Karcz v. TD General Insurance Company, 2024 CanLII 83748

Citation: Karcz v. TD General Insurance Company, 2024 ONLAT 22-001990/AABS

Licence Appeal Tribunal File Number: 22-001990/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:

Mark Karcz

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Maria Makarova, Paralegal

For the Respondent: Orest Kuchar, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mark Karcz (the “Applicant”) was involved in an automobile accident on August 1, 2020, and sought benefits from TD General Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

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

ii. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from August 28, 2020 to August 28, 2022?

iii. Is the Applicant entitled to medical benefits proposed by Eglinton West Physiotherapy Clinic as follows:

1. $1,879.43, less $663.37 approved by the Respondent, for a physiotherapy treatment plan, dated November 23, 2020;

2. $2,144.93 for a psychological assessment plan, dated November 25, 20202;

3. $2,197.47 for a physiotherapy treatment plan, dated January 25, 2021; and

4. $1,424.72 for a physiotherapy treatment plan, dated November 21, 2022?

iv. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment plan, proposed by ALCAT Assessments Inc. in a plan dated July 19, 2022?

v. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonable withheld or delayed the payment of benefits to the Applicant?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant withdrew his claim for entitlement to NEBs. Accordingly, the issue is not in dispute.

5The Applicant sustained a minor injury as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

6The treatment and assessment plans in dispute are not reasonable and necessary because they propose treatment outside the MIG.

7No interest or award is payable.

BACKGROUND

8The Applicant was the driver of a vehicle which was struck on the driver’s side by a left-turning vehicle at an urban intersection. He sought no medical attention on the day of the accident. The Applicant consulted with his family physician ten days later by telephone and was diagnosed with possible mechanical musculoskeletal pain and prescribed anti-inflammatory medication and, during a visit on September 2, 2020, was advised to continue with physiotherapy.

9The Applicant claims that he has since developed psychological injuries and chronic pain syndrome as a result of the accident and should not be subject to the MIG. He also claims entitlement to the treatment and assessment plans in dispute, citing that they are reasonable and necessary as a result of the accident. Lastly, the Applicant claims entitlement to three of the disputed treatment and assessment plans pursuant to section 38(11) of the Schedule because, according to him, the Respondent failed to clearly state the goods and services that it does not agree to pay for.

10The Respondent disagrees with the Applicant on the severity of his accident-related injuries and whether the treatment and assessment plans in dispute are reasonable and necessary.

ANALYSIS

Minor Injury Guideline (“MIG”)

11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

12The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

13For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

Psychological Impairment

14I find no evidence demonstrating that the Applicant sustained an accident-related psychological injury that would require treatment outside of the MIG.

15The Applicant highlights that on October 16, 2020 he complained to his family physician, Dr. A. Salamat, that he was feeling anxious and depressed since the accident and has been driving only when necessary. In response, Dr. Salamat counselled the Applicant on the spot and recommended he try a common antidepressant but made no referral or recommendation to engage in any additional psychological intervention. The Applicant also highlights that, about a month after that visit, he participated in a psychological assessment pre-screen with social worker A. Golden, who provided a provisional diagnosis of situational phobia, non-organic sleep disorders, mixed anxiety and depressive disorder and proposed that the Applicant engage in a full psychological assessment.

16I find that the instances highlighted by the Applicant amount to sequalae of his soft tissue injuries which can be treated within the MIG. By November 16, 2020, around the same time that he met with social worker A. Golden, the Applicant advised Dr. Salamat that he feels much better and Dr. Salamat documented that he is responding well to the medication. This suggests that the Applicant’s psychological symptoms were minor and did not warrant specific treatment, given that they generally resolved within a month after starting medication. Additionally, like the Respondent, I am alive to the fact that no psychologist or psychiatrist has diagnosed the Applicant with a psychological injury, including his family physician who is qualified to diagnose psychological injuries. Accordingly, I do not accept the provisional diagnosis from a social worker who is not qualified to opine on a person’s psychological health.

17I prefer the insurer examination (“IE”) report of Dr. A. Syed, psychologist, dated November 25, 2020. Dr. Syed noted that the Applicant reported some depressive symptoms but, following psychometric testing and a clinical interview, concluded that he does not appear to be significantly impaired psychological as there are minimal indications that he has any current or active depressive or anxiogenic experience and that the nature and severity of the Applicant’s depressive symptoms are below the threshold to warrant a diagnosis. Dr. Syed maintained the position in the paper review report, dated December 11, 2020. I find Dr. Syed’s conclusion to be consistent with the information in Dr. Salamat’s CNRs, which shows that the Applicant reported some psychological symptoms that resolved over the progression of time with the help of an antidepressant.

18Accordingly, I find that the Applicant has not demonstrated that he sustained a psychological injury as a result of the accident which warrants treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

Chronic Pain

19I find that the Applicant has not demonstrated that he suffers from a chronic pain condition that falls outside of the minor injury definition.

20The Applicant has not demonstrated that he is functionally impaired due to pain as a result of the subject accident. The Applicant missed no time from work following the accident and has provided no information to indicate that he requires any accommodation at work on account of an impairment due to ongoing pain. Dr. Salamat never put any restrictions on the Applicant and the CNRs do not indicate an ongoing functional impairment due to pain. Likewise, the Applicant was referred by Dr. Salamat to Dr. S. Kachooie, physiatrist, for further investigation. Dr. Kachooie met with the Applicant on April 4 & 27, May 30, and August 31, 2022 as well as January 16, 2023. Dr. Kachooie acknowledged the Applicant’s complaints of pain but found no concerning features and concluded it fit with myofascial pain following a whiplash injury and advised him to use a topical cream and continue therapies. By August 31, 2022, the Applicant was found to be doing better. The last visit, on January 16, 2023, Dr. Kachooie encouraged the Applicant to continue therapy and trial some different modalities. Common throughout all of Dr. Kachooie’s CNRs is that there are no restrictions on the Applicant and no evidence that pain impairs his function.

21The Applicant was assessed by Dr. A. Oshidari for an IE, who issued a report dated November 25, 2020. Dr. Oshidari observed that the Applicant had almost full range of motion (“ROM”) in his neck and some reduced ROM in his back, but concluded that the Applicant’s ROM was functional. Dr. Oshidari concluded that the Applicant’s injury fits with a sprain/strain injury of the neck and back with tension headaches. Dr. Oshidari opined that the Applicant exhibited no neurological issues and placed no restrictions on his movement in any way. Dr. Oshidari was provided Dr. Salamat’s CNRs and, on March 16, 2021, issued a paper review report maintaining the initial findings. The Applicant was also assessed by Dr. M. Ko, physiatrist, for another IE. In the report dated September 6, 2022, Dr. Ko observed that the Applicant had no inflammation or muscle wasting and concluded that he sustained a minor injury as defined in the Schedule.

22The chronic pain report dated March 16, 2023, by Dr. D. Sivananthan, physiatrist, holds virtually no weight in light of the other evidence and its recommendations that contradict those of Dr. Salamat and Dr. Kachooie, who are actively treating the Applicant. For example, Dr. Sivananthan recommends that the Applicant engage in analgesic medication to control his pain; however, the Applicant’s treating physician and physiatrist discontinued their recommendation for prescription pain medication in autumn 2022. Dr. Sivananthan opined that the Applicant likely has psychological issues which is limiting recovery, which contradicts the findings of Dr. Syed, who is a practicing psychologist and whose opinion I preferred in my above reasons.

23I find that the Applicant does not meet the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription dugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability.

24Dr. Sivananthan’s conclusion that the Applicant meets the criteria for a chronic pain condition contradicts the findings in his own report and other evidence that was reviewed in part of the assessment. For example, Dr. Sivananthan opined that the Applicant has secondary physical deconditioning due to disuse, yet no deconditioning was observed during examination and Dr. Sivananthan stated that there were no signs of atrophy or fasciculations. Similarly, Dr. Sivananthan found the Applicant to be excessively dependent on healthcare providers and/or family yet, he lives alone and has maintained that he is independent with his personal care and day-to-day tasks. Further, there is no evidence demonstrating that the Applicant engaged in any healthcare therapies after November 23, 2021 and met with Dr. Salamat or Dr. Kachooie a total of 13 times since the accident – a period of nearly three years. This is not evidence of excessive dependence on healthcare providers. Similarly, Dr. Sivananthan also stated that the Applicant experienced a failure to restore pre-accident function after a period of disability such that the physical capacity is insufficient to pursue work, family or recreational needs. However, the Applicant returned to work on a full-time basis and there is no evidence that he required any accommodation to do so. Considering the discounted weight of Dr. Sivananthan’s report, I find insufficient evidence to demonstrate that the Applicant meets three of the six criteria for a chronic pain condition.

25Accordingly, I find that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

Statutory Entitlement Argument

26I find that the Applicant is not entitled to any of the treatment and assessment plans in dispute from a statutory basis.

27The Applicant submits that the denials dated November 30, 2020, February 1, 2021, and January 25, 2022 fail to fully identify the goods and services that the Respondent refused to pay for. The Respondent did not address this issue directly.

28I find that the Respondent provided clear, unambiguous, and compliant denials. The Applicant never elaborated on his submissions and my review of the denials in question lead me to conclude that they are compliant with section 38 of the Schedule. All three of the denial letters in question state “we do not agree to pay for any of the followings goods services and/or assessments for medical and all other reasons known as of the date of this notice”. Then the letters list the items in the treatment plan that the Respondent refuses to pay for. The letters then refer to a corresponding IE report for which the denial was based upon and confirm that the Respondent finds the Applicant to be subject to the MIG. The information provided in these denials complies with the medical and other reasons requirement outlined in section 38(8) of the Schedule and the MIG application notice requirement in section 38(9).

29Having found that the subject denials are compliant with the Schedule, it follows that section 38(11) of the Schedule is not engaged and the Applicant is not entitled to any benefits on account of improper notice from the Respondent.

Interest

30Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits are payable, it follows that no interest is payable.

Award

31I find no award payable.

32The Applicant sought an award under section 10 of Regulation 664. He submits that the Respondent failed to properly address that he was diagnosed with chronic pain, resulting in a delayed recovery. He also submits that the Respondent failed to comply with sections 38(8) and 38(11) but did not specify how or why such a failure to comply warrants an award.

33Under section 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.

34The Applicant has not demonstrated that any benefits were unreasonably withheld or delayed. Accordingly, I find no award payable.

CONCLUSION AND ORDER

35The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 for a minor injury.

36The treatment and assessment plans in dispute are not reasonable and necessary because they propose goods and services that are not included in the MIG.

37No interest or award is payable as no payments were withheld or delayed.

38The Application is dismissed.