Citation: Witteveen v. Economical Insurance, 2024 ONLAT 22-002482/AABS

Licence Appeal Tribunal File Number: 22-002482/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:

Jennifer Witteveen

Applicant

And

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Naman Nanda, Counsel

For the Respondent:

Stephen Whibbs, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jennifer Witteveen, the applicant, was involved in an automobile accident on December 11, 2019, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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? Note: The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to an income replacement benefit in the amount of $252.87 per week from October 18, 2020 to April 4, 2021?

3. Is the applicant entitled to physiotherapy services proposed by Accelerated Health and Wellness Centre in the following treatment plans/OCF-18s (“plans”):

a) $107.25 ($1,297.25 less $1,190.00) submitted July 22, 2020?

b) $1,077.50 submitted May 19, 2021?

4. Is the applicant entitled to cost of examination expenses and medical benefits proposed by Prime Health Inc. in the following plans:

a) $2,200.00 for a psychological assessment dated October 18, 2021?

b) $2,200.00 for a chronic pain assessment dated September 30, 2021?

c) $3,491.49 for psychological services submitted January 13, 2022?

d) $9,024.34 for other goods and services submitted December 27, 2021?

5. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not established that her impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the OCF-18s in dispute. Further, she has not proven entitlement to an IRB for the time period claimed and is not entitled to interest or an award.

ANALYSIS

The applicant’s impairments fit within the MIG

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.

6The applicant submits that she should be removed from the MIG because she suffers from chronic pain in her neck and back as a result of the accident which has resulted in functional limitations. In particular, she has struggled with carrying out her self-care and housekeeping and home maintenance tasks and her impairments prevented her from returning to her pre-accident occupation as a personal support worker (“PSW”). She also maintains that she has sustained a psychological impairment as a result of the accident that warrants removal from the MIG. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Kolenchenko, her family doctor, and treating clinics, her decoded OHIP summary and the section 25 reports of Sandra Ramnaraine, registered psychotherapist, and Dr. Brunshaw, psychologist (“Dr. Brunshaw report”) dated October 29, 2021, and Dr. Karmy, chronic pain specialist, dated November 3, 2021.

7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on the insurer examination (“IE”) reports of Dr. Zabieliauskas, physiatrist, and Danny Monck, kinesiologist, both dated September 25, 2020, and Dr. Syed, psychologist, dated June 27, 2022. Dr. Zabieliauskas diagnosed the applicant with soft tissue injuries as a result of the accident which fall within the MIG. Dr. Syed also determined that the applicant did not have a diagnosable psychological impairment. The respondent also maintains that the diagnostic imaging of the applicant’s lumbar spine confirms that she suffers from mild degenerative changes which it submits is not related to the accident.

Chronic Pain

8I find that the applicant is not removed from the MIG as a result of chronic pain or chronic pain syndrome for the following reasons.

9First, the applicant submitted over a thousand pages of medical records including a decoded OHIP summary and CNRs of her family doctor and treating clinics without specifically identifying the relevant page numbers in her submissions that support her position. It is not the role of the trier of fact to weed through hundreds of pages of medical records to make the applicant’s case for her. Where the applicant has not referred to a specific document or page number in her submissions, I have not given it significant weight.

10Second, I find Dr. Kolenchenko’s CNRs support that the applicant’s accident-related impairments fit within the MIG. The CNRs support that she visited her family doctor four times in 2020 where she complained of accident-related neck and back pain. A CNR dated February 7, 2020, notes neck pain, normal range of motion, gait normal and brisk. The doctor diagnosed strain injuries which I find are impairments that fit within the MIG.

11The applicant was referred by her family doctor to Dr. Klimik, neurologist, because she was complaining of numbness and jolts in her lumbar spine. I find Dr. Klimik’s consultation note dated March 2, 2020, does not support that she had any accident-related impairment that would remove her from the MIG. Dr. Klimik’s note indicates a normal physical and neurological examination and that the applicant was on the mend and improving. The applicant did not make any complaints about any accident-related impairment to her family doctor next until December 20, 2021, (over a year and a half later) where she complained of back pain. The CNR also notes that this visit was recommended by her lawyer. However, I find the CNRs support that she visited her family doctor on several occasions prior to this date where she reported no neck pain, and that she was doing well, exercising, walking, and eating healthy. Her next visit was not until September 2022, where she reported chronic back pain and there is one entry from 2023 which notes ongoing back pain.

11I place little weight on the family doctor’s CNRs because of the large gaps in time in the applicant’s visits where she does not report any accident-related complaints. Further, I find that she was inconsistent in her reports to her family doctor because most of the CNRs note ongoing improvement and reference her eating healthy, walking, and exercising. I agree with the respondent that her visit to her family doctor in December 2021 was likely prompted by litigation (as opposed to any ongoing impairment) because of the above-noted inconsistencies. Further, diagnostic imaging of the applicant’s lumbar spine support that she had degenerative changes which I find the applicant has not linked to the accident.

12Third, I place little weight on the chronic pain report of Dr. Karmy. Of significance, the assessment took place by videoconference, so it is unclear how the doctor conducted a physical examination. Further, Dr. Karmy’s various diagnoses were not supported by the post-accident medical records. The doctor diagnosed the applicant with chronic pain syndrome, chronic post-traumatic headache, chronic mechanical neck pain, chronic mechanical bilateral shoulder girdle pain and chronic mechanical left hip pain. There is no reference to any accident-related impairments to the applicant’s shoulders or hips in the medical record. Dr. Karmy also identifies numerous functional impairments which interfered with her ability to carry out her self-care, housekeeping and home maintenance tasks and leisure activities such as walking and exercise. I find this inconsistent with the family doctor’s CNRs prior to the date of the report which support that she was doing well and was walking and exercising. Moreover, I find Dr. Karmy’s report is inconsistent with the applicant’s submissions as the doctor notes that she had not returned to work since the accident and had a substantial inability to carry out the essential tasks of her employment. However, her submissions indicate that she returned to her pre-accident employment in April 2021, which predates Dr. Karmy’s report by six months. For these reasons, I do not find Dr. Karmy’s report persuasive.

13In contrast, I prefer the opinion of Dr. Zabieliauskas, because the doctor conducted a more thorough assessment which included a document review and physical examination. The applicant reported to Dr. Zabieliauskas that she was independent with self-care and housekeeping and home maintenance tasks and that she goes for short walks. Dr. Zabieliauskas’s physical examination revealed full range of motion with some end range pain in the lumbosacral spine and the doctor diagnosed her with cervical strain, WAD I to II, and mild lumbosacral strain. I find this diagnosis more consistent with the family doctor’s CNRs in the first two years post-accident and that this diagnosis fits within the MIG.

14For the above reasons, the applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain syndrome or a chronic pain condition that warrants removal from the MIG. I find there are too many inconsistencies in the medical record about any accident-related impairments as well as the applicant’s self-reports about any resulting functional limitations. I will now address my findings regarding whether she sustained any accident-related psychological impairment.

Psychological Impairment

16I find that the applicant has not sustained a psychological impairment as a result of the accident that warrants removal from the MIG for the following reasons.

17First, I find the CNRs of her family doctor do not support that she has an ongoing psychological impairment that warrants removal from the MIG. The only CNR which references psychological symptoms was her first visit to her family doctor on January 2, 2020 (less than one-month post-accident) which notes that she was feeling depressed because she could not work. She was prescribed escitalopram, an antidepressant. There are no other references in the family doctor’s CNRs which note ongoing psychological symptoms. Further, despite the fact that she had been prescribed antidepressants, the post-accident CNRs of the family doctor note that she stopped taking this medication in 2020 and she was inconsistent in reporting to the medical assessors throughout this claim that she continued to take this medication.

18Second, I place little weight on Dr. Brunshaw’s psychological report because the results of the psychometric testing were inconsistent. For example, on the Beck Depression Inventory (“BDI”), the applicant scored moderate for depression and mild for anxiety on the Beck Anxiety Inventory Scale (“BAI”). These were contradicted by her score of mild depression and normal anxiety on the Depression Anxiety Stress Scale. I find these psychometric results did not align with Dr. Brunshaw’s diagnosis of Adjustment Disorder with depressed mood. I also find the applicant’s self-reports to Dr. Brunshaw about her impairments and functional limitations were inconsistent with her reports to her family doctor. For example, Dr. Brunshaw’s report states that she was limited in her ability to perform functional tasks including lifting, bending, carrying, standing, and reaching. Further, her pain interfered with her ability to carry out housekeeping tasks and self-care tasks such as putting on her shoes. Further, she reported not being able to go for short walks. Moreover, similar to Dr. Karmy, Dr. Brunshaw states that the applicant had not returned to work since the accident which conflicts with her submissions which confirm that she returned to work in April 2021 (four months prior to the completion of this report). Because of the number of inconsistencies and lack of explanation for them I give Dr. Brunshaw’s report limited weight.

19Third, I find the applicant was inconsistent in her self-reports to Dr. Syed, IE psychological assessor, about her psychological symptoms and post-accident function. According to Dr. Syed, the applicant denied feeling sad, depressed, or anxious. She did express feeling angry and irritable about not being to work. However, this conflicts with the fact that she had already returned to work prior to the date of this assessment. Dr. Syed conducted psychometric testing which determined that there were no significant elevations on scales of psychopathology related to anxiety and depression. Dr. Syed concluded that there was no diagnosable psychological impairment as a result of the accident. I prefer Dr. Syed’s opinion because it was more consistent with the doctor’s psychometric testing and the CNRs of the family doctor.

20For the above noted reasons, the applicant has not proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

21Since I have determined that the applicant sustained a minor injury, she is not entitled to any of the disputed OCF-18s because the MIG limit has been exhausted.

The applicant is not entitled to an IRB in the amount of $252.87 per week from October 18, 2020 to April 4, 2021.

22Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they

were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential

tasks of that employment.

23Prior to the accident the applicant was employed as a PSW. The applicant’s submissions fail to outline in great detail her employment history or the essential tasks of her employment. Nor did her submissions address what impairments resulted in a substantial inability to carry out the essential tasks of that employment. The applicant’s submissions referred to an OCF-2 which notes that her job duties included “housekeeping tasks, meds and food trays.” Following the accident, the applicant did not return to work and remained off work until April 4, 2021. Limited information was provided by the applicant about her return to work.

24The applicant argues that she was unable to return to work between October 18, 2020 and April 4, 2021 because of chronic neck and back pain. She relies on the CNRs and initial OCF-3 completed by Dr. Kochenko which support that she had a substantial inability to carry out the essential tasks of her employment as a result of her accident-related impairments. She also relies on the above-noted reports of Dr. Brunshaw and Dr. Karmy.

25The respondent paid the applicant an IRB in the amount of $252.87 per week until October 18, 2020, at which point it terminated the benefit relying on the multi-disciplinary IE reports of Danny Monck, kinesiologist, and Dr. Zabieliauskas. These assessors concluded that the applicant did not have a substantial inability to perform the essential tasks of her employment as a result of any accident-related impairment. The respondent submits that the applicant has not met her onus in proving her entitlement to an IRB for the time period claimed as a result of any accident-related impairment. I agree for the following reasons.

20First, the applicant relies on the aforementioned OCF-3 which was completed two weeks post-accident, which noted that the duration of disability was 9 to 12 weeks. I find the OCF-3 outdated and it does not speak to the applicant’s health status between October 18, 2020 and April 4, 2021, which is the time period the applicant is claiming an IRB.

21Second, I find Dr. Kolenchenko’s CNRs unhelpful in establishing that she has any ongoing impairment that prevented her from working for the time period claimed because they are sporadic, and there are large gaps in time which do not speak to any accident-related impairment or functional limitations. In addition, Dr. Kochenko’s last CNR which supported her entitlement to an IRB is dated June 8, 2020 which states that she was unable to work for a period of three months. There is nothing in Dr. Kolenchenko’s CNRs for the time period IRBs are being claimed to support that she has any accident-related impairment which would interfere with her ability to work.

22Third, as highlighted above, the reports of Dr. Brunshaw and Dr. Karmy are unhelpful because the assessors had an incomplete picture of the applicant’s employment status as they were not aware that she had returned to work prior to their assessments. Despite this fact, both doctors indicate that the applicant had not returned to work since the accident and that she had a substantial inability to carry out the essential tasks of her pre-accident employment as a result of her accident-related impairments.

23Finally, the applicant’s submissions focussed on the flaws of Dr. Zabieliauskas’ IE report because the doctor did not explain why they concluded that the applicant did not have a substantial inability to work as a result of any accident-related impairment. Even if I were to find that the IE assessments were flawed, which I do not, it is the applicant’s onus to prove entitlement to the benefit. Based on the above-noted reasons, I find she has not met her onus in proving on a balance of probabilities that she has a substantial inability to carry out her pre-accident employment tasks as a result of any accident-related impairment for the time period claimed.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue, the applicant is not entitled to interest.

Award

25The 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. The applicant submits that the respondent unreasonably withheld the disputed benefits. In light of my decision in this matter, I find the applicant is not entitled to an award because I have not determined that the respondent unreasonably withheld any of the disputed benefits.

ORDER

26For the above-noted reasons, the applicant has not established that her impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the OCF-18s in dispute. Further, she has not proven entitlement to an IRB for the time period claimed and is not entitled to interest or an award.