Taylor v. TD General Insurance Company, 2024 CanLII 10516

Taylor v. TD General Insurance Company

Citation: Taylor v. TD General Insurance Company, 2024 ONLAT 21-009651/AABS

Licence Appeal Tribunal File Number: 21-009651/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:

Marlett Taylor

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: Vasiola Bibolli, Counsel

HEARD: By written submissions

OVERVIEW

1Marlett Taylor, the applicant, was involved in an automobile accident on April 17, 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, TD General Insurance, 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 the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,512.60 for chiropractic services, proposed by Brampton Civic Care Centre in a treatment plan/OCF-18 dated September 13, 2019?

iii. Is the applicant entitled to $2,330.00 for chiropractic services, proposed by Brampton Civic Care Centre in a treatment plan/OCF-18 dated March 6, 2020?

iv. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Brampton Civic Care Centre in a treatment plan dated August 14, 2019?

v. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated November 13, 2020?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

3In a Notice of Motion dated December 15, 2022, the applicant withdrew the issue of her entitlement to an income replacement benefit. This is listed as issue two in the Case Conference Report and Order dated November 15, 2022.

RESULT

4The applicant’s injuries are predominantly minor and treatable within the MIG.

5The applicant is not entitled to the treatment plans, nor interest.

ANALYSIS

Minor Injury Guideline (MIG) and treatment plans

6The applicant’s injuries are predominantly minor and treatable within the MIG.

7Section 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. 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.”

8An insured 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. In all cases, the burden of proof lies with the applicant.

9According to the applicant, her Disability Certificate (OCF-3) lists a concussion injury which falls outside the MIG. Moreover, she submits that she has chronic pain and psychological symptoms which she sustained from the accident and these conditions also remove her from the MIG.

10The respondent submits that the applicant only sustained sprain and strain injuries in the accident. These injuries are treatable within the MIG.

Concussion

11The applicant submits that she sustained a concussion, as noted in her disability certificate, which is an injury that does not fall within the MIG.

12The respondent submits this type of injury is captured under the definition of a minor injury and treatable within the MIG. The respondent also notes that the disability certificate indicates that the duration of the disability is 9 to 12 weeks which further supports that the applicant only sustained minor injuries.

13I find that there is insufficient evidence to established that the applicant sustained a concussion.

14The disability certificate, dated April 26, 2019, that was completed by Dr. Roger Singh, chiropractor. I note that chiropractors are not qualified to diagnose concussions.

15I give no weight to the listing of a concussion in the disability certificate because Dr. Singh is not qualified to diagnose a concussion and because there is no other supporting medical evidence of a concussion. Consequently, the applicant has not presented a sufficient evidentiary basis to satisfy me, on a balance of probabilities, that he sustained a concussion as a result of the accident.

Chronic Pain

16The applicant relies on the Independent Medical Evaluation Report, dated April 19, 2021, of Dr. Igor Wilderman, physician. According to the report, the applicant meets 5 of the 6 criteria in the American Medical Association Guides 6th edition (Guides) for establishing chronic pain.

17The Guides are not binding on the Tribunal but may be used as an interpretive tool for evaluating chronic pain. The Guides require a person to meet at least 3 of the 6 criteria to be found to have chronic pain. The 6 criteria are:

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 de-conditioning due to disuse and/or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contracts;

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;

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

18Dr. Wilderman’s indicates that criteria 2, 3, 4, 5, and 6 apply.

19For criteria 2, Dr. Wilderman states that the applicant has ceased to perform numerous household and social responsibilities independently which are outlined in the Activities of Normal Living Pre- and Post- Accident section of the report. However, this section of the report only indicates two functions which cannot be completed independently:

Ms. Taylor reports that she was independent in all housekeeping/home maintenance functions previously. Since the accident, she reports that she no longer performs the following housekeeping/home maintenance functions independently: unable to move furniture and unable to window clean. She now requires assistance from her son for completion of these tasks.

20I note that under the heading of Housekeeping/Home Maintenance, the report states that the applicant can no longer independently prepare meals, do laundry, or clean her home independently because of anticipated pain, physical functional limitations, and psychological distress.

21Under the heading of Caregiver Status the report states that the applicant has become “unfit to engage in the caregiver functions she performed normally prior to the accident due to pain and associated physical limitations, psychological distress, and fatigue.”

22The Activities of Normal Living Pre- and Post- Accident section lists only two household duties the applicant cannot complete without assistance. Yet the rest of the report indicates that the applicant in unable to complete any household duties, including looking after her children. As such, I find that the report is internally inconsistent.

23I further find that the report is incomplete. If the applicant is unable to complete household tasks and cannot look after her children, then it is reasonable to expect that Dr. Wilderman would document how these duties are being managed. Instead, his report is silent on these important matters.

24Regarding work, the Dr. Wilderman indicates that the applicant worked as a fulltime forklift driver before the accident. She resumed working in September 2019, but was not given modified duties and she was unable to perform certain tasks and was let go in November 2019. Dr. Wilderman opines that the applicant’s impairments make her unfit to engage in any employment for which she is reasonably suited by education, training, or experience.

25According to Dr. Wilderman’s report, the applicant cannot cook or clean, is “unfit” to care for her children, and is unable to work due to her impairments. However, this is inconsistent with the other evidence before me. In particular, the applicant did not report such a high level of disability in the six insurer examinations (IEs).

26For example, in the psychological report, dated July 22, 2021, by Dr. Shulamit Mor, psychologist, the applicant reports that in late January or early February 2020 she resumed working as a forklift driver but lost her job in March 2020 due to the pandemic. She further reported that at home she is responsible for cooking, dishwashing, cleaning, laundry, and completes all caregiving activities for her nine year old son and her baby.

27The Physical Medicine and Rehabilitation Specialist Assessment took place on March 4, 2021 and was conducted by Dr. Michael Ko, physiatrist. The applicant advised Dr. Ko that she was hired as a new forklift driver in March 2020, but the pandemic was affecting workload, so she had to stop working.

28He diagnosed the applicant with sprain/strain injuries to her lumbar spine, cervical spine, and left trapezius and determined that her injuries meet the criteria of a minor injury.

29In the Physical Medicine and Rehabilitation Specialist Report, dated June 30, 2020 by Dr. Alborz Oshidari, physiatrist, the applicant discloses that she was working as a forklift driver at the time of the accident. She resumed working seven months after the accident, but her pain increased and she was let go after one month. In March 2020 she began working at a new job as a forklift driver but stopped after a few weeks due to the pandemic. He physically examined her and determined that she had a full range of motion and that she does not suffer a substantial inability to perform the essential tasks of her employment.

30The applicant reported struggling with her household duties in the psychology assessment, dated February 28, 2020, by Dr. Pushpa Kanagaratnam, psychologist. She advised that she used to clean every weekend but her house became “nastier.” She got lazy when it came to dishes and laundry and did not want people to visit. The mess in the house made her energy drop and the applicant’s mother started helping. She gradually got her routine back at the end of 2019. With a new baby coming, she wanted to be cleaner and was trying to be on top of things, although it had been hard with her pregnancy. She reported that many things were back to normal.

31The applicant reported initially struggling with maintaining her home in the first year after the accident and required her mother’s help. But her functional abilities improved before her second child was born in July, 2020. By June 2021, she reports to Dr. Mor, whose report is contemporaneous with Dr. Wilderman’s report, that she is independent with household duties and looking after her two children.

32Dr. Wilderman’s report is internally inconsistent, incomplete, and the level of disability described in the report is inconsistent with what the applicant reported in the IE’s. For these reasons, I find that the report of Dr. Wilderman is unreliable and give it no weight. As this report is the only evidence cited by the applicant supporting a chronic pain diagnosis, I further find that she has not established, on a balance of probabilities, that she has chronic pain.

Psychological symptoms

33The applicant submits that she was provisionally diagnosed with an adjustment disorder in the treatment plan completed by Dr. Marco Chiodo. The applicant further submits that the psychological symptoms were identified in the psychometric testing in two IEs which establishes that the applicant sustained a psychological injury that removes her from the MIG.

34The respondent submits that the applicant did not report psychological symptoms to her family doctor or any treating professional, and has not been prescribed any medication for psychological issues. The IE of Dr. Kanagaratnam determined that the applicant’s psychological symptoms are clinically insignificant. The IE of Dr. Mor determined that there were numerous psychological stressors in the applicant’s life, such as the death of family members and feeling overwhelmed by the pandemic and feeling overwhelmed by fatigue as a result of tending to her baby. The respondent submits that the applicant’s psychological symptoms are unrelated to the accident.

35I find that there is insufficient evidence to establish that the applicant sustained psychological symptoms from the accident that remove her from the MIG.

36The applicant’s family doctor’s notes are illegible. A partial typed transcription of the notes from November 2020 to July 2021 does not mention psychological symptoms. There are no referrals to specialists in the field of psychology, nor any prescriptions for anti-depressants or other psychotropic medications. This is inconsistent with the applicant’s assertion that she has psychological symptoms.

37The IE report of Dr. Mor documents that the applicant scored in the severe range for depression in the Beck Anxiety Inventory and the average range on the depression and somatization scales of the Pain Patient Profile (P3). Dr. Mor interpreted these results as suggesting dissatisfaction with current lifestyle, irritability, frustration, moodiness, discouragement, and unhappiness. The applicant reported feeling “moody” and “overwhelmed” due to fatigue as a result of tending to her baby and Covid-19 restrictions. She maintained that her poor sleep is due to taking care of her baby and the majority of other symptoms are a consequence of her fatigue. She noted having vehicle anxiety but has returned to some driving.

38Dr. Mor concludes that two years after the accident, the majority of her accident related psychological symptoms have dissipated, except for mild vehicular anxiety. She is vigilant regarding her baby’s care and she noted that the majority of her psychological symptoms are a result of fatigue and high expectations of herself. Dr. Mor opines that the applicant’s symptoms are minimal and she does not meet the criteria for a formal psychological diagnosis.

39Likewise, the earlier IE report of Dr. Kanagaratnam considered psychometric results along with the applicant’s clinical interview presentation, file review and the psycho-diagnostic data and determined there was an absence of clinically significant symptomatology that met the threshold for any psychological diagnoses.

40The applicant submits that the psychometric test results should be given paramount consideration in assessing her psychological symptoms. I disagree. Both psychologists who conducted the IEs considered the full spectrum of evidence including the clinical interview and supporting documentation. In my view, this type of assessment is more comprehensive and sound than merely relying on just the psychometric data.

41The provisional diagnosis of an adjustment disorder in the treatment plan by Dr. Marco Chiodo is not persuasive. He merely lists “adjustment disorders” in Part 6 of the treatment plan dated August 7, 2019. This minimal information is not enough to find that she has been diagnosed with a psychological condition, and therefore, is not persuasive.

42I reviewed the evidence cited by the applicant. For the reasons stated above, I am not satisfied that the applicant has psychological symptoms that are significant enough to warrant removal from the MIG.

43I have found that the applicant has not sustained a concussion, nor chronic pain or psychological symptoms that warrant removal from the MIG. Consequently, I further find that the applicant’s injuries are predominantly minor and treatable within the MIG.

44As I have found the applicant’s injuries fall within the MIG, it is unnecessary to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.

Interest

45Interest is not payable pursuant to s. 51 of the Schedule as no overdue amounts are owing.

ORDER

46The applicant’s injuries are predominantly minor and treatable within the MIG.

47The applicant is not entitled to the treatment plans, nor interest.