Licence Appeal Tribunal File Number: 20-004320/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:
Vanessa Vasudevan
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Vanessa Vasudevan, Applicant
Rajwant Bamel, Counsel
For the Respondent:
Economical Insurance Company,
Danielle Gauvreau, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Vanessa Vasudevan, the applicant, was involved in an automobile accident on February 20, 2017, 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.
2The applicant was a seat-belted passenger, when her father’s vehicle was rear-ended. The applicant did not lose consciousness, no air bags deployed, and the applicant was capable of exiting the vehicle without assistance. The applicant attended Prime Health Care, where she was assessed by chiropractor Dr. Chad Hefford, who she was referred to by her legal counsel and where a disability certificate (OCF-3) was completed.
3The parties have agreed to the applicant’s withdrawal of the claim for a Non-Earner benefit as an issue in dispute.
PRELIMINARY ISSUES
4The respondent submits that the applicant’s claims respecting the treatment plans/ OCF-18’s dated May 15, 2017, and dated June 12, 2017, and the application for a Non-Earner Benefit from March 28, 2017, to date and ongoing are statute barred as the applicant failed to commence the application within two years of the benefits being denied. The applicant submits that the limitation period pertaining to the denials of the treatment plans, should not begin to run until the applicant reached the age of majority since at the time of the accident, she was fifteen years of age and a minor.
5Section 56 of the Schedule provides that an application under section 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
6Because the respondent’s submission regarding the denials of the two treatment plans, is made in the alternative, and as will be described in these reasons, I have determined that the applicant sustained minor injuries that are treatable within the Minor Injury Guideline (MIG) and understanding that the MIG limit has been exhausted, the issue of whether or not the two treatment plans dated May 15, 2017, and dated June 12, 2017, are statute barred (since the applicant failed to commence the application within two years of the benefits being denied), is moot and it is not required to be addressed.
7Although as stated, the parties have agreed to the applicant’s withdrawal of the claim for a Non-Earner Benefit, I will address briefly whether the claim is statute barred. By letter of March 8, 2017, the respondent acknowledged receipt of the completed Disability Certificate (OCF-3) submitted on the applicant’s behalf and the respondent unequivocally denied the applicant’s claim for a Non-Earner Benefit (NEB) with written notice of the refusal. The applicant has not made submissions challenging the sufficiency of the respondent notice of denial. The applicant has made no submissions regarding entitlement to the Non-Earner Benefit by reason of the withdrawal of the issue in dispute. The applicant is statute-barred by section 56 of the Schedule which provides that an application under section 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
8I agree with the respondent that the Tribunal in Aquino v. Aviva Insurance Company, 2020 CanLII 80314, has confirmed that the provisions of the Limitations Act, 2002, apply solely to judicial proceedings and the Tribunal lacks the authority to extend limitation periods for minors since the applicant was a minor at the time of the respondent denial. The applicant has not pointed me to any section of the Schedule nor any other legislation that would allow me to import the Limitation Act’s requirements regarding minors into the Schedule. I find that the applicant’s claim for a non-earner benefit is dismissed as it is statute barred due to her failure to dispute the benefit within the prescribed two-year limitation period, under section 56 of the Schedule.
ISSUES
9The 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 $3,500.00 limit and in the Minor Injury Guideline (MIG)? The MIG was exhausted at the time of the denials.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 28, 2017, to date and ongoing?
iii. Is the applicant entitled to $225.10 for physiotherapy services recommended in a treatment plan (OCF-18) by Prime Health Care dated May 15, 2017?
iv. Is the applicant entitled to $1,086.80 for medical services recommended in a treatment plan (OCF-18) by Prime Health Care dated May 15, 2017?
v. Is the applicant entitled to $1,868.71 for physical therapy services recommended in a treatment plan (OCF-18) by Prime Health Care dated May 22, 2020?
vi. Is the applicant entitled to $1,086.80 for medical services recommended in a treatment plan (OCF-18) by Prime Health Care dated May 15, 2017?
vii. Is the applicant entitled to $2,000 00 for a psychological assessment recommended by Prime Health Care in a treatment plan (OCF-18) dated June 25, 2020?
viii. Is the applicant entitled to the cost of a psychological counselling in the amount of $14,055.69 recommended by Prime Health Care proposed in a treatment plan/OCF-18 dated January 27, 2021?
ix. Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,000.00, recommended by Downsview Healthcare Inc., in a treatment plan/ OCF-18 dated October 30, 2020?
x. Is the applicant entitled to $12,918.49 for chronic pain treatment recommended by Downsview Healthcare Inc., in a treatment plan (OCF-18) dated December 3, 2020?
xi. 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?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10The applicant has not met her burden of proof by demonstrating, on a balance of probabilities, entitlement to treatment for her injuries beyond the $3,500.00 MIG limit.
11Having 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.
12I find that the applicant’s claim for a non-earner benefit is dismissed as it is statute barred due to her failure to dispute the benefit within the prescribed two-year limitation period, under section 56 of the Schedule.
13Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
14The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
15The application is dismissed.
ANALYSIS
Pre-existing Physical Injuries and Chronic Pain Syndrome
16The Minor Injury Guideline (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 the Schedule which includes sprains, strains, whiplash associated disorders, contusion, laceration or subluxation, and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
17If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
18Section 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 he is subject to the $3,500 limit.”
19In 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. He 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.
20The applicant has not provided compelling evidence that she has a pre-existing condition that will prevent maximal recovery if she is subject to the $3500 limit under the Minor Injury Guideline (MIG). Dr. Raymond Zabieliauskas, completed a section 44 Physiatry-Insurer’s Examination, on August 3, 2017, where the applicant confirmed to Dr. Zabieliauskas that she had no pre-existing injuries, no previous musculoskeletal problems; she did not undergo any previous surgeries, nor was she involved in any previous motor vehicle accidents beyond the subject accident.
21The applicant submits that she should be removed from the Minor Injury Guideline because she sustained a chronic pain injury with functional impairment in addition to a psychological impairment. The respondent submits that the opinion offered in the Chronic Pain Consultation Report of Dr. Dimitri Louvish dated October 16, 2020, is not supported by the applicant’s post-accident functioning. The Tribunal has 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 the injuries are not minor.
22As stated, the respondent submits that the applicant demonstrated that her functionality was unaffected by the accident. The respondent submits that the applicant missed two days of school post-accident; that the applicant obtained a good grade point average and she graduated from secondary school without the accident interrupting her ability to go onto post-graduate studies at York University on a full-time basis.
23The applicant must demonstrate on a balance of probabilities that her functionality has been affected in order to be removed from the MIG. In this matter, I have been provided insufficient evidence to indicate that the applicant’s accident-related injuries have had a detrimental impact on her functionality. This Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take the applicant out of the MIG (17-000640 v. TD Insurance Meloche Monnex, 2018 CanLii 13142).
24The clinical notes and records (CNR’s) of Dr. Geraldine Cruz do not demonstrate the applicant seeking treatment for chronic pain following the accident nor do the CNR’s show the applicant’s functionality affected by the accident. The clinical notes and records (CNR’s) of Dr. Geraldine Cruz, dated February 27, 2017, seven days after the accident, describe the applicant striking her left knee on the car seat in front of her, causing swelling and pain. In addition, the applicant described experiencing lower back pain. Dr. Cruz noted the applicant had a full range of motion in her knees and a good range of motion in the lower spine. Dr. Cruz recommended non-prescription Advil for the lumbar strain and left knee contusion. She provided the applicant with a note excusing her from school for a two-day period.
25As submitted, I find that the applicant’s conduct in the three years following the accident, is not consistent with a chronic pain condition. The applicant returned for appointments with Dr. Cruz in August 2017 to March 2020, with no mention in over three years of accident-related symptoms. On April 24, 2020, three years after the accident, at a telephone appointment with Dr. Cruz, the applicant mentions experiencing lower back pain following the February 2017 accident when she stands for lengthy periods of time. A review of the prescription summary from August 17, 2016, to February 24, 2021, shows no pain medication prescribed to the applicant. A review of the applicant’s OHIP summary from February 2017 to November 26, 2021, does not reveal a physician referral for diagnostic imaging of the applicant’s spine to determine accident-related injuries. I find that the absence of reports of accident-related symptoms to Dr. Cruz in the three years following the accident, supports a finding that the applicant’s injuries are treatable within the Minor Injury Guideline.
26Dr. Raymond Zabieliauskas, completed a section 44 Physiatry-Insurer’s Examination in relation to the applicant on August 3, 2017, producing his IE assessment on August 9, 2017, within seven months of the accident. Dr Zabieliauskas reviewed the CNR’s of Dr. Cruz, the OCF-3 Disability Certificate, the OCF-24, Minor Injury Treatment Discharge Report of Dr. C. Hefford Chiropractor, in addition to other relevant medical documentation.
27The applicant confirmed to Dr. Zabieliauskas that she had no pre-existing injuries; that she had no previous musculoskeletal problems, no surgeries, and no previous involvement in a motor vehicle accident. Dr. Zabieliauskas found in the course of his examination, that the applicant reported no tenderness to palpation in the neck, lumbar spine and thoracic spine and she had a full range of motion of the neck in all planes. Dr. Zabieliauskas noted good coordination of upper and lower extremities. He concluded that all of the accident-related injuries had resolved, and that the applicant could resume all of her previous activities which she participated in before the accident without any physical restrictions or physical limitations. Dr. Zabieliauskas opined that there was no evidence of an ongoing physical impairment attributable to the motor vehicle accident. He concluded that from a physical medicine musculoskeletal point of view, there were no issues that would exclude the applicant from treatment under the Minor Injury Guideline.
Chronic Pain Syndrome
28The respondent submits that the section 25 Chronic Pain Consultation Report of Dr. Dimitri Louvish, dated October 16, 2020, does not offer an opinion corroborated in the primary care physician’s clinical notes and records (CNR’s). Having reviewed the Chronic Pain Consultation Report of Dr. Dimitri Louvish dated October 16, 2020, with a consideration of the CNR’s of Dr. Cruz disclosing no accident-related symptoms of pain following February 27, 2017, to April 24, 2020, I agree with the respondent that the report by Dr. Louvish is inconsistent with the CNR’s of Dr. Cruz and the report of Dr. Zabieliauskas. Given that no pain medication was prescribed to the applicant at any time following the accident, and having considered the Physiatry report of Dr. Zabieliauskas, I find that the Chronic Pain Consultation report of Dr. Louvish, describing the applicant experiencing constant accident related pain in her neck, shoulders, lower back, and left knee, with migraine headaches, to be medical information inconsistent with the objective medical documentation produced by the applicant’s primary care physician Dr. Cruz and the report of Dr. Zabieliauskas.
29I assign the Chronic Pain Consultation Report of Dr. Louvish, less evidentiary weight than the assessment of Dr. Zabieliauskas, which is consistent with the CNR’s of Dr. Cruz and other medical evidence, describing the applicant’s injuries as capable of achieving maximum medical recovery in the event that the applicant is subject to the $3,500 limit within the Minor Injury Guideline.
30I find the Chronic Pain Consultation Report of Dr. Dimitri Louvish dated October 16, 2020, offers opinions inconsistent with the primary care physician’s CNR’s and the two IE assessments of Dr. Zabieliauskas and Dr. Janet Clewes. In the CNR’s of Dr. Cruz, the report of Dr. Zabieliauskas and the report of Dr. Clewes, the applicant is described with no functional limitations following the accident, whereas the report of Dr. Louvish details the applicant having a poor tolerance for sitting and standing for prolonged periods, as well as an intolerance for lifting and carrying loads or engaging in recreational activities. The description of the applicant’s functional limitations is completely discrepant with the manner in which the applicant self-reported having no functional limitations when speaking to her family physician and to Dr. Zabieliauskas, seven months following the accident.
31The Tribunal has adopted the American Medical Association (AMA) Guide1 as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guide states that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:
(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 contacts;
(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 need; and;
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32The applicant raised the issue for consideration of the American Medical Association (AMA) Guides. As stated, the applicant’s functionality was not impacted by the accident. She took a two-day absence from secondary school, returning to her normal activities which she described to Dr. Zabieliauskas were uninterrupted. The applicant described beginning a four-year nursing program at York University in September 2020, when she was examined by Psychologist Dr. Janet Clewes. The applicant did not take prescribed pain medication as is set forth in the prescription record. The applicant has failed to establish that she meets the criteria in the AMA Guides. The applicant did not describe to her family physician Dr. Cruz, the development of psychosocial sequelae of depression, anxiety or fear-avoidance affecting her functionality. She did not withdraw socially, nor did she report depending on family or health care providers to any extent and there was no failure to restore pre-injury function and the applicant experienced no period of disability.
33I find that the applicant has not met the onus of demonstrating on a balance of probabilities, the reasonableness and necessity of a chronic pain assessment, based on the recommendation in the Chronic Pain Consultation Report of Dr. Dimitri Louvish dated October 16, 2020, and considering the CNR’s of the family physician Dr. Cruz, the AMA Guides, and other objective medical evidence noted. Furthermore, the applicant did not report any pre-existing physical or psychological injuries to Dr. Zabieliauskas or to Dr. Janet Clewes. There is no compelling medical evidence of any pre-existing physical conditions as submitted by the applicant, preventing the applicant from achieving maximal recovery if subject to the $3500.00 limit under the MIG.
Psychological Injuries
34Dr Janet Clewes, completed an IE section 44 Independent Insurer’s Psychology Examination on the applicant on August 24, 2020, and her report is dated August 31, 2020. The applicant reported to Dr. Clewes no prior history of psychiatric illness. The applicant described no exposure to any form of abuse or traumatic events. The applicant described to Dr. Clewes beginning a four-year nursing program at York University in September 2020. During the two-hour interview the applicant did not complain of any accident-related psychological symptoms. The applicant having undergone a psychological assessment was found to be in the normal range on the anxiety, depression, somatic preoccupations, and post-traumatic stress scales, suggesting that she does not meet the criteria for any DSM-5 diagnosis. Dr. Clewes determined that the applicant had no psychological injuries as a result of the accident.
35Post-accident and following her initial appointment with Dr. G. Cruz on February 27, 2017, the applicant did not reference any accident-related physical or psychological symptoms at her next appointment on May 2, 2017. On May 2, 2017, she stated that her mood and energy level were normal with no symptoms of anxiety. The applicant commented on issues with concentration in school with no mention of the mental focus concerns having any relationship to the accident. Dr. Cruz comments that the applicant’s affect is normal. The applicant did not describe any psychological effects following the accident on February 27, 2017, nor did she describe any psychological effects at her subsequent appointments with Dr. Cruz until April 24, 2020, when the applicant described to Dr. Cruz that she is anxious driving following the accident three years earlier. However, the applicant stated to Dr. Cruz that the anxiety did not prevent her from normal activities nor prevent her from using her vehicle day-to-day for travel purposes.
36The Tribunal has determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. I find insufficient compelling evidence demonstrating that the applicant suffers from psychological injuries as a result of the accident. The burden of proof lies with the applicant to demonstrate on a balance of probabilities that the injuries are not minor. I find that the applicant has not met her burden by showing that there are pre-existing conditions that prevent maximal recovery within the limits of the MIG, or that she is experiencing chronic pain with functional limitations or that she has psychological impairments which prevent maximal recovery within the MIG limits.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
Award
38The 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 if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The respondent is not liable to pay an award under section 10 of O. Reg. 664 because the respondent did not unreasonably withhold or delay payments to the applicant.
39Having 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.
40As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
41The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
ORDER
42I 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.
43The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
44The applicant’s claim for a non-earner benefit is dismissed as it is statute barred due to her failure to dispute the benefit within the prescribed two-year limitation period, under section 56 of the Schedule.
45Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
46The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
47The application is dismissed.
Released: September 7, 2023
__________________________
Janet Rowsell
Adjudicator