Pearline Clarke v. Economical Insurance, 2024 CanLII 28815

Citation: Clarke v. Economical Insurance, 2024 ONLAT 22-013000/AABS

Licence Appeal Tribunal File Number: 22-013000/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:

Pearline Clarke

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: Olubunmi Akinsanmi, Counsel

For the Respondent: Kevin So, Counsel

Heard by Videoconference: (with prior written submissions)

December 19, 2023

OVERVIEW

1Pearline Clarke, the applicant, was involved in an automobile accident on May 13, 2021 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:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $2,924.60 for physiotherapy treatment, proposed by Mississauga Active Physiotherapy Services in a treatment plan/OCF-18 (“plan”) dated September 28, 2021?

iii. Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Mississauga Active Physiotherapy Services in a plan dated December 20, 2021?

iv. Is the applicant entitled to $204.00 for a physiotherapy treatment, proposed by Mississauga Active Physiotherapy Services in a plan dated August 17, 2021?

v. Is the applicant entitled to $2,200.00 for psychological services, proposed by Princeton Hills Medical in a plan dated December 6, 2022?

vi. Is the applicant entitled to an income replacement benefit after April 17, 2022?

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

RESULT

3The applicant’s injuries are within the Minor Injury Guideline.

4The applicant is entitled to benefits within the Minor Injury Guideline in accordance with section 40 of the Schedule.

5The applicant is not entitled to an income replacement benefit after April 17, 2022.

6Interest is to be paid pursuant to section 51 of the Schedule on any overdue amount payable under the Minor Injury Guideline.

ANALYSIS

The Minor Injury Guideline applies

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”

8Insured individuals may be removed from the Minor Injury Guideline if they can establish that their accident-related injuries fall outside of the Guideline or, under section 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 Guideline. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the Guideline. In all cases, the burden of proof lies with the applicant.

The accident-related injuries are within the definition of a “minor injury”

9I find that the injuries from the accident come within the Schedule’s section 3(1) definition of a minor injury.

10On May 14, 2021, the day following the accident, the applicant attended at the hospital emergency department with complaints of headaches, neck and back pain. CT scans of the applicant’s head and neck to investigate headaches and neck pain did not reveal any abnormality or give cause for further investigations. There are no records immediately following the accident which suggest that the applicant suffered injuries other than those coming within the definition of “minor injury” defined by the Schedule.

11The applicant was released from the emergency department with directions to follow-up with her family physician, Dr. Neel Bector. Within the week, the applicant changed to a new family physician, Dr. Al Buckridan who assessed the applicant as having injuries of a soft-tissue nature, with multiple contusions and injuries of a soft tissue nature, with pain in the neck, shoulders, whole back, knee and ankles; a swollen left lower leg; tenderness in her neck and back and left leg; and range of motion limitations. All of the described injuries are within the Schedule’s definition of “minor injury.” In subsequent visits Dr. Buckridan documented anxiety, fear of being in a car, and chronic pain.

12Imaging requisitioned by Dr. Buckridan in 2022 of the cervical and lumbar spine did not reveal a compression or other fracture, and did not indicate remarkable findings other than mild degenerative changes.

13The applicant referred me to a 2022 ultrasound report for her shoulders. The report documents mild tenosynovitis of biceps on both sides, and an “incomplete full thickness tear” of supraspinatus tendons on both sides. The applicant took the position that this may be interpreted so as to take the applicant’s injury outside of the Minor Injury Guideline, pointing out that the definition of sprain under the Schedule includes partial tears whereas the applicant was reported as having an “incomplete full thickness tear.”

14Section 3(1) of the Schedule includes in the definition of sprain “a partial but not a complete” tear of a tendon. As the applicant has not directed me to medical evidence or other authority for the proposition that an “incomplete full thickness tear” is something other than a “partial but not a complete tear,” I find that the applicant’s injury to her tendon comes within the definition of sprain and therefore does not remove her from the Minor Injury Guideline.

15The 2022 ultrasound evidence does not show that the applicant’s 2021 accident injuries are outside of the Schedule’s definition of a “minor injury.” In addition, I recognize that the applicant testified that she has whiplash, however, a whiplash associated disorder is expressly included in the Schedule’s definition of minor injury.

16Subject to my discussion below of chronic pain and psychological impairments, I find that the applicant suffered only minor injuries as defined by the Schedule.

A pre-existing medical condition does not remove the applicant from the Minor Injury Guideline

17Section 18(2) of the Schedule provides a person may be removed from the Minor Injury Guideline if there is compelling evidence of a pre-existing medical condition documented by a health practitioner which prevents an insured person from achieving maximal medical recovery if kept within the limits of the Guideline.

18The applicant advanced evidence of her pre-accident history of diabetes and hypertension; as well as of a February 2019 slip and fall injury affecting her wrist and right shoulder, stating that her right shoulder was asymptomatic before the 2021 accident.

19I find that the evidence does not demonstrate that the applicant has a pre-existing condition which prevents maximal medical recovery from her accident-related injuries if she is kept within the Guideline. My reasons for this are as follows:

i. While the applicant referenced a 2022 ultrasound report which documents a positive impingement of a tendon in her right shoulder, this ultrasound report in itself does not demonstrate that her 2019 right shoulder injury has prevents maximum medical recovery from the 2021 injury and I was not directed to medical evidence to find otherwise.

ii. The treatment plans for musculoskeletal therapies which were included in hearing evidence specifically indicate that the applicant did not have any pre-accident disease, condition or injury that could affect her response to physiotherapy, massage and chiropractic treatment.

iii. An insurer assessment conducted by family physician Dr. James Stewart on February 25, 2022, reported that during his medical assessment the applicant did not advise of any prior conditions that would have affected her recovery from the accident-related soft tissue injuries.

20As the applicant has not provided compelling evidence of a pre-existing medical condition documented by a health practitioner preventing achievement of maximal medical recovery within the limits of the Minor Injury Guideline, section 18(2) of the Schedule does not assist her in being removed from the Guideline.

A pain-related impairment does not remove the applicant from the Minor Injury Guideline

21The applicant submits that she should be removed from the limits of the Minor Injury Guideline because of her pain condition. In addition to her testimony, the applicant relies on her family physician’s charting of pain concerns at each of sixteen visits since the 2021 accident and his assessments of chronic pain.

22For a pain-based impairment to take an accident-related injury beyond the confines of the Minor Injury Guideline, it must be of a nature so as to significantly disrupts or disables pre-accident activity. While the charting of chronic pain by a family physician is a factor to be considered, it is not a conclusive determinant for removal from the Guideline. In this case, I find that the overall evidence does not establish that the applicant’s pain condition warrants removal from the Guideline.

23For example, the applicant has had four hospital emergency department attendances since the accident. Other than the attendance within the first week of the accident, the hospital records from the visits do not corroborate significant accident-related pain concerns:

i. The year following the accident, on May 5, 2022, an emergency department chart documents the applicant as attending because of a diabetes-related issue. While the records from this visit a report of neck pain since the accident, the examination of the applicant’s head and neck was unremarkable and there was no midline back tenderness.

ii. Nearly two years post accident, March 30, 2023, the reason for the emergency department visit was high blood pressure. The medical chart indicated that the applicant denied any headache or neck pain; that the physical examination showed the applicant’s neck as being supple and that the applicant had normal balance and gait. The medical history identified diabetes and hypertension and there was no notation about the accident or accident-related injury.

iii. The last emergency department visit documented in evidence was on August 24, 2023. The reason for the visit was a 14-hour sudden onset of lower extremity pain. The emergency department assessment and medical history sections made no mention of the accident or accident-related injury and I have not been presented with persuasive medical evidence linking this event to the 2021 accident injury. In addition, the emergency department listing of the applicant’s medications did not include pain-related medications.

24I find that the evidence does not support a serious dependence on medication to manage pain. As pointed out by the respondent, pharmacy records show that the applicant filled a Lyrica prescription on two occasions, on July 18 and October 1, 2022. There is no evidence of a repeat of the Lyrica prescription after this. Other than Tylenol prescribed by her family physician, I have not been directed to any other pain medications being used by the applicant.

25The main medical support for the applicant’s accident-related impairment is from the applicant’s family physician, Dr. Buckridan, whom the applicant first began seeing after the accident, and who recorded pain and other accident-related concerns at each of sixteen appointments from May 2021 through June 2023. After about one year, Dr. Buckridan referred the applicant to a pain clinic, where the applicant attended on three occasions from July through September 2022.

26The attending physician at the pain clinic, Dr. Cindy Chan, charted that the applicant was feeling well psychologically, had a medium level of function, had no addictive behaviour, and was completing all activities of daily living. The applicant decided against nerve block treatment from the clinic but was given the aforementioned prescriptions for Lyrica for pain relief. There is no indication that the applicant returned to the pain clinic after September 2022. I find that the three visits to the pain clinic and the two prescriptions for Lyrica, do not indicate significant reliance on pain management services.

27In addition, the assessments of health professionals engaged by the respondent suggest that there is overstatement in the applicant’s self-reports and presentation.

28Dr. James Stewart, family physician, who conducted a one-hour assessment of the applicant on February 25, 2022 at the request of the respondent, noted in his report that while the applicant reported constant sharp and severe neck pain and back pain from her neck down her spine sometimes extending to the legs, the applicant’s reflex and sensation testing was normal and that there were no positive orthopaedic tests. He stated that “Ms. Clarke demonstrated non-organic pain findings during formal testing which impact the validity of her physical examinations” and was unable to correlate the applicant’s presentation to the accident.

29The respondent also had Dr. Harry Kaufman, a chiropractor conduct a functional abilities evaluation of the applicant. After a one hour and 45 minute assessment, Dr. Kaufman concluded that based on the assessment activities which the applicant declined to perform, her observed pain behaviours, and the level of effort demonstrated, the results of the evaluation he conducted were not a valid or reliable demonstration of her true functional capabilities.

30The applicant testified that Dr. Kaufman’s functional abilities evaluation was not realistically conducted; that she was asked to carry out tasks which were not possible for her; and that she did exert maximal effort. Dr. Kaufman’s concerns were echoed by Dr. Stewart who in his aforementioned medical assessment concluded that the applicant’s presentation was largely self-limited, non-organic and inconsistent with the mechanism of injury and time frame since the accident.

31The conclusions drawn by Drs. Stewart and Kaufman were reinforced by a psychological insurer assessment conducted by Dr. A.H. Rubenstein. Dr. Rubenstein conducted a two-and-a-half-hour psychological assessment with a clinical interview and psychometric testing (a Patient Pain Profile (P3) and a Structured Inventory of Malingering Symptomatology (SIMS)). He concluded that the applicant’s approach to the P3 yielded invalid findings that could not be interpreted. With the SIMS, Dr. Rubenstein observed “gross elevations across several validity scales with salient over-endorsement of symptoms where somatic (gross amplification) and affective function was concerned” as well as a high frequency of reported symptoms which were highly atypical and generally do not occur in a constellation.

32I find that the validity concerns identified by Drs. Stewart, Kaufman and Rubenstein are deserving of weight. Their conclusions are arrived at through assessment modalities are not only consistent with each other, but with the applicant’s limited reliance on medication and pain clinic services and with the limited indication of continued accident-related concerns in emergency department records.

33The applicant had opportunity to address the significant issues raised by the respondent’s assessors but did not do so. The applicant received copies of the reports of Drs. Stewart, Kaufman and Rubenstein in April 2022, well in advance of arranging for her own psychological assessment which was carried out one year later by Ms. Natalia Zhukova, psychotherapist and Dr. Leon Steiner, psychologist. However, the Zhukova/Steiner report does not suggest that any of the respondent’s reports were provided as background information for the psychological assessment.

34As well, Ms. Zhukova and Dr. Steiner’s report did not address the significant validity concerns raised by previous assessors. The only psychometric test used in the assessment to address validity and amplification was a Rey-15 Item Test, which was described as a measure “designed to assess the possible amplification of memory deficits.” Memory deficits were not identified as a concern in previous assessments. The applicant was administered four other psychometric tests (the Beck Depression Inventory; the Beck Anxiety Inventory, Severity Measure for Specific Phobia- Adult version, and Injustice Experience Questionnaire). While these four tests were included under a Zhukova/Steiner report heading entitled “Objective Findings;” other than the Rey-25 Item Test, there is no suggestion that the testing employed go beyond self-reports or have internal validity measures. For these reasons, I do not find the Zhukova/Steiner report to be persuasive.

35In addition, while the applicant relies on Dr. Buckridan’s medical chart, there is no suggestion that he assessed the applicant from the standpoint of the validity concerns.

36Given the limited evidence in support of the applicant’s pain-related limitations and the unanswered validity concerns raised by all of the respondent’s assessors, I find that the preponderance of evidence does not establish that the applicant’s accident-related pain issues warrant removal from the Minor Injury Guideline.

A psychological impairment does not remove the applicant from the Minor Injury Guideline

37The applicant submits that she should be removed from the Minor Injury Guideline because she suffers psychological issues from the accident. In addition to her testimony, she relies on Dr. Buckridan’s medical chart which assesses her with anxiety and documents reports of post-accident fear of driving, nervousness in traffic and poor sleep, and on the aforementioned report of Ms. Zhukova and Dr. Steiner which concludes that the applicant has “Other specified Trauma – and Stressor Related Disorder – Adjustment Like Disorder with Prolonged Duration of More than Six Months” and “Specific Phobia, Situational Type (driving and travelling as a passenger).”

38The respondent relies upon the assessment of Dr. Rubenstein whose psychological examination did not confirm any identifiable psychological impairment related to the accident and who concluded that the applicant had not sustained any diagnosable psychological impairment as a result of the accident.

39For the reasons that follow, I prefer Dr. Rubenstein’s findings to those of Ms. Zhukova and Dr. Steiner. While the Zhukova/Steiner report is entitled “Psychological Assessment Report” the entirety of the assessment (interviews and testing) was carried out by Ms. Zhukova. Ms. Zhukova is a psychotherapist, not a psychologist or physician.

40I recognize that Dr. Steiner co-signed the report and that he has a supervisory relationship with Ms. Zhukova. However, there is no suggestion that Dr. Steiner performed a role in the assessment apart from signing the report. Even if Dr. Steiner’s regulatory college accepts such a practice as being within professional standards for a psychologist, it affects the weight to be assigned to the work product. In addition, the Tribunal has been provided no evidence of Ms. Zhukova’s professional skills or qualifications to serve as an assessor.

41I also do not accept the applicant’s submission that I can accept a psychotherapist’s diagnosis. In Ontario, psychotherapists do not have the authority to communicate a diagnosis. This is beyond the profession’s scope of practice. Identifying the cause of a person’s symptoms, a neuropsychological disorder or psychologically based psychotic, neurotic or personality disorder, is restricted to psychologists and physicians (see section 27(1) of the Regulated Health Professions Act, 1991 and relevant health professional legislation).

42I outlined the psychometric tests administered by Ms. Zhukova in the previous section of this decision addressing chronic pain. With regard to the two Beck Inventories for depression and for anxiety, the applicant provided answers in the severe range for both. Her responses to the test measuring phobia showed an extreme level of fear of driving and of travelling as a passenger. As noted, there is no suggestion that the applicant’s responses to the two Beck inventories and the phobia measure were subject to psychometric validity measures. As well, other than a one-time suggestion of psychotherapy, I have not been directed to any chart entry from the applicant’s family physician identifying a need for a psychiatric referral or of reliance on medication to address the severity of the applicant’s symptoms recorded in the Zhukova/Steiner report.

43In contrast to the Zhukova/Steiner report, I generally prefer Dr. Rubenstein’s report insofar that it sets out his professional qualifications as a psychologist and assessor; he directly assessed the applicant rather than delegating the assessment role; and his report identifies the duration of the assessment as well as the documentation available to him. Moreover, Dr. Rubenstein directly assessed for validity factors (other than for memory deficits) with regard to the applicant’s reported symptomatology.

44As noted earlier, Dr. Rubenstein employed both the P3 and SIMS testing and determined that the applicant’s P3 testing yielded invalid findings. The SIMS showed significant levels of affective and somatic distress where symptom magnification appeared to be markedly contributory and the applicant’s reporting showed a high rate of symptoms of depression and anxiety which Dr. Rubenstein noted did not generally occur in a constellation, even in atypical mood or anxiety disorders. Based on the psychometric testing combined with his clinical interview, Dr. Rubenstein found that the compromised validity findings precluded assigning any diagnosis of an accident-related psychological impairment.

45While it was open to the applicant to directly address Dr. Rubenstein’s validity findings in the course of her subsequent psychological assessment, she did not do so and the validity concerns identified by Dr. Rubenstein remained unaddressed.

46I find that the applicant has not established that she suffers an accident-related psychological impairment. She remains within the Minor Injury Guideline.

The Minor Injury Guideline applies to the treatment plans

47As the applicant remains subject to the Minor Injury Guideline, it is not necessary to determine whether the services set out in the treatment plans in dispute are reasonable and necessary. The applicant is entitled to benefits in accordance with section 40 of the Schedule.

48Specifically, section 40(8) of the Schedule provides that if it is determined that the Minor Injury Guideline applies to an insured person following a dispute before the Tribunal, the benefits incurred under the Minor Injury Guideline are deemed reasonable and necessary.

49The Case Conference Report and Order of July 11, 2023 states that the parties agreed that the respondent had approved treatment plans up to the Minor Injury Guideline limit of $3,500.00. At the hearing the applicant directed me to a September 7, 2023 statement of benefits from the respondent which showed that only $1,293.23 had been paid out in medical and rehabilitation benefits. The hearing evidence did not establish why the full amount under the Minor Injury Guideline had not been paid out in over two years post-accident.

50If any amount within the $3,500.00 Guideline limit remains payable under Schedule, pursuant to section 40(8), this amount is to be applied to treatment or assessment plans incurred by the applicant.

The applicant is not entitled to the income replacement benefit claimed

51To receive payment for an income replacement benefit under section 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving on a balance of probabilities that she meets the test.

52A Disability Certificate (OCF-3) completed by a physiotherapist on December 9, 2021, identified that the applicant was unable to work because of accident-related injuries. Based on this certificate, the applicant received an income replacement benefit from the respondent from December 9, 2021 to April 17, 2022. This benefit was based on her work as a cashier at Walmart. The respondent stopped the income replacement benefit in April 2022 after receiving the aforementioned insurer assessments of Drs. Stewart, Kaufmann and Rubenstein.

53At issue is the applicant’s entitlement to income replacement benefits after April 17, 2022. I find that the applicant has not met her burden of demonstrating on the balance of probabilities that she has a substantial inability to perform the essential tasks of her pre-accident employment.

54At the hearing, the applicant testified that at the time of the accident she had planned to work part-time at Walmart for another two years before retiring, but she stopped after the accident. Other than the insurer assessments, the only assessment of the applicant’s ability to work was by the physiotherapist who completed the Disability Certificate on December 9, 2021. The December 9, 2021 Disability Certificate estimated the duration of the applicant’s disability to be nine to twelve weeks.

55Toward the end of this estimated duration of disability, the applicant underwent the previously discussed the insurer assessments. In reports finalized on April 4, 2022, all three assessors found unanswered validity concerns about the applicant’s reports of her continued inability to work because of accident-related injury. Dr. Stewart concluded that from a musculoskeletal perspective, the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and that she was currently able to resume her normal duties. Dr. Kaufman found in his functional abilities evaluation that based on the applicant’s overall observed performance, her abilities were likely greater than what was demonstrated. Dr. Rubenstein concluded that from a psychological standpoint, the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

56I find that Dr. Buckridan’s medical chart does not assist the applicant in meeting her burden of proof. Dr. Buckridan’s medical chart does not address the validity concerns raised by the respondent’s assessors in relation to her continued accident-related impairments. As well, there is no indication that Dr. Buckridan had assessed the applicant in relation to work. Other than a notation during a September 2021 appointment stating that the applicant does not think that she can work yet, there is no further reference to the applicant’s ability to return to work. When the applicant was unable to work in 2019 because of a wrist and shoulder injury, the applicant’s employment file from Walmart showed medical notes from her previous family physician and fitness for work assessments; however, no similar assessments or medical notes appear in the applicant’s employment file after her May 2021 accident.

57The nine to twelve week duration of disability estimated in December 2021 had expired before the April 2022 termination of her income replacement benefit. While the applicant testified about her job duties at Walmart and about her inability since the accident to carry out such work, without additional medical and/or psychometric evidence to address the validity concerns of the applicant’s continuing disability level reported by Drs. Stewart, Kaufman and Rubenstein and without persuasive medical evidence of her inability to work, I find that the applicant’s evidence falls short of demonstrating continued entitlement to income replacement benefits.

58I find that the applicant has not met her burden of showing that since April 17, 2022 she has a substantial inability to perform the essential tasks of her employment as a part-time cashier at Walmart. Accordingly, the applicant is not entitled to an income replacement benefit after that date.

Interest

59Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. If any amount payable is owing under the Minor Injury Guideline, interest applies pursuant to section 51 of the Schedule.

ORDER

60I order that:

i. The applicant’s injuries are within the Minor Injury Guideline.

ii. The applicant is entitled to benefits within the Minor Injury Guideline in accordance with section 40 of the Schedule.

iii. The applicant Is not entitled to an income replacement benefit after April 17, 2022.

iv. Interest is to be paid pursuant to section 51 of the Schedule on any overdue amount payable under the Minor Injury Guideline.