Citation: Qaryo v. The Co-Operators Insurance Company, 2023 ONLAT 21-000236/AABS

Licence Appeal Tribunal File Number: 21-000236/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:

Mark Qaryo

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on February 14, 2020¹ and sought benefits from Allstate Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).² The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be decided:

a. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?³

b. Is the applicant entitled to $2,609.06 for a psychological assessment proposed by Pilowsky Psychology in a treatment plan (“OCF-18”) dated July 2, 2020?

c. Is the applicant entitled to $4, 858.48 for psychological services proposed by Pilowsky Psychology in an OCF-18 dated October 13, 2020?

d. Is the applicant entitled to $1,276.82 for physiotherapy services proposed by Mavis Eglinton Physiotherapy in an OCF-18 dated October 13, 2020?

e. Is the applicant entitled to $1, 082.19 for physiotherapy services proposed by Mavis Eglinton Physiotherapy in an OCF-18 dated August 31, 2020?

f. Is the applicant entitled to $8,485.00 for a chronic pain treatment plan proposed by Complete Rehab Centre in an OCF-18 dated June 16, 2021?

g. Is the respondent liable to pay an award under s. 10 of O.Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable; and

c. The applicant is not entitled to an award or interest.

ANALYSIS

4The applicant was in an automobile accident. The applicant was taken to Etobicoke General Hospital via ambulance. The applicant reported pain to his cervical spine, neck, chest and left knee. The x-rays of his chest, cervical spine, lumbar spine, left knee and femur were all noted to be normal. He was administered Toradol and Tylenol and discharged the same day.⁴

5For the reasons outlined below, I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.

Applicability of the Minor Injury Guideline (“MIG”)

6The 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 s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

8An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁵

Did the applicant suffer physical injuries that warrant the removal from the MIG?

10I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition and are predominately soft-tissue injuries for the following reasons.

11The applicant had three x-ray and ultrasounds from Ontario Diagnostic Centre, first on March 10, 2020 on his left knee that revealed no significant abnormality;⁶ second, on June 17, 2020 on his left shoulder and cervical spine that revealed no significant abnormalities;⁷ and third on November 16, 2021, an x-ray of the applicant’s cervical spine revealed no significant abnormality and mild degenerative changes to the cervical spine, and an ultrasound on his left shoulder revealed a normal study with no evidence of internal derangement and no cuff tendon tear suspected.⁸

12On October 8, 2020, an MRI from Etobicoke General Hospital of the applicant’s shoulders revealed no cause for pain identified and no significant internal derangement.⁹

13The applicant submits that his accident-related injuries require treatment beyond the MIG. In support of his position that his physical injuries are not minor, the applicant relies on the clinical notes and records (“CNRs”) of Dr. Antoinette Mikhail, family physician.

14The applicant saw Dr. Mikhail post accident on March 7, 2020, complaining of knee-pain. Dr. Mikhail noted that the applicant sustained a knee sprain recommended physiotherapy and prescribed Naproxen and Tylenol.¹⁰ The CNRs of Dr. Mikhail reveal that between March 2020 and August 2020 the applicant had several visits regarding complaints and concerns unrelated to the subject accident.

15The Disability Certificate (“OCF-3”) of Dr. Mikhail dated November 20, 2021 noted that the applicant suffered from injuries including degenerative disc disease, depression/anxiety, headaches and myalgia. The OCF-3 noted that the applicant could return to work on modified duties.¹¹ I note that the respondent provided evidence of the applicant’s employers website demonstrating that the applicant had already returned to work as early as August 2021.¹²

16The applicant relies on a report by Dr. Siddiqui Farhan, general physician, on September 16, 2021 which opined that the applicant sustained myofascial pain, lumbar sprain/strain and cervical sprain/strain and would be a good candidate for nerve blocks.¹³

17The respondent submits that there was no evidence supporting that the applicant has injuries beyond those that would be considered “minor” or soft tissue injuries.

18The respondent cites 18-002569 v. Aviva Insurance Company, that held “an applicant is not automatically removed from the MIG as a result of any ongoing pain alone at any level. Typically, ongoing pain also must be accompanied by some functional impairment or disability, and it must be a severity that it causes suffering, distress, or is accompanied by functional impairment or disability.”¹⁴

19The respondent relies on the insurer examination (“IE”) report dated August 31, 2021 of Dr. Raymond Zabieliauskas, physiatrist. Dr. Zabieliauskas opined that from a physical medicine perspective, there was no level of physical impairment of function of any kind and concluded that the applicant sustained “minor, uncomplicated soft issue injuries.”¹⁵ During the examination the applicant noted that he attended rehab centres for his injuries, however the applicant did not submit any CNRs from any rehab centres to provide evidence of any treatment or sessions.

20When reviewing the CNRs of Dr. Mikhail, Dr. Zabieliauskas and Dr. Farhan, I note that the doctors do not provide any indication of any accident-related complaints aside from soft tissue sprains and strains. Furthermore, in reviewing the results of the applicant’s diagnostic imaging, there are no abnormalities, and all have noted to be normal in three subsequent scans.¹⁶

21These injuries fall squarely within the definition of a minor injury as defined by section 3(1) of the Schedule and therefore, I find that the applicant’s physical injuries do not warrant a removal from the MIG.

Did the applicant suffer psychological injuries that warrant the removal from the MIG?

22An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

23In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

24I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

25The applicant relies on the psychological report dated August 10, 2020, by Dr. Katherine Holler, psychologist. Dr. Holler’s assessment of the applicant was over the telephone and included a clinical interview and psycho-diagnostic testing. The applicant reported persistent sadness, lack of motivation, emotional numbness, irritability and reduced confidence.¹⁷ Dr. Holler diagnosed the applicant with major depressive disorder with anxious distress and vehicular anxiety, concluding that the applicant cannot be treated within the MIG as he is diagnosed with a psychological impairment.

26The respondent submits that the psychological report of Dr. Holler should be given little weight, highlighting that the assessment was completed over the phone. The respondent submits that the psychological symptoms were self-reported by the applicant resulting in Dr. Holler’s conclusions to be entirely based on subjective findings. Furthermore, there is no explanation as to how the testing for the assessment was carried out over the phone, raising concerns about Dr. Holler’s diagnosis and ensuing recommendations.

27The respondent relies on the IE report dated September 14, 2021 of Dr. Gerry Dancyger, psychologist. During the in-person assessment, the applicant reported he had not been treated by a psychologist or psychiatrist post-accident.

28Dr. Dancyger provided that throughout the assessment the applicant showed poor effort and exaggeration of his cognitive difficulties.¹⁸ When asked about emotional problems, the applicant stated that he was feeling “not bad”, the applicant did not report any feelings of emotional distress or discomfort during transportation and confirmed that he has driven since the accident. Dr. Dancyger opined that from a psychological perspective, the applicant’s accident-related injuries were determined to be minor in nature.

29After considering the evidence and submissions from the parties, based on a balance of probabilities I find that the applicant has not met his evidentiary onus to demonstrate that he suffers from a psychological impairment as a result of the accident. I am persuaded by the respondent’s argument that, Dr. Holler’s assessment of the applicant was via telephone, leaving her to rely almost entirely on the self-reported measures of the applicant. Furthermore, Dr. Holler’s assessment does not explain how the testing was carried out by telephone, leaving me to have concerns in her diagnosis as she relied on the self-reporting of the applicant. I am persuaded by the clinical interview and psychological testing by Dr. Dancyger and find that the applicant does not have a substantial psychological impairment as a result of the accident.

30The applicant has the onus of establishing that he suffered a psychological impairment sufficient to remove him from the MIG treatment limits. In this regard, I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG.

Chronic Pain

31Although the applicant references chronic pain, after considering the evidence before me, I find that there is no evidence of any impairment on the applicant’s functionality nor a diagnosis of chronic pain. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

32The applicant did not provide specific evidence to support a chronic pain argument.

33In addition, the applicant also failed to refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).¹⁹ The AMA Guides’ passages regarding chronic pain are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims.

34For all the above reasons, the applicant has not met his onus in proving on a balance of probabilities that his accident impairments do not fit within the MIG.

THE DISPUTED TREATMENT PLANS

35The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG’s limits. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

AWARD AND INTEREST

36Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to an award or interest.

ORDER

37The application is dismissed, and I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable; and

c. The applicant is not entitled to an award or interest.

Footnotes

1. 1Applicant states the accident occurred on February 14, 2020, while the respondent relies on the emergency record providing an accident date of February 13, 2020.
2. 2O. Reg. 34/10.
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
4. 4William Osler Health System, Emergency Records, dated February 13, 2020.
5. 5Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
6. 6CNRs, dated March 10, 2020 – May 27, 2021, Dr. Mikhail.
7. 7CNRs, dated March 10, 2020 – May 27, 2021, Dr. Mikhail.
8. 8Ontario Diagnostic Centre, dated November 16, 2021.
9. 9CNRs, dated March 10, 2020 – May 27, 2021, Dr. Mikhail.
10. 10CNRs, dated March 10, 2020- May 27, 2021, Dr. Mikhail.
11. 11CNRs, dated November 29, 2021, Dr. Mikhail.
12. 12Men Zone Barbershop, website screenshots, August 2021.
13. 13Releva Chronic Pain Centre Clinical Notes, dated September 16, 2021, Dr. Farhan.
14. 142019 CanLII 22214 (ON LAT)
15. 15Physiatry Assessment Report, dated August 31, 2021, Dr. Zabieliauskas.
16. 16March 10, 2020, June 17, 2020 and November 16, 2021.
17. 17Psychological Assessment Report, dated August 10, 2020, Dr. Holler.
18. 18Psychological Assessment Report, dated August 14, 2021, Dr. Dancyger.
19. 19American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.