Citation: Benjamin v. Economical Mutual Insurance Company, 2024 ONLAT 22-008761/AABS

Licence Appeal Tribunal File Number: 22-008761/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:

Irvin Benjamin

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: Kevin So, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Irvin Benjamin (the applicant) was involved in an automobile accident on July 17, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $1,995.33 for a psychological assessment, as proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 dated October 7, 2021, and denied October 21, 2021?

iii. Is the applicant entitled to $2,988.83 for psychological therapy, as proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 dated January 5, 2022, and denied January 20, 2022?

iv. Is the applicant entitled to $2,629.85 for chiropractic services, as proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 dated March 4, 2022, and denied March 12, 2022?

v. Is the applicant entitled to $2,322.27 for chiropractic services, as proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 dated April 25, 2022, and denied May 3, 2022?

vi. Is the applicant entitled to $3,024.62 for chiropractic services, as proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 dated December 3, 2021, and denied December 11, 2021?

vii. Is the applicant entitled to $1,900.00 for a cognitive assessment, as proposed by Ontario Independent Assessment Centre Inc. in a treatment plan/OCF-18 dated May 27, 2022, and denied June 9, 2022?

viii. Is the applicant entitled to $2,300.00 for a chronic pain assessment, as proposed by Ontario Independent Assessment Centre Inc. in a treatment plan/OCF-18 dated May 30, 2022, and denied June 10, 2022?

ix. Is the applicant entitled to $2,000.00 for a biopsychosocial assessment, as proposed by Ontario Independent Assessment Centre Inc. in a treatment plan/OCF-18 dated July 27, 2022, and denied August 9, 2022?

x. Is the applicant entitled to $1,388.62 for a driving assessment, as proposed by Ontario Independent Assessment Centre Inc. in a treatment plan/OCF-18 dated September 9, 2022, and denied September 27, 2022?

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

RESULT

3I find that:

i. The applicant has not to demonstrated that his accident-related impairments warrant removal from the MIG.

ii. As the applicant remains in MIG, he is not entitled to the treatment plans at issue.

iii. As no payments are overdue, interest is not payable.

ANALYSIS

The Minor Injury Guideline

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 from any accident-related minor injury if they are 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 his injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from the MIG due to chronic pain with a functional impairment, and a psychological condition.

7The respondent argues that the applicant has not met the burden of proof that his injuries are more than minor in nature or that he suffers from chronic pain with a functional impairment and a psychological condition.

8I find that the applicant has not met his onus to demonstrate that he suffered injuries outside of those included in the MIG or that he suffers from chronic pain with a functional impairment or a psychological condition.

The applicant does not suffer from chronic pain with a functional impairment.

9I find that the applicant does not suffer from chronic pain with a functional impairment to warrant removal from the MIG.

10The applicant submits that due to the accident, he suffers from chronic pain with a functional impairment. He relies on a mental health assessment from the clinical notes are records (CNRs) of Dr. Gill, his family doctor, and a screening for a chronic pain assessment by Dr. Wilderman, a physician.

11The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that he suffers from chronic pain with a functional impairment. The respondent relies on an independent medical evaluation by Dr. Platnick.

12The CNRs of Dr. Gill do so ongoing pain related complaint. They also capture that the applicant reported feeling better. In one appointment, the applicant related the pain to a workplace injury, not the motor vehicle accident. I aim not directed to any diagnosis in the CNRs that established chronic pain with a functional impairment. Dr. Gill’s does not establish chronic pain, as the CNRs show a pattern of the applicant reporting his symptoms resolving.

13I find the screening for a chronic pain assessment by Dr. Wilderman was a review of the documentation available and did not include an examination or interview with the applicant. The documents reviewed were the CNRs of Dr. Gill that mentioned whiplash injury post-MVA and headaches. In addition, there was a review of a psychological assessment report from Dr. Papazoglou, C. Psych, where the applicant reported back pain and headaches. Dr. Wilderman made no diagnosis, rather only concluded that a chronic pain assessment was necessary to establish a diagnosis.

14Turning to the respondent’s evidence, the independent medical evaluation was completed by Dr. Platnick on February 7, 2022. This evaluation was a combination of an interview and physical examination. The physical examination was unremarkable with good range of motion. The doctor diagnosed the applicant with soft tissue injuries that were minor in nature. The doctor noted that during the physical examination, there were no valid/reproducible signs or indicators to support residual or ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. Also, of note, the doctor commented that the complaint of the injury to the left shoulder would not occur with a rear-end collision as described.

15Dr. Platnick completed an addendum to his independent medical evaluation on May 12, 2022. This addendum outlined that Dr. Platnick did not feel that the additional information caused him to alter his initial diagnosis that the applicant suffered soft tissue injuries because of the motor vehicle accident that are treatable within the MIG limits.

16The applicant uses the six factors listed in the American Medical Association’s (AMA) Guidelines 6th edition to substantiate his chronic pain syndrome. The factors from the AMA Guidelines are:

1. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription or other substances

2. Excessive dependence on healthcare providers, spouse or family

3. Secondary physical deconditioning due to disuse and/or fear -avoidance of physical activity due to pain

4. Withdrawal from the social milieu, including work, recreation, or other social contacts

5. 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

6. Development of psychosocial sequelae after the initial incidents, including anxiety fear-avoidance, depression, or nonorganic illness behaviour

17The applicant notes that he meets four of the six criteria using the AMA Guidelines. These are: use of prescription medication beyond a recommended duration, excessive dependence on health care providers, social withdrawal, and development of a psychological sequelae.

18In review of the evidence, I am not directed to compelling medical evidence by the applicant that he suffers from chronic pain. In the CNRs of Dr. Gill, while the word chronic is often used no compelling evidence is put forward in the CNRs of Dr. Gill to establish a functional impairment. I match this with Dr. Platnick’s evaluation that notes similarly minor injuries to what Dr. Gill does in his clinical notes. Dr. Gill mentions that the shoulder injury was workplace related, and that is matched by Dr. Platnick’s observation that the shoulder injury complaint would not have happened in the type of motor vehicle accident as reported. Finally, regarding the AMA Guideline factors, I disagree with the applicant’s assertion that he suffers from four of the six guidelines. I am not directed to evidence in the CNRs of Dr. Gil that would constitute the applicant using prescription medication beyond their recommended use. As well, I disagree that attending physiotherapy sessions and follow ups with a family doctor as proof of excessive dependence on health care providers.

19The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment.

The applicant does not suffer from psychological condition.

20I find that the applicant does not suffer from a psychological condition as a result of the accident warranting removal from the MIG.

21The applicant submits that due to the accident, he suffers from a psychological condition. He relies on a psychological status evaluation report, completed by Ms. Dowlut, M.A., supervised by Dr. Papazoglou C. Psych.

22The respondent submits that that the applicant has not met the burden of proof on balance of probability that he suffers from psychological condition. The respondent relies on several psychological MIG assessments by Dr. McCutcheon.

23The psychological status evaluation report was completed on September 20, 2021 by Ms. Dowlut, M.A. under the supervision of Dr. Papazoglou, C. Psych. This was an interview, and no psychometric testing was completed. The applicant reported issues with his sleep, nervousness when driving, and lack of motivation to participate in activities. The provisional diagnosis was Adjustment Disorder. Ms. Dowlut does not expand on how she derived this diagnosis, or the contributing factors, in this evaluation. As this was a provisional diagnosis, with not psychometric testing, I gave this evaluation report little weight.

24A psychological assessment report was completed by Dr. Papazoglou on December 17, 2021. This was an in-person evaluation and included a clinical interview and psychometric testing. In the clinical interview, the applicant notes ongoing pain, and difficulties completing work and activities of daily living. The psychometric testing included:

i. Beck Depression Inventory 2nd Edition. In this test, the applicant scored in the moderate range.

ii. Beck Anxiety Inventory. In this test, the applicant scored in the minimal range.

iii. Pain Catastrophizing Scale. In this test, the applicant score showed some dysfunctional and catastrophic thoughts.

iv. Pain Patient Profile. In this test, the applicant scored in the above average range for depression and anxiety, and average for somatic problems.

25Dr. Papazoglou concluded that the applicant has developed emotional /psychological problems and diagnosed Major Depressive Disorder, and specific Phobia Driving. I am not directed to how the doctor reached this diagnosis based off the interview and testing results because most of the test results were in the minimal, moderate, and average range. I am not directed to how this translates to a major depressive disorder.

26An independent psychology evaluation was completed by Dr. McCutcheon on May 24, 2022. This was an in-person evaluation that included an interview and psychometric testing of the applicant. During the interview portion, the applicant indicated that he was not interested in receiving any mental health counselling and would prefer funding for physical rehabilitation instead. The applicant also indicated that he had not noticed any decline in his ability to focus, attend or concentrate. He denied any significant reduction in his memory ability, and claimed he is not absent-minded and does not forget appointments. The psychometric testing included:

i. Rey Fifteen-Item Visual Memory Test – This test is focused on determining the extent to which someone is giving a full effort as opposed to exaggerating cognitive problems. The applicant did not show signs of any attempt to exaggerate.

ii. Pain Patient Profile – This test showed the applicant with low levels of depression and anxiety, and average level of somatization.

iii. Beck Anxiety Inventory – This showed the applicant with a mild range of anxiety. This test showed the applicant with mild range of depression.

Dr. McCutcheon concluded that the psychometric testing was in-line with the applicant’s self-reporting. The diagnosis by the doctor is that the applicant’s symptoms are subclinical and there is no evidence of a psychological condition.

27In review of the evidence, I am not directed to compelling medical evidence to substantiate a psychological condition as a result of the accident. The report by Dr. Papazoglou was not consistent because the doctor’s diagnosis is at odds with the applicant’s self-reporting and the psychometric testing. I was not directed to how the doctor rendered the diagnosis based on the self-report and psychometric testing that was presented in evidence. On the other hand, I found Dr. McCutcheon’s diagnosis to be in-line with the applicant’s self-reporting and psychometric testing.

28The applicant has not proven on a balance of probabilities that he suffers from a psychological condition.

29For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.

30As I have found the applicant remains within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary because the MIG limits have been exhausted.

Interest

31As no benefits are overdue, it follows that no interest is payable.

ORDER

32I find that:

i. The applicant remains subject to the MIG.

ii. The applicant is not entitled to payment for any of the disputed treatment plans.

iii. As no payments are owed, no interest is payable.

33The application is dismissed.