Citation: Zdrale v. Intact Insurance Company, 2023 ONLAT 20-002287/AABS

Licence Appeal Tribunal File Number: 20-002287/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:

Daniel Zdrale

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Ada Lika, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Daniel Zdrale (“D.Z.’), was involved in an automobile accident on July 16, 2018, and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). D.Z. sought funding for various benefits including medical and rehabilitative benefits, costs of examination expenses, a non-earner benefit (“NEB”) and an attendant care benefit (“ACB”). Intact denied the benefits in dispute because it determined that his accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). D.Z. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Are D.Z.’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 MIG?

3If D.Z.’s injuries are not predominantly minor, then I must determine the following:

a. Is D.Z. entitled to an NEB of $185.00 per week from August 13, 2018 to July 16, 2020?

b. Is D.Z. entitled to an ACB of $678.00 per month from September 14, 2018 to July 16, 2020?

c. Are the medical benefits recommended by Mississauga Active Physiotherapy reasonable and necessary as follows:

i. $2,252.52 for physiotherapy in a treatment plan (OCF-18) dated December 12, 2018?

ii. $1,539.00 for physiotherapy in an OCF-18 dated January 10, 2019?

iii. $2,252.52 for physiotherapy in an OCF-18 dated March 25, 2019?

iv. $2,252.52 for physiotherapy in an OCF-18 dated June 3, 2019?

v. $2,252.52 for physiotherapy in an OCF-18 dated September 9, 2019?

vi. $2,200.00 for a chronic pain assessment in an OCF-18 dated August 29, 2019?

vii. $2,189.79 for a psychological assessment in an OCF-18 dated July 27, 2019?

viii. $1,758.17 for an in-home assessment in an OCF-18 dated August 29, 2019?

ix. $1,700.00 for a functional abilities evaluation in an OCF-18 dated February 11, 2019?

d. Is Intact liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to D.Z.?

e. Is D.Z. entitled to interest on any overdue payment of benefits?

FINDING

4D.Z. sustained predominantly minor injuries as a result of the accident and has not demonstrated that removal from or treatment beyond the MIG is warranted. He has not met his onus to demonstrate that he is entitled to the disputed benefits, interest or an award.

ANALYSIS

Applicability of the MIG

5Section 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 in accordance with the MIG. 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.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.

Did D.Z. suffer physical injures that remove him from the MIG?

7D.Z. has not met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of a pre-existing condition, psychological impairment or chronic pain.

8D.Z. submits that his accident-related impairments – described in a July 24, 2018 Disability Certificate (OCF-3) as left shoulder pain, chest pain and bruising, neck pain with reduced range of motion (“ROM”), back pain with reduced ROM, right wrist pain, left knee pain with reduced ROM and lacerations with stitches, and increased anxiety, caused by the accident, warrants treatment beyond the MIG. D.Z. relies on clinical notes and treating records, and a s. 25 report as evidence that his impairments are not “minor injuries”. D.Z. submits that he has ongoing pain, which is now chronic pain, preventing him from reaching maximum medical recovery. D.Z. submits that the disputed OCF-18s are reasonable and necessary to address his accident-related impairments.

9In response, Intact submits that there is no evidence supporting that D.Z. suffered any injuries beyond those that would be considered “minor”. Its position is that D.Z. failed to point to any evidence that he sustained any injuries from the that are not captured within the MIG. Intact relies on the s. 44 reports of Dr. Silver, general practitioner, who concluded that D.Z. suffered minor injuries.

10In his October 17, 2018 report, Dr. Silver noted that testing of the bilateral shoulders, neck, lower back and knees was unremarkable. Dr. Silver went on to comment that D.Z. sustained uncomplicated sprain and strain type injuries to his neck, back, chest, right wrist and a laceration, all of which was consistent with the July 24, 2018 OCF-3. Dr. Silver concluded that D.Z. did not require treatment outside of the MIG and the OCF-18 was not reasonable and necessary. In an October 29, 2018 addendum report, as a result of new records from the family physician, and an occupational assessment report, Dr. Silver’s opinion remained unchanged.

11Dr. Silver conducted a paper review, and in a report dated January 29, 2019, he opined that no new clinical information was provided to change his previous conclusions regarding D.Z.’s accident-related injuries. D.Z.’s injuries fell within the MIG. Dr. Silver conducted another assessment, resulting in an April 11, 2019 report, in which D.Z. reported his right wrist pain, chest pain, sleep disturbance and left knee injury had resolved. D.Z. further reported that he was fully independent with all personal care tasks and had resumed other pre-accident activities, such as cooking and housekeeping. Dr. Silver noted that upon physical examination, D.Z. displayed within normal limits ROM. Again, Dr. Silver maintained his position that D.Z. suffered predominantly minor injury and treatment beyond the MIG was not reasonable and necessary.

12I agree with Intact. On the evidence, I find that the injuries listed in the medical documentation are consistent in noting that D.Z.’s injuries are predominantly minor. Further, I find that D.Z.’s self-reporting also suggests that he suffered predominantly minor injuries. For example, while he received some stiches for the left knee laceration, there was no diagnostic imaging performed at the hospital. At his initial post-accident visit to Dr. Katsuta, family physician, D.Z. was diagnosed with soft-tissue injuries. Dr. Katsuta did not recommend any diagnostic imaging or prescribe medication.

13Subsequent accident-related visits to Dr. Katsuta consisted of further diagnoses of soft tissue injuries with recommendation made to exercise (July 30, 2018); a referral for an x-ray with a recommendation for exercise and stretching (September 20, 2018); and a complaint of muscle pain with a recommendation to increase exercise (August 21, 2019). There is no evidence that D.Z. completed the referral for diagnostic imaging.

14Regarding treatment, D.Z. attended at Mississauga Active Physiotherapy Services on a monthly basis from July 24, 2018 to February 20, 2020. He presented with pain complaints with his lower back and neck, with improvements reported as early as October 25, 2018. By December 2018, D.Z. noted improvement in all of his symptoms. By April 2019, he reported further improvement in his neck and back. Between May to October 2019, D.Z. noted no mid-back pain, only neck tightness. By November 2019, he reported feeling much better, and denied any pain. By January 2020, he reported neck tension and increased physical activity was recommended.

15I find that the medical evidence submitted by D.Z. confirms that his physical injuries are predominantly minor. D.Z. has failed to persuade me that the physical injuries he sustained as a result of the accident require treatment beyond the MIG limits.

Did D.Z. sustain psychological impairments that would remove him from the MIG?

16For the reasons to follow, I find that D.Z. did not sustain psychological impairments that would remove him from the MIG.

17D.Z. relies on a July 20, 2019 psychological pre-screen report from Dr. Aghamohseni, who obtained subjective reporting from D.Z. about the impact of the accident. Dr. Aghamohseni concluded that D.Z. presented as an individual in need of psychological assistance. While Dr. Aghamohseni did not provide a formal diagnosis, he recommended a formal psychological assessment.

18In response, Intact relies on the September 17, 2019 s. 44 report of psychologist, Dr. Woods, who noted that there was no self-report, objective behavioural, or psychometric indication of post-traumatic, phobic, or somatoform adjustment. I note that D.Z. did not put forward any evidence of any clinically significant or diagnosed psychological impairment. Dr. Woods also noted that D.Z. did not express an interest or need for psychological intervention.

19While he points to chronic pain specialist, Dr. Razvi’s diagnosis of mood disorder, I place little weight on this diagnosis, as psychological diagnoses are outside the scope of Dr. Razvi’s area of expertise. Further, the family physician records are silent on any psychological complaints as a result of the accident.

20I am persuaded by the report from Dr. Woods that D.Z. did not suffer any significant psychological impairment as a result of the accident. The medical evidence does not support that anything beyond possible sequelae was sustained, and D.Z. has not expressed a need or desire for psychological intervention or treatment. I see no reason to interfere with Intact’s determination that D.Z. did not suffer any psychological impairment requiring treatment outside of the MIG.

Does D.Z. suffer from chronic pain as a result of the accident?

21The Tribunal has determined that chronic pain with functional impairment may justify removal from the MIG. D.Z. submits that he suffers from chronic pain as a result of the accident. He relies on the August 23, 2019 chronic pain report of Dr. Razvi.

22I find that D.Z. has not established that he suffers from chronic pain as a result of the accident.

23In his report, Dr. Razvi opined that D.Z.’s ROM was found to be within normal limits to mildly decreased. Dr. Razvi concluded that D.Z. developed a chronic pain condition with reported reduction and functional ability.

24Although not required, I find that the AMA Guides criteria is a useful interpretive tool in determining chronic pain claims. D.Z. submits he meets the threshold of three of the six criteria, as required by the Guides, as he was experiencing pain for more than six months and was excessively dependent on health care providers (evidenced by the treatment at Mississauga Active Therapy for 18 months); he has suffered from social withdrawal, including in daily activities such as attending the gym; he has failed to return to his pre-accident physical and psychological functioning, and continues to suffer from psychological impairments, including symptoms of anxiety and non-organic sleep patterns.

25On the evidence, I find that D.Z. does not suffer functional impairment as a result of chronic pain. First, there has been no recommendation to a chronic pain program, and D.Z. described his injuries in 2019 as dull, achy and intermittent. Second, in March 2020, D.Z. secured employment in a physically demanding job as a general labourer, and in March 2021, engaged in another physically demanding job on a full-time basis.

26In addition, I place little weight on Dr. Razvi’s conclusion that D.Z. suffers from chronic pain syndrome. Chronic pain syndrome is distinct from ongoing pain, which I find D.Z. only sporadically suffers from over two years post-accident. Chronic pain syndrome is considered to be debilitating and severely limits one’s ability to engage in activities. D.Z.’s evidence and documentation does not support that he suffers from such debilitating pain that results in significant functional limitations as a result of chronic pain syndrome.

27Consequently, I find that D.Z. has not established that he suffers from chronic pain as a result of that accident that justifies removal from the MIG.

Are the disputed OCF-18s reasonable and necessary?

28I have found that D.Z. has not met his burden of demonstrating on a balance of probabilities that removal from and treatment beyond the MIG is required. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, no interest is payable.

Is D.Z. entitled to NEBs?

29Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged in before the accident.

30Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”) provides the framework for the NEB analysis into whether an insured person suffers a complete inability to carry on a normal life. Heath requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time, allowing for greater weight to be assigned to activities that an insured person identifies as important. In addition, where pain is present, it should practically prevent them from engaging in those activities.

31Applying the Heath factors, I find D.Z. is not entitled to a NEB for the period in dispute as he has not demonstrated a complete inability to carry on a normal life as a result of the accident.

32I come to this conclusion based on the following:

a. In an October 17, 2018 report by s. 44 assessor, Mr. Moy, occupational therapist, D.Z. reported no significant change in his pre- and post-accident ability to engage in his activities of daily living; full independence with personal care tasks, such as dressing/undressing, grooming, feeding, light meal preparation and toileting; denied avoiding social interactions; and despite some changes in his daily routine, none of the impairments were found to continuously prevent him from engaging in substantially all of his pre-accident activities;

b. I have found that D.Z.’s physical injuries were predominantly minor, that he did not suffer psychological impairments and he did not suffer from chronic pain as a result of the accident; and

c. D.Z. has not engaged in a thorough analysis of his pre- and post-accident well-being as it applies to the Heath test. While he submits that his continuous and chronic pain [sic], physical limitations, and psychological impairments” have resulted in a complete inability to carry on a normal life, I find the evidence contradictory to his claim. Further, while submissions are not evidence, D.Z. was provided an opportunity to refute Intact’s position by way of reply submissions, he chose not to.

33For these reasons, I see no reason to interfere with Intact’s determination that D.Z. is not entitled to NEBs.

Is D.Z. entitled to ACBs?

34D.Z. is not entitled to ACBs because he has sustained a minor injury. Section 14(2) of the Schedule provides that ACBs are only payable in the event that an insured sustained an injury that is not a minor injury.

AWARD

35Pursuant to section 10 of Regulation 664, D.Z. may be entitled to an award if I determine that Intact unreasonably withheld or delayed payment of a benefit.

36Having found that D.Z. is not entitled to any of the disputed benefits, it follows that Intact cannot be found to have unreasonably withheld or delayed any payments. As such, D.Z. is not entitled to an award.

CONCLUSION

37D.Z. has not demonstrated that removal from and treatment beyond the MIG is required. D.Z. is not entitled to payment of any of the disputed OCF-18s as the MIG limit has been exhausted.

38D.Z. is not entitled to NEBs as he has not demonstrated that he suffers a complete inability to carry on a normal life as a result of accident-related injuries.

39D.Z. is not entitled to ACBs as he has sustained a minor injury and Intact is not liable to pay ACB expenses as a result.

40As no benefits are overdue, no award or interest is payable.