Citation: Kowalczyk v. Intact Insurance, 2024 ONLAT 21-012691/AABS

Licence Appeal Tribunal File Number: 21-012691/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:

Justin Kowalczyk

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Brennan Kahler, Counsel

For the Respondent: Theomarcus Giannou, Counsel

HEARD: In Writing

OVERVIEW

1Justin Kowalczyk, the applicant, was involved in an automobile accident on May 19, 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 Intact Insurance and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties agree that the MIG limits have not been exhausted. The respondent confirmed in submissions that it had funded $2,381.23 in benefits, and $1,118.77 remained in the MIG. The applicant did not make any reply submissions and did not provide any objection to this figure.

3The applicant made the following corrections to the issues in dispute in his submissions. The respondent did not make any objection to these clarifications in its own submissions.

i. The treatment plan/OCF-18 (“plan”) proposed by Merepeza Chiropractic Professional Corporation in the amount of $3,332.04 is for physiotherapy and massage therapy, not chiropractic services as indicated on the case conference report and order (“CCRO”).

ii. The plan proposed by Dr. Paul Davidson in the amount of $705.77 ($2,155.00 less $1,449.23 approved) is for chiropractic treatment and massage therapy, not occupational therapy services as indicated on the CCRO.

iii. The plan for psychological services in the amount of $2,544.19 was proposed by Fox Psychological Services, not East York Physiotherapy & Orthopaedic Rehabilitation Clinic as indicated on the CCRO.

ISSUES

4The issues in dispute are:

a. 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 Minor Injury Guideline?

b. Is the applicant entitled to $3,332.04 for physiotherapy and massage therapy services proposed by Merepeza Chiropractic Professional Corporation in a plan submitted June 7, 2019, denied June 17, 2019?

c. Is the applicant entitled to the following plans proposed by Rehab First Inc:

i. $2,045.38 for occupational therapy services in a plan dated January 5, 2021, denied January 12, 2021?

ii. $2,995.00 for social work counselling in a plan dated January 5, 2021, denied January 12, 2021?

d. Is the applicant entitled to $705.77 ($2,155.00 less $1,449.23 approved) for chiropractic treatment and massage therapy proposed by Dr. Paul Davidson in a plan submitted January 11, 2021, denied January 19, 2021?

e. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by East York Physiotherapy & Orthopaedic Rehabilitation Clinic in a plan submitted August 13, 2021, denied November 29, 2021?

f. Is the applicant entitled to the following plans proposed by Fox Psychological Services:

i. $2,200.00 for psychological services in a plan submitted August 31, 2021, denied August 31, 2021?

ii. $2,544.19 for psychological services in a plan submitted November 17, 2021, denied November 29, 2021?

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

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

RESULT

5I find that the applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG.

6The applicant remains within the MIG; however, the applicant is entitled to the $1,118.77 remaining within the $3,500.00 MIG limit as of the date of this decision, as such benefits if they already have been incurred are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

7Interest applies according to the payment of overdue benefits in accordance with s. 51 of the Schedule.

8The applicant is not entitled to an award.

ANALYSIS

The Minor Injury Guideline

9I find that the applicant’s injuries fall within the definition of minor under s. 3 of the Schedule.

10Section 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 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.”

11An insured person 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

12The applicant submits that he suffered physical injuries from the accident that fall outside of the MIG, has been diagnosed with Chronic Pain Syndrome (“CPS”), and has a psychological impairment. He relies on the clinical notes and records (“CNRs”) from Bowmanville Hospital, Port Hope Health Centre (“PHHC”), and his general practitioners (“GPs”), as well as s. 25 reports from Drs. Zavahi and Miller, a chronic pain specialist and psychologist respectively.

13The respondent submits that the applicant does not qualify for treatment beyond the MIG. It argues that his injuries fall within the definition of minor, and there is no compelling medical evidence that he suffers from chronic pain with a functional disability or has a psychological impairment. The respondent relies on the reports of its s. 44 assessors Drs. Khaled and Direnfeld, a GP and psychologist in turn.

14The applicant submits that as a result of the accident, he suffered a mild traumatic brain injury (“TBI”). I am not convinced by the applicant’s arguments that he suffered a TBI. He reports that his immediate symptoms following the collision were consistent with the definition of a mild TBI, and his physiotherapist queried a concussion a few days after the accident on May 22, 2019. He points to a period of confusion after the accident, and further submits that he has displayed symptoms of post-concussion syndrome such as headache, dizziness, and fatigue; while also meeting the criteria under the DSM-IV for anxiety, depression, and sleep problems.

15While it is true that the applicant reported a patchy memory in the immediate aftermath of the accident, there were no physicians who diagnosed a TBI at any time, mild or otherwise. I note that the hospital emergency room (“ER”) record shows that the applicant did not have a loss of consciousness and “appeared well”. Further, although his physiotherapist (“PT”) may have questioned a TBI, she was not qualified to make a corresponding diagnosis.

16Thus, the applicant has not demonstrated that he has an injury that falls outside the definition of minor under the Schedule.

Pre-existing injury or condition

17Despite having knee surgery several months before the subject accident, there is no indication that the applicant’s prior knee issues pose an obstacle to his recovery. At a follow-up with surgeon Dr. Guirguis, on June 4, 2019, he recorded that the applicant’s symptoms had not improved as a result of the surgery. However, there is no suggestion from any treatment provider or assessor to indicate that the applicant’s knee issues, which include prior surgeries as well as hockey injuries, precluded a maximal medical recovery within the MIG. On the contrary, s. 44 assessor Dr. Khaled specifically recorded that the knee pain did not constitute a pre-existing barrier to recovery within the MIG.

18Accordingly, the applicant has not established that his pre-existing knee condition prevents his maximal medical recovery within the MIG.

Chronic Pain

19Although the applicant submits that his pain has lasted well past the three to six months typical of a minor injury, there is conflicting evidence on whether it is chronic pain. Dr. Zahavi diagnosed the applicant with CPS, but no other physician or treatment provider does likewise.

20In his affidavit, the applicant described his immediate injuries after the accident. He reported having pain all over his body, including in his back, neck, hands, wrist, and knees, as well as bruising and a cut on his hand. His statement is supported by the hospital ER record as well as the intake notes of his physiotherapist at PHHC. On May 22, 2019, PT McCuaig documented headache, neck pain, bilateral shoulder pain, and increased knee pain (identified as a pre-existing injury).

21The applicant also directs me to the CNR for May 27, 2019, from GP Dr. Best. However, the CNRs submitted as evidence for this date are for the applicant’s wife’s appointment with a Dr. Raikhlin. Despite this error, there is evidence that the applicant reported a similar pain profile approximately a year and half later at his assessment with Dr. Khaled.

22In spite of his pain symptoms, it is clear that the applicant continues to function in his everyday life. The applicant’s affidavit indicates that post-accident he now works fewer hours with modified activities, pursues less recreation such as golf and 4-wheeling, and has poor sleep. Still, the respondent argues that he took no time off work after the accident, works a full 40-hour week, and is independent for personal care and daily living. It is notable that he continues to drive and even drove his family home from the hospital on the day of the accident.

23The respondent’s account of the applicant’s functional ability is supported by the findings of Dr. Khaled at the s. 44 assessment. Dr. Khaled did not find any markers of permanent musculoskeletal, neurological, or orthopaedic accident-related impairments. He did however find Whiplash Grade 2 associated with headaches, sprains and strains, and a worsening of the knee pain that was present prior to the accident. Regardless, Dr. Khaled classified these injuries as uncomplicated soft tissue injuries and made a prognosis for complete functional recovery within the MIG. He further advised that relief would best be achieved with an independent exercise program as the applicant had already “returned to the vast majority of his previous activities within the home, and functions safely and independently”.

24Dr. Khaled’s findings differ significantly from those of s. 25 assessor Dr. Zavahi. On February 23, 2022, Dr. Zavahi diagnosed the applicant with CPS and strain of the neck, shoulders, and wrist, chronic wrist strain, and “probable” cervical zygapophyseal joint pain. He recorded that the applicant had a moderately restricted range of motion, a mild spasm in the cervical spine, and a mild paravertebral tenderness. With regard to social and work activities, Dr. Zavahi noted that the applicant had withdrawn from such activities, had not returned to his pre-accident level of functioning, and had developed psychosocial sequelae. However, testing results showed that the applicant was not depressed or anxious in any significant way, had only a mild degree of self-perceived disability, and was capable of socializing.

25The respondent submits that to be entitled to treatment outside the MIG due to chronic pain, the applicant must also demonstrate a considerable functional limitation. It submits that there has been no change in the applicant’s long-term functionality. I agree that despite a diagnosis of CPS, the applicant continues to function in all areas of his life. He is working full-time, is driving, and continues to undertake regular activities at home, work, and in his social life. If he has some ongoing limitations compared to his pre-accident lifestyle, they do not rise to the level of a significant functional impairment.

26Accordingly, I find that the applicant has not demonstrated that he has chronic pain with a functional impairment that warrants treatment outside the MIG. Although he was diagnosed with CPS by Dr. Zahavi, he has not established that he also has a substantive functional impairment.

Psychological impairment

27The applicant submits that he was diagnosed with Somatic Symptom Disorder and Posttraumatic Stress Disorder (“PTSD”) among other psychological diagnoses and had a history of anxiety and depression. He relies on the reports of s. 25 assessors Drs. Zahavi and Miller, and his GP Dr. Best. Upon a review of the evidence, I am not persuaded that the applicant has a psychological impairment that falls outside the MIG.

28First, while he indicates that Dr. Zahavi queried PTSD, the diagnosis is only a “possible PTSD”. As for a diagnosis from Dr. Best, I found no such diagnosis in any of the related CNRs. Lastly, he points to the findings of s. 25 assessor Dr. Miller who made several diagnoses as follows:

i. Pain Disorder associated with Psychological Factors and a General Medical Condition;

ii. Somatic Symptom Disorder; and

iii. Adjustment Disorder with Mixed Anxiety and Depressed Mood.

29While I acknowledge these diagnoses, I give his report less weight than his s. 44 counterpart Dr. Direnfeld. Dr. Miller conducted his assessment by telephone, and his testing results, diagnoses, and recommended treatment are not aligned in a convincing way. The applicant’s results on the Beck Inventory tests for depression and anxiety, and the Patient Pain Profile test were “minimal”, “mild” and “below average” respectively. Nevertheless, Dr. Miller diagnosed the applicant with three psychological conditions. Despite these diagnoses he found that the applicant was coping well, yet he still recommended a psychotherapy treatment plan – to be utilized on demand. Thus, the testing results, diagnoses, and recommended treatment plan lack coherence.

30For its part, the respondent submits that the applicant’s minor injuries may have led to some psycho-social sequalae, but such symptoms do not rise to the level of a psychological impairment. Its argument is supported by Dr. Direnfeld’s report who arrived at different conclusions than Dr. Miller. He found that there was insufficient evidence to support a diagnosis of PTSD, and the applicant did not endorse any intrusive symptoms of accident-related nightmares or flashbacks. Further, he found that the applicant did not endorse any features of Somatic Symptom Disorder, even reporting that his health was not one of the subjects he worried about. Also, he found that the applicant did not meet the criteria for a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

31Dr. Direnfeld’s testing outcomes also support that the applicant falls short of an impairment. The applicant’s Accident Fear Questionnaire did not indicate any fear-based avoidance of driving, his Beck Anxiety Inventory was low, and his Beck Depression Inventory was minimal. Although he scored with a moderate impairment on the Work and Social Adjustment questionnaire for work and home management activities, there was no impairment at all for social and leisure activities.

32Lastly, Dr. Direnfeld recorded that the applicant had been on an antidepressant for years to address worry about work, family, and social situations. Notably, he did not find that it substantively interfered with the applicant’s work or personal care. He also documented that the applicant had a low mood periodically, over the years, yet these episodes did not occur more frequently after the accident.

33Dr. Direnfeld’s report makes it clear that based on the clinical interview and a battery of psychometric measures, there was insufficient evidence of an accident-related psychological impairment, or associated rise in the applicant’s level of distress post-accident, that was clinically significant. In addition, the evidence from Drs. Zahavi, Miller, and the applicant’s GPs Drs. Best and Hamel, taken together, do not support a finding that the applicant has a psychological impairment. Dr. Zahavi’s query of PTSD is only a “possible” diagnosis, and while Dr. Miller diagnosed several conditions, he also concluded that the applicant is coping well and is not in need of regular psychotherapy. Lastly, the applicant’s family doctor, Dr. Hamel, recorded on April 12, 2022, that the applicant’s anxiety was well-controlled. There are no other references in the CNRs from his GPs that would indicate a psychological impairment from the subject accident.

34So, despite being diagnosed with psychological conditions by Dr. Miller, the evidence from Drs. Direnfeld, Zahavi, Hamel, and Best does not uphold these diagnoses. Consequently, I find that the applicant has not demonstrated that he has a psychological impairment that justifies treatment outside the MIG.

Conclusion

35The applicant has not established that he warrants treatment outside the MIG due to a TBI, pre-existing knee condition, chronic pain with functional impairment, or psychological impairment.

36As a result, the applicant remains subject to the MIG limit.

37Pursuant to s. 40(8), the applicant is entitled to the benefits set out in the disputed treatment plans, up to the maximum available funding remaining within the MIG.

38The applicant submits that he incurred the cost of some benefits proposed in the treatment plans in dispute, as well as the cost of the assessments from Drs. Zahavi and Miller. Since the amount incurred, as reported by the applicant, is well over the remaining amount in the MIG, the MIG limits will be consumed by the expenses deemed payable under s. 40(8).

39As a result, it is not necessary for me to determine if each of the treatment plans are reasonable and necessary on an individual basis.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

41The applicant is entitled to interest on any overdue payment of benefits, up to the MIG limit.

Award

42The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

43The applicant submits that the respondent has unreasonably withheld payment of benefits as it failed to provide due consideration to the applicant’s evolving medical records. In his opinion, the records demonstrate that his injuries are appropriately treated outside the MIG due to both chronic pain and psychological impairment. Given my finding that the applicant’s accident-related injuries fall within the definition of minor, I cannot agree.

44The respondent refers me to the definition of “unreasonable” found in Plowright v Wellington Insurance Company, 1993 ONICDRG 66, and submits that it did not act in an “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate” manner. It further submits that it approved medical benefits within the MIG, and once treatment plans were submitted proposing treatment beyond the MIG, it scheduled s. 44 assessments to determine the applicant’s eligibility for further treatment.

45I agree with the respondent. There is no evidence before me to indicate that the respondent’s adjustment of the file was unreasonable. Rather, it relied on the findings of its s. 44 assessors.

46I find that the applicant has not demonstrated entitlement to an award.

ORDER

47The applicant remains in the MIG and is subject to the $3,500.00 limit on treatment.

48The applicant is entitled to the benefits set out in the disputed treatment plans up to the remaining amount of the MIG limits, if incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

49The applicant is entitled to interest pursuant to s. 51 of the Schedule, for benefits set out in the disputed treatment plans up to the remaining amount of the MIG limits, if incurred.

50The applicant is not entitled to an award.