Dougdeen v. TD General Insurance Company, 2024 CanLII 59553

Licence Appeal Tribunal

Citation: Dougdeen v. TD General Insurance Company, 2024 CanLII 59553 Licence Appeal Tribunal File Number: 22-002907/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:

Kimberley Dougdeen

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brett Bell

APPEARANCES:

For the Applicant: Vic Purewal, Counsel

For the Respondent: Ken Yip, Counsel

HEARD: In Writing

OVERVIEW

1Kimberley Dougdeen, the applicant, was involved in an automobile accident on August 18, 2018, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are in dispute:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $679.96 ($1,975.03 less $1,295.07 approved) for medical services, proposed by Prime Healthcare in a treatment plan/OCF-18 (“plan”) dated August 17, 2020 and denied September 21, 2020?

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

RESULT

3I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. As a result, she remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG, which has been exhausted, she is not entitled to the treatment plan in dispute, nor interest.

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. Documentation of a pre-existing injury or condition, combined with compelling medical evidence stating that this issue precludes recovery if kept within the MIG, can also warrant removal from the MIG, pursuant to Section 18(2) of the Schedule. In addition, the Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

6The burden is on the applicant to show, on a balance of probabilities, that their injuries are outside of the MIG. In this instance, the applicant submits that she suffers from chronic pain and a psychological injury as a direct result of the accident. Either of these impairments, if substantiated, would result in the applicant’s removal from the MIG.

7The applicant submits that she sustained serious and permanent physical injuries, including chronic post-traumatic headache and post-concussion syndrome. She also claims to have sustained serious and permanent psychological injuries, and exacerbation of her previous injuries along with chronic pain as a result of the accident.

8The respondent counters that the applicant sustained soft-tissue sprain/strain injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. Further, the respondent submits that there is no evidence of chronic pain or a psychological injury or impairment that would warrant the applicant’s removal from the MIG. The respondent contends that the applicant should be held within the MIG.

The applicant remains within the MIG

9I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from physical injuries that are not predominantly minor in nature as defined in the Schedule. Further, she has failed to substantiate claims that she suffers from chronic pain with functional impairment that would preclude recovery if held within the MIG. Accordingly, she remains within the MIG and is subject to its $3,500.00 limit on treatment.

10The Disability Certificate/OCF-3 dated November 28, 2018, and submitted by Dr. Dean Antoniazzi, chiropractor, indicates the applicant suffered strains or sprains of the cervical spine, lumbar spine, and right shoulder joint. These injuries are consistent with the minor injury definition.

11The Clinical Notes and Records (“CNRs”) of the applicant’s family physician, Dr. Bikramjit Nanar, offers further medical evidence that the applicant suffered minor injuries as result of the accident. In two separate evaluations on January 14 and 16, 2020, Dr. Nanar assessed the applicant as having “soft tissue injury” and “lumbar sprain”, respectively. He prescribed exercise, heat, rest, and over-the-counter pain medication as needed.

12Further, Dr. Nanar’s CNRs from the April 30, 2020 appointment indicate the applicant reported “on and off” back pain, which was “not severe,” with the applicant reporting she was “able to function.” Dr. Nanar also notes the applicant had full range of motion (“ROM”) at her January 14, 2020 appointment, and 90% ROM at her January 16 and April 30, 2020 appointments.

13During the January 14, 2020 appointment and again when assessing the applicant on April 30, 2020, Dr. Nanar specifically notes the applicant reported “no neuro complaints.” It is important to note that Dr. Nanar did not suggest a referral for any diagnostic imaging or further assessment, nor was there any mention of the need for the applicant to be evaluated for a concussion.

14Considering the unambiguous assessment from the applicant’s family physician, I place little weight on the assessments of Dr. Antoniazzi or the chronic pain assessment dated April 22, 2021 from Dr. Grigory Karmy that found the applicant suffers from chronic post-traumatic headache and post-concussion syndrome.

15For these reasons, I find that the applicant failed to prove on a balance of probabilities that she suffered more than minor injuries from the accident as defined by section 3(1) of the Schedule.

Chronic Pain

16I find that the applicant’s claim that she suffers from chronic pain due to the accident has not been supported by medical evidence. Rather, the objective medical evidence demonstrates that the applicant suffered minor injuries from the accident. There is minimal indication that these injuries progressed to chronic pain with a functional impairment.

17Chronic pain with functional impairment is not included in the minor injury definition and a finding that the applicant sustained chronic pain with functional limitations as a result of the accident would permit them to seek treatment outside of the MIG beyond the $3,500.00 funding limit.

18The American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) provide criteria for evaluating a chronic pain in the absence of a diagnosis. The AMA Guides state 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.

19While the AMA Guides are not a definitive test to determine if someone suffers from chronic pain and the Tribunal is not bound by them, they nevertheless provide a helpful tool in evaluating claims of chronic pain where there is an ambiguous or unsupported diagnosis.

20On April 1, 2021, Dr. Karmy performed an evaluation via video conference, concluding that the applicant suffers from chronic injuries to her neck, upper and lower back, shoulders and knees, as well as Chronic Pain Syndrome, Chronic Post Traumatic Headaches, persisting symptoms following mild Traumatic Brain Injury, sleep disorder and possible mood disorder.

21In the applicant’s OCF-3, Dr. Antoniazzi also indicates that the applicant suffers “a substantial inability to engage in caregiving activities in which she engaged at the time of the accident” and “a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident.” The applicant did submit the report of Dr. Karmy to support the claim that the applicant is not able to conduct daily activities at a pre-injury level. But again, Dr. Karmy’s conclusions run counter to the applicant’s own reporting reflected in the submitted CNRs from the applicant’s family physician and the other IE reports reviewed.

22As part of the insurer’s examinations (“IE”), the applicant was examined by Dr. Ronald Findlay, occupational therapy specialist, on May 17, 2019, Dr. Michael Ko, rehabilitation specialist, on May 19, 2019, and Dr. Hashmat Khan, general practitioner, on March 4, 2021. All three IE reports conclude that the applicant’s injuries are minor in nature. I find these reports provide a consistent diagnosis that correlates with the diagnoses and observations contained in Dr. Nanar’s CNRs.

23Although the applicant heavily relies on the April 22, 2021 chronic pain report of Dr. Karmy, I view it as an outlier. Dr. Karmy is alone in submitting that the applicant suffers from chronic pain. Dr. Khan provided an addendum to his report after considering Dr. Karmy’s diagnosis, which maintained Dr. Khan’s original conclusions.

24I prefer the in-person IE reports submitted by the respondent, which are consistent with the CNRs of Dr. Nanar, over the report of Dr. Karmy, whose assessment was conducted virtually. Based on the submitted medical evidence, there appears to be consensus from both the applicant’s primary physician and the respondent’s occupational and rehabilitation experts that the applicant does not suffer from chronic pain. I also agree with the respondent’s position that an evaluation conducted over video holds less weight than multiple in-person evaluations.

25Further, there is minimal medical evidence that the injuries sustained by the applicant would meet three of the six criteria for chronic pain provided by the AMA Guides. The applicant submitted no medical evidence of abuse of or dependence on prescription drugs or other substances as result of the accident or an excessive dependence on health care providers or family members.

26I also agree with the respondent that, based on the CNRs of Dr. Nanar, the applicant raising her accident-related injuries at only three of her numerous medical appointments with Dr. Nanar runs counter to her claim that she suffers severe functional impairment due to chronic pain.

27I find, on a balance of probabilities, that the applicant has failed to demonstrate chronic pain with a functional impairment severe enough to warrant removal from the MIG.

Psychological injuries

28I find that the applicant’s claims that she suffers from psychological injuries as a result of the accident have not been supported by sufficient evidence to warrant removal from the MIG.

29Psychological impairments are not included in the minor injury definition and a finding that applicant sustained a psychological impairment as a result of the accident would permit them to seek treatment outside of the MIG. An impairment is defined in section 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

30The applicant states that she suffers from “sustained serious and permanent psychological injuries” due to the accident, yet there is no mention in Dr. Nanar’s CNRs of the applicant raising any psychological issues related to the accident, nor did Dr. Nanar refer her for any psychological evaluation.

31The applicant also references the assessment from Dr. Karmy, who offers a diagnosis of “sleep disturbances, anxiety and mood problems.” Dr. Karmy recommends a psychological assessment followed by sessions of psychological treatments. The applicant was evaluated by psychologist Dr. Arnold Rubenstein on April 13, 2021 for a s. 44 IE.

32I assign significant weight to the resulting IE report submitted by Dr. Rubenstein dated April 22, 2021. In the report, Dr. Rubenstein concludes that the applicant “failed to meet the criteria warranting a diagnosis of any psychological disorder according to the DSM-IV having considered the applicant's file record, direct observations and psychological tests.”

33Dr. Rubenstein also notes “when asked about the emotional consequences from the accident, the claimant states, ‘not really, but physical yes’.” Dr. Rubenstein writes that the applicant emphasized that “pain symptoms are her principal complaint.” The applicant’s own words, coupled with a formal diagnosis from a trained psychologist, indicate there is no medical evidence that the applicant suffers from any psychological injury as a result of the accident.

34Based on the medical evidence submitted, I find that the applicant has not demonstrated that she suffers from a psychological injury that would remove her from the MIG.

Conclusion

35For the reasons detailed above, I find that the applicant suffered minor injuries in the accident. She has failed to demonstrate chronic pain with a functional impairment or a psychological injury to justify removal from the MIG.

36As a result, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

37As the applicant has been found to remain within the MIG and its $3,500.00 limit on treatment, which has been exhausted, she is not entitled to the treatment plan in dispute, nor interest, and an analysis of the reasonableness and necessity of the plan is not required.

ORDER

38The application is dismissed and I find that:

i. The applicant sustained a predominantly minor injury as a result of the accident. She remains subject to the MIG and its $3,500.00 limit.

ii. As the applicant remains within the MIG and its $3,500.00 limit, which has been exhausted, she is not entitled to the plan in dispute, nor interest.