Licence Appeal Tribunal File Number: 20-015102/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:
Vinessa Reid
Applicant
and
Aviva General Insurance
Respondent
AMENDED DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Vinessa Reid, Applicant
Ioulia Logoutova, Paralegal
For the Respondent:
Aviva General Insurance
Eric Grossman Justine Lee Young, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Vinessa Reid, the applicant, was involved in an automobile accident on January 20, 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 the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
a. 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 within the Minor Injury Guideline (MIG)? The MIG was exhausted at the time of the denials.
b. Is the applicant entitled to a Treatment Plan/ OCF-18 for chiropractic, physiotherapy and massage therapy services dated October 17, 2019, proposed by Farhan Pathan, of Physiomed Van Mills, in the amount of $2,239.95?
c. Is the applicant entitled to a psychological assessment in the amount of $2,200.00, proposed in a Treatment Plan/ OCF-18 prepared by Dr. Maneet Bhatia, Psychologist, at PhysioMed Van Mills dated on November 14, 2019?
d. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
e. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is subject to the MIG, as she has not demonstrated that her injuries are not minor. She is not entitled to any of the treatment plans in dispute as she has failed to discharge her onus of establishing that she is prevented from achieving maximum medical recovery from her injuries within the limits of the Minor Injury Guideline (MIG). Furthermore, the MIG funds available to the applicant have been exhausted based on correspondence of the respondent insurer dated December 9, 2019, which advises of the forthcoming section 44 psychology assessment. I find that the applicant is subject to the MIG, as she has not demonstrated that treatment beyond the $3,500 limit is required. She is not entitled to any of the treatment plans in dispute.
4Since the MIG limit is exhausted, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary as a result of the accident. Since no benefits are owing, no interest is payable. The respondent is not liable to pay an award under section 10 of O. Reg. 664 because the respondent insurer did not unreasonably withhold or delay payments to the applicant. The application is dismissed.
ANALYSIS
Pre-existing Injuries and Accident-related Injuries
5The issue of whether the applicant sustained a minor injury as defined by section 3 of the Schedule must first be addressed before determining the reasonableness and necessity of the Treatment and Assessment Plans at issue.
6In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.
7Section 18(1) of the Schedule states that the sum of benefits payable under medical and rehabilitation benefits is limited to $3,500 if the person sustains impairments that are predominantly a minor injury. Section 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 she is subject to the $3,500 limit.”
8In 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. She 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.
9The 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 their injuries are not minor or they have a pre-existing condition that would prevent maximal recovery within the MIG.
10The applicant has a pre-existing medical issue with intermittent back pain, triggered on a number of occasions by workplace physical demands. The back issues were treated pre-accident with physiotherapy and massage therapy, as documented in the clinical notes and records (CNR’s) of her family doctor. However, as will be analysed in these reasons, there was no compelling medical evidence demonstrating that the pre-existing condition will prevent the applicant from achieving maximal recovery from her injuries caused by the accident, if she is kept within the MIG.
Causation
11The test to determine causation is the “but for” test, which provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the accident on January 20, 2019. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. As stated, I find that the applicant has not met her onus to prove, on a balance of probabilities, that her pre-existing physical injuries do not preclude maximal recovery if the applicant is kept within the MIG. In addition, as will be described in the CNR’s, based on diagnostic tests, and physical and psychological assessment of the applicant, she has failed to demonstrate that she experienced physical or psychological impairments caused by the accident, outside the MIG.
12As stated, the applicant has a history of work-related health conditions pre-accident. In the clinical notes and records (CNR’s) of Dr. Dennis H. Forrester dated July 5, 2016, and in August 2016, the applicant experienced pain in her knees which required the applicant to avoid climbing ladders at her place of employment for a two-to-four week period. It was recommended by Dr. Forrester that she do knee exercises and engage in weight management. The clinical notes and records describe on May 10, 2017, the knee condition had improved resulting in the applicant being able to return to the conventional physical demands at her place of employment. It is recorded in the CNR’s that although the applicant was previously obese, effective on December 13, 2016, she reduced her weight from 220 pounds to 179 pounds.
13The applicant was in a prior accident on April 25, 2015. Pre-accident, the applicant had availed herself of physiotherapy and massage therapy to address work-related physical impairments and back pain. On February 17, 2018, she reported to Dr. Dennis H. Forrester, biomechanical back pain, which she described as caused by lifting in the course of her employment. Dr. Forrester recommended physiotherapy, massage, and personal home exercise. On February 17, 2018, and on March 8, 2018, she was prescribed naproxen to alleviate back pain incurred in the course of her employment. The applicant was noted as having scoliosis which caused increased lumbar lordosis. Dr. Forrester completed a questionnaire recommending to the applicant’s group insurance, physiotherapy treatment and massage therapy, which was requested on an insurance claim form dated March 29, 2018. It is noted that the applicant experiences pain and stiffness in her lower back and that she will be able to return to work within four to six weeks.
14The subject accident occurred on January 20, 2019, and the applicant went to meet her family doctor on January 23, 2019, reporting the effects of the accident. She reported increased low back pain, as well as experiencing neck and shoulder pain, since the accident. The applicant was prescribed naproxen by her physician, and he also recommended that she seek physiotherapy and massage therapy. She returned to her family physician in February 6, 2019, reporting headaches and sensitivity to light and sound. She also described depression and anxiety following the accident; she received a referral for cognitive behavioural therapy through Halton Healthcare from Dr. Dennis H. Forrester. There is no information in the CNR’s following the referral by Dr. Dennis H. Forrester, of the applicant availing herself of the psychological counselling. In addition, there is no reference to the applicant being prescribed medication for depression, anxiety or any psychological symptom.
15As a result of the accident, on September 24, 2019, the applicant underwent a cervical spine and left shoulder x-rays, in which no fractures, dislocation, prevertebral soft tissue swelling, or misalignment was detected in the cervical spine or left shoulder. The cervical spine and disc spaces in the diagnostic test were likewise described as unremarkable. The applicant underwent a left shoulder ultrasound on September 26, 2019, which resulted in no findings of tears, tendinosis, impingement, or bursitis. On September 30, 2019, the applicant met with Dr. Forrester who described the ultrasound and x-ray results as normal.
16The last mention in the CNR’s of Dr. Forrester, the applicant’s family physician, of the applicant reporting accident-related symptoms, is on November 25, 2019, when she described pain in her shoulder and neck which had improved, together with some episodic back pain. Dr. Forrester’s CNR’s describe the applicant continuing with physiotherapy and massage therapy to address muscle spasm in the neck, back and shoulders. The CNR’s after November 25, 2019, reference medical issues completely unrelated to the accident. Although there are CNR’s relating to various health and medical issues after November 25, 2019, none of the CNR’s in the year 2020, refer to accident-related physical or psychological impairments, except possibly, a lumbar support brace and therapy for back pain in January 2020.
17The gap in the CNR’s of the applicant reporting accident-related pain symptoms from November 25, 2019 to June 3, 2021, strongly suggests the applicant’s accident-related injuries resolved before the end of the year 2019. There is reference to sprains, strains and trauma to neck and low back coccyx on June 3, 2021, without reference to these issues being accident-related. The first reference to accident-related pain in the CNR’s after the year 2020, is on August 3, 2021, over a year and a half following the applicant’s last mention of accident-related symptoms. The applicant relates biomechanical back pain in the neck and lower back, which she describes as the result of the accident which had occurred two and a half years beforehand. She receives a referral for the purpose of physiotherapy. I note the gaps in the applicant’s self-reports of accident-related symptoms more than two years following the accident, which considered together with the normal results of diagnostic tests taken in September 2019, cause me to find the applicant’s description of accident-related pain symptoms in August 2021 to be unreliable.
18The respondent submits that Dr. Forrester, the applicant’s family physician, does not make a formal diagnosis, but predominantly mentions biomechanical back pain which falls under minor sprains and strains category, covered by the MIG.
19In an IE Orthopaedic Surgery Addendum report prepared by Dr. Aaron Boynton, on January 6, 2022, following an original report dated January 2, 2020, Dr. Boynton describes that the applicant has intermittent low back pain consistent with her pre-accident history, with no evidence of structural injury that occurred as a result of the subject accident. Based on his review of the applicant’s history and Dr. Boynton’s previous examination, Dr. Boynton opines that there is no evidence of a significant lumbar spine issue that would require further investigation. In addition, Dr. Boynton found the applicant’s injuries to be considered to meet the definition of a minor injury. I agree with the respondent’s submission that Dr. Boynton found there was no significant pre-existing musculoskeletal condition that would prevent the applicant from recovering within the MIG.
20I find that the section 44, IE Orthopaedic Surgery Addendum report offers Dr. Aaron Boynton’s opinion that there is no evidence of the applicant experiencing a structural injury caused by the accident, which is consistent with the results of diagnostic x-rays and ultrasound of the applicant’s cervical spine and left shoulder. No fractures, dislocation, prevertebral soft tissue swelling, or misalignment was detected based on the x-rays of the applicant’s cervical spine or left shoulder. The applicant also underwent a left shoulder ultrasound which resulted in no findings of tears, tendinosis, impingement, or bursitis.
21I find that the applicant has not satisfied her onus and has not provided submissions or evidence of pre-existing conditions that satisfy all the criteria in section 18(2) of the Schedule in order to removed from the MIG. The existence of pre-existing injuries alone is not sufficient to satisfy the requirements of section 18(2) of the Schedule, since it is also required to demonstrate that the pre-existing injury will prevent maximal recovery if the applicant is subjected to the monetary limit under the MIG. I likewise find, as described, that the section 44, IE Orthopaedic Surgery Addendum report of Dr. Aaron Boynton’s offers no evidence of the applicant experiencing a structural injury caused by the accident, which is also consistent with the results of diagnostic tests. The applicant has failed to meet the burden of proof by demonstrating, on a balance of probabilities that her injuries are not minor or that she is prevented from maximal recovery within the MIG.
Psychological injuries
22In the respondent insurer’s explanation of benefits dated January 19, 2022, the Treatment Plan/ OCF-18 proposing a psychological assessment is denied as neither reasonable nor necessary, following the IE section 44, psychological assessment dated March 20, 2020, and psychological addendum report dated January 18, 2022, by Dr. Sherri MacKay. Dr. Sherri MacKay opines that: “Based on the available information and the current assessment, it is my considered opinion that while Ms. Reid continues to experience some residual anxiety, primarily related to driving and travel by motor vehicle, there is no valid and objective indication of accident-related symptoms and impairment of a depth and breadth that meet the specific and necessary criteria for an accident-related psychological disorder/ diagnosis.” Dr. Sherri MacKay opines that: “From a strictly psychological perspective, there is no indication of accident-related psychological symptoms and impairment… that would take her outside of the Minor Injury Guideline…Based on the available information and the current assessment, Ms. Reid is coping reasonably well from a strictly psychological perspective. She does not require accident-related psychological services. The OCF-18 is not reasonable and necessary.”
23The respondent submits that in terms of psychological impairments, the applicant at most sustained psychological sequelae. When relying on an alleged psychological impairment for removal from the MIG, an injured person must prove on a balance of probabilities that her psychological complaints are not merely psychological sequelae to a minor injury. The insured must prove that she has sustained an actual psychological impairment as a direct result of the accident. With respect to the applicant’s psychological injuries, the last entry referencing any psychological sequelae taken by Dr. Forrester, was on April 1, 2019. There are no other CNR’s by Dr. Forrester, referring to ongoing psychological complaints, nor the applicant following up in any manner, attending the group counselling arranged by way of referral through her family physician with Halton Healthcare as earlier referenced.
24The respondent submits that Dr. Forrester described the applicant experiencing post traumatic stress disorder (PTSD) following the accident on February 6, 2019, and Dr. Forrester recommended and provided a referral for group therapy. However, the applicant has failed to provide any evidence of receiving any counselling treatment or prescription medication by reason of any psychological complaints. As submitted by the respondent, in the event that the applicant’s psychological injuries were anything other than minor, she would have continued to see and report the symptoms to her family doctor. The applicant did not report any psychological accident-related sequelae since 2019. I agree with the respondent’s submissions that the applicant has failed to meet the burden of providing compelling medical evidence that she was experiencing any ongoing psychological impairment caused by the accident.
25In the explanation of benefits dated January 19, 2022 from the respondent insurer, the Treatment Plan/ OCF-18 dated November 14, 2019, proposing a psychological assessment is denied as a result of the findings following the section 44 assessment and addendum report of Dr. Sherri MacKay, opining that the proposed psychological assessment is not a reasonable and necessary expense. I agree, based on the evidence described, that the applicant has failed to meet her burden to demonstrate with medical evidence that the treatment plan for a psychological assessment is reasonable and necessary.
26I find that the applicant has failed to meet her burden to prove on a balance of probabilities, by means of adducing compelling medical evidence that she has experienced psychological impairments as a result of the accident which require treatment in order to achieve maximal recovery outside the Minor Injury Guideline (MIG).
27Having 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.
28As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
29Similarly, 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
30I 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.
31The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
32Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
33The respondent is not liable to pay an award under Regulation 664.
34The application is dismissed.
Released: August 14, 2023
__________________________
Janet Rowsell
Adjudicator