Citation: Williams v. Dominion of Canada General Insurance Company (Travelers), 2023 ONLAT 21-010646/AABS

Licence Appeal Tribunal File Number: 21-010646/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:

Darmeth Williams

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Darmeth Williams, Applicant Thomas Dugas, Counsel

For the Respondent:

Sara Baum, Counsel

HEARD: In Writing

July 7, 2023

OVERVIEW

1Darmeth Williams, the applicant, was involved in an automobile accident on August 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company (Travelers), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant claims entitlement to physiotherapy and psychological services, the cost of psychological and chronic pain assessments, an award under Regulation 664 and interest. The respondent denied the applicant’s claims because it determined that all of her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline, Superintendent’s Guideline 01/14 (“MIG”). The applicant’s position is the opposite.

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits and cost of examinations prescribed by s.18(1) of the Schedule. In turn, a determination of whether claimed medical benefits and cost of examinations are reasonable and necessary will be unnecessary as the parties agree the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

4The applicant advised in her submissions that she was withdrawing the issue of entitlement to income replacement benefits. Accordingly the issues in dispute are:

1. Whether the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

2. Is the applicant entitled to the physiotherapy services proposed by 101 Physio as follows:

(a) $3,471.14, in a treatment plan OCF-18 (“plan”) submitted September 6, 2019 and denied September 11, 2019;

(b) $199.92 ($1,299.92 less $1,100.00 approved), in a plan submitted January 3, 2020 and denied January 15, 2020; and

(c) $2,189.01 in a plan submitted February 7, 2020 and denied in a letter dated February 18, 2020?

3. Is the applicant entitled to the services and assessments proposed by 101 Assessments as follows:

(a) $4,688.38 for psychological services in a plan submitted January 19, 2021 and denied February 1, 2021;

(b) $2,460.00 for a psychological assessment in a plan submitted April 15, 2020 and denied April 28, 2020; and

(c) $2,460.00 for a chronic pain assessment in a plan submitted May 17, 2021 and denied June 1, 2021?

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

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

RESULT

5The applicant has not proven that, as a result of the accident, her injuries and impairments take her out of the MIG. Given that the $3,500.00 maximum benefit for minor injuries has been exhausted, the applicant’s claims are dismissed.

ANALYSIS

The applicant is in the MIG

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.

7An insured person 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 on a balance of probabilities.

8There is no dispute that the applicant sustained soft tissue injuries to her neck, low back and left shoulder as a result of the accident. The applicant’s submission is apparently that she is out of the MIG because of a pre-existing injury and that she sustained both a psychological impairment and chronic pain as a result of the accident.

The applicant’s pre-existing medical condition does not take her out of the MIG

9Under s.18(2) of the Schedule an insured person with minor injuries who has a documented pre-existing medical condition may be exempted from the $3,500 cap on benefits. The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. It is intended and expected that the vast majority of pre-existing conditions will not exempt an insured person from the MIG. In order to be removed from the MIG, the applicant must provide compelling evidence that her pre-existing condition will prevent maximal recovery from her minor injuries if she is subject to the $3,500 limit on treatment expenses under the MIG.

10The respondent does not dispute that the applicant’s medical records show that she suffered from pre-accident pain in her neck, back, and hips, as well as work-related stress and depression. The applicant reported the following complaints to her family physician, Dr. Vivian Ang, who made the following diagnoses and recommendations:

i. June 20th, 2016: Left hip pain ongoing for years that was treated with massage at 101 Physio;

ii. March 18, 2017: Low back pain radiating into her right buttock for years. She was diagnosed with right sciatica, prescribed Vimovo and referred to physiotherapy if the pain persisted;

iii. May 29, 2017: Headache with photophobia;

iv. February 3, 2018: Right supra pubic pain interfering with sleep;

v. February 17, 2018: Continued low back pain interfering with sleep for which Celebrex was prescribed;

vi. A fall at work on March 2, 2018 causing neck pain and headaches with a diagnosis of neck strain;

vii. A slip and fall on stairs on March 30, 2018 resulting in bruising to the left thigh;

viii. September 17, 2018: A diagnosis of insomnia;

ix. October 12, 2018: low back strain;

x. October 27th, 2018: Continued low back complaints for three weeks on radiating anteriorly to the pelvis with paresthesia after physiotherapy and massage;

xi. December 15, 2018: right big toe pain;

xii. December 19th, 2018: Left eye pain with swelling and blurring; and

xiii. June 27, 2019: Diagnosed with depression and work related stress.

11The respondent submits that the applicant has failed to provide any compelling evidence that her pre-existing conditions prevent her from reaching maximal medial recovery within the MIG. I agree for the following reasons.

12The applicant relies on treatment plans prepared by Dr. Dustin Yen, chiropractor, dated August 27, 2019 and Dr. Grigory Karmy, physician, dated April 13, 2021. Dr. Yen ticked box 7(a) on the treatment plan stating the applicant had no pre-existing conditions that would affect her response to the treatment of her accident injuries. He then stated in box 9(c) that she had pre-existing conditions of occupational stress, postural strain, physical deconditioning and existential issues that were barriers to recovery. He did not comment on whether those pre-existing conditions prevented the applicant from reaching maximum medical coverage within the MIG limits or how pre-existing existential issues were a barrier to recovery. Dr. Yen’s treatment plan is not compelling evidence. His answers in boxes 7 and 9 appear contradictory and I am unable to reconcile them without some further comment from him on whether the pre-existing conditions prevent the applicant from reaching maximal medical recovery within the MIG limits.

13Dr. Karmy stated in his plan that the applicant’s pre-existing conditions were barriers to her recovery, but he did not list what those were. In fact, he also ticked box 7(a) in the treatment plan, stating the applicant had no pre-existing conditions that would affect her response to the treatment of her accident injuries. Since Dr. Karmy was not aware of any pre-existing conditions or what they were, I do not find that his treatment plan is evidence that the pre-existing conditions prevent the applicant from reaching maximal medical recovery within the MIG limits.

14For these reasons I agree with the respondent that the applicant has not provided any compelling evidence that her pre-accident medical issues would exempt her from the MIG limits.

The applicant’s psychological impairment does not remove her from the MIG

15The applicant relies on the diagnosis of Lital Grinberg, psychological associate, in her report dated November 30, 2020 as evidence that she sustained a psychological impairment from the accident that removes her from the MIG. The respondent submits that the applicant sustained at most, psychological sequela form her soft tissue injuries and that Ms. Grinberg’s diagnosis should be given little weight.

16Psychological injuries, if established, may fall outside the MIG because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. However, psychosocial symptoms are sequelae from minor injuries and do not take an insured person out of the MIG. This is because s.2(g) and s.7(b)(iii) of the MIG include other interventions that facilitate pain management and intervention for psychosocial issues and coping skills education. See Naval v Aviva General Insurance, 2022 CanLII 8667 (ONLAT) (Naval v Aviva ). Accordingly, for a psychological impairment to remove an insured person from the MIG, it must be more than just mere sequela from the accident.

17Ms. Grinberg diagnosed the applicant with Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, Somatic Symptom Disorder with Predominant Pain: Severe, and Specific Phobia: Situational: Vehicular.

18The applicant submits that Ms. Grinberg’s diagnosis is corroborated because the applicant has complained of psychological issues dating from shortly after the accident. She relies on Dr. Yen’s August 27, 2019 treatment plan and the clinical notes of her family physician, Dr. Ang and submits they disclose psychological complaints.

19I am unable to find that Dr. Ang’s records support a psychological impairment of a severity that it takes the applicant out of the MIG. In her disability certificate dated September 16, 2019, Dr. Ang diagnoses the applicant with driving anxiety in addition to left shoulder strain, neck strain, headache and left arm and hand numbness. Dr. Ang diagnosed her with psychological stress and PTSS on November 25, 2019, noting that her sister’s husband had passed away in a motor vehicle accident in Jamaica and the applicant was waking up shaking and nervous. Dr. Ang did not expand on what PTSS stands for. However, Dr. Ang's records indicate patient health questionnaires were given to the applicant on December 2, 2019 which disclosed no depression and no anxiety.

20The respondent submits that Ms. Grinberg’s report should carry little weight for the following reasons:

i. No validity testing was administered;

ii. Ms. Grinberg’s diagnosis is based on the applicant’s subjective reports which are unreliable; and

iii. The applicant’s psychometric scores are inconsistent with those administered by Dr. Ang and those reported in the insurer’s examination reports conducted under s.44 of the Schedule (“IEs”) of Dr. David Direnfeld, psychologist, dated August 13, 2020 and Dr. Amena Syed, psychologist, dated December 14, 2021.

21Ms. Grinberg conducted her assessment of the applicant by telephone. The applicant complained of sleep disturbance due to pain causing fatigue and depleted energy, variable appetite, memory difficulties, frustration and sadness. She advised that she became socially withdrawn before the pandemic because of her pain and lack of enjoyment.

22I am not persuaded by the respondent’s critique of Ms. Grinberg on the basis there was no validity testing. Ms. Grinberg found, based on the Multidimensional Pain Inventory (“MPI”) questionnaire, that the applicant did not exaggerate and was not malingering. This conclusion implies that the MPI contains validity scales. The respondent has not provided any evidence to contradict that implication. Further, Dr. Direnfeld and Dr. Syed found that on psychometric testing with validity scales, the applicant reported in a consistent manner and did not exaggerate her complaints. This is consistent with Ms. Grinberg’s conclusions.

23Despite the consensus opinion of the psychologists that the applicant did not exaggerate, I am partially persuaded by the respondent’s submission that Ms. Grinberg’s diagnosis is based on the applicant’s subjective reports which are unreliable. It is not unreasonable for a person to not exaggerate or report in a consistent fashion yet still be an unreliable historian. In fact, this was Dr. Direnfeld’s concern as the applicant’s complaints and history conflicted with her psychometric testing.

24For example, the applicant advised Ms. Grinberg that she had no chronic or pre-existing health conditions. However, Ms. Grinberg had the applicant’s clinical notes and records stemming from 2016 to March 7, 2020 which show otherwise. Ms. Grinberg did not comment on how the applicant’s pre-accident health issues, including the diagnosis of depression and work related stress just two months before the accident, affected her opinion, which lessens the weight I can give to her opinion.

25I am also persuaded Ms. Grinberg’s opinion carries less weight because her findings are inconsistent with those of Dr. Direnfeld, Dr. Syed and of Dr. Ang. Ms. Grinberg conducted her assessment after Dr. Direnfeld and she had Dr. Ang’s December 2019 psychological evaluations. On the testing relied on by Ms. Grinberg, the applicant was reporting severe levels of depression and moderate levels of anxiety. This could indicate that the applicant’s psychological impairments became worse since August 2020. Ms. Grinberg did not explain the discrepancy. Given that the applicant reported to Dr. Ang on August 12, 2020 that her work was accusing her of taking keys, I would have expected the applicant to disclose this information to Ms. Grinberg and for Ms. Grinberg to elaborate on how that affected the applicant’s psychometric testing and Ms. Grinberg’s assessment. Without such explanation, I am left to conclude that work stress explains why the applicant’s performance on psychometric testing is out of sorts with Dr. Ang’s and Dr. Direnfeld’s assessments and why the applicant’s psychological symptoms were subclinical and below the threshold for a diagnosis by November 2021 when Dr. Syed saw her.

26The applicant also relies on the comments at the end of Dr. Waxer’s February 26, 2020 treatment plan that the applicant allegedly made to an unidentified person at the Integrated Psychology Centre. I am unable to give any weight to the comments and recommendations as the person the applicant allegedly spoke to is not identified, nor is their qualification. Nor do I have any information on what the Integrated Psychology Centre is and what interest they have in 101 Physiotherapy or vice versa.

27The applicant also submits that she underwent 16 sessions of psychological treatment absent any guarantee of funding from the respondent and that is evidence in support of her claim that she has a psychological impairment that takes her out of the MIG. There was no evidence before me that the applicant undertook psychological treatment at the risk it would not be paid for. The only evidence before me resembling support for that submission is the report of Nabeela Marzook, social worker from 101 Assessments, dated April 18, 2022. Ms. Marzook reported that she provided 16 sessions of counselling to the applicant. If the applicant’s submissions on the 16 psychological sessions were meant to refer to the treatment provided by Ms. Marzook, I have no evidence as to how that was funded; whether it was funded through collateral health benefits the applicant has with her employer or by 101 Assessments on speculation.

28The applicant submits that little weight should be given to Dr. Direnfeld’s opinion because on psychometric testing she displayed results indicative of a somatization disorder. However, Dr. Direnfeld did not diagnose the applicant with a somatization disorder as she did not endorse any symptoms indicative of a DSM-5 somatization disorder, such as excessive behaviors devoted to investigating and managing her pain, or a disproportionate belief about the seriousness of her condition.

29Dr. Direnfeld reported that the applicant’s psychometric test scores on the work and social adjustment scale suggested significant functional impairment accompanied by severe clinical symptomology, mild symptoms of depression, and a provisional diagnosis of PTSD post traumatic stress disorder on the PCL -5. Despite the psychometric tests results, Dr. Direnfeld found there was not enough evidence for a DSM-5 diagnosis. He pointed out that, while psychometric tests provide useful clinical information about the scope and severity of psychological symptomology, they cannot be used to formulate diagnosis. I understand him to mean from this that the psychometric test results are a factor to consider in formulating a diagnosis. Contrary to the applicant’s submissions, I find that Dr. Direnfeld provided a rational explanation for why he did not feel there was sufficient evidence to support a PTSD diagnosis from the accident. Dr. Direnfeld felt the PCL-5 was not valid because the applicant had advised she only had two recent nightmares and only one of them was MVA related. She did not report the development of substantial anxiety or avoidance associated with vehicle travel.

30The applicant submits that little weight should be given to Dr. Syed’s opinion because her conclusions do not correlate with her clinical findings and summary and the Tribunal gave her opinions little weight in 17-005791 v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT) and Wu v Allstate Canada, 2023 CanLII 135 (ON LAT). The fact situations in those cases was not the fact situation before me. I disagree with the applicant that Dr. Syed’s opinion was not supported by her findings and summary in this case. Dr. Syed noted that the pre-accident depression and work stress may have meant the applicant's overall psychological functioning was compromised prior to the accident. Dr. Syed reported that the applicant attended appropriately and responded consistently to psychometric testing. Validity test results suggested that the applicant answered in a reasonably forthright manner and did not try to exaggerate. Overall, Dr. Syed opined that the applicant in general may experience some psychological concerns, which are mostly situational in nature with pain being her primary limiting factor. However, the nature and severity of her distress was below any diagnosable threshold and considered to be subclinical. This is consistent with the testing administered by Dr. Ang.

31The applicant advised all the psychologists that she had been prescribed medication for depression by her family physician. However, she did not take it as she was concerned, she would become addicted to the medication. I was provided with no evidence or indication of why addiction to the prescribed medication would have been a concern or to what extent the concern outweighed the applicant’s psychological symptomology.

32For these reasons, I am unable to find that the applicant has shown on a balance of probabilities that she has a psychological impairment as a result of the accident that is more than mere sequelae from her soft tissue injuries.

The applicant’s chronic pain does not take her out of the MIG

33The respondent relies on the Tribunal decision of Naval v Aviva in which I held that chronic pain syndrome, if established, removes a claimant from the MIG, but that ongoing pain or chronic pain alone is insufficient to take one out of the MIG. For the applicant to be taken out of the MIG for chronic pain, the pain must be severe enough to cause a significant disruption her life, such as functional impairment or disability. The respondent also relies on J.J. vs. Allstate Insurance Company of Canada, 2019 CanLII 101599 (ON LAT) (J.J. vs. Allstate) and submits that for the applicant to be removed from the MIG, she must provide medical evidence to establish her functionality is impaired as a result of the accident. I agree with the reasoning in J.J. vs. Allstate to the extent that a diagnosis of chronic pain syndrome or of chronic pain that is severe enough to remove a claimant from the MIG must be established by evidence.

34I agree with the reasoning in the Tribunal decisions such as Borzush v. Aviva Insurance Canada, 2021 CanLII 30523 (ON LAT), which have held that the six factors set out in the American Medical Association Guides for determining whether an individual has chronic pain syndrome are helpful in determining whether there is evidence to establish if a claimant’s pain is of such a severity that it significantly disrupts their pre-accident activities of daily living and removes them from the MIG. See also Naval v Aviva. Those factors to consider are:

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 contracts.

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 needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

35However, in this case it is difficult to determine whether the accident exacerbated the applicant’s pre-accident complaints leading to chronic pain or whether her present pain complaints are the same as her pre-accident complaints, especially since she takes no medication or, at the most, over the counter medication for her pain and was taking Vemovo and Celebrex before the accident. Accordingly, I do not find that the six factors assist in determining whether the accident caused the applicant to have chronic pain syndrome.

36The applicant submits that she was diagnosed with chronic pain syndrome by Dr. Michael Gofeld, anesthesiologist and pain specialist, and, therefore, should be out of the MIG. The respondent submits that I should place little weight on Dr. Gofeld’s opinion because his diagnoses are based solely on the claimant’s self-reported pain and functional limitations, which the respondent submits are inconsistent with her reporting to IE assessors. For example, the claimant advised Dr. Gofeld that she required assistance showering and brushing her hair, and was unable to perform any of her pre-accident housekeeping activities. In contrast, the claimant advised Dr. Hanna three days later that she was independent in personal care and light housekeeping activities, including sweeping, shoveling, and making the bed.

37The claimant also advised Dr. Gofeld that she stopped all of her social and recreational activities. However, she advised Dr. Syed that she was not socially isolated and Dr. Hannah that no longer visits the park, but that was due to Covid related restrictions.

38I do not find that Dr. Gofeld’s opinion helps the applicant, but not necessarily for the reasons given by the respondent. The applicant reported to both Dr. Gofeld and Dr. Hannah that she did not have any chronic pain conditions prior to the accident. This is not supported by her complaints of left hip and low back pain ongoing for years. Both Dr. Hannah and Dr. Gofeld noted the discrepancy and Dr. Gofeld addressed it in his diagnoses of what injuries were caused by the accident.

39Dr. Gofeld diagnosed the applicant with chronic pain syndrome, fibromyalgia, chronic low back pain and spondylosis, post-traumatic headaches and exacerbated migraine headaches, and chronic shoulder and foot pain. He clarified that the shoulder pain was caused by the accident and the back pain and migraines were exacerbated by the accident. When discussing what conditions were directly caused by the accident, Dr. Gofeld did not include chronic pain syndrome or fibromyalgia. Given the way his report is written, it is not clear that, but for the accident, the applicant would have chronic pain syndrome or fibromyalgia.

40For example, the applicant reported to Dr. Gofeld that she has pain in her left foot since the accident. She did not report this complaint to any other regulated health professional. Nor did she advise when the pain started. While this was included under the “current diagnosis” heading, Dr. Gofeld did not include it in his accident related diagnosis. The chronic foot pain affects the applicant’s activity level, but to what extent in comparison to the chronic shoulder pain, it is not clear.

41Dr. Gofeld reported that chronic pain syndrome does not fall within the MIG, but he appears to avoid giving a direct answer on whether the applicant has chronic pain syndrome as a result of the accident and, therefore, that she is out of the MIG. He only states that she has chronic pain and that the condition associated with chronic pain of chronic pain syndrome is beyond the determination of the MIG. This answer does not satisfy the applicant’s onus on a balance of probabilities to prove that she has chronic pain syndrome as a result of the accident. Nor does Dr. Gofeld’s opinion assist in proving that the applicant’s chronic shoulder pain and exacerbated back pain are of such a severity that it takes her out of the MIG.

42Nor is there any indication of the extent to which the pre-existing migraine headaches were exacerbated and if it was of a level that would take the applicant out of the MIG. Accordingly, I do not find that Dr. Gofeld’s report is of assistance to the applicant as it is too vague on whether the chronic pain syndrome and fibromyalgia are causally related to the accident.

43For these reasons, I find the applicant has not satisfied her onus to prove on a balance of probabilities that she sustained anything other than predominantly minor injuries.

The applicant is not entitled to the treatment or the assessments claimed

44Given that the applicant has not proven that she is out of the MIG, I need not consider whether she is entitled to the disputed treatment plans as she has used up the $3,500.00 MIG policy limits. Accordingly, her claims for the treatment plans are dismissed.

The applicant is not entitled to interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are owed and, accordingly, this claim is dismissed.

The applicant is not entitled to an award

46The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. No benefits are payable and, accordingly, this claim is dismissed.

ORDER

47The applicant’s application is dismissed.