Licence Appeal Tribunal File Number: 23-000506/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:
Maria Valente
Applicant
and
RSA Insurance
Respondent
DECISION
VICE-CHAIR:
Tyler Moore
APPEARANCES:
For the Applicant:
Neha Kohli, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
In Writing
OVERVIEW
1Maria Valente, the applicant, was involved in an automobile accident on September 23, 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, RSA 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 a non-earner benefit (“NEB”) of $185.00 per week from October 23, 2020, to September 23, 2023?
iii. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by Q Medical in a treatment plan/OCF-18 (“plan”) dated January 19, 2021?
iv. Is the applicant entitled to $2,486.00 for a chronic pain assessment proposed by Q Medical in a plan dated January 20, 2021?
v. Is the respondent liable to pay an award under s. 10 of 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?
RESULT
3The applicant is removed from the MIG as she met her burden and demonstrated, on a balance of probabilities, that her injuries fall outside of the definition of a minor injury in the Schedule.
4The applicant is not entitled to a NEB.
5The applicant is not entitled to the treatment plans in dispute for a psychological assessment and chronic pain assessment.
6The applicant is not entitled to interest or an award.
ANALYSIS
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.
9The applicant submits that as a result of the accident she suffers from chronic pain and a psychological injury, and that she had pre-existing Type II diabetes, all of which warrant her removal from the MIG.
10For the following reasons, I find that the applicant has met her onus and demonstrated that her accident-related impairments warrant removal from the MIG.
Removal from the MIG based on chronic pain
11I find that the applicant has demonstrated that she suffers from a chronic pain condition that warrants her removal from the MIG.
12An insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to simply have chronic pain – it must be accompanied by functional impairment.
13The applicant relies on the clinical notes from pain specialist, Dr. David D’Souza, of the Vaughan Pain Clinic dated October 2022 to July 2023. The applicant argues that Dr. D’Souza diagnosed her with chronic pain syndrome and noted objective findings of functional limitations.
14The respondent submits that the report of general practitioner, Dr. Babak Sharifian, dated November 14, 2023, indicates that the applicant’s pre-and post-accident medications at the time of the report remained unchanged. The report also relies on the psychological assessment report of Dr. Marc Mandel dated November 14, 2023, which notes that the applicant remained independent with her personal care tasks, including cooking. According to the respondent, the applicant reported to Dr. Mandel that she could walk her dog, clean, travel to St. Maarten in January 2023 for a vacation, and continue with social and recreational activities with her friends. As such, the respondent submits that the applicant is not functionally impaired. The respondent also argues that no treating practitioner has diagnosed the applicant with chronic pain.
15I disagree with the respondent and am persuaded by the applicant’s submissions. I find that simply because an individual is independent with the majority of daily tasks does not mean that they do not suffer from a chronic pain condition with functional limitations, but rather that they have adjusted to those limitations.
16In reaching my conclusion, I have placed significant weight on the clinical notes and records of Dr. D’Souza. After being referred to the OHIP funded pain clinic by her family doctor, Dr. Saima Haleem. Dr. D’Souza diagnosed the applicant with chronic pain syndrome on October 15, 2022. Dr. D’Souza also noted that the applicant’s right shoulder range of motion was limited in abduction and that she had a positive right shoulder Empty Can Test suggestive of impingement. Most importantly, Dr. D’Souza noted that the applicant’s shoulder pain was worsened by lifting and reaching above the head, and he performed multiple pain injections documented between October 2022 and July 2023. I find that this evidence confirms that the as a result of the accident, the applicant suffers from a chronic pain condition with functional impairment.
17Accordingly, I am satisfied that on a balance of probabilities the applicant has satisfied the criteria for removal from the MIG. As I have found that the applicant’s chronic pain condition warrants removal from the MIG, I have not addressed the applicant’s claims that her psychological injuries and pre-existing conditions also justify her removal from the MIG.
NEB
18I find that the applicant is not entitled to NEBs. She has not established, on a balance of probabilities, that he suffers a complete inability to carry on a normal life as a result of the accident.
19Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
20It is well established that the test for NEBs is set out in the decision of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), wherein the Court of Appeal held that the analysis focuses on a comparison of the applicant’s pre- and post-accident activities over a reasonable period.
21The applicant provided few submissions with respect to her entitlement to NEBs and the accident-related impact on her pre- compared to post-accident activities. The applicant relies on the treatment plan of Dr. Rick Lindal, psychologist, to demonstrate that her ongoing anxiety and depressive symptoms, sleep disturbances, and mood fluctuations drastically interfere with her personal and social life. She also relies on the reports from her physiotherapist, Nadine Ghawi, from December 22, 2020, and January 21, 2022, which indicate that the applicant’s severe shoulder pain and limited range of motion significantly hamper her ability to perform activities of daily living such as reaching and lifting. The applicant submits that these impairments are echoed in the assessment report of the Vaughan Pain Clinic dated October 15, 2022, which notes that her right shoulder pain impairs her ability to perform lifting and reaching overhead with that arm.
22The respondent submits that the disability certificate/OCF-3 dated December 11, 2020, from physiotherapist, Nadine Ghawi, actually indicates that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident. The respondent also argues that the applicant has admitted that she has returned to all of her pre-accident activities of daily living.
23I am persuaded by Dr. Sharifian’s pre- compared to post-accident daily activities comparison. According to Dr. Sharifian, before the accident the applicant was independent with all self-care, cooking, cleaning, laundry, and grocery tasks. She also had a small dog that she was able to care for. After the accident, the applicant reported that she was still independent with all self-care, cooking, cleaning, laundry, and grocery tasks, as well as caring for her small dog, but she completed tasks with discomfort and paced herself accordingly. The applicant has not been able to return to gardening, and she continues to remain nervous while driving, but she does drive. I have also given weight to the applicant’s admission that she has resumed most of her daily activities, the only caveat being that she adjusted how she performs those activities, such as preparing for social events days in advance. I have also given weight to the OCF-3 completed by the applicant’s own treating physiotherapist which indicates that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident.
24While I accept that the applicant sustained injuries and impairments as a result of the accident, I find, on a balance of probabilities, that she has not demonstrated that those injuries and impairments resulted in a complete inability to carry on a normal life. For these reasons, I find that the applicant is not entitled to NEBs.
25I find, on a balance of probabilities, that the applicant has not established that she is entitled to $2,486.00 for a psychological assessment.
26To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
27The purpose of an assessment is to determine whether a condition exists. For an insured, that means that they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
28The applicant relies on the psychological assessment report of Dr. Mandel which reflects that she was only getting 4-5 hours of broken sleep per night, she remained cautious while driving, and she “felt down at times”. According to the applicant, the presence of even mild psychological symptoms three years after the accident confirms that her psychological issues have persisted. The applicant also relies on the disputed treatment plan itself, completed by Dr. Rick Lindal, which corroborates her ongoing anxiety and depressive symptoms, sleep disturbances, and mood fluctuations that interfere with her personal and social life.
29The respondent also relies on the s. 44 assessment of Dr. Mandel, which found that the applicant did not suffer from any psychological impairment or diagnosis as a result of the accident. The respondent submits that Dr. Mandel concluded that a psychological assessment was not reasonable and necessary, and that the applicant reported to Dr. Mandel that “there was no need for psychological intervention”. In addition, the respondent submits that no treating practitioner has diagnosed the applicant with a depressive disorder, and the applicant’s subjective self-reported anxiety symptoms do not meet the criteria for a psychological diagnosis.
30I have given significant weight to Dr. Mandel’s assessment report because both parties have relied on it and Dr. Mandel is the only psychologist who has assessed the applicant. I have considered the applicant’s submissions acknowledging that Dr. Mandel’s findings were mild, and am persuaded the applicant’s self-report that she only feels “down at times”, that her historical fear of driving following the accident has improved, and that when she is feeling down, she changes her mood by taking her dog out for a walk or makes plans with friends because “we laugh a lot”.
31Dr. Mandel reported that the applicant denied any significant diminished interest and/or lack of pleasure in the majority of activities, and she denied any increased feelings of agitation or irritability. With respect to the applicant’s suggestion that she has anxiety driving, she reported to Dr. Mandel that she is a better and more careful driver, and she reported no nightmares or flashbacks related to the accident. I find that this does not support the need for a psychological assessment.
32I accept that the applicant likely has some accident-related psychological symptoms, but I am not satisfied, on a balance of probabilities, that she sustained a psychological injury as a result of the accident that would render a psychological assessment reasonable and necessary.
33I find on a balance of probabilities that the applicant is not entitled to a chronic pain assessment.
34The goals of the proposed chronic pain assessment include determining the mechanism of pain through documentation of pain onset, location, quality, progression, frequency, and precipitating and aggravating factors.
35The applicant submits that Dr. Sharifian’s assessment report noted that a chronic pain assessment would not provide new clinical data and is without evidence, as well as acknowledging a guarded prognosis due to the applicant’s persistent pain for over 2.5 years after the accident. The applicant also submits that she has consistently reported pain with minimal treatment improvement to Dr. Haleem, and she has been diagnosed with chronic pain syndrome by pain specialist, Dr. D’Sousa.
36The respondent submits that self-reported complaints of chronic pain do not deduce a diagnosis of chronic pain. The respondent also submits that no treating practitioner has objected to Dr. Sharifian’s conclusion that a chronic pain assessment would not provide new clinical data. The respondent argues further that the applicant is fully functional, she has returned to her activities of daily living, and there is no evidence that chronic pain was referred to over time.
37I find that the OHIP funded chronic pain assessment of Dr. D’Souza based on a referral from Dr. Haleem is duplicative of the chronic pain assessment Q Medical proposed. Keeping in mind the goals of the proposed treatment plan and assessment, I find that Dr. D’Souza provided a diagnosis of chronic pain syndrome, myofascial pain, and mechanical neck and right shoulder pain. He also made pharmacological, injection, exercise, lifestyle modification, and potential outside referral recommendations to best manage the applicant’s chronic pain. As such, I find that the OHIP funded assessment and resulting recommendations have already met the goals of the proposed plan, rendering it unnecessary.
38Again, the purpose of an assessment is to determine whether a condition exists. I find that this purpose has been met through Dr. D’Souza’s assessment. Accordingly, I find on a balance of probabilities that the chronic pain assessment is not reasonable and necessary.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable to the applicant, it follows that no payments are overdue, and no interest is payable.
Award
40The 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. I find that the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed payment.
ORDER
41The applicant is removed from the MIG as she met her burden and demonstrated, on a balance of probabilities, that her injuries fall outside of the definition of a minor injury in the Schedule.
42The applicant is not entitled to a NEB.
43The applicant is not entitled to the treatment plans in dispute for a psychological assessment and chronic pain assessment.
44The applicant is not entitled to interest or an award.
Released: December 18, 2024
Tyler Moore
Vice-Chair