Licence Appeal Tribunal File Number: 21-012206/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:
Christopher Bankasingh
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Paralegal
For the Respondent:
Ken Yip, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Christopher Hugh Bankasingh, the applicant, was involved in an automobile accident on July 5, 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, Unifund Assurance 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 limit and in the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to $519.80 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) that was denied October 4, 2021?
iii. Is the applicant entitled to $4015.12 for psychological services, proposed by 101 Assessment Centre in a treatment plan that was denied on August 11, 2020?
iv. Is the applicant entitled to the assessments proposed by 101 Assessment Centre, as follows:
$2460.00 for a Psychological Assessment, in a treatment plan (plan) that was denied on October 4, 2021;
$2460.00 for a Driving Evaluation Assessment, in a plan that was denied on January 16, 2020;
$2460.00 for a Cognitive Assessment, in a plan that was denied on August 11, 2020;
$2460.00 for a Chronic Pain Assessment, in a plan that was denied on August 11, 2020;
$3122.08 for a Mindfulness Based Stress Reduction (MBSR) Assessment, in a plan that was denied on October 20, 2020;
$2460.00 for a Neurological Assessment, in a plan that was denied on October 28, 2020;
$2460.00 for a Neuropsychological Assessment, in a plan that was denied on January 13, 2021;
$2460.00 for a Mental Health and Addiction Assessment, in a plan that was denied on June 28, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3This application is dismissed.
ANALYSIS
MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if an 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.”
5An insured 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.
6The applicant submits that his medical evidence establishes that he sustained psychological and chronic pain disorders from the motor vehicle accident (MVA). These injuries are sufficient to remove him from the MIG.
7The respondent submits that the applicant does not have psychological disorders nor chronic pain as a result of the accident. Consequently, the applicant’s funding for treatment should remain in the MIG.
8I find that the applicant’s injuries are predominantly minor, and therefore, subject to treatment within the MIG.
9An insurer examination (IE) was conducted by Dr. Eric Silver, general practitioner, on November 26, 2019. The applicant described having neck pain “sometimes, but not too bad.” The applicant reported experiencing back pain about twice a week in the lower lumber region. He lies down and uses Tylenol when this happens. He has occasional mild headaches that “don’t last too long.” The applicant also reports that his initial prescription for pain medication was not refilled. Instead, he manages his pain by taking Tylenol eight to ten times per month.
10The applicant also reported that he is independent with personal care. Since the accident, however, he no longer shares housekeeping and cooking duties with his wife. The applicant also expressed anxiety in regard to driving and being a passenger in a vehicle.
11The applicant reported being unemployed at the time of the accident, but began fulltime employment in August 2019 at a construction company tidying up construction sites and moving light equipment.
12Dr. Silver conducted a physical examination that confirmed the applicant’s pain complaints in his neck and lower back.
13Dr. Silver notes that tests in the cervical spine, including Kemp’s, Jackson’s, Spurling’s, and palpation of the cervical spine, were unremarkable and that the applicant has full range of motion in all directions. The applicant did report mild neck pain while performing right rotation while other movements were pain-free and unremarkable.
14The applicant also reported mild lower back pain with end range movements.
15Dr. Silver determined that the applicant sustained uncomplicated soft tissue injuries to his neck and back as a result of the MVA. His injuries are minor and fall within the MIG.
16Dr. Tajedin Y. Getahun, orthopaedic surgeon, completed an Independent Chronic Pain Assessment for the applicant on September 24, 2020.
17Dr. Getahun’s assessment also found tenderness in the applicant’s neck and lower back. He determined that both injuries are chronic myofascial strains, and diagnosed the applicant with chronic pain syndrome. The chronic pain diagnosis is based on the duration of the pain, the applicant’s level of dysfunction, and also because a diagnosis of chronic pain syndrome was previously made in a psychological report by Dr. Waxer (discussed below).
18Dr. Silver reviewed the report of Dr. Getahun and issued an addendum report on October 16, 2020. His assessment of the applicant’s injuries was unchanged. The applicant previously reported to Dr. Silver that he has neck pain sometimes, but “it’s not too bad” and occasionally has back pain. Moreover, the applicant was working on construction sites performing light clean up work and was fully independent with personal care. Dr. Silver opines that the additional information provided in Dr. Getahun’s report is not sufficiently compelling enough to alter his previous conclusion that the applicant’s injuries are minor and treatable within MIG limits.
19I prefer the findings of Dr. Silver. His conclusions are consistent with the evidence. In particular, that the applicant continues to experience pain but that the severity of that pain does not have a significant impact on his ability to function. He can complete his self care and works fulltime in construction. Also, the applicant chose to not renew his prescription for pain medication. This too is consistent with pain symptoms that do not significantly impede function.
20The chronic pain finding of Dr. Getahun is based on the duration of the applicant’s pain, “dysfunction criteria,” and the somatic pain diagnosis of Dr. Waxer.
21There is no clear indication in Dr. Getahun’s assessment that he is aware that the applicant worked on construction sites after the accident. He describes the applicant’s occupational history as follows:
At the time of his injuries he was on unemployment insurance. He primarily worked in construction. He however describes himself as being a jeweller by trade. He currently is not working.
22Shortly after the accident, the applicant began a fulltime position involving physical labor. This is an indication that the accident had a negligible impact on his physical ability to function.
23Likewise, the applicant’s modest use of over the counter pain medication is also an indication that the pain is manageable.
24Dr. Getahun does not explain how he concluded that the applicant meets the “dysfunction criteria.” More significantly, this conclusion does not appear to be consistent with the above noted evidence. As such, I find that the applicant likely does not have chronic pain because there is limited evidence of functional impairment.
25Dr. John W. Lee, psychologist, evaluated the applicant for an insurer’s examination (IE) on December 3, 2019. Dr. Lee notes that the applicant is reporting pain from the accident, but that he is managing his pain with Tylenol as needed. On rare occasions, the applicant reports dreaming about the accident. He has some nervousness related to driving, but continues to drive, preferring to do so during the day. The applicant reported inconsistent sleep and that his memory and concentration are somewhat disrupted. The applicant also reported starting a new job in construction.
26The applicant completed four psychological tests for Dr. Lee. Two of these tests, the Beck Depression Inventory – II (BDI-II) and Beck Anxiety Inventory (BAI), resulted in scores that were in the “mild” range. The two other tests, the Pain Patient Profile (P-3) and the Trauma Symptom Inventory (TSI-2-A), did not reveal any significant concerns.
27Dr. Lee concludes that the applicant has no diagnosable psychological disorder.
28The applicant relies on the report of Dr. Peter H. Waxer, psychologist, which diagnoses him with a somatic symptom disorder, specific phobia: situational type: vehicular, and a chronic adjustment disorder with mixed anxiety and depressed mood.
29Much of the information reported by the applicant to Dr. Waxer and Dr. Lee is similar. For example, in both assessments the applicant reports similar pain levels, 5-6/10, management of pain with Tylenol, reports continuing to drive but still having some driver anxiety, and having occasional flashbacks of the accident.
30The main difference between the two reports are the psychological test scores. For example, the applicant’s scores on the Beck Depression Inventory-II with Dr. Lee yielded results in the “mild” range. The same test with Dr. Waxer put the applicant in the range of “moderately severe depression.”
31I give more weight to the IE of Dr. Lee.
32The applicant’s later test scores with Dr. Waxer indicate increased levels of psychological symptoms. However, there is little evidence beyond those test scores to support the premise that he sustained psychological injuries.
33He chose to not renew his initial prescription for pain medication and instead treats pain with modest amounts of Tylenol. Post-MVA he worked on construction sites. This required him to be physically active. Neither is consistent with someone suffering a somatic pain disorder.
34The applicant has not exhausted the funds available to him for rehabilitation in the MIG. His benefit statement dated September 2, 2022 indicates that $1,610.00 in benefits remain unused. An OCF-23 Treatment Confirmation form shows that $2,200.00 was approved to pay for incurred treatment on August 19, 2019. Four years later, the applicant has still not used these approved funds for treatment. It is reasonable to infer that the applicant would utilize the funding available to him to treat his pain symptoms. This is also inconsistent with a somatic pain diagnosis.
35Dr. Lee found that the applicant continues to experience pain and psychological sequalae, but his symptoms are mild and do not justify diagnosing a psychological disorder. In my view, Dr. Lee’s assessment is more consistent with the totality of the evidence and I give more weight to his report. As such, I find that the applicant does not have a psychological injury caused by the accident.
36The applicant has not established, on a balance of probabilities, that he has chronic pain or a psychological impairment caused by the accident. For this reason I find, on balance, that his injuries are predominantly minor and subject to treatment within the MIG.
37To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Is the applicant entitled to $519.80 for physiotherapy services?
38The respondent submits that they have no record of this treatment plan, nor the denial. Consequently, there is no basis upon which the Tribunal can decide this issue.
39The applicant was made aware of the respondent’s position, but made no reply submissions.
40Under sections 280(1) and 280(2) of the Insurance Act, the Tribunal has jurisdiction to resolve disputes between an insured and an insurer. There is no evidence supporting the existence of a denial. Consequently, it cannot be established that this treatment plan is in dispute. This issue is dismissed.
Is the applicant entitled to the remaining treatment plans?
41As noted above, $1,610.00 remains under the MIG limits. I find that the remaining treatment and assessment plans are not payable because the applicant is properly within the MIG and the disputed plans exceed the funds available for treatment.
Interest
42As no benefits are owing, the insurer is not liable to pay interest pursuant to 51(2) of the Schedule.
Award
43As there are no outstanding benefits, the respondent cannot be found liable to pay and award under s.10 of Regulation 664.
ORDER
44The applicant remains in the MIG and is not entitled to any of the treatment and assessment plans in dispute, nor interest.
45The respondent is not liable to pay an award.
Released: May 8, 2024
Harry Adamidis
Adjudicator