Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-008783/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:
Sharnjit Riarh
Applicant
and
Belair
Respondent
Decision
Adjudicator: Robert Rock
Appearances:
For the Applicant: Andrea N Seecharan, Counsel
For the Respondent: Modasir Rajabali, Counsel
Heard: In Writing
Overview
1Ms. Sharnjit Riarh, the applicant, was involved in an automobile accident on September 13, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Belair, 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 Minor Injury Guideline ("MIG") limit?
ii. Is the Applicant entitled to $2,960.00 for an orthopedic assessment, proposed by Elite Specialist in an OCF-18 submitted on March 17, 2020, denied on March 30, 2020?
iii. Is the Applicant entitled to $2,960.00 for a psychological assessment, proposed by Elite Specialist in an OCF-18 submitted on March 18, 2020, denied on March 30, 2020?
iv. Is the Applicant entitled to $4,239.54 for psychological services, proposed by Elite Specialist, in an OCF-18 submitted on April 16, 2021, denied on May 3, 2021?
v. Is the applicant entitled to Interest?
Result
3I find that:
i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.
ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, if incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
Analysis
The Minor Injury Guideline ("MIG")
4Section 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."
5An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
6The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from the MIG due to a pre-existing anxiety, chronic pain and psychological impairments. The applicant argues that she meets three of the criteria required to establish a diagnosis of chronic pain in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (the "AMA Guides"). Further, the applicant relies on T.S. v. Aviva General Insurance Company, 2018 CanLII 83520 (ON LAT), a reconsideration decision that held that chronic pain was not a minor injury as defined by the Schedule because chronic pain is described as ongoing or recurrent pain lasting more than three to six months and that adversely affects an individual's well-being.
7The respondent argues that the applicant should not be removed from the MIG, as she has not substantiated any pre-existing anxiety, nor that she suffers from chronic pain or a psychological condition not defined as a minor injury in the Schedule. The respondent further submits that the applicant does not meet the criteria established in the AMA Guides regarding chronic pain.
The applicant remains within the MIG
8I find that the applicant has not met her onus and demonstrated that her accident-related impairments warrant removal from the MIG.
The applicant does not suffer from an injury or condition that precludes her recovery within the MIG
9The applicant submits that the accident exacerbated her pre-existing anxiety, but she does not direct me to sufficient medical evidence indicating that such symptoms precluded her recovery within the MIG, which is required for removal from the MIG pursuant to s. 18(2).
10While the claim of pre-existing anxiety is made by the applicant, I have not been directed to any evidence to substantiate the existence of this condition.
11The clinical notes and records ("CNRs") of Dr. Osama Benmoftah, Orthopedic Surgeon, state that the applicant self-reports not suffering from any physical or psychological illnesses pre-accident.
12In addition, the psychological report of Helen Ilios, and Dr Andrew Shaul, Registered Psychologist, states that the applicant self reported not receiving any psychiatric or psychological assistance prior to this accident.
13Accordingly, the applicant has not substantiated that pre-existing anxiety precludes her recovery within the MIG.
The applicant does not suffer from chronic pain
14Minimal evidence has been submitted by the applicant to support her claim of experiencing chronic pain with a functional impairment that would warrant her removal from the MIG.
15The applicant bases her chronic pain argument largely on the AMA Guides. While the test in the AMA Guides is not binding or definitive, this Tribunal has long held that it provides a helpful tool for the evaluation of chronic pain. The Guides establishes that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. 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.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
16The applicant argues that she meets three of the six criteria. Namely, she submits that her use of oxycodone post-accident reveals a dependence on medication that meets criteria (iii); that she has physical deconditioning (iv); withdrawal from her daily activities; and has (vi) developed a psychosocial sequelae consisting of a persistent depressive state.
17However, the applicant has not directed me to sufficient evidence supporting these claims.
18First, to address criterion (iii) of the AMA Guides. While Dr. Benmoftah notes in his assessment on November 24, 2020 that the applicant has "pain behaviours," such as withdrawal, guarding, and diffuse tenderness. It is not clear in the submitted evidence that this is evidence that this pain behaviours rose to the level of physical deconditioning. In review of the self reported pain scale by the applicant, all were listed as mild or mild to moderate in intensity. Also, the listed examinations indicate normal alignment and range of motion to be near normal. Finally, there were recommendations for further testing MRI of the right wrist, an ultrasound of bilateral shoulder, and X-Ray of the right wrist which would have backed up the self reported symptoms, but I do not see results of these included in evidence.
19Second, insufficient evidence has been submitted to show that the applicant has withdrawn from daily activities in accordance with criterion (v) of the AMA Guides. On the contrary, in the CNRs of Loredana Moraru, Psychological Counsellor, under the supervision of Dr Jacqueline Brunshaw, Registered Clinical and Rehabilitation Psychologist, for July 15, 2021, the applicant reported taking a course in nail enhancement, finishing training to become a real estate broker, cooking for her youngest brother, and taking care of the place where she lives with her family.
20Third, minimal evidence supports the applicant's claims to vehicular anxiety, which would support criterion (vi) of the AMA Guides. The psychological assessment report completed by Helen Ilios, supervised by Dr. Andrew Shaul, Registered Psychologist, details the applicant reporting that she felt sad, but more so related to COVID and not the accident and that she feels sad being at home and being unable to work. Also in the report, an analysis of her scores on a 21-item questionnaire designed to measure degree of depression show in the minimum range. On the BAI 21 item questionnaire designed to measure level of anxiety, her score indicated Mild level symptoms. The SCL-90-R 90 item questionnaire designed to assess a wide range of psychological and physical symptoms are summarized as experiencing low levels of emotional distress. Also, in the CNRs of Loredana Moraru referred to above, the applicant reports that most of her anxiety is related to her relationship with her boyfriend more than being accident related. I do not find that the applicant has established that she suffers from vehicular anxiety.
21Lastly, I accept the description of chronic pain in T.S. v. Aviva General Insurance Company as referenced by the applicant, even though I am not bound by prior decisions of the Tribunal. However, it is well accepted by this Tribunal that, to warrant removal from the MIG, chronic pain must involve a significant disruption to an applicant's life and functional impairment, not just pain beyond three to six months.
22Here, the applicant relies on her pain lasting beyond three to six months and a chronic pain diagnosis by Dr. Benmoftah. I put little weight in Dr. Benmoftah's diagnosis, as the Orthopaedic Assessment Report he completed, is inconsistent in substantiating the claim. In the report, the applicant describes her work history, that her pain is mild or mild to moderate, and has full range of motion under examination. It did not substantiate that pain has disrupted her regular activities, nor does she provide sufficient evidence that she suffers a functional impairment. In the psychological assessment report, the applicant reported returning to work. And the remainder of the psychological assessment report dealing with the impact of the accident on the applicant's life and activities consists of self-reporting.
23To summarize, the applicant has not demonstrated that she suffers from chronic pain with a functional impairment.
24For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
25As I have found the applicant remains in the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
Order
26I find that:
i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.
ii. The applicant is not entitled to the payments in dispute, or any interest on overdue payment.
iii. The application is dismissed.
Released: June 20, 2024
Robert Rock
Adjudicator