Licence Appeal Tribunal File Number: 22-000124/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:
Carlo Molina
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Mr. Ryan Bowes, Counsel
For the Respondent:
Aida Davari, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Carlo Molina, the applicant, was involved in an automobile accident on September 16, 2017, 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, Intact 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 limit?
ii. Is the applicant entitled to $2,569.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted December 20, 2019 and denied January 9, 2020?
iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. 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.
4The applicant is not entitled to chiropractic services, nor interest.
5The respondent is not liable to pay an award under s. 10 of Regulation 664.
ANALYSIS
Minor injury guideline (MIG)
6The applicant’s injuries are predominantly minor as defined by s. 3 of the Schedule.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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 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.
9The applicant submits that he has been diagnosed with chronic pain and multiple psychological disorders in the report of Dr. Wilderman. According to the applicant, this medical evidence justifies removal from the MIG.
10The respondent submits that no weight should be given to the evidence cited by the applicant and that he has not met his evidentiary burden of establishing that his injuries are not treatable within the MIG.
Chronic pain with functional impairment
11The applicant relies on the “MIG Determination and an Initial Impairment Medical Psychological Determination Report” of Dr. Igor Wilderman, physician, dated March 1, 2018. Dr. Wilderman provides details of the physical and neurological examinations of the applicant. Then, under the heading “Assessment” he writes “Chronic pain disorder, Chronic Cervicalgia, Mechanical Lower Back Pain Pattern 1 PEN, Lumbago, Myofascial pain syndrome of the bilateral rhomboid region.” Dr. Wilderman provides no further explanation as to why he diagnosed the applicant with chronic pain.
12Dr. Wilderman also opines that the applicant’s “condition does not fall under the definition of ‘minor injury’” because of his psychological impairments. He does not link removal from the MIG to the chronic pain diagnosis.
13The respondent relies on the insurer’s examination (IE) of Dr. Michael Hanna, physician, dated February 21, 2020. He physically examined the applicant and reviewed his pre- and post-accident functioning. The applicant remained independent with his pre-accident activities of daily living (ADLs). He returned to his work as a cleaner a few days after the accident. He is currently accommodated with light cleaning duties as he cannot operate heavy cleaning machinery or lift up to 100 pounds as he did pre-accident due to pain. Dr. Hanna opines that the applicant sustained soft tissue injuries as a result of the accident and that these injuries are minor and within the MIG.
14I give more weight to the IE than the report of Dr. Wilderman. In particular, the IE provides details of the applicant’s post-accident functioning. The IE also provides reasons for determining that the applicant’s musculoskeletal injuries are treatable within the MIG. The report of Dr. Wilderman does neither.
15I further note that Dr. Wilderman’s report does not identify any functional impairments associated with the chronic pain diagnosis. Instead, he rates the applicant’s “Impairment Domains” in the following manner:
Activities of daily living scores a severity of five out of five.
Social Functioning scores severity of five out of five.
Work adaptation scores a severity of five out of five.
Concentration, persistence, and pace scores a severity of five out of five.
16The four “impairment domains” are identical to the four areas of function in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 4th edition, used to make catastrophic impairment determinations for mental and behavioural disorders under s. 3.1(1)8 of the Schedule.
17Dr. Wilderman does not mention the Guides or explain what the “impairment domains” are. Even so, he appears to be referencing psychological impairments. This is significant because a person with chronic pain can only be removed from the MIG if they also have a functional impairment associated with pain.
18Dr. Wilderman states that the applicant’s “psychological and physical condition interferes with his pre-accident social, recreational, occupational, and housekeeping functions.” He makes no further comment on the applicant’s functioning that is applicable to the chronic pain diagnosis. In my view, this brief statement provides no meaningful insight into any limitations or impairments caused by pain.
19Consequently, even if I accepted the chronic pain diagnosis in Dr. Wilderman’s report at face value, which I do not, the applicant still cannot be removed from the MIG as no specific functional impairment associated with the chronic pain has been identified.
20Therefore I find, on a balance of probabilities, that the applicant does not have chronic pain with a functional impairment.
Psychological Impairment
21Dr. Wilderman notes that the applicant’s psychological complaints include suicidal ideation, anxiety, depression, nightmares and flashbacks of the accident, and panic attacks. He administered psychometric testing including the Beck Anxiety Inventory (BAI) where the applicant scored 63 out of 63, indicating a severe level of anxiety. Other tests provided an indication that the applicant suffers from a severe level of depression and post traumatic stress disorder (PTSD). Dr. Wilderman determined that the applicant has a major depressive disorder, generalized anxiety disorder, and PTSD. He also opines that the applicant’s psychological conditions fall outside of the MIG.
22The IE of Dr. Ralph Lubbers, psychologist, dated July 5, 2018 found that the applicant has mild anxiety and low mood symptoms that are not clinically significant enough to have a diagnosable psychological disorder.
23Dr. Lubbers examined the applicant, reviewed medical evidence, and administered psychometric testing. The results of the BAI showed a mild level of anxiety-related symptomology. Testing also revealed moderately high levels of depression, but not enough to reach the cut-off point for clinical significance. The applicant denied the presence of significant psychological stressors that may contribute to emotional distress or anxiety. The applicant also denied suicidal ideation.
24I find the report of Dr. Lubbers to be more persuasive. The psychological condition described by Dr. Wilderman is quite severe and inconsistent with the applicant’s high level of post-accident functioning. In contrast, Dr. Lubber’s report is more consistent with the evidence that shows the applicant returned to work soon after the accident and is independent with his ADLs.
25Dr. Wilderman provides a list of “Impairment Domains”. As noted above, he may be referring to the catastrophic determination framework for mental and behavioural disorders in the Guides. However, this is unclear because he does not explain what the “Impairment Domains” are. Consequently, part of his report is difficult to understand and this also diminishes the weight to be given to his report.
26I also note that Dr. Lubbers is a psychologist and qualified to diagnose psychological disorders. Dr. Wilderman does not appear to have qualifications in the area of mental health. As such, the Dr. Lubbers report is more reliable because of his professional training and expertise.
27For all these reasons, I give more weight to the report of Dr. Lubbers and find that the applicant does not have a psychological disorder.
28Having found that the applicant does not have chronic pain with a functional impairment, nor a psychological disorder, I further find that his injuries are predominantly minor and treatable within the MIG.
Chiropractic services and interest
29As I have found the applicant’s injuries fall within the MIG, it is unnecessary to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.
30Interest is not payable as there are no overdue amounts owing.
Award
31As no benefits are payable, the respondent cannot be liable to pay an award under s. 10 of Regulation 664.
ORDER
32The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
33The applicant is not entitled to chiropractic services, nor interest.
34The respondent is not liable to pay an award under s. 10 of Regulation 664.
Released: January 11, 2024
__________________________
Harry Adamidis
Adjudicator