Licence Appeal Tribunal File Number: 21-015224/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:
Holly Harvey
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Veronica D'Angelo, Paralegal
For the Respondent:
Emily Wilson, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Holly Harvey, the applicant, was involved in an automobile accident on December 15, 2016, 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, Belair Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2Section 38(8) of the Schedule requires the insurer to notify the insured person within ten (10) days whether the insurer will pay for the goods and services claimed. Under section 38(11), if an insurer fails to comply with this requirement, it is prohibited from taking the position that the MIG applies and must pay for all goods, services, assessments and examinations of said treatment and assessment plan that related to the period, starting on the 11thbusiness day after the insurer receives the applicant’s treatment plan, and ending on the day that the insurer provides proper notice.
3The applicant submits that the respondent violated section 38(8) and section 38(11) of the Schedule with respect to the explanation of benefits (EOB) dated August 2, 2021, denying the treatment plan/ OCF-18 dated July 29, 2020. The applicant submits that the denial took place by correspondence dated August 2, 2021, well past the ten days required in section 38(8) of the Schedule without a valid medical explanation for the denial. However, I disagree and find that the EOB was compliant with section 38(8) and 38(11). The correspondence the applicant references, dated August 2, 2021, addresses the outcome of a section 44 insurance examination by Dr. Mohamed Khaled which offers a medical opinion that the treatment plan is not reasonable and necessary and explains the basis for the denial. The original EOB dated August 17, 2020, requested OHIP records and CNRs from the applicant’s family doctor pursuant to section 33(1). The letter dated August 17, 2020, references the treatment plan dated July 29, 2020, which was received by the respondent on July 30, 2020.
4I find that the respondent is in compliance with section 38(8) and section 38(11), and that the applicant erred in counting calendar days, instead of business days, in the calculation of the respondent’s response time to the claims from July 30, 2020, to August 17, 2020. As noted, section 38(8) specifies business days, which under section 3(1) are defined to exclude weekends and most statutory holidays. Having counted the business days from the date of submission of the claim to the notice of denial for the disputed claim, I find that the respondent provided timely notice under section 38(8) of the Schedule.
5I, therefore, find that the respondent is in compliance with section 38(8) and section 38(11) of the Schedule, with respect to the notice of denial dated August 17, 2020, and with resect to the correspondence dated July 8, 2021, notifying the applicant of the outcome of the section 44, Insurance Examination by Dr. Mohamed Khaled.
ISSUES
6The issue(s) in dispute is/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 limit? The applicant has exhausted $2700.00 of the funding limit for the MIG, with $800.00 remaining which is insufficient to fund either of the disputed treatment plans.
ii. Is the applicant entitled to $1,424.00 for Chiropractic Services, proposed by Randal Nicholas Koski, in a treatment plan/OCF-18 (“plan”) submitted on November 18, 2019?
iii. Is the applicant entitled to $2,486.00 for a Chronic Pain Assessment proposed by Headway Clinic Incorporated, in a treatment plan/OCF-18 (“plan”) submitted on July 29, 2020?
iv. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The applicant has exhausted $2700.00 of funding limit for the MIG, with $800.00 remaining which is insufficient to fund either of the disputed treatment plans, therefore I will not address either of the disputed treatment plans in the reasons for decision. The applicant is not entitled to the treatment plans in dispute.
8The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
9The applicant is not entitled to interest on any overdue payment of benefits since there are no benefits owing.
ANALYSIS
Pre-existing Physical Conditions & Accident-related Physical Injuries
10I find that there is insufficient evidence that the applicant has a pre-existing physical condition which prevents her from reaching maximal medical recovery if she is limited by the MIG. The applicant has provided limited medical records referencing accident-related symptoms, commencing on November 5, 2019, almost two and half years after the accident benefits file was closed. On June 19, 2017, the applicant and her Chiropractor Britanie Belanger, indicated the applicant’s whiplash caused by the accident, had resolved. OHIP records show that the applicant did not avail herself of medical treatment following the accident until March 7, 2018, and that that post-accident medical appointment had nothing to do with accident-related injuries. The applicant did not discuss the effects of the accident with her family physician, Dr. Erin Frood, until November 5, 2019, almost three years after the accident. The applicant states to Dr. Frood on November 5, 2019, which, as stated, is approximately three years after the accident, that she went to a lawyer recently and that the accident-related pain in her neck and right shoulder had returned and is worse than it was previously.
11The applicant resumed her normal activities and employment following the accident. In a letter dated June 19, 2017, the accident benefits claims representative acknowledges that the applicant has resumed her pre-accident activities and that she no longer requires any further treatment for her accident-related injuries. It is stated by the claims representative, that in conversation with Britanie Belanger, Chiropractor at CBI Health Centre, who completed the OCF-3, Disability Certificate, that it was agreed by the treatment provider and applicant, that no further treatment was necessary and that the accident benefits file should be closed.
12The applicant submits and describes that she injured her left clavicle and left foot in a 2014 figure skating accident. The applicant’s family physician, Dr. A. Abdul Hussein, in a CNR dated June 3, 2014, describes the applicant’s right knee improving as opposed to an injury to the left foot or clavicle. In addition, there are no CNRs before June 3, 2014, or afterwards, referencing a figure skating injury, nor providing prescriptions relative to injuries such as anti-inflammatories or pain medication; nor does the applicant request or receive referrals requiring the investigation or treatment for injuries caused by figure skating. Previous and subsequent CNRs in evidence, by the family doctor, Dr. A. Abdul Hussein do not relate to physical injuries. There is insufficient evidence in order for the applicant to meet her onus showing that she is prevented from maximal recovery of accident-related injuries if she is kept within the MIG
13There is no medical report nor CNRs from any physician that support that the applicant requires treatment outside the Minor Injury Guideline because of a pre-existing physical condition which prevents maximal recovery. There is insufficient medical evidence substantiating the applicant’s claims that she sustained physical injuries which require treatment outside the limits of the MIG.
14The test to determine causation is the “but for” test, that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident he would not have suffered an impairment. A decision-maker is to take a robust and pragmatic approach to determining causation. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.
15Section 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. In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae.
16Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if she is subject to the $3,500 limit.” The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that her injuries are not minor, or the applicant has a pre-existing condition that would prevent maximal recovery within the MIG.
17In the Superintendent’s Guideline No. 01/14, Minor Injury Guideline, dated February 2014, it is stated that the existence of any pre-existing injury will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing injuries will not do so. Only in extremely limited situations, where compelling evidence is provided by a health professional, satisfactorily demonstrating that a pre-existing condition that was documented before the accident by a health professional, prevents a person from achieving maximal medical recovery from the minor injury for the reasons described, is the person’s impairment to be determined not to come within the Guideline. Exclusion of a person from the Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.
18The applicant relies on the Disability Certificate/ OCF-3, dated December 21, 2016, prepared by Britanie Belanger, Physiotherapist, and the clinical notes and records (CNRs) by her family physicians Dr. A. Abdul Hussein and Dr. Erin Frood. The OCF-3 describes the applicant experiencing a whiplash associated disorder 2 and that she did not suffer an inability to carry on a normal life nor any substantial inability to perform housekeeping and home maintenance services work. The applicant described on December 16, 2020, to Dr. Erin Frood that she is functioning well without the need to miss time from work nor was her ability to exercise daily affected by the accident.
19The respondent relies on the IE Independent General Practitioner Assessment, by Dr. Mohamed Khaled, taking place on June 7, 2021, which found that the applicant did not present with any conditions that would be categorized as significant pre-existing conditions that would exclude the applicant’s treatment from being included in the Minor Injury Guideline.
20The IE Independent General Practitioner Assessment by Dr. Mohamed Khaled, taking place on June 7, 2021, diagnosed the applicant with grade 2 whiplash of the neck with associated right shoulder sprain/ strain following the accident. Dr. Khaled found uncomplicated soft tissue injuries with no evidence on physical examination of overt pathology or disability that could be attributed to the accident which occurred four years before the examination. Dr. Khaled’s physical examination did not identify any valid indicators to support residual or ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. Dr. Khaled found no sensory deficits, a normal motor examination and a full range of motion in the cervical spine, shoulders, and lumbar spine. There were no features of an active radiculopathy or myelopathy. Following an examination of the applicant, Dr. Khaled found no objective evidence of ongoing permanent accident-related impairment.
21Dr. Khaled found the treatment plan dated November 18, 2019, proposing chiropractic treatment was not reasonable and necessary because the applicant had already received appropriate and adequate facility-based soft tissue rehabilitation therapy. Dr. Khaled opines that further symptomatic relief would be obtained with independent, self-directed, home community-based active rehabilitation.
22I find that there is insufficient evidence that the accident caused physical injuries removing the applicant from the MIG. The applicant’s counsel describes in correspondence dated February 17, 2023, that no prescription summaries are available pre-accident; that the applicant has no pre-accident hospital records, nor diagnostic records. The applicant concedes that she has not been involved in any motor vehicle accidents before the accident on December 15, 2016. In addition, there is insufficient evidence showing any pre-existing physical condition which would prevent the applicant from reaching maximal medical recovery within the limits of the MIG. There is no medical report nor CNRs by Dr. Frood or Dr. Abdul Hussein, which support that the applicant requires treatment outside the Minor Injury Guideline. The Insurance Examination of Dr. M. Khaled finds that the applicant experienced uncomplicated soft tissue injuries as a result of the accident, with no evidence on physical examination of overt pathology or disability that could be attributed to the accident which occurred four years before the examination.
Pre-existing Psychological Conditions & Psychological Impairments
23I find that the applicant has not met her burden to show that she has any pre-existing psychological conditions which would prevent her from reaching maximal medical recovery if she is limited to the MIG. The applicant submits a pre-existing psychological condition consisting of generalized anxiety, described on November 2, 2016, in a CNR of Dr. Abdul Hussein. The CNR dated November 2, 2016, refers to the applicant experiencing stress as the basis for the diagnosis of generalized anxiety. No medication is prescribed by Dr. A. Abdul Hussein, nor is a referral requested by the applicant to a psychologist or psychiatrist. There are no references to psychological impairments before the accident beyond the described report by the applicant on November 2, 2016.
24The applicant submits that she experiences psychological impairments, which remove her from the Minor Injury Guideline (MIG), on the basis of the pre-accident diagnosis of generalized anxiety on November 2, 2016.
25The respondent submits that the applicant has not submitted compelling medical evidence that she will be prevented from achieving maximal medical recovery if she were confined to the MIG, based on the existence of a pre-existing psychological issue or based on the accident resulting in psychological impairments. In addition, the respondent submits that the applicant has not submitted any assessments nor reports opining on the MIG or psychological impairments. I agree with the respondent. In addition, I do not accept that in the absence of a diagnosis, that the applicant’s description to her family physician, of experiencing stress and anxiety, considered together with the applicant’s failure to seek a referral to a psychologist or psychiatrist, in addition to no medication being prescribed by the family physician Dr. Abdul Hussein, to be evidence supportive of the existence of a pre-existing psychological condition.
26I find the applicant has not met her burden showing that she has any pre-existing psychological condition which removes her from the MIG. There is insufficient medical evidence in the CNRs of family physician Dr. Abdul Hussein and family physician Dr. Frood describing any psychological impairment pre-existing or caused by the accident which might suggest the applicant experienced any diagnosable psychological impairment. There are some references in the CNRs of family physician Dr. Abdul Hussein to stress and anxiety reported by the applicant, but the applicant does not receive or request prescriptions for mood stabilizing medication, counselling services, nor, as stated, do any other referrals take place.
Chronic Pain Syndrome
27I find that the applicant has not satisfied me that she has developed chronic pain syndrome as a result of the accident. As stated, the applicant did not report accident-related pain to her family doctor Dr. Frood, until November 5, 2019, which is almost three years after the accident. The accident benefits file was closed on June 19, 2017, at the request of the applicant and Britanie Belanger, Chiropractor at CBI Health Centre, when the applicant’s accident-related injuries received adequate facility-based treatment. There are no CNRs nor prescription summaries describing the applicant experiencing accident-related pain nor seeking pain relief until November 5, 2019. On September 8, 2020, the applicant describes exercising six days a week with pain in her neck bothering her by reason of accident-related injuries. However, she states that she takes naproxen, not by reason of accident-related pain, but by reason of dysmenorrhea or pain during her menstruation.
28The Tribunal has determined that chronic pain with functional limitations may warrant removal from the MIG. In all cases, however, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that her injuries are not minor, or the applicant has a pre-existing condition that would prevent maximal recovery within the MIG.
29Despite the applicant’s submission of experiencing chronic pain syndrome, there is insufficient evidence of the applicant experiencing any loss of functionality by reason of pain caused by the accident. The applicant continues working for the Federal Government without any interruption following the accident, and she described herself doing well with no loss of function to Dr. Frood, on September 8, 2020, after mentioning accident-related pain on November 5, 2019. The applicant similarly reported to Dr. Frood, on February 3, 2022, functioning well and experiencing no loss of ability to work effectively as a result of accident-related pain.
30Despite the applicant’s functionality not being affected by the accident and there being no record of accident-related pain requiring pain medication, nevertheless, on June 26, 2023, the applicant requests a referral to a chronic pain specialist for right-sided neck pain. On June 26, 2023, Dr. Frood describes in the CNR that the applicant stated, that she did not require pain medication or any medication to be taken consistently to address accident-related pain.
31The respondent relies on the IE Independent General Practitioner Assessment by Dr. Mohamed Khaled, which took place on June 7, 2021, which is two years before the applicant asked Dr. Frood for a referral to a chronic pain specialist. Dr. Khaled diagnosed the applicant with grade 2 whiplash of the neck with associated right shoulder sprain/ strain following the accident. Dr. Khaled found uncomplicated soft tissue injuries with no evidence at the time of his physical examination of overt pathology or disability that could be attributed to the accident which occurred four years before the examination. Dr. Khaled’s physical examination did not identify any valid indicators to support residual or ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. Dr. Khaled found no sensory deficits, a normal motor examination and a full range of motion in the cervical spine, shoulders, and lumbar spine. There were no features of an active radiculopathy or myelopathy.
32Dr. Khaled found no evidence that the applicant developed a chronic pain disorder or somatic symptom disorder as a result of the accident. He found that there was no indication that the applicant developed chronic pain disorder or that she required an assessment by a physician. The applicant described to Dr. Khaled that she functions well in all aspects of her normal daily life and that she has no significant physical or psychological impairments as a result of the accident. Following an examination of the applicant, Dr. Khaled found no objective evidence of ongoing permanent accident-related impairment.
33The respondent referred in submissions to the American Medical Association Guides (AMA Guides). The Tribunal has adopted the American Medical Association Guides (AMA Guides) as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of 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.
34The respondent submits that the applicant does not satisfy any three of the six criteria in the American Medical Association Guides (AMA Guides) criteria for chronic pain, as there is no evidence that the applicant sought or filled prescriptions to address accident-related pain; there is no excessive dependence on healthcare providers given that the applicant does not discuss the accident with her family physician until nearly three years afterwards on November 5, 2019. In addition, there is no evidence presented of withdrawal from the applicant’s social milieu. As described, the applicant describes herself working out/ physically exercising six days a week, continuing her employment without interruption and there is no psychological sequelae which the applicant complains of.
35I agree with the respondent’s submissions that the evidence does not support the applicant’s contention of chronic pain syndrome caused by the accident. Chronic pain with functional limitations may warrant removal from the MIG, however, in this case there is insufficient evidence of functional limitations and of a nexus to the six criteria in the American Medical Association Guides (AMA Guides), for the applicant to meet her onus showing the existence of chronic pain. In addition, the IE Independent General Practitioner Assessment by Dr. Mohamed Khaled, found no evidence that the applicant developed chronic pain disorder or somatic symptom disorder as a result of the accident. Dr. Khaled found that there was no indication that the applicant developed chronic pain disorder or that she required an assessment by a physician.
36I find that the evidence does not support the applicant’s case that she experiences chronic pain removing her from the MIG. I find that the applicant has not satisfied me that she developed chronic pain as a result of the accident.
Order
37I find that the applicant sustained minor injuries and is subject to the MIG. The applicant has exhausted $2700.00 of funding limit for the MIG, with $800.00 remaining which is not sufficient to fund either of the disputed treatment plans, therefore I will not address either of the disputed treatment plans in the reasons for decision. The applicant is not entitled to the treatment plans in dispute.
38The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule, however as no benefits are owing or overdue, no interest is owing to the applicant.
Released: February 23, 2024
__________________________
Janet Rowsell
Adjudicator