Licence Appeal Tribunal File Number: 21-009516/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:
Amal Alriyahi
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Teresa Walsh
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Michelle Panagiotakos, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amal Alriyahi, the applicant, was involved in an automobile accident on September 11, 2020. The applicant sought benefits form the respondent, Sonnet Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the benefits in dispute, including those related to chronic pain and psychological assessments and treatment, on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSES
3The 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 limit in the MIG? Note: The parties agree that the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,004.96 for chiropractic services, proposed by Activa Clinics in a treatment plan/OCF-18 (“plan”) submitted February 2, 2021 and denied February 8, 2021?
iii. Is the applicant entitled to the medical services proposed by Pilowsky Psychology Professional Corporation, as follows:
a. $3,259.48 for psychological services, in a plan submitted June 28, 2021 and denied August 26, 2021; and
b. $1,995.32 for a psychological assessment, in a plan dated May 27, 2021 and denied June 9, 2021?
iv. Is the applicant entitled to the medical services proposed by All Health Medical Centre, as follows:
a. $12,141.06 for a chronic pain program, in a plan dated October 30, 2021 and denied December 1, 2021;
b. $750.00 for a chronic pain program, in a plan dated October 30, 2021 and denied December 1, 2021;
c. $855.97 for assistive devices, in a plan dated October 30, 2021 and denied December 1, 2021;
d. $2,460.00 for an orthopaedic assessment, in a plan dated August 4, 2021 and denied August 11, 2021; and
e. $2,260.00 for a chronic pain assessment, in a plan dated October 12, 2021 and denied October 13, 2021?
v. Is the respondent liable to pay an award under s. 10, O. 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
4The applicant has not met her onus of proving that her accident-related injuries warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary. Further, as no benefits were unreasonably withheld or delayed, no award nor interest is payable. The application is dismissed.
ANALYSIS
Applicant’s injuries do not fall outside the MIG
5I find the applicant has not met her burden in establishing that her accident-related injuries fall outside the definition of a minor injury as set out in s. 3(1) of the Schedule.
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 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.”
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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
8In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
No pre-existing medical injury or condition precluding recovery within the MIG
9The applicant does not argue, nor do I find based on the evidence, that she suffers from a pre-existing injury or condition that precludes maximal recovery from any accident-related minor injury if the applicant is treated within the MIG.
Chronic pain/psychological impairment
10The applicant seeks removal from the MIG because she says she has accident-related chronic pain with functional impairment and a psychological impairment resulting from the accident.
11In support of her chronic pain with functional impairment argument, the applicant relies on the disability certificate (OCF-3) prepared by Dr. Iqbal (chiropractor), noting the following: injury of muscle and tendon at neck level, chronic post-traumatic headache, sprain and strain of shoulder joint, thoracic spine and lumbar spine, psychological and behavioural factors, other sleep disorders and paresthesia of skin. The applicant also relies on the assessment report of Dr. Ogilvie-Harris (orthopaedic surgeon), who concludes that the applicant has developed features of a chronic pain syndrome, present for more than six months, that are intrusive and affect all of her activities. The applicant further relies on the assessment report of Dr. Robertus (family physician with a focus on interventional pain management), who opines that the applicant sustained “serious trauma” in the accident and has developed chronic pain which will continue to cause functional limitations in the future. Both Dr. Ogilvie-Harris and Dr. Robertus recommend a comprehensive rehabilitation program for the applicant outside the MIG.
12In support of her psychological impairment argument, the applicant points to the psychological assessment report of Dr. Hollerer (clinical psychologist). Dr. Hollerer’s diagnoses are: major depressive disorder, recurrent episode (moderate), somatic symptom disorder with predominant pain (persistent, moderate); and phobic avoidance as a driver and a passenger. Dr. Hollerer recommends psychological intervention aimed at assisting the applicant with coping abilities and possibly being of benefit in treating findings of accident-related post-traumatic stress and depression.
13The respondent submits that the applicant’s injuries fall within the MIG, and relies on diagnostic imaging, medical records of the applicant’s family physician, and section 44 reports prepared under the Schedule (the “IEs”) to support its position. Three IEs are from Dr. Taromi (orthopaedic surgeon), and two IEs are from Dr. Mandel (psychologist). Dr. Taromi finds that, as a result of the accident, the applicant sustained soft-tissue right injuries only, with sprain/strain of the right shoulder, and the cervical, thoracic and lumbar spine. He notes her reports of residual pain from these soft-tissue injuries and opines that she has reached maximum medical recovery from them. Dr. Mandel finds a lack of consistent, objective information present that would support poor prognosis, a psychological diagnosis or suggest that the applicant suffers from clinically significant symptoms indicating a substantial psychological impairment or disability from the accident. Dr. Mandel references the applicant’s reports of residual adjustment difficulties associated with the accident, which she was continuing to cope with in a functional manner at the time of the assessments.
Burden of proof not met regarding accident-related, chronic, functionally disabling pain
14The applicant has not met her burden of proof in establishing that, as a result of the accident, she suffers from chronic, functionally disabling right shoulder, neck and back pain, or any other chronic condition, warranting her removal from the MIG. I find that the applicant’s ongoing pain complaints are clinically associated consequences of her minor, soft-tissue injuries.
15The Tribunal has consistently held that for chronic pain to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.
16I give limited weight to the applicant’s chronic pain assessment reports, starting with that of Dr. Ogilvie-Harris, dated September 27, 2021. Dr. Ogilvie-Harris assessed the applicant by telephone, which he states accords with telemedicine recommendations due to the COVID-19 pandemic. He does not explain why videoconference technology (a recommended telemedicine option) was not used, to permit at least some direct assessment of the applicant’s presentation and functionality. Instead, Dr. Ogilvie-Harris primarily relies on the applicant’s self-reported functionality, with no basis to compare that reporting to any relevant physical testing (including on range of motion, posture, gait, strength and other observed findings). I note that both Dr. Robertus and Dr. Taromi, who also assessed the applicant’s functionality from a chronic pain perspective, did so in person, within weeks of Dr. Ogilvie-Harris’ assessment.
17The second chronic pain assessment report relied on by the applicant is that of Dr. Robertus, dated November 15, 2021. I find that an undermining factor for the reports of both Dr. Robertus and Dr. Ogilvie-Harris is the lack of any corroboration of report findings by objective medical evidence. All post-accident diagnostic imaging of the applicant’s right shoulder, neck, back, pelvis, hips and left femur produced for this hearing, ordered by family physician Dr. Shokr, indicates normal or unremarkable results. Further, in the few additional records of Dr. Shokr produced in this hearing, there is no diagnosis or even suggestion of functionally disabling chronic pain. Despite the applicant’s submission that she “regularly visited” her family physician, available post-accident records encompass three appointments only. At the first appointment, nine days post-accident, the applicant’s complaints include right shoulder and neck pain, with mild, intermittent numbness in the area and pain when raising the arm above the head. The next appointment takes place nearly 10 weeks post-accident, during which time the applicant complains of left thigh pain, intermittent and ongoing for three weeks, starting after a physiotherapy session. No numbness or weakness is reported with the thigh pain, although the pain is reportedly worse with raising the leg and sitting. The third and final appointment takes place nearly 12 weeks post-accident, during which time the applicant describes her pain as “improving”, although still present when going up the stairs or doing leg elevation stretches during physiotherapy. No numbness or radiation is reported.
18Dr. Shokr initially prescribed anti-inflammatory and muscle relaxant medication for the applicant, to be taken as needed. Upon receipt of the above-noted negative imaging, he recommended over-the-counter analgesics for the applicant’s complaints. The applicant has produced no prescription records or other objective evidence of her receiving prescription medication for pain post-accident. The applicant’s self-reports to assessors relied on by both parties here indicate limited use of over-the-counter medications for accident-related pain complaints.
19Written functional testing of the applicant was administered by both Dr. Ogilvie-Harris and Dr. Robertus. However, other than the testing scores themselves, there is little explanation of the types of questions included in testing, whether/how responses were assessed to be valid, or how the results link to each assessor’s finding that the applicant suffers from chronic pain syndrome. I find that this unexplained information further weakens the reports’ reliability.
20In support of its submission that the applicant’s injuries do not require treatment outside the MIG, the respondent relies on three assessment reports of Dr. Taromi. Two reports, dated October 15, 2021 and February 6, 2023 respectively, are based on in-person assessments of the applicant, while a third report, dated November 5, 2021, is paper-based.
21The physical examinations of the applicant by each of Dr. Robertus and Dr. Taromi appear to produce many of the same normal findings in terms of the applicant’s good alertness, good eye contact, normal gait, balance, posture and strength. Both assessors note full range of motion of the applicant’s cervical, thoracic and lumbar spine with pain reported on extension and rotation of the cervical spine.
22The applicant told Dr. Taromi that, since the accident, she continued to be independent with self-care, daily activities and household chores and that she performed her pre-existing household chores as tolerated with self-pacing. She indicated that since the accident, she had been working part-time, two days a week for five hours a day to avoid prolonged standing and prolonged walking. She also reported that she was driving a car.
23At the second in-person assessment of the applicant by Dr. Taromi in early 2023, the applicant reported that while she walked around her apartment building and performed a home exercise program, she was not attending a gym or performing any sports, and therefore she had gained weight over the last couple of years. She also reported she was working between 15 to 20 hours a week, between two to three days a week. In terms of physical complaints, the applicant reported increased pain in her right shoulder with overhead, repetitive tasks, and a sense of clicking. Her neck and lower back pain continued, although her midback pain had resolved. She reported having developed left heel pain, increased in the morning upon waking, and with walking, and decreased with stretching.
24Dr. Taromi concludes that, as a result of the accident, the applicant sustained soft-tissue right injuries only, with sprain/strain of the right shoulder, cervical, thoracic and lumbar spine. I find Dr. Taromi’s conclusions to be consistent with the objective medical evidence (diagnostic imaging and family physician records).
25It is apparent that the applicant continues to have residual pain from her accident-related soft-tissue injuries. Nonetheless, there is a complete absence of objective supporting medical evidence of functionally disabling chronic pain and other unexplained aspects of assessment reports relied on by the applicant. I therefore find that the applicant has not established, on a balance of probabilities, that she suffers from chronic pain with functional impairment, necessitating treatment outside the MIG.
Burden of proof not met regarding an accident-related psychological condition
26The applicant has not met her burden of proof in establishing that, as a result of the accident, she suffers from a psychological impairment that warrants her removal from the MIG.
27Psychological injuries, if established, may fall outside of the MIG, as the MIG only encompasses “minor injuries”, and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show that she sustained a psychological impairment because of the accident.
28The applicant relies on the psychological assessment of Dr. Hollerer dated August 9, 2021. As part of her assessment, Dr. Hollerer obtained a detailed history from the applicant and conducted psycho-diagnostic testing. Based on the history obtained, testing administered and interpreted, and clinical impressions, Dr. Hollerer diagnoses the applicant with: a major depressive disorder, recurrent episode moderate, somatic symptom disorder with predominant pain, persistent, moderate; and phobic avoidance as a driver and a passenger.
29Dr. Hollerer opines that the applicant’s psychological impairments from the accident are not minor and that she suffers a substantial inability to carry on a normal life … “she can no longer manage her pre-accident housekeeping, familial, social, caregiving and recreational activities to prior extents.” Dr. Hollerer recommends 12 sessions of psychological therapy to assist the applicant in dealing with distressing thoughts, anxiety and sleep disturbance.
30The respondent relies on two in-person psychological assessments of the applicant carried out by Dr. Mandel, resulting in reports dated November 22, 2021 and February 6, 2023, respectively. Based on his clinical assessments of the applicant, including psychological testing carried out, Dr. Mandel finds a lack of consistent objective information present that would support poor prognosis, a DSM V diagnosis and or suggest that the applicant suffers clinically significant symptoms indicating a substantial psychological impairment or disability as a direct result of the accident. He adds that, “based on the clinical interview and taking into consideration difficulties noted with the psychometric testing, it appears that [the applicant] is reporting residual adjustment difficulties associated with her accident, which she continues to cope with in a functional manner at this time.” Dr. Mandel opines that there is a lack of consistent objective information indicating that services are required beyond what is available within the MIG.
31I do not find Dr. Hollerer’s report to provide compelling evidence of an accident-related psychological impairment. In particular, I am struck by the absence of any corroborating clinical notes and records from a treating mental health professional or the applicant’s family physician supporting Dr. Hollerer’s findings.
32Further, information Dr. Hollerer relies on in arriving at her diagnoses and other findings (including subjective self-reporting from the applicant) is at odds with information provided to and findings of other assessors, including Dr. Mandel. By way of example:
i. Whereas Dr. Hollerer finds that the applicant suffers from vehicular anxiety, both as a driver and a passenger, on the two occasions Dr. Mandel met with the applicant, she described driving regularly, including to work, and being “okay” with both driving and being a passenger, although she stated she was more nervous on country roads;
ii. While Dr. Hollerer concludes that the applicant is unable to manage work-related tasks, caregiving, recreational and social activities, the applicant advised Dr. Mandel of working part-time and actively looking for more work, taking care of her children and helping them with schoolwork, performing housework, and being well-supported by a friend;
i. Dr. Hollerer’s assessment of the applicant as suffering from major, recurrent depression is countered by the applicant’s report to Dr. Mandel in early 2023 that she takes time for herself to deal with feelings of anger and frustration, and that her children have helped her overcome feelings of sadness; and
ii. Although Dr. Hollerer attributed the applicant’s sleep-related difficulties to the accident, the applicant advised Dr. Mandel that she awoke during the night “for no reason”.
33Ultimately, I find that the applicant has not met her burden in establishing that she suffers from an accident-related psychological impairment. I accordingly decline to remove her from the MIG on the basis of psychological impairment.
No need to address reasonableness and necessity of disputed treatment plans
34Sections 14 and 15 of the Schedule provide that the insurer shall pay medical and rehabilitation benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical and rehabilitation benefits sought in a treatment plan are a reasonable and necessary expense.
35The applicant bears the onus of establishing entitlement to the proposed treatment plan by proving it is reasonable and necessary on a balance of probabilities.
36The disputed benefits propose treatment and an assessment outside the MIG framework to which I have determined the applicant is not entitled. As her impairments are within the MIG and as the $3,500.00 maximum for medical benefits available under the MIG has been exhausted, it is not necessary to determine if the disputed treatment plans are reasonable and necessary.
Interest
37As there are no medical benefits owing, no interest is payable.
Award
38The applicant sought an award under s. 10 of Regulation 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 no benefits are payable, the applicant is not entitled to an award.
ORDER
39For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the MIG.
ii. The applicant is not entitled to the medical benefits or the cost of the assessments sought in the treatment plans. Accordingly, she is not entitled to interest.
iii. The applicant is not entitled to any award under s. 10 of Regulation 664.
iv. The application is dismissed.
Released: January 17, 2024
Teresa Walsh
Adjudicator```