Licence Appeal Tribunal File Number: 22-007053/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:
Soreya Maybetot
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Joseph Caprara, Counsel
For the Respondent:
Thulasi Kandiah, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Soreya Maybetot, the applicant, was involved in an automobile accident on December 27, 2021, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
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 limit?
Is the applicant entitled to the amount of $2,045.39 for an in-home assessment, proposed in a treatment plan/OCF-18 (“plan”) submitted on February 8, 2022 and denied on April 26, 2022?
Is the applicant entitled to the amount of $2,693.78 for occupational therapy services, proposed by Jennifer Wickenden in a plan submitted on February 24, 2022 and denied on April 26, 2022?
Is the applicant entitled to the amount of $243.40 ($1,290.00 less $1,046.60 approved) for chiropractic services, proposed by Dr. Craig Rosenblatt in a plan submitted on March 15, 2022 and denied on March 21, 2022?
Is the applicant entitled to the amount of $535.00 for physiotherapy services, proposed by Binda Chaulagian in a plan submitted on April 11, 2022 and denied on April 26, 2022?
Is the applicant entitled to the amount of $40.00 for prescription medications submitted in an OCF-6 dated February 1, 2023 and denied on February 21, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Minor Injury Guideline (“MIG”) applies. The applicant remains subject to the $3,500.00 treatment limit.
4Accordingly, the applicant is not entitled to the treatment plans or the expense in dispute and no interest is owed.
Procedural ISSUES
New Report – Productions dispute
5I deny the respondent’s request to admit into evidence a s. 44 report by Dr. Platnick, for a General Practitioner Assessment dated November 14, 2023. The report was served on the applicant after the final deadline for document productions established by the case conference report and order (“CCRO”).
6The respondent submits that the report should be admitted because the parties had mutually agreed to an extension to the deadlines for document production, and further, the report addresses chronic pain and is therefore relevant to the issues in dispute. It further submits that while the report was served late it does not prejudice the applicant as it was still received well ahead of the written hearing date. It relies on J.L.C v RBC Insurance Company, 2019 CanLII 110122 (ON LAT) where the Tribunal included a s. 44 report despite it being delivered late, because it found there was no prejudice to the applicant.
7Here, the applicant submits the arrangement was to extend the final production deadline only for reports responsive to the items already produced. Also, the assessment leading to the report in question was arranged in order to review a treatment plan/OCF-18 that is not in dispute for this hearing. As a result, the applicant submits the report is not a responsive report to the items previously exchanged, and therefore should be excluded both for its lateness and lack of relevance.
8It is the Tribunal and not the parties who manage the process. Any agreement between the parties about the extension of production deadlines or the purpose of such, is not recognized by the Tribunal. The CCRO established the deadlines for document productions, and the respondent’s report was served after the final deadline. Further, in addition to being outside the agreed upon timeframe, it was commissioned to address an issue that is not in dispute at this hearing.
9For both of these reasons, the report of Dr. Platnick is excluded from consideration.
ANALYSIS
The Minor Injury Guideline (“MIG”)
10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
11An insured person 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 before the accident, they have a documented pre-existing injury or condition. There must also be compelling medical evidence stating that the condition precludes maximal 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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
Does the Minor Injury Guideline (“MIG”) apply?
12I find that the applicant’s injuries from the accident fall within the MIG. As a result, the applicant is subject to the $3,500.00 treatment limit.
13The applicant submits that as a result of the accident, she suffers from a number of health issues including headache, chronic pain in her right shoulder with radiation to her fingers, right wrist pain with weakness and tingling, lower back pain with radiation to lower limbs, bilateral knee pain, and left ankle pain. Further, she submits that she has a psychological impairment with symptoms of sleep disturbance, fatigue, anxiety, and low mood. She submits that these injuries are not minor as defined by s. 3(1) of the Schedule.
14The applicant points to a number of diagnoses pertaining to her physical injuries as well as psychological diagnoses. Further, she notes that she had no history of pain or restrictions in her shoulder, back, or knees prior to the accident and any age-related degeneration was asymptomatic. She relies on the clinical notes and records (“CNRs”) from hospital visits, her treatment providers at Bloor-Dufferin Rehabilitation Centre (physiotherapist Binda Chaulagain and chiropractor Dr. Rosenblatt), and general practitioner (“GP”) Dr. Tai. In addition, she consulted several specialists for s. 25 assessments, including Dr. Chizen (physical medicine), Dr. Glazman (chronic pain), and Dr. Lotfalizadeh (psychology). She seeks an order that her injuries be found outside the MIG and that the treatment plans in dispute be found reasonable and necessary.
15The respondent submits that the applicant’s physical injuries from the accident are minor, amounting to soft tissue injuries. It further submits that the applicant has not been diagnosed with chronic pain syndrome, and much of her complaints are due to degenerative changes that are unrelated to the accident. With regard to the applicant’s claim of a psychological impairment, the respondent questions whether there is an actual impairment beyond mere sequelae from her minor injuries. It relies on the applicant’s CNRs from hospital visits, imaging, and visits to her treatment providers, her s. 25 assessments, and the results of the following s. 44 reports:
i. Multidisciplinary Assessment Report from Occupational Therapist (“OT”) Campos and GP Dr. Pohani;
ii. GP Assessment Report from Dr. Tu; and
iii. Psychological Assessment Report from Dr. Azizli, Psychologist.
Physical Impairment
16There is no indication in the medical evidence that the applicant suffered any physical injuries in the accident itself that would fall outside the definition of minor. The applicant attended the hospital following the accident. Neck pain and headache were recorded, and she was discharged the same day.
17The applicant next sought treatment at WQH Centre shortly after the accident. The OCF-3 and CNRs from WQH Centre all contain reference to, or treatment of, minor injuries such as whiplash associated disorder with complaint of neck pain, sprains and strains, shoulder tendinopathy and headache.
18The CNRs of the applicant’s GP also record minor injuries in the months following the accident. On January 31, 2022, Dr. Tai recorded that the applicant had right shoulder tenderness, and pain and weakness in her right arm, back, and knee. In April and May of 2022, Dr. Tai documented continued pain in the applicant’s neck, lower back, and coccyx, while noting that the pain in her neck, right shoulder, back, and knee had improved. Also in April of 2022, there was a consult with Dr. Chizen, Physical Medicine, who found that the applicant had pain in her neck and right upper extremity.
19After the accident, the applicant was diagnosed with a number of unrelated and age-related conditions such as degenerative disc disease (“DDD”) of the lumbar spine, osteoarthritis in the knees, and mild degenerative changes in the medial femorotibial and patellofemoral compartments of the right knee, among others. While these conditions have contributed to the applicant’s pain after the accident, nevertheless they are not physical impairments directly caused by the accident.
20The medical evidence referenced above indicates that the applicant’s post-accident injury profile was within the scope of a minor injury as defined by the Schedule.
21Accordingly, I find there is no physical impairment as a result of the accident that would take the applicant outside the MIG.
Pre-existing Medical Condition or Injury
22The applicant submits that any degenerative changes, arthritis, and other unrelated conditions were asymptomatic prior to the accident.
23As a result, there is no argument made that the MIG does not apply on the basis of a pre-existing medical condition or injury.
24Accordingly, section 18(2) does not apply as a basis for removing the applicant from the MIG.
Chronic pain
25The applicant submits that she suffers from chronic pain of her shoulders, cervical spine, thoracic spine, and lumbar spine. This assertion is supported by the CNRs of her GP and other treatment providers, with ongoing symptoms from the time of the accident into 2023. The pain is coupled with neurological signs, and a number of unrelated conditions contribute to the overall pain experienced. The medical record demonstrates that she experiences some relief through ongoing treatment at Bloor-Dufferin Rehabilitation that allows her to continue working with modified duties.
26The respondent submits that the applicant has not demonstrated any functional impairment as a result of the claimed chronic pain, nor has she been diagnosed with chronic pain syndrome. It references the applicability of the criteria from the American Medical Association (“AMA”) Guides, 6th edition (“the Guides”) for diagnosing functional impairment. The Tribunal has recognized these criteria as a useful framework for understanding an individual’s functional capacity, in the absence of a diagnosis of chronic pain syndrome:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other circumstances;
ii. Excessive dependence on health care providers spouse or family;
iii. Secondary physical deconditioning due to disease 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 nonorganic illness behaviors.
27The respondent submits that the applicant does not meet any of these criteria. For her part, the applicant claims that she has not returned to her pre-accident function, has a limited ability to participate in household tasks, has sought out the assistance of multiple healthcare providers, and has severe anxiety and fear-avoidance of using public transportation. While I appreciate the applicant faces some impact on her activities due to the pain in multiple areas of her body, I am not persuaded that the arguments presented rise to the level of meeting three of the six criteria that would be necessary to establish a diagnosis.
28Several assessments support that the applicant does not have a substantive functional impairment as a result of the accident. A s. 44 assessment by OT Campos and GP Dr. Pohani dated April 26, 2022, found that the applicant was able to continue cooking, cleaning, using public transportation, and going to the gym. Also, at a consult with Physiatrist Dr. Chizen on December 31, 2022, the diagnosis was musculoskeletal pain with no mention of the accident. On April 4, 2023, GP Tu found that there were no objective musculoskeletal impairments – only soft tissue injuries that did not require further treatment.
29On May 24, 2023, Dr. Tai referred the applicant to a chronic pain clinic where she was offered, but declined, nerve block treatments to address “her multilevel DDD in her C-spine and shoulders”. In the consult report from the clinic there is no mention of the accident, but recommendations for physiotherapy and medications to treat the pain from her DDD.
30The medical records indicate that the applicant has continued pain due to several degenerative conditions layered over the soft tissue injuries caused by the accident. While she experiences ongoing pain, the evidence is insufficient to establish either that the applicant’s pain would not be present but for the accident, or that the pain rises to a level that could lead to a diagnosis of chronic pain syndrome or would meet the AMA criteria to establish a functional impairment due to chronic pain. Further, despite some limitations, the applicant continues to function in the various facets of her life.
31For the reasons outlined above, the applicant has not met her burden to establish she should be removed from the MIG due to chronic pain.
Psychological Impairment
32The applicant submits that as a result of the accident she has sleep disturbance causing fatigue, anxiety, and low mood, all due to the accident. She points to her diagnoses of Adjustment-like Disorder, and Somatic Symptom Disorder with Predominant Pain and Specific Phobia, as a basis for removal from the MIG due to psychological impairment.
33The above diagnoses were made at a s. 25 psychological assessment with psychologist Dr. Lotfalizadeh, in a report dated July 27, 2023, about two and a half years after the subject accident. The purpose of the assessment was to determine the psychological consequences of the accident, analyze the effects of such, and develop appropriate treatment options. The assessment included a clinical interview and standardized tests. The report indicates she was referred due to the motor vehicle accident, although by whom is unclear. There was also no consideration of the applicant’s pain from her unrelated medical conditions as a possible cause of her psychological symptoms.
34Testing results conducted at this assessment support that the applicant experiences psychological symptoms. The applicant scored in the Severe range for both the Beck Depression and Beck Anxiety Inventories, and in the Patient Pain Profile (“P3”), she self-reported emotional distress with pain, and was in the higher range clinically for anxiety, somatization, and depression and distress due to physical suffering. On the WHO Disability Assessment (“WHODAS”), the applicant scored a moderate disability in relation to managing her activities of daily living.
35Based on her test results and the virtual consult, psychologist Dr. Lotfalizadeh diagnosed Other Specified Trauma and Stressor-Related Disorder; Adjustment Disorder with Prolonged Duration of More than Six Months; Somatic Symptom Disorder with Predominant Pain, Persistent; and Specific Phobia Situational type (Driver). The conclusion made is that the applicant’s impairments from the accident fall outside the MIG as she requires formal treatment and assessment interventions.
36Around the same time, the respondent commissioned a s. 44 psychological assessment with Dr. Azizli. The assessment took place on July 19 and September 13, 2023, with the resulting report dated September 25, 2023. Dr. Azizli concluded that due to the applicant’s vague and non-descriptive presentation during the assessment, and a lack of reliability/validity in the testing results, no diagnosis could be made. The tests included:
i. a Structured Interview of Malingered Symptomatology (SIMS) where the applicant’s score exceeded the recommended cut-off in all five of the clinically associated scales;
ii. a P3 where she scored a valid profile for the above-average range for depression and the average range for anxiety and somatization; and
iii. a Personality Assessment Inventory where the results revealed considerable distortions and a questionable profile.
37General results show that she is experiencing specific fears and anxiety in some situations. However, the applicant did not know who had referred her for the assessment and the assessment results were inconclusive as the assessor could not formulate a diagnosis or opinion on whether she has a psychological impairment given the unreliable test results. Notably, Dr. Azizli could not attribute any impairment that may exist to the subject accident with any confidence.
38I give more weight to the respondent’s assessment because it was conducted in person and included a review of the applicant’s medical history and records. In contrast, the s. 25 report was conducted virtually, there was no review of her medical history or records, and the diagnoses included a reference to a “driver phobia” when the applicant had been a pedestrian in the subject accident. Moreover, the s. 25 recommendations included a driving assessment.
39The assessment results of Dr. Azizli and the associated conclusions in her report cast doubt on the diagnoses made by Dr. Lotfalizadeh. There was a degree of thoroughness in the s. 44 assessment that was not reflected in the s. 25 one. While the applicant may be experiencing some psychological symptoms, it is unclear to what degree they represent an impairment rather than mere sequalae of the soft tissue injuries from the accident, or even from her unrelated medical conditions.
40Consequently, the applicant has not met her burden to establish that she suffers from a psychological impairment as a direct result of the accident.
Conclusion
41Neither 18(1) nor 18(2) apply as a basis for relief from the treatment limits imposed by the MIG. Further, while the applicant has some sequelae in the form of lingering pain and psychological symptoms, she has not demonstrated that she suffers from chronic pain with a functional impairment or a psychological impairment.
42Accordingly, the applicant remains subject to the MIG.
Is the applicant entitled to the treatment plans?
43I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the applicant remains in the MIG.
44The respondent confirmed in submissions, supported by an Explanation of Benefits dated March 21, 2022, that it had already approved treatment up to the limit of the MIG.
45As a result, the applicant is not entitled to the disputed treatment plans.
Is the applicant entitled to the medication expense?
46I find that the applicant is not entitled to the medication expense submitted on an OCF-6 dated February 1, 2023.
47The applicant submits that the respondent failed to adhere to the s.38(8) requirements of the Schedule with regard to the denial. She argues that no medical reason was provided, and the correspondence was served 14 days following the date of submission.
48The respondent submits that the OCF-6 is not payable because the provisions of s. 38(8) apply only to treatment and assessment plans (OCF-18s), the expense was incurred before it was submitted, and none of the exceptions in the Schedule apply.
49I agree with the respondent. Section 38(8) of the Schedule applies to medical and rehabilitation benefits and assessments (OCF-18s), not expenses submitted on an OCF-6. Also, pursuant to s. 38(2), the respondent is not liable to pay any expense that is incurred before it is submitted, and none of the exceptions apply.
50As a result, the applicant is not entitled to the disputed expense.
Interest
51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
52There are no overdue payments and therefore no interest is owed.
ORDER
53I order as follows:
i. The applicant remains in the MIG and is subject to the $3,500.00 funding limit.
ii. The applicant is not entitled to the disputed treatment plans.
iii. The applicant is not entitled to the disputed expense.
iv. No interest is owed.
Released: November 13, 2024
Bonnie Oakes Charron
Adjudicator
