Phillips v. BelairDirect Insurance Company, 2024 CanLII 41017

Citation: Phillips v. BelairDirect Insurance Company, 2024 CanLII 41017

Licence Appeal Tribunal File Number: 22-004174/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:

Jordan Phillips

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR: Margaret Sims

APPEARANCES:

For the Applicant: Michelle Velvet, Counsel

For the Respondent: Hiba Fasih, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jordan Phillips, the applicant, was involved in an automobile accident on February 26, 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, BelairDirect 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:

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 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to $3,627.26 for psychological services, proposed by Novo Medical Services in a treatment plan/OCF-18 (“plan”) dated July 29, 2019?
3. Is the applicant entitled to $2,734.16 for chiropractic services, proposed by Novo Medical Services in a plan dated August 16, 2019?
4. Is the applicant entitled to $1,218.47 for chiropractic services, proposed by Novo Medical Services in a plan dated November 12, 2019?
5. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that the applicant’s medical and rehabilitation benefits are subject to the MIG limit of $3,500.00.

4I find that the applicant is not entitled to the treatment plans in dispute.

5I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.

ANALYSIS

Minor Injury

6I find that the applicant’s medical and rehabilitation benefits are subject to the MIG limit of $3,500.00 because the injuries he sustained in the accident were predominantly minor as defined in s. 3 of the Schedule. He has not demonstrated on a balance of probabilities that his accident-related impairments fall outside of the MIG.

7Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to the MIG limit of $3,500.00 if the insured person sustains injuries that are predominantly minor as defined in s. 3 of the Schedule.

8Section 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.”

9The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG. To do so, the applicant will need to:

i. demonstrate that their accident-related injuries fall outside of the definition of “minor injury”, or

ii. pursuant to s. 18(2) of the Schedule, provide compelling evidence from a healthcare provider that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

10While psychological symptoms arising from soft tissue injuries are included in the MIG, psychological impairments may fall outside the MIG if the applicant’s psychological complaints are not merely sequelae arising from the applicant’s soft tissue injuries but are a psychological impairment resulting from the accident.

11While the presence of ongoing pain on its own is insufficient to justify removal from the MIG, chronic pain may be a basis for removal from the MIG if a resulting functional impairment is also proven.

Minor Injuries Sustained in the Accident

12The applicant submits that he should not be subject to the MIG limits because:

i. he suffers from accident-related physical and psychological impairment which are more than psychological symptoms or sequelae arising from soft injuries;

ii. he suffers from chronic pain, as the pain from his injuries has persisted well beyond the acute stage and has persisted without improvement.

13The applicant relies upon the psychological assessment of Dr. Nina Belyakova, dated July 17, 2019 and prepared following a June 28, 2019 assessment (the “Belyakova Psychological Assessment”). Dr. Nina Belyakova provides a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational (driving and travelling as a passenger). Dr. Belyakova recommends 12 sessions of cognitive-behavioural oriented psychotherapy. Further, Dr. Belyakova opines that the psychological impairments that the applicant sustained as a result of the accident are significant enough to conclude that he does not fall under the MIG.

14The respondent submits that the applicant’s injuries fall within the definition of “minor injury”.

i. The respondent notes that that, prior to the accident, in 2017, the applicant sustained a back / lumbar sprain in two separate motor vehicle accidents and, in 2018, sustained a left shoulder sprain and dislocation from a fall.

ii. The respondent relies on the diagnosis by Dr. Ansari two days following the accident of a back and left shoulder sprain.

iii. The respondent note that based on the CNRs, the Applicant went to his family doctor complaining of shoulder pain and later in 2019 mostly of back pain and occasionally of foot pain twice in 2019; 6 times in 2020, most of which was in the month of June; and 3 times in 2021.

15The respondent relies upon the Physician Assessment Report of Dr. Charanjit Sandhu, dated April 1, 2021, prepared following an in-person physician assessment on March 23, 2021 (the “Sandhu Assessment Report”), the Psychological Assessment Report of Dr. Neil Weinberg, dated Nov 11, 2019 (the “Weinberg Psychological Assessment Report”), and the Psychology Assessment Report of Dr. Marc Mandel, dated October 27, 2020, prepared following an October 13, 2020 virtual psychology assessment (the “Mandel Psychology Assessment Report”).

16The respondent submits that, if the applicant is continuing to experience pain, that it is the result of subsequent injuries and not the accident. In this regard, the respondent notes that CNRs from Doctors Urgent Care and Family Medicine, dated April, 2020 to October, 2021, include references to the following post-accident injuries.

i. January 6, 2020: Back Sprain Scapular Strain: injured while playing basketball;

ii. June 15, 2020: Lumbar Strain: The Applicant injured his back due to lifting heavy tables;

iii. June 17, 2020: Back Sprain: strained his back at work; advised to exercise daily;

iv. June 30, 2020: Reporting 60-70% improvement in back pain; and

v. April 25, 2021: Foot pain: work related strain, left foot slightly swollen.

17The respondent submits that, despite the Case Conference Report and Order ordering production of CNRs from 2022 and 2023 from Doctors Urgent Care and Family Medicine, these CNRs were not produced by the applicant.

18The respondent submits that the applicant has failed to provide any evidence to substantiate that he suffers from chronic pain syndrome and there has been no chronic pain syndrome diagnosis. Further, the respondent relies on the report by the applicant to Dr. Sandhu as recorded in the Physician Assessment Report that he has returned to full hours and duties in his employment and that he is independent with all activities of daily living and instrumental activities of daily living.

19I find that the applicant sustained “minor injuries” as defined in section 3(1) of the Schedule. In particular, I find that the applicant sustained sprains of his back sprain and left shoulder, which are injuries covered by the definition of “minor injury”, based on the records of the physical examination by Dr. Ansari at Doctors Urgent Care & Family Medicine of the applicant on February 27, 2019 (the day after the accident), the ultrasound conducted on February 27, 2019 by Toronto East X-Ray & Ultrasound, the Disability Certificate (OCF-3) dated March 22, 2019 completed by chiropractor Anjelika Alechina with respect to the accident and the follow-up ultrasound conducted on July 15, 2019 by Toronto East X-Ray & Ultrasound.

20I find that the applicant has not met his burden of establishing with medical evidence that he has sustained an accident-related psychological impairment(s) or disability that fall outside of the definition of minor injury.

21In this regard, I note the following.

i. I find that the applicant did not sustain an accident-related psychological impairment(s) or disability as a result of the subject motor vehicle accident which fall outside the definition of minor injury.

ii. The CNRs of Dr. Ansari at Doctors Urgent Care & Family Medicine from April 18, 2019 to April 2, 2020 and from April 2, 2020 to October 21, 2021 do not document complaints of a psychological nature as a result of the accident or at all.

iii. In the Psychological Assessment Report of Dr. Neil Weinberg, dated November 11, 2019, Dr. Weinberg provides his opinion that Mr. Phillips does not evidence accident-related psychological impairment(s), psychological sequelae or disability as a result of the subject motor vehicle accident and despite his residual pain that he is functioning effectively at present devoid of any significant signs of emotional and/or psychological distress.

iv. While I have noted that the Belyakova Report does opine that the applicant suffers from an accident-related psychological impairment, I prefer the Weinberg Report over the Belyakova Report because I find it is a better assessment of the applicant’s psychological state as it was prepared after the acute phase of his sprain injuries had resolved and Dr. Belyakova assessment of his psychological state was impacted by the acute phase of the sprain injuries. At the time of Dr. Belyakova’s assessment, the applicant reported that he was experiencing constant physical pain from his back sprain and shoulder sprain and difficulties performing his everyday tasks. It was also noted that he returned to work with modified duties without taking additional time off after the accident, including driving a company van as part of his work.

v. Dr. Weinberg reports that during his assessment,

1. the applicant reported that, although he reportedly "thinks" about the subject motor vehicle accident, he denied experiencing any accident-related nightmares, flashbacks, intrusive ideations, distressing recollections and/or any other current posttraumatic symptomatology;

2. the applicant informed him that he has not been referred to any mental health professionals since the subject accident;

3. although he denoted feeling frustrated and aggravated, when queried, he declined the need for any current psychological intervention in relation to the subject motor vehicle accident;

4. the applicant reported that he was currently working full-time, regular hours and duties, 40 hours per week, could perform all household chores and, while he has curtailed playing basketball and going to the gym, he is engaging in his daily rehab exercises and has not withdrawn socially; and

5. the applicant reported that he continues to drive on a daily basis with mild reported anxiety and he has not restricted his driving patterns and continues to drive on the highway and "anywhere" he needs to travel and continues to ride and travel as a passenger in vehicles with moderate reported apprehension. Further, Dr. Weinberg reported that when asked, the applicant said he uncertain whether he desires or would require any psychological treatment in this regard.

vi. Dr. Mandel prepared his report based on a document review and a virtual psychology assessment on October 13, 2020. In his report, Dr. Mandel opines that based on

“the response to clinical interview and psychological testing, in conjunction with document review and Mr. Phillips’ presentation, that there is a lack of consistent objective information present that would support DSM V diagnosis and or suggest that he suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the subject motor vehicle accident at this time”.

22I find that the applicant has failed to demonstrate that he meets the test for chronic pain syndrome as outlined in American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain with functional impairment, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain syndrome. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including working, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

6. Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

23There is no diagnosis of chronic pain in the record. Further, based on the GP’s CNRs, the Sandhu Assessment Report, the Weinberg Psychological Assessment Report, and the Mandel Psychology Assessment Report, I am not persuaded that the applicant’s chronic pain is sufficient for removal from the MIG as he does not meet at least three of the six criteria to support a diagnosis of chronic pain.

No Pre-Existing Conditions that will prevent maximal recovery if subject to the MIG limit

24I do not find that the applicant suffers from a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

25The applicant submits that he suffers from pre-existing medical conditions, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

26The applicant submits that the CNRs of Dr. Michele Griever for the pre-accident period of February 26, 2016 to April 17, 2019; and the CNRs of Doctors Urgent Care & Family Medicine for the pre-accident period of February 26, 2016 to February 26, 2019, make reference to pre-existing injuries which ought to have been found to be pre-existing injuries that would prevent the applicant from being treated within the MIG. In particular, the applicant references pre-accident low back pain and a back sprain and back pain from a MVA in December 12, 2017, back, neck and shoulder pain and shoulder sprain/dislocation and pain.

27The respondent submits that, while the applicant relies on injuries he sustained as a result of prior accidents and/or incidents to support his claim that as a result of these pre-existing injuries, he is unable to be treated within the MIG, the applicant reported having no prior pain history to the IE assessors. For example, to Dr. Sandhu he stated, “[he] has a history of motor vehicle accidents … both accidents resulted in low back sprains that completely resolved.” To Dr. Weinberg he informed that he fractured his right ankle at the age of 16 that required a fitted air boot cast and denied any other medical history. Lastly, to Dr. Mandel he advised that due to the prior two accidents. He received physiotherapy treatment for 3-4 months and was able to return to full time duties at work within 6 months.

28The respondent also submits that if the applicant continues to experience pain or symptoms it is a result of subsequent injuries and not the subject accident.

29As set out above, I do not find that the applicant suffers from a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap. I find that, while the applicant has established prior accidents and injuries, he has not shown that these prior accidents and injuries will prevent him from achieving maximal recovery if benefits are limited to the MIG cap.

30I note that:

i. There is no medical opinion, diagnosis or recommendation in the record indicating that pre-existing condition(s) will prevent maximal recovery from the minor injury if the applicant is subject to the MIG limit of $3,500.00.

ii. In the chiropractic plan proposed by Novo Medical Services dated August 16, 2019, the chiropractor:

(a) selected the OCF-18 box indicating “yes” beside the question of whether the “impairment [is] predominantly a minor injury as referred to in the Minor Injury Guideline applicable to the accident”; and

(b) selected the OCF-18 box indicating his recommendation that “Treatment under the Minor Injury Guideline has already been provided and additional treatment goods and or services are required within the $3,500 limit”,

iii. In the chiropractic plan proposed by Novo Medical Services dated November 12, 2019, a different chiropractor selected the OCF-18 box indicating “no” beside the question of whether the “impairment [is] predominantly a minor injury as referred to in the Minor Injury Guideline applicable to the accident. As a result of selecting box indicating that impairment was not predominantly minor, this plan includes no opinion on the impact of a pre-existing condition and whether it prevented maximal recovery from the minor injury if the applicant is subject to the MIG limit of $3,500.00.

iv. I have not considered the post-accident injuries referenced by the respondent in making this finding as these post-accident injuries in 2020 and 2021 post-date the 2019 plans at issue in this application.

Conclusion regarding MIG

31I find that the applicant has not established that their accident-related injuries fall outside of the definition of “minor injury”. I find that the applicant has not established that there is compelling evidence from a healthcare provider that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG.

32Therefore, I find that the applicant is subject to the MIG.

33I have found that the applicant’s injuries are within the MIG. As the MIG limits have been exhausted, I find that the applicant is not entitled to the remaining treatment plans in dispute.

Award

34I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.

35Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

36I find that the applicant is not entitled to an award as I do not find that the respondent unreasonably withheld or delayed the payment of benefits.

ORDER

37The applicant sustained minor injuries as a result of the accident and is subject to the MIG limit on treatment.

38As the MIG limits have been exhausted, I find that the applicant is not entitled to the treatment plans in dispute.

39The respondent is not liable to pay an award under s. 10 of O. Reg. 664.