Citation: Rooplal v. BelairDirect, 2024 ONLAT 21-006351/AABS

Licence Appeal Tribunal File Number: 21-006351/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:

Chandra Rooplal

Applicant

and

BelairDirect

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Raj Bhangal, Student-at-Law

For the Respondent:

Laura Meschino, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Chandra Rooplal (the “applicant”) was involved in a motor vehicle accident on July 17, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). BelairDirect (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

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 limit of the MIG?

2. Is the applicant entitled to the following treatment plans/OCF-18s proposed by Downsview Health Care?

a) $2,575.12 for physiotherapy submitted on August 14, 2019;

b) $1,317.55 for physiotherapy submitted on September 10, 2019;

c) $1,910.08 for physiotherapy submitted on October 9, 2019;

d) $1,866.28 for physiotherapy submitted on November 15, 2019;

e) $1,563.72 for physiotherapy submitted on October 20, 2019;

f) $2,200.00 for a psychological assessment submitted on November 11, 2019;

g) $2,200.00 for a chronic pain assessment submitted on November 22, 2019;

h) $3,335.98 for psychological counselling submitted on August 24, 2020;

i) $12,918.49 for a chronic pain program submitted on January 8, 2021; and,

j) $1,981.70 for a driving rehabilitation program submitted on January 19, 2021.

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

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

3Neither party indicates in submissions if the MIG limit of $3,500.00 had been reached. However, the Case Conference Report and Order (“CCRO”) dated April 22, 2022 that set this matter down for a hearing notes that the parties agreed that the MIG had not been exhausted.

RESULT

4I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.

ii. 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. Interest applies to the payment of overdue and incurred benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Applicability of the MIG

5Section 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 injuries. 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.”

6An insured person may be removed from the MIG if it can be established that his or her accident-related injuries fall outside of the MIG. An insured person can also warrant removal from the MIG if there is documentation of a pre-existing injury or condition, combined with compelling medical evidence stating that the injury/condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. Additionally, the Tribunal has determined that chronic pain with a functional impairment may warrant removal from the MIG, as may a psychological impairment.

7The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG. Here, the applicant argues that she should be removed from the MIG because she suffers from chronic pain with a functional impairment and a psychological impairment as a result of the accident. She primarily relies on two Disability Certificates/OCF-3s; the clinical notes and records (“CNRs”) of Dr. Daniel Corazzola, family physician; a chronic pain assessment report completed by Dr. Grigory Karmy, physician; and a psychological assessment report completed by Helen Ilios, psychotherapist, under the supervision of Dr. Jacqueline Brunshaw, psychologist.

8The respondent counters that the applicant has not put forward evidence of any ongoing impairment that would support the diagnosis of an injury outside of the Schedule’s definition of a minor injury. Therefore, the respondent argues that the applicant should be held within the MIG and its $3,500.00 limit on treatment. The respondent principally relies on insurer examination (“IE”) reports submitted by Dr. Allan A. Kopyto, family physician, Dr. Alan Kruger, physician, and Dr. Rakesh Ratti, psychologist.

9I agree with the respondent. My full analysis follows.

Chronic pain

10A preponderance of the medical evidence indicates that the applicant suffered soft-tissue physical injuries in the accident that were treated and resolved. There is little support for the applicant’s claims that her injuries progressed to chronic pain.

11According to the applicant’s account of the accident later provided to Dr. Ratti in a clinical interview conducted as part of a psychological IE assessment, she did not lose consciousness during the collision and did not seek medical attention at the time. Paramedics did not attend the scene and the applicant walked from the accident to her nearby workplace, with her husband driving the vehicle home.

12The applicant sought medical treatment for minor accident-related injuries from her family physician, Dr. Corazzola, on three occasions (August 1, 2019, August 19, 2019, and December 2, 2019). Dr. Corazzola diagnosed the applicant with back, neck, and lumbar strain, all injuries that fall within the Schedule’s minor injury definition. CNRs of the August 19, 2019 and December 2, 2019 appointments show that the applicant’s condition was improving due to the massage therapy and physiotherapy recommended by Dr. Corazzola, although she was still experiencing intermittent pain and tightness in her back and neck. Dr. Corazzola also noted in his records of the December 2, 2019 appointment that the applicant displayed a full range of motion in her neck and shoulder, with normal sensation and a 5/5 upper power rating. X-rays completed on August 10, 2019 indicated mild scoliosis and degeneration, but “no obvious fracture or impingement” or anything directly related to the accident.

13At this point, the applicant stopped seeing Dr. Corazzola for her accident-related injuries. There is no indication in these CNRs that the applicant’s condition was deteriorating at the time of her last appointment with Dr. Corazzola on December 2, 2019, or that she was suffering from chronic pain.

14Partially as a result of the above, I assign limited weight to both of the OCF-3s completed by Dr. Pivtoran, as well as the chronic pain report of Dr. Karmy. The opinions of these physicians regarding chronic pain do not align with the minor accident-related injuries and symptoms that the applicant reported to her family doctor.

15Dr. Pivtoran provides minimal rationale for the diagnoses in his second OCF-3, dated November 24, 2020. He re-evaluated the applicant by comparison with the first OCF-3 that he completed on July 29, 2019, noting that her condition had declined to the point that he diagnosed her with chronic post-traumatic headache, chronic cervical joint dysfunction with myofascial symptoms, chronic lumbar joint dysfunction in the lumbar spine, pain in multiple sites, and chronic pain. However, he provides no objective support for these findings, nor does he detail how he came to such conclusions, which as noted above do not accord with the CNRs of Dr. Corazzola.

16Also, Dr. Pivtoran ventures outside of his field of expertise in this second OCF-3. Many of these diagnoses are beyond Dr. Pivtoran’s specialty as a chiropractor, particularly the head-related diagnoses. (He also diagnosed the applicant with a concussion in his first OCF-3, something that is not supported by any medical evidence and would be more the purview of a neurologist than a chiropractor.)

17The chronic pain report of Dr. Karmy is inconsistent both with the CNRs of Dr. Corazzola and the majority of the medical evidence before me. Dr. Karmy’s conclusions are also incompatible with the results of his physical examination of the applicant as detailed in his report, where he noted that she displayed normal range of movement of the cervical spine (with “reported” tightness and stiffness), shoulder, and lumbar spine (with reported pain), as well as no evidence of gross neurological deficits and no tenderness in the paraspinal muscles and facet joints. This assessment does not support Dr. Karmy’s diagnosis of chronic pain syndrome caused by the subject accident, along with his other specific diagnoses of chronic post-traumatic headache, chronic mechanical neck pain, chronic mechanical bilateral shoulder pain, and chronic mechanical upper, mid, and lower back pain.

18Dr. Karmy also does not clearly identify any functional impairment suffered by the applicant, which is a requisite part of a chronic pain condition that could result in an applicant’s removal from the MIG. The results of his physical examination actually seem to preclude such an identification, as he found the applicant to be almost entirely functional.

19Further, I prefer the IE reports adduced by the applicant when it comes to chronic pain. Both are in line with other objective medical evidence and together they involve more thorough assessments of the applicant than that of Dr. Karmy.

20In his report dated October 2, 2019, Dr. Kopyto concluded that the applicant sustained uncomplicated musculoligamentous strains of the neck and back as a result of the subject accident that fit within the minor definition of an injury in the Schedule. The physician further noted that he failed to detect any impairments or significant physical limitations during his in-person examination of the applicant. Dr. Kopyto did not change these opinions in two paper reviews dated December 4, 2019 and December 9, 2019, which were completed to assess the August 10, 2019 spinal x-ray of the applicant noted above.

21The opinions of Dr. Kopyto are bolstered by two IE reports of Dr. Kruger, dated March 9, 2021 and April 6, 2021. Dr. Kruger determined that the applicant sustained uncomplicated soft-tissue injuries as a result of the accident that were consistent with minor injuries as defined in the Schedule, namely sprain/strain (whiplash disorder I) to the cervical and lumbar spine. In addition, Dr. Kruger found that the applicant’s range of motion and strength presented as normal across all joints (despite the applicant’s reports of pain at the end range of the cervical and lumbar regions), that there was no evidence of any objective neurological or radicular pathology related to the accident, and that the lumbar spine scoliosis and degenerative changes identified in a August 10, 2019 x-ray report would not inhibit or delay the applicant’s recovery.

22Lastly, I do not find Semih v. Aviva Ins. Co., 2022 CanLII 27252 (ON LAT)—a decision that the applicant relies on as part of her chronic pain argument—to be relevant. Although I am not bound by other decisions of the Tribunal at any rate, Semih v. Aviva involved an applicant’s consistent complaints of pain over two years post-accident and issues relating to a longstanding disability, conditions that are not present here.

23Given the above, the applicant has not demonstrated that she suffers from chronic pain with a functional impairment as a result of the subject accident.

Psychological impairment

24There is minimal evidence to support the applicant’s claims of suffering from a psychological impairment as a result of the accident.

25The applicant did not report psychological concerns to Dr. Corazzola during the months she visited him for treatment of her physical injuries. Although Dr. Pivtoran and Dr. Karmy diagnosed the applicant with psychological impairments relating to chronic pain, I assign these diagnoses no weight as I have not been directed to evidence that either physician has psychological training.

26I assign minimal weight to the psychological assessment report completed by Ms. Ilios under the supervision of Dr. Brunshaw dated March 24, 2020. Ms. Ilios’s conclusion that the applicant suffered from an adjustment disorder with mixed anxiety and depressed mood and a specific phobia (passenger) as a result of the accident was drawn from what the applicant told her in the clinical interview. Ms. Ilios set aside the results of her own psychometric testing—which indicated that the applicant was “experiencing low levels of emotional distress” due to minimal scores on the Beck Depression Inventory, Beck Anxiety Inventory, and the SCL-90-R test—to conclude that the applicant’s “current psychological and emotional distress is more significant than what was represented in her test responses.”

27Also, I prefer the three psychological IE reports completed by Dr. Ratti dated December 18, 2019, October 29, 2020 and April 6, 2021. These detail the most thorough psychological assessments of the applicant, which involved extensive in-person examinations and testing. Dr. Ratti concluded that the applicant did not meet the criteria to diagnose any psychological condition relating to the accident. In addition, the applicant told Dr. Ratti during the examination for the April 6, 2021 report that she was independent for self-care, that her social and recreational life was only limited by Covid-19 restrictions, and that she was not experiencing any issues when traveling as a passenger (she did not have a driver’s license) other than mild anxiety at intersections and when she returned to the site of the subject accident. Testing administered by Dr. Ratti also did not indicate the presence of any psychological impairments.

28Accordingly, the applicant has failed to substantiate that she suffers from a psychological impairment as a result of the accident.

MIG conclusion

29For the aforementioned reasons, the applicant has failed to demonstrate that she suffers from either chronic pain with a functional impairment or a psychological impairment as a result of the accident. She remains within the MIG.

The Treatment Plans

30As I have found the applicant to remain within the MIG, I find that it is not required to determine if the treatment plans are reasonable and necessary.

31However, 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. Interest is applicable on the incurred and overdue amount of treatment plans in accordance with s. 51 of the Schedule.

ORDER

32The application is dismissed and I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is entitled to benefits up to the amount remaining under the 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. Interest is applicable on the incurred and overdue amounts of treatment plans in accordance with s. 51 of the Schedule.