Licence Appeal Tribunal File Number: 22-010539/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:
Sonia Hunt-Foster
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Greg Witt
APPEARANCES:
For the Applicant: Armin Mosaffa, Counsel
For the Respondent: Jagpreet Sekhon, Counsel
HEARD: In Writing
OVERVIEW
1Sonia Hunt-Foster, the applicant, was involved in an automobile accident on June 6, 2014, 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, Economical Mutual 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 to be decided:
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 $2,195.00 for physiotherapy treatment proposed by Ketankumar Trivedi, submitted on September 12, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan in dispute; and
iii. The applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline
4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the “minor injury” definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from a psychological condition and chronic pain that prevents her from maximum recovery within the MIG. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG.
Psychological Impairment
8An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
9In order to be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.
10The applicant claims she suffers from psychological and cognitive impairments resulting from the accident. Despite this claim, the applicant led no specific documentary evidence to substantiate these claims, including no clinical notes and records (“CNRs”) of treating physicians or other reports. The applicant did not report to Dr. Scott Perry, family physician, that she was experiencing psychological symptoms as a result of the accident.
11The respondent relies on the October 29, 2014 Psychiatry Report of Dr. Richard Finkel, psychiatrist. Dr. Finkel concluded that the applicant does not suffer from an accident-related psychiatric impairment, as she did not experience any intense or mortal fear at the time of the accident, and she had returned to driving shortly thereafter. Dr. Finkel noted that the applicant is active socially, sees close friends, and her self-esteem remains good.
12After the accident, the applicant got divorced, and, on April 29, 2015, Dr. Perry referred the applicant to a psychiatrist for psychological distress related to her divorce. Dr. Perry did not refer the applicant to a psychiatrist following the accident.
13After reviewing the evidence, I find the applicant has not provided compelling evidence that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG. As mentioned above, the applicant did not direct me to any CNRs in regards to her psychological claim. I am persuaded by the psychological assessment prepared by Dr. Finkel, as I find it to be credible and an accurate assessment of the applicant’s psychological condition. The CNRs of Dr. Perry’s referral to the psychiatrist suggest that the reason for the referral were to treat the applicant’s psychological impairments, related to her divorce, not as a result of the accident.
14For the above reasons, the applicant has not met her onus to prove on a balance of probabilities that her alleged, accident-related psychological impairments warrant treatment beyond the MIG.
Chronic Pain
15I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.
16In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function.
17The applicant relies on medical evidence from a variety of medical professionals. The CNRs of Dr. Charles Jaipargas, family physician, dated June 9, 2014, diagnosed the applicant with musculoskeletal pain and the applicant was provided with anti-inflammatories. The applicant further relies on a series of CNR’s from Mr. Kaur Ravinder, physiotherapist, between September 11, 2014 and September 22, 2014, which state she self reported pain in neck, left shoulder and left arm. The applicant also relies on CNR’s from Dr. Perry, family physician, dated June 20, 2016. The applicant self-reported significant neck pain and numbness in her finger. Dr. Perry referred the applicant for an EMG test, the EMG results show C7 chronic denervation. The applicant further relies on the CNR’s of Dr. Glynis Koponen, neurologist, dated June 18, 2018 which state the applicant was experiencing pain in neck, hands and back as a result of a motor vehicle accident. Upon review of Dr. Koponen's CNR's, Dr. Perry recommended a treatment of diet and exercise (CNR dated June 25, 2018). The applicant further relies on the CNR’s of Dr. Mohammed Punah, family physician, dated February 10, 2021, which state that there is ongoing shoulder pain along with neck pain that started after the accident.
18The respondent relies on the s. 44 insurer examination (“IE”) of assessor Dr. Julian Dal Cin, kinesiologist. Dr. Cin performed an in-person assessment of the applicant and his report dated September 23, 2014 states the applicant gave an inconsistent and sub-maximal effort throughout and the physical examination and then therefore, these results represent the applicant’s current minimal physical abilities. The respondent further relies on IE assessor Dr. C.B. Paitich’s, Orthopaedic Surgeon, CNR’s dated September 23, 2024 which state, after completing a physical examination, the applicant did not suffer from any accident-related physical impairments and further treatment was not required or necessary. The respondent further relies on the IE assessor CNR’s of Dr. Finkel, psychiatrist, dated October 29, 2014, which state the applicant self reported an active social life and returned to driving. The applicant was also assessed by IE assessor Dr. Mark D’Souza, and the CNR’s concluded there is no relationship between her currently reported symptoms, impairments, and disability and the June 6, 2014 motor vehicle accident.
19I find that the applicant did not meet the onus required to prove chronic pain. First, despite references within the applicant’s submissions with respect to chronicity, the applicant fails to provide any submissions specifically related to a chronic pain diagnosis, nor is the applicant referred to or submitted evidence from a chronic pain specialist.
20I also find the applicant did not lead sufficient evidence to prove she suffered from a functional impairment as a result of the motor vehicle accident. I am persuaded by the applicant’s own self reported condition within the CNR’s of Mr. Kaur Ravinder, physiotherapist, between September 11, 2014 and September 22, 2014 which state that the patient self reported pain improvement. Further, the CNR’s from Dr. Glynis Koponen, neurologist, dated June 18, 2018, state the applicant had returned to work prior to experiencing a second motor vehicle accident in March 2018. Lastly, the treatment plan recommended by Dr. Perry, dated June 25, 2018, recommends a treatment of diet and exercise. This evidence does not suggest the applicant was experiencing ongoing functional impairment as a result of the MVA.
21There is also a significant gap in medical evidence from September 2014 to June 2016 where the applicant does not make any submissions related to ongoing or chronic pain. I find that the evidence relied on by the applicant is primarily self diagnosed. The only medical evidence presented by the applicant related to the subject MVA is of musculoskeletal pain. The evidence submitted by the applicant from Dr. Punah, dated February 10, 2021, states there is ongoing chronic shoulder pain along with neck pain that started after the MVA; however, in reviewing the CNR’s of Dr. Punah, there is no mention of a “chronic” diagnosis. Had there been a clear “chronic” diagnosis, this would perhaps have added more weights to the applicant’s claim of chronic pain; moreover, the applicant does not lead any evidence or make any submissions as to why there is an absence of a chronic diagnosis. Further, the notes state the applicant self reports that pain of the shoulder went away, then came back. Also, upon review of the notes, the applicant did not report that the neck pain is from the subject accident. Since there was a second motor vehicle accident in March 2018, and the CNR’s do not distinguish which MVA the pain is from, I find the applicant has failed to lead sufficient evidence to show the pain, if chronic or otherwise, is as a result from the subject MVA.
22Further, in the evidence before me, the respondent references the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”) while the applicant makes no reference to the AMA Guides. The AMA Guides’ six criteria for chronic pain were not incorporated into the Schedule; however, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes.
23I find the applicant does not establish that she meets three of the six criteria for chronic pain as identified in the AMA Guides, which state that at least three of the enumerated criteria must be met for a diagnosis. The respondent submits and I agree that that applicant has not demonstrated: a dependence on prescription drugs; the applicant has not provided evidence that she is reliant on any health care provides or others, as demonstrated by her infrequent appointments to a medical physician, nor has been referred to any specialists; no evidence of deconditioning, as the IE assessments reveal full strength; no evidence of social withdrawal or pre and post accident function, as the applicant has returned to full-time employment and reported to Dr. Finkel an active social life; and there is no evidence that the applicant suffers any psychosocial or psychological symptoms.
24In summary, I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.
TREATMENT PLAN
25The applicant is not entitled to the disputed treatment plan, because I have found that the applicant is subject to the MIG. As a result, an analysis on whether the treatment plan is reasonable and necessary is not required.
INTEREST
26Given there are no overdue payment of benefits, the applicant is not entitled to interest, pursuant to s. 51 of the Schedule.
ORDER
27The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan in dispute; and,
iii. The applicant is not entitled to interest.
Released: September 17, 2024
Greg Witt
Adjudicator