Citation: Ruiz v. BelairDirect, 2023 ONLAT 21-004877/AABS

Licence Appeal Tribunal File Number: 21-004877/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:

Colin Ruiz

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Marina Korshunova, Paralegal

For the Respondent: Mariam Yusufi, Counsel

HEARD: By way of written submissions

OVERVIEW

1Colin Ruiz (“C.R.”), the applicant, was involved in an automobile accident on December 17, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). C.R. was denied benefits by the respondent, BelairDirect, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are C.R.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore already consumed the $3,500.00 limit and in the Minor Injury Guideline (the “MIG”)?

ii. Is C.J. entitled to $99.75 ($1,865.75, less $1,766.00 approved) for physiotherapy services, proposed by Physiomed Leaside in a treatment plan (OCF-18) dated August 25, 2020?

iii. Is C.J. entitled to $2,165.00 for physiotherapy services, proposed by Physiomed Leaside in an OCF-18 dated February 19, 2021?

iv. Is C.J. entitled to $2,900.00 for a psychological assessment, proposed by Dr. Frank in an OCF-18 dated August 10, 2020?

v. Is C.J. entitled to $2,599.00 for a chronic pain assessment, proposed by Medex Assessments Inc. in an OCF-18 dated January 18, 2021?

vi. Is C.J. entitled to $2,000.00 for an EMG and nerve conduction studies, proposed by Dr. Livshin in an OCF-18 dated March 12, 2021?

vii. Is C.J. entitled to $5,200.00 for a vocational assessment, proposed by Dr. Pivtoran in an OCF-18 dated February 1, 2021?

viii. Is C.J. entitled to interest on any overdue payment of benefits?

RESULT

3C.R. has not met his burden in demonstrating that his accident-related impairments warrant removal from the MIG. Accordingly, he is not entitled to the disputed OCF-18s. No interest is payable.

ANALYSIS

Applicability of the MIG

4Section 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

C.R. did not sustain injuries that remove him from the MIG

5C.R. submits that his accident-related impairments require treatment beyond the MIG limits. He relies on the clinical notes and records of Dr. Sussman, family physician, diagnostic imaging reports, a chronic pain report from Dr. Rosen, and the treatment records from Physiomed.

6Dr. Sussman’s records note various visits between July 21, 2020 and December 20, 2021, where C.R. reported neck, shoulder, and back pain. On a September 24, 2020 visit, Dr. Sussman recommended physiotherapy. At the October 22, 2020 and December 2, 2020 visits, Dr. Sussman advised to continue with physiotherapy, which C.R. was receiving through Physiomed. I note that physiotherapy was not recommended again after the December 2, 2020 visit. Dr. Sussman continued to prescribe medication to be taken on a “as needed basis”. I note that diagnostic imaging (an x-ray report dated August 26, 2020) showed no abnormalities. The Physiomed records show that C.R. received treatment sessions between March 19, 2020 and July 2021. During that time, I note that as early as July 2020, C.R. reported that he was “back to normal activities.”

7In response, Belair Direct argues that C.R. sustained predominantly minor injuries that do not require treatment beyond the MIG. Its position is that the medical evidence does not support that C.R.’s injuries were significant or of the severity as alleged. It points to the Disability Certificate (OCF-3) of March 24, 2022, which notes that C.R. sustained injuries which fall under the definition of “minor”. Regarding Dr. Sussman’s records, Belair Direct points to the July 21, 2020 visit (the first complaint of headaches); and the July 28, 2021 visit (the first complaint of shoulder pain),in support of its position that these complaints may not have been as a result of the accident.

8Belair Direcet relies on the March 29, 2021 s. 44 in-person report of Dr. Abram. In the doctor’s report, C.R. reported that he was not experiencing any pain (only during specific movements) and has had overall improvement in his pain symptoms. Dr. Abram found that C.R. demonstrated full range of motion and there was no orthopaedic or neurological deficit. Dr. Abram diagnosed C.R. with a WAD-I injury involving the upper thoracic spine and concluded that his injuries were captured within the MIG. In a subsequent April 14, 2021 report, Dr. Abram reviewed additional records, and maintained her opinion that C.R.’s injuries fall within the MIG.

9Belair Direct’s position is that the medical records did not warrant further investigation, as it concluded that the clinical records from Dr. Sussman did not contain a new medical opinion or diagnosis. In particular, in a December 20, 2021 entry, Dr. Sussman notes that C.R. was improving but having occasional headaches and neck pain. Dr. Sussman diagnosed him with residual pain. I note that several of Dr. Sussman’s 2020 and 2021 entries were conducted over the phone due to COVID-19, and Dr. Sussman indicated “by history” when commenting on C.R.’s range of movement and associated pain. I place less weight on Dr. Sussman’ 2020/2021 records, as there was no range of motion testing.

10I agree with Belair Direct. C.R.’s evidence is not compelling for a number of reasons. First, at Part 6 of the OCF-3, it notes an anticipated duration of 9-12 weeks. Second, the OCF-3 is provided approximately 2.5 years post-accident. The accuracy of the OCF-3 is questionable at best, with such a delay after the initial incident. I agree with Belair Direct, that the OCF-3 supports that C.R. sustained minor injuries. Third, the Physiomed records show improvement in as little as four months, with confirmations that he is “back to normal activities”.

11C.R. submits that he suffered psychological impairments that require removal from and treatment beyond the MIG limits. In this regard, he relies on a September 24, 2020 entry from Dr. Sussman, who noted that he started experiencing anxiety as a result of a previous accident. He further relies on a July 21, 2020 pre-screen interview with Dr. Frank (the author of the OCF-18 for the psychological assessment), wherein he reported pre-existing and ongoing anxiety. Lastly, C.R. points to the October 22, 2020 s. 44 psychology report of Dr. Seon, where he reported feeling nervous while driving.

12In response, Belair Direct relies on the same report of Dr. Seon, who notes that C.R. denied any significant psychological impairment that negatively affected his overall function. Dr. Seon noted that C.R. declined the need for or want to engage in psychological services. C.R. also denied any symptoms of marked fear, anxiety, or panic symptomatology that negatively impact his ability to operate a vehicle. Dr. Seon concluded that there was no evidence to warrant an official psychological diagnosis. I am persuaded by Dr. Seon’s report, which I find is more in line with the medical records. There are no significant psychological complaints made to Dr. Sussman, and C.R. indicated that he was not interested in psychological treatment.

13For these reasons, C.R. has not persuaded me on a balance of probabilities, that he sustained a psychological impairment as a result of the accident which warrants removal from the MIG.

14Lastly, C.R. submits that he suffers from chronic pain as a result of the accident. He submits that he satisfies the threshold (with at least three criteria needing to be met to demonstrate chronic pain) set out in the criteria of the AMA Guides. Those criteria are as follows:

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 needs; and

vi. development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.

15In support of his position that he suffers from chronic pain, he relies on a May 17, 2021 chronic pain report by Dr. Rosen, who noted that C.R.’s use of prescription medication has changed, from treating a skin condition to now using anti-inflammatory and pain-killing medication. Dr. Rosen went on to note that there has been a change in C.R.’s physical functioning (switching from physical to clerical duties at work). Further, C.R. submits that he relies on his family members with respect to housekeeping duties (as reported to Dr. Rosen), and reported vehicular anxiety, which was aggravated as a result of the subject accident. Dr. Rosen concluded that C.R. suffers from chronic pain syndrome, chronic myofascial pain and cervicogenic headaches.

16I do not find Dr. Rosen’s report persuasive. First, on testing, C.R. displayed full range of motion of the neck, shoulders and back. Second, there is no objective evidence to support Dr. Rosen’s findings of cervicogenic headaches, which contradicts C.R. complaining of headaches on one occasion, to Dr. Sussman. Lastly, despite the full range of motion, Dr. Rosen comes to a contradictory conclusion that C.R. suffers from chronic pain. The medical evidence that C.R. relies on is not in line with Dr. Rosen’s conclusion. The OCF-3 notes minor injuries; Dr. Sussman’s records note pain complaints on occasional visits; the Physiomed records note that C.R. was back to his normal activities; and there is no evidence that any accident-related psychological symptomatology has caused any functional impairment.

17I find that C.R. has not satisfied the criteria of the AMA Guides and therefore has not demonstrated that he suffers from accident-related chronic pain. In this regard, I refer to the following evidence as it pertains to the six criteria:

i. There is little evidence to support that C.R. has used prescription medication beyond the regular duration or is excessively dependent on it. Dr. Sussman’s records, where, on June 17, 2020, Dr. Sussman noted “0 meds”. It further points to the lack of a prescription summary and C.R.’s reporting to various assessors that he takes medication on a “as needed” basis. In a February 23, 2022 entry of Dr. Sussman, C.R. reported that he was off Tylenol 2, but was using Meloxicam as needed;

ii. There is insufficient evidence to support that C.R. has had an excessive dependence on health care providers or family members. After the first post-accident visit to Dr. Sussman, C.R. visited seven months later (despite the availability of tele-appointments being available);

iii. There is little evidence to support he has withdrawn from social milieu, including work, or other social engagement. Following the accident, C.R. returned to work on a full-time basis. There is no persuasive evidence that C.R. has withdrawn from social engagement; and

iv. Psychological sequelae – Having determined that C.R. does not suffer from significant psychological impairment, there is no support that C.R. satisfies this criterion under the AMA Guides.

Are the OCF-18s reasonable and necessary?

18It is my understanding that the MIG limits have been exhausted. 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 under s. 51 of the Schedule.

ORDER

19C.R. suffered predominantly minor injuries that are treatable within the MIG limits. The disputed OCF-18s are not reasonable and necessary.