Citation: Aga v. Belairdirect, 2024 ONLAT 21-004578/AABS

Licence Appeal Tribunal File Number: 21-004578/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:

Medkes Aga

Applicant

and

Belairdirect

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Anastasiya Chepak, Paralegal

For the Respondent:

Kyle McNerney, Counsel

HEARD: In Writing

OVERVIEW

1Medkes Aga, the applicant, was involved in an automobile accident on April 20, 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, 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 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 in the Minor Injury Guideline (“MIG”)? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $154.00 ($1,282.00 less $1,128.00 approved) for physiotherapy services in a treatment plan/OCF-18 (“plan”) submitted on June 26, 2019?

iii. Is the applicant entitled to $1,332.00 for physiotherapy services in a plan submitted on October 15, 2019?

iv. Is the applicant entitled to $2,260.00 for psychological assessment in a plan submitted on April 16, 2021?

v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

3It is noted that in the applicant’s submissions, she withdrew issue number 2 listed in the Case Conference Report and Order dated October 11, 2022. Hence, this decision will focus only on the remaining issues in dispute as listed above.

RESULT

4I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

5The applicant is not entitled to the disputed plans, an award or interest.

ANALYSIS

The applicant has not demonstrated that she should be removed from the MIG

6I find the applicant sustained predominantly minor injuries that do not warrant removal from 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 from any accident-related minor injury 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.

9The applicant submits that she suffers from a psychological impairment and chronic pain as a result of the accident, that these injuries fall outside of the MIG and she is therefore entitled to treatment beyond the $3,500.00 limit. She relies on the CNRs of her family doctor, Dr. Yemisrach Hailemeskel, the CNRs of Dr. Henry Anh, orthopaedic surgeon, and the insurer’s examination (“IE”) reports by Dr. Melissa Hershberg, general physician, and Dr. Rod Day, psychologist.

10The respondent submits that the applicant’s injuries sustained from the accident are predominantly minor injuries and do not meet a diagnosis of chronic pain with functional impairment or psychological impairment. It relies on the hospital records, CNRs of Physiomed, the IE reports by Dr. Hershberg and Dr. Day as mentioned above.

11I find the applicant sustained predominantly minor injuries within the definition in the Schedule. Records from the Scarborough Hospital on the day of the accident indicate that the applicant’s chief complaint was “left sided chest pain and bit her tongue with mild bleeding in the mouth… No other injury sustained”. An x-ray of the applicant’s chest and left ribs confirmed that they were within normal limits and no evidence of a fracture. In the first post-accident visit, the family physician Dr. Hailemeskel noted a bruise on the applicant’s left upper chest but diagnosed the applicant with a soft tissue injury and prescribed Advil. In the second post-accident visit on May 1, 2019, the applicant complained of pain in the left side of neck, lower back, right knee and left chest area. Dr. Hailemeskel, again, diagnosed the applicant with a soft tissue injury and prescribed Advil. These medical records are in line with the care afforded to soft-tissue injuries that fall within the minor injury definition in the Schedule.

The applicant has not demonstrated that she suffers from a psychological impairment that would warrant removal from the MIG

12The applicant has not demonstrated that she suffers an accident-related psychological impairment that warrants removal from the MIG.

13The applicant submits that she developed psychosocial sequalae as a result of the accident which was documented by Dr. Hailemeskel, family doctor, on May 12, 2020, where the applicant reported fear of being a passenger in a vehicle and that she made several psychological complaints to Dr. Day, IE psychologist, which warrant removal from the MIG.

14The respondent submits that the applicant has adduced insufficient evidence to support her claim and that the applicant did not report any psychological symptoms post-accident until May 12, 2020, over a year post-accident, where she reported anxiety to Dr. Hailemeskel. It relies on the IE psychological assessment report where Dr. Day opined that the applicant’s psychometric testing scores and responses from the interview do not reveal that she sustained any accident-related psychological condition or impairment which warrant further medical intervention.

15I am not persuaded that the applicant suffers from any accident-related psychological impairment. I agree with the respondent that the post-accident CNR entry from Dr. Hailemeskel dated May 12, 2020, is the only entry that noted a psychological complaint by the applicant.

16Despite Dr. Hailemeskel’s referrals to a psychologist and to BounceBack Ontario after this appointment, there were no CNRs tendered in evidence by the applicant from any treating psychologist or psychiatrist. BounceBack Ontario, in its letter dated July 29, 2020, informed that they were unable to reach the applicant, after multiple attempts, to provide more information about a mental wellness program. These are persuasive evidence that the applicant never followed through with Dr. Hailemeskel’s referral in seeking further psychological advice or treatment for the applicant’s psychological complaints. There is also little evidence that the applicant was given any psychological medications or underwent any psychological treatment.

17Instead, I give weight to Dr. Day’s IE psychological assessment and addendum reports dated June 29, 2021 and October 27, 2021. The IE reports by Dr. Day are the only reports tendered in evidence which formally examined the applicant’s psychological condition after the accident and addressed the applicability of the MIG. In addition to the thoroughness of the reports, in my opinion, Dr. Day’s observations and opinions align with the rest of the medical evidence.

18Although the applicant’s Pain Catastrophizing Scale (PCS) test result indicated that the applicant scored in the 100th percentile, and that there is a presence of catastrophic thoughts in response to her pain that may serve to accentuate her experience, Dr. Day opined that the overall test results from the three psychometric tests and responses of the applicant revealed that she did not meet the criteria for a Somatic Symptom Disorder, Major Depressive Disorder, Panic Disorder, Specific Phobia or any other anxiety disorders. It is noted that after reviewing the applicant’s medical documents including Dr. Hailemeskel’s abovementioned CNR, Dr. Day maintained his opinion that there was no indication of any accident-related psychological condition or impairment.

19The applicant’s submissions of a psychological sequelae are not supported by any compelling and contemporaneous medical evidence of a psychological impairment. The onus is on the applicant to prove that she sustained a psychological impairment as a result of the accident that warrants removal from the MIG. She has failed to do so in this case.

20For the above reasons, I find the applicant has not sustained any psychological impairments which warrant removal from the MIG.

The applicant has not demonstrated that she suffers from chronic pain with functional impairment that would warrant removal from the MIG

21I find the applicant does not suffer from chronic pain with a functional impairment as a result of any accident-related injuries that warrant removal from the MIG.

22For a person to be taken out of the MIG due to chronic pain, there must be an effect on their functionality. While not binding, the Tribunal has consistently referred to the six criteria provided in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (the “AMA Guides”) as an interpretive tool for evaluating chronic pain claims. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of a chronic pain syndrome to be established:

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 need; and

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

23The applicant submits that she suffers chronic pain as a result of the accident and meets three of the six criteria (specifically criteria ii, iii and vi above) of the AMA Guides. She relies on the CNRs of Dr. Hailemeskel dated January 5, 2022, where she was diagnosed with chronic back pain and the IE reports by Dr. Day and Dr. Hershberg where they documented the applicant’s secondary deconditioning in physical function and psychological sequelae.

24The respondent disagrees and relies on the CNRs of Dr. Henry Anh, orthopaedic surgeon at St. Michael’s Hospital, and IE reports by Dr. Melissa Hershberg, physician, and Ms. Lyndy Goldlust, occupational therapist, who reported that the applicant demonstrated full and free ranges of motion for many movements and was able to perform all tasks independently.

25I am not persuaded that the applicant’s chronic pain diagnosis is related to the accident. Although Dr. Hailemeskel diagnosed the applicant with chronic back pain on January 5, 2022 (i.e. more than three years after the accident), this diagnosis appears to be related to degenerative issues discovered in post-accident diagnostic imaging results dated October 31, 2020, October 31, 2021, and March 31, 2022.

26In addition, my opinion is informed by the following:

i. On May 1, 2019, Dr. Hailemeskel noted that the x-ray taken on the day of the accident at the hospital was normal. A subsequent x-ray of the applicant’s lumbar spine dated July 8, 2019, revealed that there were “no significant degenerative change or fracture.” In my opinion, this is persuasive evidence that the accident did not immediately cause or exacerbate degenerative changes in the applicant’s spine;

ii. There were no references to the subject accident in the 2020 or the 2021 CNRs of Dr. Hailmeskel. Dr. Hailmeskel did not attribute the applicant’s complaints of back pain to the accident. Instead, the physician advised the applicant to “avoid weight gain, watch diet, exercise for back pain… stay physically active” and diagnosed her with sciatica, spinal stenosis, and varicose veins. None of these comments or diagnoses appear to be related to injuries resulting from the accident; and

iii. Dr. Hailesmeskel’s CNRs appear to be consistent with the opinion of Dr. Anh, who also found that in his CNR dated May 13, 2021 that the applicant’s degenerative spinal conditions were the reason for her back and leg pain. Further, Dr. Anh did not attribute the applicant’s pain to the subject accident, and reported that she “walks with good gait without the use of any gait aids” and demonstrated almost full power on both sides of her lumbar spine. Dr. Anh did not express any serious concerns about the applicant’s physical functionality that required immediate treatment. He also did not prescribe any pain medication or recommend follow-up appointments.

27Given the above, I am not convinced that the applicant suffers chronic pain with a functional impairment resulting from the accident that would warrant removal from the MIG.

28Although the applicant submits that she is heavily reliant on her family doctor and husband, the applicant has not referred to sufficient compelling and contemporaneous evidence other than to Dr. Hershberg’s IE report dated June 8, 2021, where she self-reported that she relies on her husband for all cleaning tasks at home. It is noted that, in the same report, Dr. Hershberg stated that “Ms. Aga reports that she is currently independent with performing all of her self-care tasks… [and] has returned to performing all of her pre-accident household responsibilities, with the exception of cleaning…[and] her husband provides occasional assistance with caregiving.” As the applicant’s submission and self-reports to Dr. Hershberg appear to be contradictory, and the applicant has not referred to any supporting CNRs from any treating physicians, I am not satisfied that the applicant has met criteria ii of the AMA Guides as she claims.

29As previously mentioned, I did not find the applicant suffers from a psychological impairment or psychological sequelae as a result of the accident. Therefore, I am not convinced that she has met criteria vi of the AMA Guides.

30I prefer the respondent’s IE reports of Dr. Hershberg and Ms. Goldlust, as they feature the same medical opinion that the applicant sustained a minor injury and is able to perform a majority of her activities of daily living independently, including self-care, household activities, and caregiving.

31Ms. Goldlust reported in her IE report dated July 9, 2019, that she observed the applicant’s performance in the range of motion testing and opined that the applicant “is capable of resuming normal life activities that she regularly performed prior to the motor vehicle accident using pacing strategies.” Dr. Hershberg, in her IE report dated June 22, 2021, reported that despite observing the applicant’s decreased range of motion during this examination, she opined that the temporary deconditioning was “unlikely … a result of the subject accident, seeing as she demonstrated full ranges of motion of the lumbar spine during [her] two previous examinations.” Dr. Hershberg concluded that “there were no consistently reproducible signs of any objective accident-related functional impairment.”

32Given that the IE assessors’ opinions were very similar, and in the absence of compelling evidence from the applicant’s treating physicians to rebut the IE assessors’ findings, I find the IE reports to be persuasive and credible.

33I find the applicant failed to demonstrate that she suffers from chronic pain with a functional impairment that would warrant removal from the MIG.

The applicant is not entitled to the treatment and assessment plans in dispute

34Based on the above analysis, I have determined that the applicant sustained minor injuries that are treatable within the MIG. The parties confirmed in the case conference that the treatment limits of the MIG have been exhausted. As such, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. The applicant is kept within the $3,500.00 treating limit of the MIG.

35As no benefits are payable, it follows that no benefits are overdue. Therefore, I find that interest does not apply pursuant to s. 51 of the Schedule.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

37As the applicant is not entitled to any benefits and no benefits were unreasonably withheld or delayed, no award is warranted.

ORDER

38I find that:

i. the applicant is within the MIG;

ii. the applicant is not entitled to any of the plans in dispute; and

iii. no interest and no award are payable.

39The application is dismissed.