Citation: Sotiriou v. Intact Insurance, 2023 ONLAT 21-004211/AABS

Licence Appeal Tribunal File Number: 21-004211/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:

Stratos Sotiriou

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Emily Wilson, Counsel

HEARD: By way of written submissions

OVERVIEW

1Stratos Sotiriou (“the Applicant”) was involved in an automobile accident on May 15, 2019 and sought benefits from Intact Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the Minor Injury definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

1. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to the MIG and the $3,500.00 funding limit for minor injuries?

2. Is the Applicant entitled to medical and rehabilitation benefits proposed by Toronto Health Care Clinic Inc., as follows:

(i) $2,581.08 for physiotherapy services proposed in a treatment plan dated May 23, 2019;

(ii) $1,318.29 for physiotherapy services proposed in a treatment plan dated October 10, 2019;

(iii) $2,000.00 for a chronic pain assessment proposed in a plan dated November 7, 2019;

(iv) $615.72 for osteopathic services proposed in a treatment plan dated January 31, 2020;

(v) $2,000.00 for a psychological assessment, in a plan, dated June 20, 2020;

(vi) $12,492.32 for a multidisciplinary chronic pain treatment plan dated May 28, 2020; and

(vii) $1,331.36 for physiotherapy services proposed in a plan, dated June 30, 2020?

3. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,5000.00 funding limit for a minor injury.

5The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

BACKGROUND

6The Applicant was the driver of a sedan which was struck on the rear passenger side by another vehicle while driving in heavy traffic on an urban highway. The Applicant sought no medical attention that day but went to a walk-in clinic the following day with complaints of left shoulder pain from the seatbelt and a migraine. He was diagnosed by Dr. S. Daniel, family physician, with a left shoulder strain and given pain medication and given standard rest, ice, compression, and elevation instructions. Notably, the Applicant never returned to the walk-in clinic with accident-related symptoms anytime thereafter.

7The Applicant missed two or three days from work but returned to fulltime hours after. He commenced treatment about two weeks after the accident, on the advice of his counsel.

8The Applicant claims that he suffers from pre-exiting injuries and developed psychological injuries and a chronic pain condition following the accident, injuries which fall outside the minor injury definition in section 3 of the Schedule. He submits that he is entitled to the treatment and assessment plans in dispute because the respondent failed to provide a medical reason to deny funding for the plans and because the services proposed in them provide pain relief for his chronic pain. The Respondent submits that the Applicant sustained a minor injury and that the insurer’s examinations (“IE’s) all concluded the same.

ANALYSIS

Minor Injury Guideline (“MIG”)

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, 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. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

11For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

Pre-Existing Condition

12The Applicant has not demonstrated that he suffered from a pre-existing condition which precludes his recovery if subject to the MIG.

13The Applicant’s claims that his generalized anxiety disorder was exacerbated as a result of the accident are without merit. The Applicant submits that he suffers from generalized anxiety disorder and that it was severely exacerbated as a result of the accident but is unable to direct me to any post-accident examples of this.

14Additionally, there is no indication that the Applicant is precluded from recovering in the MIG due to generalized anxiety disorder. Dr. Daniel never discussed anxiety in the consultation following the accident or thereafter and the Applicant is unable to direct me to any examples of how generalized anxiety disorder impacts his recovery from predominantly soft-tissue injuries.

The Applicant does not suffer from an accident-related psychological impairment

15I find no compelling evidence to conclude that the Applicant sustained a psychological injury as a result of the accident.

16The Applicant made no psychological complaints to a family physician or during physical treatment. The Applicant sought counselling from the walk-in clinic about a year prior to the accident due to workplace stress but made no complaints thereafter. This indicates that the Applicant is able to address his mental health at the walk-in clinic but for some reason never chose to do so when it came to the accident or accident-related injuries. It also suggests that any psychological symptoms as a result of the accident were minimal. The Applicant’s post-accident treatment records fail to mention psychological injuries. The minimal amount of accident-related psychological complaints from the Applicant’s medical records suggests that he does not suffer from an accident-related psychological impairment.

17The disability certificates dated May 31, 2019 and May 28, 2020, and the psychological pre-screen dated June 20, 2020 are outweighed by the IE findings. The disability certificates were completed by chiropractors who are not qualified to diagnose psychological injuries. Further, no records from the corresponding assessment were provided to comprehend how the chiropractors concluded that the Applicant sustained the behavioural impairments identified in the documents. As a result, the psychological symptoms noted in the disability certificates hold no weight.

18It is unclear as to who conducted the psychological pre-screen report and it is not clear why it was recommended. The report includes a statement from Dr. J. Brunshaw, psychologist, stating that a psychological assessment is recommended based on the information gathered, but the document included no details on who or how the information was gathered. The Applicant’s treatment records fail to mention any psychological injuries which would prompt further investigation. It appears that the pre-screen information was gathered without reason. It further appears as though the information gatherer administered the pre-screen questions in an attempt to obtain evidence that the Applicant sustained a psychological injury because there is none otherwise.

19Instead, the IE by Dr. S. Schwartz, psychologist, dated September 25, 2020 found nothing to suggest that the Applicant sustained anything other than a minor injury. Dr. Schwartz concluded the Applicant’s self-reported symptoms, both verbally and through psychometric testing, does not suggest a diagnosis as a result of the accident. The report notes that the Applicant denied feeling depressed and experienced no psychological symptoms following the accident. Reports of the psychometric testing conducted indicate that the Applicant’s anxiety and depression scores were minimal and below the average score for typical pain patients. Dr. Schwartz had the benefit of reviewing the Applicant’s medical records, including those of the walk-in clinic and was not swayed by his inaccurate reports that he visited his family physician regularly following the accident.

20Having concluded that the Applicant’s psychological symptoms are minimal, I find that the Applicant did not sustain a psychological injury as a result of the accident.

The Applicant does not suffer from an accident-related chronic pain condition

21I find that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

22The Applicant has not demonstrated a functional impairment as a result of accident-related pain. The walk-in clinic and treatment records do not refer to any functional impairment due to pain. While the chronic pain assessment report by Dr. D. Louvish, physician, dated March 13, 2020 states that the Applicant’s range of motion (ROM) is reduced by up to 25% in some areas, these findings are anomalous to the IE and walk-in clinic records. Dr. A. Belfon’s report dated September 13, 2019 noted that the Applicant remained independent with all his personal care tasks and household chores and demonstrated no reduction in ROM. Dr. Belfon noted that the Applicant complained of left ankle pain and was unable to walk on his toes as a result. However, the Applicant’s initial reports fail to indicate any ankle injury as a result of the accident, and it appears that his ankle pain is from a subsequent event. Further, Dr. S. M.-W. Tu, physician, assessed the Applicant and issued a report dated February 4, 2020. Dr. Tu found that the Applicant demonstrated full active ROM, noted he returned to work on a full-time basis and was working at full duties, and diagnosed him with uncomplicated soft tissue injuries.

23The Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment “AMA Guides”). The Applicant provided no prescription summary or other evidence to demonstrate that he is dependent on prescription medication or other substances. The Applicant visited a walk-in clinic once for accident-related issues and is not excessively dependent on family members or healthcare providers and he has exhibited no secondary deconditioning due to disuse, as evident in the various assessments. The Applicant returned to his pre-accident functioning. He is independent with his activities of daily living and has returned to his pre-accident work duties. While he claims a withdrawal of social milieu, I see no compelling evidence which supports this claim.

24I conclude that the Applicant has presented no evidence demonstrating that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule. As a result, I find that his injuries are rightfully captured under the minor injury definition.

The Applicant is not entitled to the treatment and assessment plans

25The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The Applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.

26Additionally, the Applicant sustained predominantly a minor injury yet submitted OCF-18s for treatment, instead of a Treatment Confirmation Form, as prescribed by 40(2) of the Schedule. I find that the Respondent rightfully refused to accept the treatment plans pursuant to section 38(5) and this decision is not subject to review pursuant to section 38(6) of the Schedule. The MIG was implemented to ensure quick access to treatment for predominantly soft-tissue injuries during the acute phase of injury. The Applicant and his treatment provider’s ongoing refusal to submit the correct form for approved treatment is contrary to the quick access to treatment provided by the MIG and the process for claiming benefits as outlined in section 38 of the Schedule.

Interest

27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

CONCLUSION and ORDER

28The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

29The Applicant is not entitled to the treatment and assessment plans in dispute, nor interest.

30The application is dismissed.