Licence Appeal Tribunal File Number: 22-001061/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:
Oneil Grossett
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Kayla Benjamin, Counsel
For the Respondent: James Schmidt, Counsel
HEARD: In Writing
OVERVIEW
1Oneil Grossett, the applicant, was involved in an automobile accident on November 7, 2019 (“subject accident”) 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, Wawanesa Mutual 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:
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 $3,696.50 for physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated February 19, 2020?
iii. Is the applicant entitled to $2,569.40 for physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre in a plan dated June 4, 2020?
iv. Is the applicant entitled to $1,977.05 for physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre in a plan dated July 14, 2020?
v. Is the applicant entitled to $2,635.40 for physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre in a plan dated March 1, 2021?
vi. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Princeton Hills Medical Assessments in a plan dated July 3, 2020?
vii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Scarborough Physio and Rehab Clinic in a plan dated September 29, 2020?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
4The applicant remains within the MIG, however, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s.40(8) of the Schedule.
ANALYSIS
Applicability of the Minor Injury Guideline
5For the following reasons, I find the applicant’s injuries are predominantly minor as defined in the Schedule and are therefore subject to treatment within the MIG funding limit.
6Section 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 minor. 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.
7An 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 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.
8The applicant submits that his pre-existing back injury and heartburn preclude his recovery if he is kept within the MIG. Further, the applicant submits that he suffered psychological injuries as well as chronic pain as a result of the subject accident, which warrant removal from the MIG.
9The respondent submits that the applicant’s pre-existing injuries would not prevent maximal medical recovery under the MIG and further, that the applicant did not suffer psychological injuries or chronic pain as a result of the subject accident.
The applicant does not have a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG
10I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of any pre-existing conditions.
11The standard for removing an insured person from the MIG on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically remove an insured person from the MIG. There must be compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
12I find that the evidence supports the applicant’s submission that he suffered from back pain as a result of a previous accident that occurred on January 3, 2017. References to this injury are found in the clinical notes of his family physician, Dr. Mustafa Abdulhusein, on February 1, 2017, May 17, 2017 and September 27, 2018. I also find that as a result of the subject accident, the applicant’s back pain has worsened and is ongoing, as there are references to back strain in Dr. Abdulhusein’s records between December 2, 2019 and September 15, 2021.
13The evidence, however, does not persuade me that the applicant should be removed from the MIG as a result of any pre-existing conditions. The applicant submits that the following constitutes compelling evidence which demonstrates that his pre-existing injuries preclude treatment within the MIG: his previous injuries have worsened; he missed time from work after the accident; he has consistently reported pain to his family doctor since the subject accident; and he has consistently complained of difficulty completing chores and taking care of self care needs, poor sleep and issues with sexual activities. However, the applicant has not presented evidence that satisfies me that these facts demonstrate that his pre-existing injuries preclude treatment within the MIG.
14There is no notation in Dr. Abdulhusein’s records that any pre-existing condition will prevent maximal recovery from the minor injury if the applicant is subject to the $3,500 limit on treatment costs under the MIG, as required for removal from the MIG under s. 18(2).
15Based on the evidence presented by the applicant, I find that the applicant’s pre-existing conditions were exacerbated as a result of the accident, and that this affected his recovery. This, however, is not the test to meet for removal from the MIG based on a pre-existing condition. The applicant has failed to submit compelling medical evidence that his pre-existing conditions would prevent him from achieving maximal recovery within the MIG. Therefore, I find that the applicant is not removed from the MIG based on any pre-existing conditions.
The applicant does not suffer a psychological impairment as a result of the accident that would take him out of the MIG
16Psychological injuries, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” I find that the applicant has not demonstrated on a balance of probabilities that he suffered a psychological impairment as a result of the subject accident that would take him out of the MIG.
17The applicant submits that he sustained anxiety, depression, nervousness when driving, difficulty sleeping and poor concentration as a result of the subject accident. He relies on Dr. Abdulhusein’s records in support of this position.
18For the reasons that follow, I am not persuaded on a balance of probabilities that the applicant suffered a psychological impairment as a direct result of the subject accident.
19Although the applicant reported to Dr. Abdulhusein on December 2, 2019, that he felt very anxious at the time of the subject accident, Dr. Abdulhusein first diagnosed him with depression and anxiety during his visit on October 5, 2020, almost a year after the accident. The lack of any significant reports of psychological symptoms for about 11 months after the accident supports the respondent’s position that the accident did not cause psychological impairment.
20Dr. Abdulhusein’s record from December 22, 2020, indicates that the applicant suffers anxiety and depression as the result of a motor vehicle accident which occurred in January 2017. There is no mention of the subject accident in that record. I find this record is evidence that the applicant’s psychological injuries are the result of the January 2017 accident and not the subject accident.
21Further, in the medical records from May 27 and June 2, 2020, Dr. Abdulhusein notes the applicant has anxiety and ongoing nervousness with driving, some crying spells, poor concentration, and he feels sad some of the time. In these records, there is a notation that the applicant “reports anxiety from h/o MVA.” The respondent submits that “h/o MVA” refers to “head-on collision.” Dr. Abdulhusein’s records indicate that the January 2017 accident occurred when the applicant pressed the accelerator instead of the brake and drove forward into a store. The respondent submits this is a head on collision whereas the subject accident involved the applicant’s vehicle being struck from behind. Conversely, the applicant submits that a common sense interpretation of these records show that Dr. Abdulhusein was making a connection between the injuries from the January 2017 accident and an aggravation of these injuries in the subject accident. Further, the applicant submits that “h/o MVA” may also refer to the subject accident.
22I am not prepared to find that “h/o” is synonymous with “head-on,” or the subject accident, however, I do find that it is unclear from the medical records whether the anxiety and depression is caused by the first accident or the subject accident. The onus is on the applicant to demonstrate that the psychological injuries are a direct result of the subject accident, and these medical records are not persuasive in that regard.
23The applicant had a 35-minute telephone consultation with Dr. Veronica Kekosz, physiatrist, on March 8, 2022, as well as an in-person physical assessment on July 27, 2022. During the telephone consultation, the applicant reported anxiety, difficulty with sleep and worry about the future. On July 27, 2022, the applicant advised he was still having anxiety when commuting and he was having some relationship issues with family members that seemed to have been triggered and worsened by the accident. After the in-person assessment, Dr. Kekosz reported that she believes the applicant may be suffering with an adjustment disorder. Since this was based on the applicant’s self-reporting only and with no psychological testing or review of medical documents, I place very little weight on this diagnosis. The assessment was conducted more than two years after the subject accident and did not consider any records prior to the subject accident or contemporaneous with that accident, or in the intervening period between the accident and the assessment in order to determine whether the accident caused the applicant’s psychological impairment.
24A treatment plan for a psychological assessment was submitted on July 3, 2020. It was prepared by Anna Kiseleva, registered psychotherapist (qualifying) under the supervision of Dr. Ilya Gladshteyn, psychologist. A pre-screen was completed. During the interview, the applicant complained of the following psychological symptoms as a result of the subject accident: depressive mood, increased irritability, anxiety, driving anxiety, sleeping difficulties, nightmares, flashbacks of the accident, increased appetite, concentration and memory difficulties, mood swings, panic and anxiety attacks and flashbacks of the accident. “Provisional diagnoses” of the following were provided: Other Specified Trauma – and Stressor Related Disorder, Adjustment Like Disorder with Prolonged Duration of More than Six months, and Specific phobia, situational. I note that during this interview, almost eight months after the accident, is the only time the applicant mentioned that he suffered from nightmares, flashbacks, mood swings, panic and anxiety attacks. These symptoms were not reported in any other medical records submitted by the applicant, including any of the visits with the applicant’s family physician between December 2, 2019 and September 15, 2021. Since these symptoms were only reported by the applicant to the agency who prepared a treatment plan that is at issue in this proceeding, and there is no supporting objective evidence or testing, I place very little weight on the provisional diagnoses that were provided.
25Further, both OCF-3s that were completed in relation to the subject accident by Samuel Johnson, chiropractor, on February 10, 2020 and February 26, 2021 list the applicant’s injuries as sprain and strain injuries and “other sleep disorders,” however there are no clear references to any psychological injuries. The OCF-3s do not provide significant support for the applicant’s position.
26When I consider the evidence as a whole, I am not persuaded on a balance of probabilities that the applicant suffered a psychological impairment as a direct result of the subject accident.
The applicant has failed to demonstrate that he suffers from chronic pain
27Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions. The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain or chronic pain syndrome that causes functional impairment.
28The applicant submits that he suffers from chronic pain with functional impairment as a result of his injuries. The respondent submits that the applicant only suffered from soft tissue injuries due to the subject accident, which did not result in significant impairments to his life.
29The applicant submitted two OCF-3s prepared by Samuel Johnson, chiropractor, listing the applicant’s injuries as: sprain and strain of the cervical spine, lumbar spine, thoracic spine and shoulder joint, injury of muscle and tendon at shoulder and arm level, and other sleep disorders. The applicant submits that he has developed a chronic pain condition as a result of the accident, directing the Tribunal to the clinical notes of Dr. Abdulhusein in the years following the accident that reference worsening headaches, neck and back pain. There are notations in the records that the applicant has missed work, that he has had difficulty taking care of his chores, poor sleep, and issues with sex and marriage, which the applicant submits are evidence of a functional impairment.
30Dr. Veronica Kekosz indicated in a letter after a telephone discussion with the applicant on March 8, 2022, that he “has now developed chronic pain.” I find that Dr. Kekosz’ reference to “chronic pain” is based on the applicant’s subjective reporting. However, after Dr. Kekosz’ physical examination on July 27, 2022, she indicated that she believes he may have suffered a WAD II injury to the cervical spine as well as a sprain/strain to the thoracolumbar spine and that he was still having mechanical back pain, especially when at the work site. There was no diagnosis of chronic pain or chronic pain syndrome.
31The applicant relies on an assessment completed on November 26, 2021 by Dr. Nayyar Razvi, a physician with a focused practice designation in chronic pain assessment and management, in support of his position that he suffers from chronic pain. Dr. Razvi diagnosed the applicant with chronic pain syndrome secondary to the subject motor vehicle accident, among other things. The report was prepared based on Dr. Razvi’s review of clinical notes of records of Dr. Abdulhusein, one (undated) OCF-18, as well as an interview and medical examination of the applicant. There is an indication in the report that the applicant has “an unremarkable past medical history” and that there were “no pre-existing pain conditions.” For this reason, I place very little weight on this report. As a result of the misinformation given to Dr. Razvi that there were no pre-existing pain conditions, namely from the January 2017 accident, there is an assumption that the chronic pain syndrome is a direct result of the subject accident, which may not be the case.
32Further, the applicant submits that he meets three of the six criteria for chronic pain as set out in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24 (“Guides”):
i. he has excessive dependence on his family doctor;
ii. he has withdrawn from his social milieu as his recreational hobbies have significantly decreased and he is estranged from family members due to anxiety; and
iii. he has developed psychological sequela after the accident, including depression and anxiety.
33I find that the Guides are helpful in assessing whether a person has chronic pain. However, I find that the applicant has not demonstrated that he meets three of the six criteria for chronic pain as set out in the Guides. The applicant has not demonstrated that he has excessive dependence on his family doctor. I have not been directed to any evidence in support of this assertion. I note that there were visits with Dr. Abdulhusein on December 2, 2019, six visits in 2020 and another visit on September 15, 2021. I do not find this to be indicative of excessive dependence. Further, on consideration of the evidence as a whole, I find that the applicant has not proven on a balance of probabilities that he has suffered psychological symptoms as a direct result of the subject accident. As such, I find that the applicant does not meet three of the six criteria for chronic pain as set out in the Guides.
34I find that the applicant has not proven that he has chronic pain with functional impairment as a result of his injuries. Although the applicant has reported that he has missed work, that he has had difficulty taking care of his chores, poor sleep, and issues with sex and marriage, he has also been able to work full time since the subject accident. As pointed out by the respondent in its submissions, the applicant’s employment file confirms that between November 2019 and March 2023, the applicant worked approximately 4,915.25 hours, including some overtime hours. This does not support the applicant’s submission that he has chronic pain causing functional impairment.
35On consideration of the evidence as a whole, I do not find that the applicant has demonstrated on a balance of probabilities that he suffers from chronic pain causing a functional impairment as a result of the subject accident.
36For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
37Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.
38Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and the benefits in dispute are deemed reasonable and necessary. Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans up to the remaining amount of the $3,500.00 MIG limit as of the date of this decision.
ORDER
39The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG limit.
40The applicant is entitled to the benefits set out in the disputed treatment plans up to the remaining amount of the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
41The application is dismissed.
Released: January 3, 2024
Laura Goulet Adjudicator