that his head impacted with the headrest at the time of the accident and that following the accident he has pain in the occipital region and severe headaches. Even if I were to conclude that the applicant had a pre-existing condition of suspected lipoma which was aggravated by the accident, there is no objective evidence produced that he is unable to recover within the MIG as a result of this.

31I further acknowledge that the applicant complained of severe headaches to Dr. Perry on a number of occasions, however headaches alone will not take the applicant outside of the MIG.

32The applicant is not removed from the MIG on the basis of a pre-existing condition or headaches.

Interest

33Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

34Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. As the applicant has been found to have 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

35The applicant sustained a minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit. As the applicant remains within the MIG and its $3,500 limit, which has been approved, he is not entitled to the plans in dispute, nor interest or an award.