Licence Appeal Tribunal File Number: 22-001264/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:
Kiefer Harvey
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Jessica Meyerovich, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Kiefer Harvey, the applicant, was involved in an automobile accident on January 20, 2020, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute 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 limit and in the Minor Injury Guideline ("MIG")? Note: In their written hearing submissions, the respondent indicates that $200.55 remain under the MIG.
Is the applicant entitled to the following treatment plans proposed by Downsview Health Care Rehabilitation in the amount of:
(a) $2,575.12 dated February 26, 2020, for physiotherapy
(b) $295.53 ($1,367.53 less $1,072.00 approved) dated September 7, 2020, for physiotherapy
(c) $2,000.00 dated September 9, 2020, for a psychological assessment
(d) $1,800.00 dated September 15, 2020, for shockwave therapy
(e) $2,077.86 dated March 25, 2021, for physiotherapy
(f) $627.92 dated March 31, 2021, for a psychological CD
(g) $3,335.98 dated April 1, 2021, for psychological services, and.
(h) $3,697.14 dated April 25, 2022, for psychological services.
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3The parties agreed that the NEB at $185.00 per week from February 17, 2020, to January 20, 2022, listed as issue (ii) in the Case Conference Report and Order dated January 27, 2023. is no longer in dispute, pursuant to Motion Order dated June 9, 2023.
RESULT
4The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. It is not necessary to consider whether the disputed treatment plans are reasonable and necessary. As a result, there is no entitlement to interest or an award.
ANALYSIS
The applicant has not demonstrated on a balance of probabilities that he suffers from accident-related injuries that warrant removal from 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 or, under s.18(2), that they have a documented pre-existing 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.
7The applicant submits that he should be removed from the MIG based on the following accident-related physical and psychological injuries:
a. his diagnosis of chronic pain, and/or;
b. his psychological injuries.
(a) Chronic Pain
8I find that the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.
9In support of his position that he has chronic pain such that his injuries fall outside the MIG, the applicant relies on the Disability Certificate ("OCF-3") dated February 1, 2020, completed by Dr. Oleksandr Pivtoran, chiropractor, listing the applicant's injuries as sprain/strain of the neck, shoulders and back, headache and emotional stress. The applicant also relies on an OCF-3 dated March 4, 2021, and completed by Dr. Pivtoran which adds chronic pain symptoms to the list of injuries, a report dated January 18, 2023, by Dr. Pivtoran, and the clinical notes and records ("CNRs") of Jane Finch Family Health Team. The CNRs of Jane Finch Family Health Team, however, do not mention any accident-related injuries. The applicant reported work-related problems with low back pain to his doctors at Jane Finch Family Health Team both before the accident and two years after the accident. The applicant did not attend his doctor until nine months after the accident and he has not mentioned the accident, or accident-related complaints to his doctors.
10In his report dated January 18, 2023, Dr. Pivtoran opined that since the applicant's strain type injuries have not resolved, the applicant has entered a chronic phase. I place little weight on Dr. Pivtoran's opinion because it contradicts other medical evidence before me aside from his own clinic's CNRs and Dr. Pivtoran does not provide any information on the applicant's function. In addition, Dr. Pivtoran did not review the CNR's of Jane Family Health Team, in which Dr. Abirami Balasingam, family physician notes on November 22, 2022, that the applicant's low back pain is work-related and did not result from an injury.
11While it is not binding on the Tribunal to follow the American Medical Association's Guides (the "Guides"), the criteria set out in the Guides can be a useful tool in assessing an applicant's claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:
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 physician 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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.
12The evidence suggests that the applicant's functional abilities are inconsistent with chronic pain with functional impairment. For example, there is evidence that the applicant returned to work as a car detailer immediately after the accident, and from March 2020, he has been working in a job which requires heavy lifting. In addition, there are no records from the applicant's family physician in support of an accident-related injury or functional impairment.
13The respondent submits that the applicant's injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent further submits that the applicant has not demonstrated that he has functional impairments pursuant to Guides to warrant removal from the MIG on the basis of chronic pain.
14In his reply, the applicant submits that he meets 3 of the 6 criteria under the Guides since he reported physical deconditioning, fear avoidance, social withdrawal and psychosocial sequelae to assessor Helen Ilios, psychotherapist, which are referred to in a psychological report dated March 5, 2021, by Dr. Jacqueline Brunshaw. Although, Dr. Brunshaw indicates the applicant has fatigue and difficulty with his activities of daily living and recreational activities, Dr. Brunshaw notes that the applicant is not precluded from engaging in these activities and he continues to work in a physically demanding job. Dr. Brunshaw also mentions the applicant's mood is adversely affected by the COVID-related deaths of his grandparents and he prefers not to travel to avoid the virus. The applicant has returned to driving. In progress report dated January 3, 2022, Corrado Recchiuti, treating psychotherapist indicates that the applicant no longer experiences any fear or anxiety as a driver or pedestrian. Mr. Recchiuti further indicates the applicant has returned to the gym.
15I find that since the applicant has returned to his pre-accident work, driving and recreational activities and his mood has been affected by unrelated factors, he does not meet the criteria under the Guides to warrant removal from the MIG on the basis of chronic pain.
(b) Psychological impairment
16I find that the applicant has not demonstrated on a balance of probabilities that he has an accident-related psychological impairment to warrant removal from the MIG.
17The applicant submits that he should be removed from the MIG on account of his accident-related psychological injuries. The applicant points to a psychological assessment dated October 21, 2020, conducted by Helen Ilios, psychotherapist. In the March 5, 2021, report, Dr. Brunshaw bases her diagnoses of adjustment disorder and specific phobia on the applicant's own self reporting and recommends psychological services. The applicant does not refer to any notes from his treating physician regarding a psychological impairment as a result of the accident.
18The respondent submits that the applicant has not provided medical documentation in support of a claim for a psychological impairment to warrant removal from the MIG, and I agree. The respondent relies on the CNRs of the applicant's family physician and the March 5, 2021, report of Dr. Brunshaw. The respondent submits that the applicant has not reported any psychological issues to his doctor other than low energy and Dr. Brunshaw did not review the CNRs of the applicant's doctors and relies solely on the applicant's self reports in completing her report. I agree with the respondent, and I place little weight on the diagnosis of an adjustment disorder by Dr. Brunshaw in the absence of supporting documentation of an accident-related psychological impairment by the applicant's treating physicians.
19Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from the applicant's treating physicians with consistent findings in support of an accident-related psychological impairment.
20Therefore, I find the applicant has not met his onus with respect to being removed from the MIG. I find the applicant is subject to the MIG.
The disputed treatment plans
21Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, and $200.55 remain under the MIG limit, the applicant is entitled to treatment up to the MIG limit and it is not necessary to consider whether the plans are reasonable and necessary.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.
Award
23The 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. As there are no benefits payable, the applicant is not entitled to an award.
ORDER
24For the reasons outlined above, I find that:
i. The applicant's injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest or an award, and.
iv. The application is dismissed.
Released: November 25, 2024
__________________________
Lisa Holland
Adjudicator