Licence Appeal Tribunal File Number: 21-011889/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:
Erica Sharpe
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
APPEARANCES:
For the Applicant:
Nikolai Singh, Paralegal
For the Respondent:
Gurpreet Farmaha, Counsel
HEARD:
In Writing
OVERVIEW
1Erica Sharpe, the applicant, was involved in an automobile accident on July 19, 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, Unifund Assurance Company, 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,900.00 for psychological assessment, proposed by Dr. Jeremy Frank in a treatment plan/OCF-18 (“plan”), dated November 28, 2019?
iii. Is the applicant entitled to $4,653.91 for psychological services, proposed by Dr. Jeremy Frank in a plan, dated January 4, 2020?
iv. Is the applicant entitled to $2,655.50 for a chronic pain assessment, proposed by Medex Assessments Inc. in a plan, dated October 14, 2021?
v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant sustained minor injuries as a result of the accident and is treatable within the MIG.
4Given the MIG funding limit has been exhausted, no analysis is required to determine if the treatment plans in dispute are reasonable and necessary.
5As no benefits are owing or unreasonably withheld or delayed, no interest and no award are payable.
ANALYSIS
The applicant remains in the MIG
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”
7An insured 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 they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant submits that she should be removed from the MIG on the basis that she sustained a psychological injury and chronic pain with functional impairment. She relies on the clinical notes and records (“CNRs”) from her family doctor, Dr. Mahdi Murti, a s. 25 psychological assessment report dated December 30, 2019 by Dr. Jeremy Frank, psychologist, and the CNRs of Dr. Krystyna Prutis-Misterska, physiatrist, and a s. 25 chronic pain assessment report dated February 22, 2022, by Dr. Mark Goldstein, chronic pain specialist.
9The respondent disagrees that the applicant suffers from any psychological impairment as a result of the accident and relies on its s. 44 psychological assessment reports by Dr. Marc Mandel, psychologist, dated October 29, 2020 and November 10, 2021. The respondent also submits that the applicant’s claim for chronic pain failed to address and satisfy any of the six criteria of the American Medical Association’s Guides (“AMA Guides”) and relies on its s. 44 insurer examination (“IE”) reports by Dr. Ahmad Belfon, physician, and Dr. David Mula, physician.
The applicant has not demonstrated she has a psychological impairment that warrants removal from the MIG
10I find that the applicant has failed to establish on the balance of probabilities that the applicant suffers any psychological impairment as a result of the accident that would warrant removal from the MIG.
11The applicant submits that she suffers from psychological impairment relies on the clinical notes and records (“CNRs”) from her family doctor, Dr. Mahdi Murti, and a s. 25 psychological assessment report dated December 30, 2019, by Dr. Jeremy Frank, psychologist. The respondent relies on its s. 44 IE psychological assessment reports by Dr. Marc Mandel, psychologist, dated October 29, 2020 and November 10, 2021.
12To summarise the s. 25 and s. 44 psychological reports:
i. Dr. Frank, s. 25 assessor, diagnosed the applicant with a “Major Depressive Disorder with Anxious Distress, moderate in severity and Specific Phobia (situational) – vehicle anxiety” after conducting an in-person interview and administered four psychometric tests.
ii. In both Dr. Mandel’s IE reports, dated October 29, 2020 and November 10, 2021, he concluded that there is a lack of objective evidence to support the finding that the applicant suffers from a substantial psychological impairment as a result of the accident. Dr. Mandel conducted a virtual assessment using OnCall on October 6, 2020, and an in-person interview with the applicant on November 3, 2021. In both assessments, he administered three psychometric tests and reviewed an extensive list of medical documents, including Dr. Murti’s CNRs.
13I find that Dr. Frank’s diagnoses are not supported by Dr. Murti’s CNRs, as argued by the applicant. While Dr. Murti prescribed medications such as Trazodone and Cymbalta to treat the applicant’s “post-trauma headaches, insomnia, anxiety” and depression symptoms, I find that these medications were prescribed separately during 5 visits in the 19 months’ post-accident and each medication was only prescribed for a short period of time. There is little evidence that the applicant was reliant on these medications for her daily functioning. In the more recent CNRs of 2020, Dr. Murti did not record any psychological complaints of the applicant; no further psychological diagnoses and did not prescribe any further relevant medications. I also note that Dr. Murti did not refer the applicant to a psychologist, psychiatrist or recommend any psychological treatment in the post-accident CNRs.
14Further, in the opening paragraphs of Dr. Frank’s report, he stated that his findings are based on the applicant’s self-reporting during the interview as well as her presentation and psychometric testing data collected during the assessment. Dr. Frank was not provided with the applicant’s medical documents for the purposes of the assessment and hence I find that Dr. Frank would not have had a fulsome understanding of the applicant’s medical condition at the time of assessment to objectively assess the applicant’s accident-related injuries and how her physical and mental well-being had or had not been affected by the accident; and his diagnosis appear to be based solely on the applicant’s subjective self-reporting and psychometric test data.
15I prefer Dr. Mandel’s assessment of the applicant to that of Dr. Frank. Although the applicant submits that Dr. Mandel did not administer proper psychometric testing during the assessment and did not give sufficient weight to the medical evidence from the applicant’s family doctor, Dr. Murti, the applicant did not elaborate and explain how Dr. Mandel’s psychometric testing was improper. In my opinion, I do not find any issues with Dr. Mandel’s administration of psychometric tests. Dr. Mandel’s reports appear to be thorough and credible, as stated above, he administered three psychometric tests (including Personality Assessment Inventory, Multidimensional Plan Inventory and Structured Inventory of Malingered Symptoms) and reviewed an extensive list of medical documents as part of his assessments on October 6, 2020, and November 3, 2021. On the contrary, Dr. Frank was not provided with and did not review Dr. Murti’s CNRs. Dr. Murti, who has been the applicant’s family doctor from since at least two years prior to the accident, has the most information about the applicant’s physical and mental wellbeing before and after the accident. I find that Dr. Frank is only able to objectively assess the applicant if he was given the applicant’s full medical history and medical records, including Dr. Murti’s CNRs, for review to determine if she has a psychological impairment as a result of the accident.
16Based on the parties’ evidence tendered, I also find limited reporting of any psychological complaints by the applicant to the doctors at Westside Medical Clinic, a walk-in clinic, which she attended immediately post-accident and continued to attend on a regular basis until May 1, 2022. I note the majority of the applicant’s visits to the Westside Medical Clinic concerned other medical issues unrelated to the subject accident. Hence, I am not convinced that the applicant suffers from a psychological impairment as a result of the accident, as she claims, that would warrant removal from the MIG.
17For the above reasons, I find that the applicant has failed to establish on a balance of probabilities that the applicant suffers from a psychological impairment as a result of the accident that would warrant removal from the MIG.
The applicant’s chronic pain does not take her out of the MIG
18I find the applicant has failed to provide evidence demonstrating that she suffers from chronic pain with a functional impairment resulting from the accident that warrant removal from the MIG.
19The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. Again, the burden of proof lies with the applicant.
20While it is not binding on the Tribunal to use the American Medical Association’s Guides (“AMA Guides”) criteria, it serves as a useful interpretive tool in assessing an applicant’s claim for chronic pain. The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs of 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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.
21The applicant submits that she should be removed from the MIG on the basis that she suffers chronic pain with functional impairment, as diagnosed by her treating physicians. She relies on the CNRs of Dr. Murti, the CNRs of Dr. Krystyna Prutis-Misterska, physiatrist, and a s. 25 chronic pain assessment report dated February 22, 2022, by Dr. Mark Goldstein, chronic pain specialist. The respondent submits that the applicant’s claim for chronic pain failed to address any of the six criteria of the AMA Guides. It relies on its s. 44 IE reports Dr. David Mula, physician, who found the applicant did not present a degree of impaired function as a direct result of the injuries sustained from the accident that would necessitate a formal chronic pain assessment. The applicant did not provide reply submissions in this regard.
22I find that the applicant’s evidence fails to demonstrate that her pain impacts her functionality. While Dr. Murti and Dr. Prutis-Misterska both diagnosed the applicant with chronic pain, there is limited evidence of a functional impairment as a result of this pain, which is required for removal from the MIG under this ground.
23I find Dr. Murti’s CNRs to be persuasive as the applicant had been regularly visiting Dr. Murti for at least 2 years prior to the accident and she continued to visit him after the accident. It is evident from Dr. Murti’s CNRs, from the date of loss until at least July 9, 2019, that the applicant’s accident-related injuries including her neck, lower back and headaches, have caused the applicant persistent pain in those areas. However, there is a lack of evidence about the applicant’s level of physical functionality in Dr. Murti’s CNRs to support her claim. Dr. Murti prescribed various pain medications for treatment of the applicant’s pain and referred the applicant to Dr. Prutis-Misterska, physiatrist. Although Dr. Prutis-Misterska diagnosed the applicant with chronic neck pain and chronic low back pain, again, there was little evidence as to how the applicant’s physical functions were affected.
24Despite finding the applicant has chronic pain, the applicant has failed to show evidence that her chronic pain is accompanied with any ongoing functional impairment as a result of the accident. I agree with the respondent that Adjudicator Neilson held in the case of 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ONLAT) that “ongoing pain alone is insufficient to take one out of the MIG. Rather, that ongoing pain also must be accompanied by some functional impairment.”
25In Dr. Goldstein’s s. 25 chronic pain assessment report dated February 22, 2022, he diagnosed the applicant with chronic pain with functional impairment but reported that the applicant demonstrated full ranges of motion largely pain-free, except for pain at end of range of the lumbar spine. He also reported that the applicant returned to work at regular full-time hours, albeit receiving some assistance from her co-workers when the client requires heavier care needs. I am not persuaded by Dr. Goldstein’s diagnosis given that the applicant was able to continue working full-time on her regular duties and was able to perform full ranges of motion. Further, Dr. Goldstein merely mentions the AMA Guides in his report but did not address any criteria of the AMA Guide or provide a thorough explanation why he believed the applicant had a functional impairment as a result of her pain.
26I prefer Dr. David Mula’s IE report dated December 22, 2021, as it is more in line with the rest of the medical records. Dr. Mula examined the applicant and noted that she was able to perform ranges of motion, 70-100%, and again, largely pain-free, except at the right sacroiliac joint. This physical examination appears to be consistent with that of Dr. Goldstein’s report. Based on Dr. Mula’s interview and review of medical documents, he also reported that the applicant returned to work almost immediately after the accident and resumed regular duties, working full-time as a personal support worker, but most importantly, that the applicant remains independent in her self-care, taking medication, managing money, using the telephone and technology as applicable, regularly working 40 hours per week and is driving. This appears to be consistent with the rest of the applicant’s medical evidence, as none of the applicant’s treating physicians reported that the applicant had any physical limitations. Dr. Mula concluded that the applicant “does not present with a degree of impaired function … or level of complexity to her medical management that would reasonably necessitate the proposed treatment.”
27Although not binding, Dr. Mula further addresses the six criteria of the AMA Guide and opined that “[t]here is no clear evidence of inappropriate use of medication or of excessive dependence on health care providers or family; the [applicant] reports performing household chores as part of a team with her family members, and there is no indication of secondary physical conditioning due to disuse or avoidance of physical activity due to pain. Furthermore, the [applicant] continues to work-full time which bodes well for her clinical and functional outcomes.” Dr. Goldstein mentioned the AMA Guides in his report but did not elaborate or explain why he believed the applicant had a functional impairment.
28As there are notations of chronic pain in the CNRs of the applicant’s treating physicians, the applicant has not demonstrated functional impairment. To address whether the applicant has a functional impairment with chronic pain, I will address the six criteria of the AMA Guide as a reference. I find that:
i. There is limited evidence that the applicant abused or was dependent on prescription drugs beyond the recommended duration;
ii. There is no evidence of excessive dependence on healthcare providers or family members. There is evidence that the applicant required assistance from her co-workers, but only to the extent of clients with heavier care needs, as documented in Dr. Goldstein’s report. Further, the applicant reported that she initially required the company of her son when driving, but “her anxiousness has decreased…and she is able to drive independently at this time, albeit short distances only.” I find that she has been able to drive herself to work and attend largely to her regular duties;
iii. There is insufficient evidence of secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain to support the applicant’s claim;
iv. As mentioned above, the applicant returned to work as a personal support worker at regular hours. There is limited evidence that the applicant is unable or had avoided social and recreational activities;
v. In the previous section, I find that the applicant does not suffer from a psychological impairment;
vi. As the evidence is presented, the applicant is still able to pursue work as a personal support worker with regular hours and regular duties and is independent with self-care and with driving. Therefore, I have not found any compelling evidence to support that the applicant satisfies three of the six criteria above.
29I find that the applicant has failed to establish that she suffers from chronic pain with functional impairments resulting from the accident that warrant removal from the MIG.
The applicant is not entitled to the treatment or the assessments claimed
30As the applicant has been found to remain within the MIG, and as the evidence establishes that the MIG funding limit has been exhausted, it follows that the applicant is not entitled to the disputed treatment plans, or interest, pursuant to s. 51.
Award
31The applicant sought an award under s. 10 of Reg. 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.
32As no benefits are unreasonably withheld or delayed, there is no award payable.
ORDER
33The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
34Given that the MIG funding limit has been exhausted, the applicant is not entitled to the disputed treatment plans.
35As no benefits are owing, unreasonably withheld or delayed, no interest and no award are payable.
36The application is dismissed.
Released: January 9, 2024
Lisa Yong
Adjudicator