Licence Appeal Tribunal File Number: 20-011840/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:
Owen Calvin
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR: Susan Rai
APPEARANCES:
For the Applicant: Jeannie Lofranco, Paralegal Jeton Memeti, Paralegal
For the Respondent: Yann Grand-Clement, Counsel
HEARD: In Writing
OVERVIEW
1Owen Calvin, the Applicant, was involved in an automobile accident on June 22, 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, Sonnet Insurance Company, 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 Minor Injury Guideline (“MIG”) and the $3,500.00 limit in s.18(1) of the Schedule?
ii. Is the Applicant entitled to $1,596.50 for physiotherapy services from New Hope Physiotherapy & Rehab Centre proposed by Niyati Sukhija in a treatment plan (OCF-18) dated January 30, 2020?
iii. Is the Applicant entitled to $3,259.48 for psychological services from Pilowsky Psychology Professional Corporation proposed by Dr. Sandra Sagrati, psychologist, in a treatment plan (OCF-18) dated December 23, 2019?
iv. Is the Applicant entitled to $2,200.00 for a psychologist assessment from Pilowsky Professional Corporation proposed by Dr. Judith Pilowsky, psychologist, in a treatment plan (OCF-18) dated October 31, 2019 submitted on November 8, 2019?
v. Is the Respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payment to the Applicant?
vi. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the Applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG.
4The Applicant is not entitled to the treatment plans in dispute.
5The Applicant is not entitled to an award under section 10 of Ontario Regulation 664 or interest.
ANALYSIS
6The Applicant was a seat belted passenger involved in a motor vehicle accident on June 22, 2019.
7For 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.
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 Minor Injury Guideline.
8I find that the Applicant has not met his onus of demonstrating that he sustained an injury that is not a minor injury as defined in section 3 of the Schedule.
9Section 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.”
10An 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.
11The Applicant submits that he should be removed from the MIG due to the following accident-related impairments:
i. Physical: neck pain, shoulder pain, arm pain, back pain, left knee pain and right wrist pain;
ii. Psychological: Irritability, anxiety, stress, accident nightmares vehicular anxiety (driver/passenger), accident flashbacks, social withdrawal, low libido, sleep issues, low energy, loss of incentive, and depression;
iii. Cognitive: headaches, dizziness, blurred vision, memory issues, lack of comprehension and tingling and numbness in fingers.
12With respect to physical injuries, I find the Applicant has suffered predominately soft tissue injuries. The Applicant indicated in his Application for Accident Benefits (OCF-1) dated July 14, 2019 (“OCF-1”) that emergency personnel did not attend at the scene of the accident, and he did not attend the hospital after the accident. He first sought medical treatment on July 17, 2019, nearly one month after that accident, at which time he reported to his family doctor, Dr. Zidel, that he had pain in his lower back that began two weeks following the accident. In his clinical notes and records, Dr. Zidel opined that “with physio, good posture and medication as needed, the Applicant will hopefully be fine in 2-4 weeks time”.
13Following the accident, the Applicant advised that he continued to work as a shipper and receiver for TJX Canada on modified duties. In his OCF-1, the Applicant indicated that his injuries did not prevent him from working and that he had returned to work with difficulties.
14The disability certificate by Dr. Zidel, dated November 4, 2020, states the Applicant suffers from lower and upper back strain, headaches, and PTSD (with vehicular anxiety) and no fractures or other injuries. Dr. Zidel also opines that the Applicant is at risk of chronic pain but indicates that no further examinations, investigations, or consultations are required. However, he states the Applicant would benefit from a strengthening program and psychological intervention to deal with PTSD.
15With respect to chronic pain, I find the disability certificate is uncompelling because there is no corroborating evidence demonstrating that the Applicant is impaired because of pain that would support a diagnosis of chronic pain syndrome. Eight months after the accident, Dr. Zidel’s notes and records reveal that the Applicant was no longer complaining about his lower back pain. Even without a diagnosis of chronic pain syndrome, the Applicant has not provided any evidence indicating that he has chronic pain accompanied by functional impairment. The Tribunal has consistently found that diagnoses rendered in treatment and assessment plans or in disability certificates hold virtually no weight when presented without any clinical notes and records to support them.
16The Respondent relies on the insurer examination report dated February 24, 2020, of Dr. Levy, a general practitioner. Dr. Levy opined that the Applicant suffered uncomplicated soft tissue injuries to his mid to lower back as a direct result of the accident and that his prognosis for recovery is “good”.
17With respect to psychological impairments, I find that the Applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG. The Applicant relies on a psychological report dated December 23, 2019, of Dr. S. Sagrati of Pilowsky Psychology Professional Corporation. Dr. Sagrati diagnosed the Applicant with adjustment disorder and PTSD with vehicular anxiety and as being at risk of developing somatic symptom disorder. Dr. Sagrati’s report further submits that the Applicant’s “lifestyle has drastically changed as a result of his difficulty coping with pain and limitations, and this has resulted in marked psychological distress that significantly impedes his functioning”. I find this psychological evidence to be of little value because it is based on the Applicant’s self-reports that is undermined by the evidence submitted by the Respondent.
18The Respondent submits that not only has the Applicant continued to work as a shipper and receiver, but he has also continued to perform as a reggae singer known as “Anthony Ynot” following the accident. The Respondent submitted various post-accident screenshots from the Applicant’s Facebook and YouTube video links of the Applicant reaching above his head and bending over without any evidence of impairment or limitations while performing. This evidence directly contradicts what the Applicant reported to Dr. Sagrati on November 25, 2019, stating his worry and sadness interferes with his ability to perform music and that he has not performed since the accident as he is unable to dance. The Applicant did not reply or refute that these photographs or videos were of him.
19The Respondent also relies on the insurer’s psychological examination dated February 5, 2020, of Dr. Rubenstein, who opines that the Applicant has not sustained any diagnosable psychological impairment as a direct result of the subject accident and therefore should not be removed from the MIG on that ground.
20I find that the Applicant has not met his evidentiary onus to demonstrate that he suffers from a psychological impairment due to the accident. I am persuaded by the Respondent’s argument that the Applicant’s attempts to prove psychological impairment by citing the OCF-3 dated November 4, 2020, prepared by Dr. Zidel appear to be based on the Applicant’s self-reported psychological symptoms. The “Patient Injuries and Complaints” form attached to the OCF-3 shows the Applicant checked off all symptoms listed under the “Emotion/Psych/Neuro” category, which corroborates Dr. Rubenstein’s opinion that the Applicant tends to exaggerate his symptoms.
21The 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. With respect to the PTSD, there is no evidence in the Applicant’s medical reports or clinical notes and records, other than self-reported symptoms, that substantiate he is suffering from such a significant impairment.
22As for the cognitive impairment, the Applicant claims his headaches are a result of the accident. There is no evidence provided to support that the headaches were caused by the accident. A note from Dr. Zidel’s records dated July 18, 2017, reveals that the Applicant’s shift work and lack of sleep were the likely cause of his headaches.
THE DISPUTED TREATMENT PLANS
23The 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
24Given 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
25The application is dismissed, and I find that:
i. The Applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The Applicant is not entitled to an award or interest.
Released: August 29, 2023
Susan Rai
Adjudicator