Citation: Azarov v. Certas Direct Insurance Company, 2023 ONLAT 21-010837/AABS
Licence Appeal Tribunal File Number: 21-010837/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:
Alexander Azarov
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Alexander Azarov, Applicant Maziar Mortezaei, Counsel
For the Respondent:
Certas Direct Insurance Company,
Samuel Davies, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Alexander Azarov, the applicant, was involved in an automobile accident on November 15, 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
2issues 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 in the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to $443.82 ($1,603.57 less $1,159.75 approved) for physiotherapy, chiropractic, and massage services, recommended by Wynford Health Clinic in a treatment plan (OCF-18) dated September 10, 2020?
iii. Is the applicant entitled to $1,212.11 for physiotherapy, chiropractic, and massage services, recommended by Wynford Health Clinic in a treatment plan (OCF-18) dated November 18, 2020?
iv. Is the applicant entitled to $1,212.11 for physiotherapy, chiropractic, and massage services, recommended by Wynford Health Clinic in a treatment plan (OCF-18) dated February 3, 2021?
v. Is the applicant entitled to $2111.41 for physiotherapy, chiropractic, and massage services, recommended by Wynford Health Clinic in a treatment plan (OCF-18) dated March 10, 2020?
vi. Is the applicant entitled to $2,100.00 for an psychological assessment, recommended by 2430303 Ontario Ltd,. in a treatment plan (OCF-18) dated January 8, 2020?
vii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I 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. Having 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.
4The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
6Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that an insurer has “unreasonably” withheld or delayed payments. Because the applicant sustained injuries treatable within the MIG and having determined that the applicant is not entitled to the treatment plans in dispute, no award is payable by the respondent insurer.
Pre-existing Injuries and the Existence of Non-Minor Injuries
7The 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 disorder, contusion, laceration or sublaxation 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(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
8If 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.
9Section 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.
10In 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.
11In addition, 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 their injuries are not minor, or they have a pre-existing condition that would prevent maximal recovery within the MIG.
12The applicant’s pre-existing objective medical condition is described as hypertension. The applicant reports the subject accident to Dr. Stanley Lam, ten days following the event with no accident-related diagnosis. The applicant’s medical profile dated November 25, 2019, describes the only prescriptions historically taken by the applicant are to treat high blood pressure. There is no record of prescription pain medication prescribed to the applicant post-accident. The applicant describes to his family physician Dr. Sofia Uljanitski on June 19, 2020, a second motor vehicle accident taking place several weeks earlier in June 2020, following the subject accident on November 15, 2019, which results in mid and low back pain, in addition to episodes of numbness and a burning sensation. I find that the clinical notes and records after June 19, 2020, describe accident-related injuries which are attributable to the accident in June 2019 described in the CNR’s by the applicant to Dr. Sofia Uljanitski.
13The applicant describes episodes of numbness in his thighs and low back pain at appointments with his family physician Dr. Sofia Uljanitski on June 19, 2020, September 30, 2020, December 14, 2020 and on July 7, 2022. The Clinical Notes and Records (CNR’s) of Dr. Sofia Uljanitski, describe the results of a lumbar spine MRI taken on March 16, 2021, showing mild degenerative disc disease at the lumbrosacral junction with no significant disc bulge and no significant spinal cord stenosis. The MRI was taken following the applicant’s complaints of low back pain radiating to his legs and bilateral numbness. The MRI result does not demonstrate the existence of accident-related injuries attributable to the subject accident on November 15, 2019, or the second event described in the CNR’s by the applicant to Dr. Sofia Uljanitski in June 2020.
14The test to determine causation is the “but for” test, signifying that causation is a factual determination made on a balance of probabilities: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident, he would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. In my view, the applicant has not met the burden of showing on a balance of probabilities that the subject accident on November 15, 2019, was a necessary cause of the accident-related injuries described in the CNR’s but rather these complaints of accident-related pain and numbness are attributable to the second accident referred to by the applicant several weeks before the appointment with Dr. Lam on June 19, 2020. In addition, I find that the accident-related pain described by the applicant results from minor injuries, as the applicant’s reports of pain occurred on three occasions in the year 2020, and then not again until a year and a half later; also, the applicant’s reports of accident-related pain to his family physician did not result in the prescription of medication or referrals to a specialist. Upon a review of the evidence and submissions, I find that that the applicant has sustained predominantly minor injuries as defined in the Schedule which are subject to the $3,500.00 funding limit provided in section 18(1).
15The applicant relies on the evidence of Paul Bruni, Chiropractor, in a report dated November 19, 2019, a few days following the subject accident, where Paul Bruni describes the applicant experiencing whiplash associated disorders with clinically relevant neurological signs which prevent the applicant from achieving maximal medical recovery within the Minor Injury Guideline. In addition, the applicant relies on the evidence of Paul Bruni, Chiropractor, in a report dated March 10, 2020, which lists a number of diagnoses including radiculopathy, acute pain, WAD 3, pain in the thoracic spine and elsewhere caused by the accident on November 15, 2019. There is no specific diagnosis of chronic pain syndrome but of chronic pain by Paul Bruni. The Tribunal has held that a chiropractor is not qualified to diagnose chronic pain syndrome (Ambigapathy v. Allstate Canada, 2021 CanLII 114042 (ON LAT), at para. 11 to 12) and I agree. I find the lack of corroborating evidence in the CNR’s of the family physician following the subject accident and the CNR’s provided referring to the accident-related injuries attributable to a second accident in June 2020, result in my finding Dr. Bruni’s diagnoses unreliable.
16There is only one CNR by Dr. Lam describing the effects of the subject accident on November 15, 2019; all subsequent CNRs refer to effects attributable to the accident the applicant refers to in June 2020. The applicant’s reports of accident-related pain to his family physician take place at three appointments in the year 2020, and then there is no further mention of accident-related pain until July 2022. As stated, the applicant was not prescribed pain medication nor was he referred to a specialist. Without a formal diagnosis, this Tribunal has held that the simple fact that soft tissue injuries do not resolve in several years are not sufficient to conclusively state that the injuries are not minor in nature.
17I have found that the applicant’s physical injuries as a result of the accident fall under the minor injury guideline definition and are subject to the MIG and the $3500.00 funding limit on treatment. In addition, the applicant’s pre-existing medical condition documented by a health practitioner before the accident, which is hypertension and high blood pressure, has no nexus to the accident-related injuries and was unaffected by the accident based on the information in the CNR’s of the family physician.
Chronic Pain Syndrome
18As submitted by the respondent, the characterization of the applicant’s back pain as chronic does not outweigh objective test results. As noted in 16-000438 v. the Personal Insurance Company (2017 CanLII 59515), ongoing or chronic pain does not automatically remove the applicant from the MIG but rather, a significant reduction in the applicant’s functionality or the onset of psychological injuries. As noted, the applicant provided no compelling evidence of limited functionality. I find based on the totality of the evidence that the applicant did not suffer a chronic pain impairment to take him out of the MIG.
19The respondent submits that Tribunal should apply the criteria in the American Medical Association Guides (AMA Guides),1 in evaluating the applicant’s claim to have chronic pain. While not binding, I agree that it is a useful interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides state 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.
20The respondent submits, and I agree, that the applicant has not provided compelling medical evidence he experiences chronic pain syndrome when the applicant has not consistently reported accident-related pain to his family physician; nor demonstrated a willingness to take pain medication; nor demonstrated that he has been functionally affected by ongoing pain. With reference to the noted AMA guide criteria: The applicant has not led evidence that he has been prescribed medication for his accident-related pain, therefore, he cannot contend that he is dependent on prescription pain medication (criteria one of the AMA Guides).
21As described in the clinical notes and records of the family physician, in the three years and several months following the accident, the applicant has approached his family doctor regarding his accident-related pain on three occasions. The clinical notes and records of the applicant’s family doctor contain few references to the accident. The applicant met with Dr. Lam ten days after the accident. His next attendance with Dr. Lam as described in the CNR’s is seven months afterwards in June 2020 where he describes his involvement in a second motor vehicle accident within the last several weeks. The applicant undergoes a lumbar spine MRI on February 16, 2021. However, the applicant does not follow-up with his family physician until July 7, 2021.
22The applicant stopped receiving facility-based therapy in July 2020. The applicant was never referred by his family doctor for psychological treatment and he has never undergone psychological treatment or counselling. There is insufficient evidence of the applicant demonstrating excessive dependence on health care providers, therefore, the applicant does not meet criteria two of the AMA Guides.
23As submitted by the respondent, the section 25 psychological assessment report dated July 17, 2020, refers to the applicant’s inability to play squash following the accident with no corroboration in the CNR’s of the family physician. The psychological assessment by Maryna Svitasheva conducted on July 17, 2020, at the height of the pandemic-limited indoor activities, does not provide any context relating to the frequency of the applicant’s recreational squash activities. The respondent submits that I should assign limited weight to any evidence contained in the psychological report concerning the applicant availing himself of social milieu or other social contacts and any secondary physical deconditioning due to disuse and or fear-avoidance of physical activity by reason of pain, since there is no corroborating evidence in the family doctor’s records or by way of affidavit to support the applicant’s personal circumstances approximating the classification in criteria 3 and 4 of the AMA Guides.
24With regard to criteria five and six of the AMA Guides, the psychological report describes the applicant avoiding driving or being a passenger in a vehicle. The report states that the applicant has a high score relating to pain catastrophizing indicating risk of developing a chronic pain disability, however, for reasons which follow the Tribunal cannot assign the diagnoses in the report evidentiary weight because only Dr. Jon Mills, Clinical Psychologist, was qualified to test and diagnose the applicant for the purpose of assessing psychological impairments and not Maryna Svitasheva, who is a psychotherapist.
25I am, therefore, not persuaded that the applicant is a person experiencing a functional impairment as a result of accident-related chronic pain. There is no evidence showing the applicant is impaired by ongoing pain as a result of the subject accident on November 15, 2019, that is reliable evidence to form a foundation for such a finding. Upon a review of the evidence and submissions, I find that the applicant has sustained predominantly minor injuries as defined in the Schedule which are subject to the $3,500.00 funding limit provided in section 18(1).
Psychological Impairments
26The evidence that the applicant relies on respecting psychological impairments caused by the accident, is a section 25 psychological assessment by Maryna Svitasheva, Psychotherapist, supervised by Dr. Jon Mills, Clinical Psychologist. The respondent submits that the psychological assessment report by Maryna Svitasheva, should be accorded little evidentiary weight because it does not consider the family doctor’s clinical notes and records (CNR’s) and there is no corroborating evidence in the CNR’s of a psychological injury being experienced by the applicant.
27The respondent submits that the psychological assessment report offers no indication of what level of involvement Dr. Jon Mills had in the assessment and diagnosis of the applicant. Ms. Svitasheva’s certification is as a registered psychotherapist, confirmed in the psychological report and on the website of the College of Registered Psychotherapists of Ontario. As a psychotherapist, Ms. Svitasheva is not qualified to offer a psychological diagnosis. She is only qualified to offer psychotherapy treatment. Dr. Mills is singularly qualified to interview and diagnose the applicant for the purpose of psychological impairments caused by the accident. The diagnosis contained in the psychological assessment report is provided by Ms. Svitasheva.
28The treatment plan, which is dated January 8, 2020, does not propose that a psychotherapist would be involved in the assessment. The psychological report provides test results at variance with the CNR’s of the family doctor that are silent following the accident of any resulting psychological impairments. The report is flawed by reason of it failing to identify the professional administering the psychological tests, and which test results describe the applicant having symptoms of severe depression, a high degree of phobic avoidance and hyperarousal associated with the trauma. The report describes the applicant avoiding driving or the possibility of being a passenger in a vehicle. The report states that the applicant had a high score relating to pain catastrophizing indicating risk of developing a chronic pain disability.
29The respondent refers to the analysis of the Tribunal in Subramaniam v. Aviva General Insurance (2022) ONLAT, at para. 9 to 10. Similarly, the report in this case does not explain the psychotherapist’s involvement or how Dr. Jon Mills could render a psychological diagnosis in the circumstances where it is not described that he administered the diagnostic tests or interviewed the applicant.
30The report contains diagnoses which, as stated, are not corroborated elsewhere in the CNR’s and the identity and qualifications of the professional responsible for the psychological testing of the applicant is entirely unclear. For these two reasons, I cannot place much if any evidentiary weight on the psychological report’s findings and I find that the applicant has not met his burden to show on a balance of probabilities that his psychological injuries, as a result of the accident, cannot be treated within the Minor Injury Guideline.
31Considering the evidence, and on a balance of probabilities, I find no compelling medical evidence of an impairment due to psychological injuries as claimed by the applicant. Likewise, I find no compelling evidence he requires psychological intervention.
32Having 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.
33As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
34Similarly, 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
35I 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.
36The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
37Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
38No benefits are payable, therefore, 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.
39The application is dismissed.
Released: September 8, 2023
Janet Rowsell
Adjudicator