Licence Appeal Tribunal File Number: 21-011494/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:
Sheena Richards
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Hermia Leung, Paralegal
For the Respondent:
Elizabeth Harding, Counsel
HEARD: In Writing
OVERVIEW
1Sheena Richards, the applicant, was involved in an automobile accident on February 16, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2According to submissions, the applicant was involved in two other motor vehicle accidents apart from the subject accident on February 16, 2019. The preceding accident was on November 12, 2018, and the subsequent one occurred on May 10, 2020.
ISSUES
3The issues to be decided in the hearing 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)? [CCRO Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.]
ii. Is the applicant entitled to $99.75 ($1,292.25 less $1,192.50 approved) for physiotherapy services, proposed by The Physio Clinic @ West Durham Ltd in a treatment plan/OCF-18 (“plan”) submitted September 24, 2019, and denied October 9, 2019?
iii. Is the applicant entitled to $1,462.00 for physiotherapy services, proposed by The Physio Clinic @ West Durham Ltd in a treatment plan submitted January 31, 2020, and denied February 20, 2020?
iv. Is the applicant entitled to $6,582.50 for psychological services (corrected from $6,852.50 as per submissions/evidence), proposed by Mind by Design formerly known as The Life Clinic 2.0 in a treatment plan submitted August 17, 2020, and denied September 25, 2020?
v. Is the applicant entitled to $1,995.50 for physiotherapy services, proposed by The Physio Clinic @ West Durham Ltd in a treatment plan submitted March 15, 2021, and denied March 23, 2021?
vi. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Mind by Design formerly known as The Life Clinic 2.0 in a treatment plan submitted June 8, 2020, and denied June 30, 2020?
vii. Is the respondent liable to pay an award under s. 10 of 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?
4The respondent indicated in submissions that following the case conference, the remaining $99.75 was paid on item two in the list above, and $66.75 was paid toward the $1,462 claimed in item three.
5The Case Conference Report and Order of July 27, 2022, states that the parties would confirm in written submissions any amounts remaining in the MIG. The applicant identified the amount funded as of February 23, 2023, as $3,007.25. In correspondence dated August 24, 2023, the respondent identified the amount funded as $3,054.45, and the amount approved as $3,347.14.
RESULT
6I find that the applicant has not met her onus of proving that her accident-related injuries warrant removal from the MIG. The applicant is entitled to the benefits set out in the disputed treatment plans, if incurred, up to the remaining amount of the MIG limits, plus interest in accordance with s. 51 of the Schedule. Such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
7The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline (MIG)
8Section 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.”
9An 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.
10In all cases, the burden of proof lies with the applicant.
11The applicant submits that her injuries from the accident are both physical and psychological and fall outside of the definition of a minor injury. As such, she claims entitlement to treatment beyond the $3,500 MIG limit. The Respondent submits that the applicant has not met her burden of proving that the accident caused injuries that are beyond the scope of the MIG. I agree with the respondent.
Minor Injuries
12I find that the applicant’s injuries as a result of the accident meet the definition of “minor” in s. 3 of the Schedule.
13The applicant submits that following the accident, she experienced pain in her neck, arm, lower body, and head. Despite these symptoms, she did not immediately seek treatment for her injuries and did not attend the hospital nor her family doctor. Instead, the applicant sought further treatment from her physiotherapist at a facility where she was already receiving treatment for injuries from a prior motor vehicle accident on November 12, 2018.
14The applicant saw her family doctor, Dr. Tahir, multiple times in 2019, but only mentioned pain in her legs and knees at a November 21, 2019 appointment, many months after the accident. The doctor’s notes indicate that the pain arose after a workout, with no mention of the subject accident at all. The applicant continued to experience pain and submitted multiple treatment plans in 2020 and 2021.
15The respondent submits that the applicant received appropriate facility-based treatment for the minor injuries from the accident. An insurer’s examination (IE) was conducted by Dr. Safir on March 14, 2021. At the examination, the applicant self-reported that her knee issues were unrelated to the accident. Dr. Safir concludes that the injuries sustained by the applicant are minor as defined by the Schedule, that the physical therapy to date has been appropriate and sufficient, and that there would be little benefit to be gained from further treatment. The applicant lends support to this conclusion in her written submission at page 14, which states that the “treatments she has received to date, have had little effect”.
16I agree with the findings of Dr. Safir. The applicant’s injuries were appropriately treated within the MIG.
Chronic Pain
17I am not persuaded that the applicant suffers from chronic pain as a result of the accident.
18Two separate s. 44 assessors determined that the applicant’s pain fell within the definition of “minor” under the Schedule. Dr. Koepfler reports that although the applicant had intermittent back pain that pre-dates her 2019 accident, it “does not meet the AMA Guidelines for chronic pain” and notes that there is nothing in her pre-accident medical history that would prevent her from achieving maximum recovery from her accident-related injuries. Dr. Koepfler refers to the six criteria described in the American Medical Association Guides (“AMA Guides”), which state that at least three of the following criteria must be met for a chronic pain diagnosis:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other circumstances;
ii. Excessive dependence on health care providers spouse or family;
iii. Secondary physical deconditioning due to disease 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 needs; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviors.
19The Tribunal has accepted the approach of assessing an applicant’s claim of chronic pain against these six criteria. Although the applicant did not provide any comment in relation to the AMA Guides and the criteria identified therein, I find Dr. Koepfler’s reference to them helpful in providing a framework for understanding the applicant’s functional capacity.
20The other s. 44 assessor, Dr. Safir, found no “objective signs of musculoskeletal impairment attributable to the accident-related injuries”. She opines that the applicant has sustained minor soft tissue injuries with a prognosis of “favorable”.
21I am persuaded by the assessments of both Dr. Koepfler and Dr. Safir. The applicant has not provided any compelling medical evidence that she suffers from a chronic pain condition that warrants removal from the MIG. She has not demonstrated any significant functional impairments and continues to drive as well as engage in her daily activities at home and at work. There is no diagnosis of chronic pain nor referral to a pain specialist.
22Consequently, the applicant has not demonstrated that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
Psychological Impairment
23I am not persuaded that the applicant suffers from a psychological impairment as a result of the accident.
24The applicant submits that around July of 2020, almost a year and a half after the accident, she experienced a deterioration in her mental health. On July 13, 2020, the applicant was assessed at The Life Clinic by an associate of Dr. Sharifzadeh. The assessment was conducted by an unlicensed therapist under the direction of Dr. Sharifzadeh, a supervising psychologist. The diagnosis section of the report notes that the applicant “displays symptoms that would be consistent with the following diagnoses based on the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5): Post-Traumatic Stress Disorder in the severe range with anxiety.”
25The respondent submits that the results of a s. 44 psychological assessment conducted by Dr. Koepfler differs significantly in its findings. Dr. Koepfler’s diagnosis is that the applicant does not suffer from any chronic pain, post-traumatic stress disorder (PTSD), phobia, nor any other psychological condition as a result of the accident. She opines that if the applicant was experiencing symptoms at the time of the assessment at The Life Clinic, “these appear to have abated over time”.
26I place weight on the opinion of Dr. Koepfler. She is a specialist in the assessment and treatment of individuals suffering from anxiety, phobia, depression, and PTSD. Dr. Koepfler describes the applicant as “high functioning in all spheres” and notes that no psychological complaints attributable to the accident were documented by the applicant’s family doctor in the clinical notes and records post-accident. She further opines that although the applicant has some pain and anxiety, these issues do not result in a psychological impairment.
27She concludes, and I agree, that the applicant’s injuries meet the definition of “minor” in the Schedule, and that the treatment plans recommended by Dr. Sharifzadeh are not reasonable and necessary. Moreover, the assessment performed at The Life Clinic was not requested by the applicant, nor the applicant’s family doctor.
28The applicant has not provided any convincing evidence that she suffers from a psychological impairment that warrants removal from the MIG.
29I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries treatable within the MIG.
30Pursuant to section 40(8) of the Schedule, if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred are deemed reasonable and necessary.
31The applicant submits that $3,007.25 had been paid for benefits within the MIG as of February 23, 2023. The respondent submits that it funded $3,054.45 out of an amount approved of $3,347.14 as of August 23, 2023. There is a small amount remaining within the MIG limit.
32The applicant is entitled to the benefits set out in the disputed treatment plans, if incurred, up to the remaining amount of the MIG limits.
Interest
33The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the benefits set out in the disputed treatment plans, if incurred, up to the remaining amount of the MIG limits.
Award
34The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
35The applicant did not provide any particulars regarding the request for an award. The respondent submits that there is no evidence of unreasonably withheld or delayed payments.
36No award is payable as the applicant did not present any evidence regarding why or how benefit payments were unreasonably withheld or delayed.
ORDER
37The applicant remains in the MIG and is subject to the $3,500.00 limit on treatment.
38The applicant is entitled to the benefits set out in the disputed treatment plans up to the remaining amount of the MIG limits, if incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
39The applicant is entitled to interest pursuant to s. 51 of the Schedule, for benefits set out in the disputed treatment plans up to the remaining amount of the MIG limits, if incurred.
40The applicant is not entitled to an award.
Released: September 19, 2023
__________________________
Bonnie Oakes Charron
Adjudicator