Licence Appeal Tribunal File Number: 22-002512/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:
Anecito Morano
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Nabila Majidzadeh, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Anecito Morano (“the applicant”), was involved in an automobile accident on December 4, 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 Aviva General Insurance Company (“the respondent”) 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 the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
ii. Is the applicant entitled to a medical benefit in the amount of $1,995.00 for a psychological assessment, proposed by Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) dated March 13, 2020?
iii. Is the applicant entitled to a medical benefit in the amount of $2,374.40 for chiropractic services, proposed by Scarborough Medical Centre in a plan dated July 21, 2020?
iv. Is the applicant entitled to a medical benefit in the amount of $4,089.95 for psychological services, proposed by Scarborough Medical Centre in a plan dated September 4, 2020?
v. Is the applicant entitled to a medical benefit in the amount of $4,089.95 for psychological services, proposed by Scarborough Medical Centre in a plan dated December 30, 2020?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
4The MIG limits have been exhausted. The applicant is not entitled to the medical benefits in dispute because they propose goods and services that are not included in the MIG and above the funding limit.
5No benefits are overdue, therefore no interest is payable.
6The application is dismissed.
ANALYSIS
Minor Injury Guideline
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.”
8An 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.
Pre-Existing Condition
9The applicant submits that he suffered from pre-existing sleep apnea and neck, back and shoulder pain that was exacerbated by the accident. Notably, none of these pre-existing conditions were identified on the disability certificate dated December 17, 2019. It appears that the applicant was diagnosed with sleep apnea in January 2017 and was referred to a sleep clinic. He had a follow up consultation with the sleep disorder clinic in October 2020 which indicates that he uses a CPAP machine, and his condition was well controlled. With respect to the pre-existing pain, the clinical notes and records indicate that the applicant underwent an MRI of his temporomandibular joints, because he was experiencing chronic neck, back and shoulder pain, sinus congestion, teeth grinding and feeling fatigued.
10When asked about any pre-existing conditions by the s. 44 assessor during the musculoskeletal assessment with Dr. Alikhan (report dated September 10, 2020), the applicant only reported hypertension, high cholesterol, an enlarged prostate, and overactive bladder. Dr. Alikhan also reviewed the file information and found that there was no compelling evidence of a clinically significant pre-existing medical condition that might have been materially aggravated by the accident, or could have complicated his recovery.
11Aside from noting the existence of pre-existing conditions in his submissions, the applicant has not directed me to any evidence that this condition would preclude him from achieving maximum recovery if he was kept within the MIG limits. The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing conditions exist but also that they prevent him from achieving maximal recovery within the MIG.
Psychological Impairment
12In order to be removed from the MIG based on psychological impairments, the applicant must show that he has an actual psychological impairment and not just symptomatology. A psychological diagnosis must establish the development of ongoing substantive post-accident symptomatology or a clinically significant psychological impairment.
13The applicant relies on a pre-screening report and a psychological assessment by Dr. H. Mrahar, dated August 25, 2020. The applicant reported feelings of dissatisfaction, irritability, moodiness, tension, impatience, and difficulty relaxing. He reported that his sleep was disrupted, leading to fatigue. He had returned to work despite his physical and emotional struggles. He assisted his wife with the housekeeping but less often. He was independent with all personal care. He reported that he had not resumed his pre-accident social activities, and his driving anxiety was “noticeable”. Testing revealed scores in the severe range for depression and anxiety on the BDI-II and BAI, but average scores for depression, anxiety and somatic problems on the P-3 assessment. Dr. Mrahar diagnosed an adjustment disorder with mixed anxiety and depressed mood. It doesn’t appear that Dr. Mrahar reviewed any collateral documentation in completing her assessment, it was based entirely on the applicant’s subjective reports.
14I prefer the August 18, 2020 report of Dr. R. Silverman, psychologist. Dr. Silverman reviewed file documentation including the clinical notes and records of the family physician, and administered more robust psychological testing. The applicant described feeling irritable, and less useful because he had been contributing less at home with respect to housework. He resumed driving right away, and was driving on a regular basis, without significant anxiety. He denied any loss of pleasure, or feelings of guilt or worthlessness.
15The testing administered by Dr. Silverman administered the Clinical Assessment of Depression, which reflected a moderate clinical risk range. The applicant again had average scores on all three scales under the P3. The Trauma Symptoms Inventory results attained an invalid profile, with an extremely elevated score on a scale that reflected endorsement of several items pertaining to unusual and anomalous psychopathology. Similarly, the applicant’s responses to the items on the Structured Inventory of Malingered Symptomatology reflected a high frequency of endorsement of symptoms considered to be atypical in individuals with genuine psychiatric or cognitive disorders, and his profile was suggestive of symptom embellishment and a deliberate attempt to present in an especially symptomatic manger. Dr. Silverman opined that the sequelae described by the applicant did was a normal psychological response to his residual pain and functioning and was not reflective of a maladaptive psychological response, deficient coping, or substantive adjustment issues. He resumed his full time job and described a reasonably stable marriage and family life. He did not meet the diagnostic criteria for a diagnosable psychological disorder.
16The applicant submits that he participated in treatment sessions and infers that this demonstrates that his injuries are not a minor injury. However the test to demonstrate a non-minor injury is based on the applicant’s injuries, it does not include consideration for whether the applicant incurs or is referred to additional treatment for those injuries or associated sequelae.
17I find that the applicant has not demonstrated that he suffers from a psychological impairment as a result of the accident that would warrant his removal from the MIG.
Chronic Pain
18An insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to simply have chronic pain – it must be accompanied by functional impairment.
19The applicant submits that he suffered from chronic pain, and that he struggled with housekeeping and had not resumed his pre-accident social activities.
20I am not persuaded that the applicant suffers from chronic pain with functional impairment. The applicant relies on treatment records of Dr. G. Choi in April and May 2023 which indicate that the applicant has chronic mechanical low back pain and thoracic spine pain, with improvement in pain and range of motion with his treatment. Dr. Choi is a chiropractor and is not qualified to diagnose chronic pain. The family doctor’s records do not include a diagnosis of chronic pain, nor is there evidence of any functional impairment. The evidence indicates that the applicant took a few weeks off work from his job as a lot associate at a hardware store, and then returned to work following a six-week vacation that had been booked before the accident. The applicant described his job as physically demanding, as it required lifting lumber and operating machinery. The applicant has resumed driving, albeit he is less confident. His ability to play basketball has been “hindered”.
21I am persuaded by the insurer’s examination (“IE”) musculoskeletal assessment report of Dr. N. Alikhan, physician, dated September 10, 2020. The applicant reported that his doctor had not arranged any further investigation or imaging and he was not prescribed any medication. The applicant returned to work at his full-time hours and duties. He was independent with all aspects of his personal care and was able to perform all of his pre-accident housekeeping duties. In terms of social activities, prior to the accident, he played basketball (three times a year), watched tv, and occasionally socialized with friends. Post-accident he continued to watch tv and socialize with friends, but less often due to the pandemic. While Dr. Alikhan acknowledged the applicant’s reports of ongoing pain in his neck and low back, upon examination and review of the medical documentation, Dr. Alikhan diagnosed sprain strain injuries to the neck and back and chest wall contusion. Dr. Alikhan concluded that the physical examination did not reveal any valid objective medical evidence of a substantial, ongoing accident-related musculoskeletal functional impairment/range of motion deficit or neurological sensory/motor deficit, nor did the assessment or documents reviewed reveal sufficient evidence to support a diagnosis of chronic myofascial pain, nor chronic pain syndrome.
22I am not persuaded that the applicant suffered from chronic pain with functional impairment as a result of the accident.
23Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment plans in dispute, as the parties confirmed that the full MIG limits have been exhausted.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue, therefore no interest is payable.
ORDER
25The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
26The MIG limits have been exhausted. The applicant is not entitled to the medical benefits in dispute because they propose goods and services that are not included in the MIG and above the funding limit.
27No benefits are overdue, therefore no interest is payable.
28The application is dismissed.
Released: January 23, 2024
__________________________
Kate Grieves
Adjudicator