Licence Appeal Tribunal File Number: 22-008053/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:
Jayde Hamilton
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Eric Grossman, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Ms. Jayde Hamilton (the applicant) was involved in an automobile accident on April 3, 2019, 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 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 a treatment plan in the amount of $2,200.00 for a psychological assessment?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to demonstrate that she suffers from a psychological condition to warrant removal from the MIG.
4The applicant is not entitled to the treatment plan in question.
5As there are no overdue payment of benefits, no interest is owing.
ANALYSIS
The Minor Injury Guideline (“MIG”)
6Section 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.”
7An 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 if 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.
8The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from MIG due to more than minor injury, chronic pain with a functional impairment and a psychological condition.
9The respondent argues that the applicant has not met the burden of proof that she suffered from more than minor injuries, chronic pain with a functional impairment or a psychological condition.
The applicant remains within the MIG
10I find that the applicant has not met her onus and demonstrated that she suffers from a more than minor injury.
11I find that the applicant has not met her onus and demonstrated that she suffers from chronic pain with a functional impairment.
12I find that the applicant has not met her onus and demonstrated that she suffers from a psychological condition that warrants her removal from MIG.
Did the applicant suffer a more than minor injury?
13I find that the applicant has not met her onus and demonstrated on a balance of probabilities that she suffers from a more than minor injury.
14The applicant submits that she suffered a more than minor injury because of the motor vehicle accident. The applicant relies on the clinical notes and records (CNRs) of Dr. Bugada and diagnostic imaging reports following the accident.
15The respondent submits that the applicant has not provided compelling medical evidence that her injury is more than minor in nature. The respondent relies on the CNRs of Dr. Bugada, family doctor, and an orthopaedic assessment from Dr. Abbas.
16The CNRs of Dr. Bugada, the applicant’s family doctor, show ongoing reporting of knee pain by the applicant. On April 25, 2019, the doctor notes that the knee is better and not buckled since last visit. Dr. Bugada ordered imaging, an x-ray and ultrasound, both were normal. The applicant was instructed to re-start physiotherapy to address the issue.
17The diagnostic imagines submitted as evidence all render the same diagnosis that there is no internal derangement of the knee, and that the ACL is intact. One MRI reported a bone contusion, and a knee effusion.
18An orthopaedic assessment was completed by Dr. Abbas, an orthopaedic surgeon, on October 5, 2021. This was an in-person assessment, that included a clinical interview and a physical examination. During the interview, the applicant noted that she is independent with her activities of daily living, and in terms of leisure activities, she enjoyed dancing before the accident, but can not do it after. The physical examination was unremarkable, and the doctor diagnosed a sprain of the right knee that the doctor reports is an injury in MIG.
19Reviewing the evidence the applicant has not proven on a balance of probabilities that her injuries are more than minor in nature. The applicant has not presented compelling medical evidence that the injury she suffered because of the motor vehicle accident is more than minor in nature. Dr. Bugada notes in her CNRs that this is a strain/soft tissue injury. All ordered imaging did not show an injury that was more than sprain/strain related. There was a long gap in reporting of knee pain, from June 2019 to December 2020. The orthopaedic assessment by Dr. Abbas agrees with the CNRs of Dr. Bugada, that the injury is minor in nature.
20I find that applicant has not satisfied her onus to prove on a balance of probabilities that she suffers a more than minor injury.
Does the applicant suffer from chronic pain with a functional impairment?
21I find that the applicant has not met her onus to prove on a balance of probabilities that she suffers from chronic pain with a functional impairment.
22The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
23The applicant submits that she suffers from chronic pain with a functional impairment due to the motor vehicle accident. The applicant relies on the CNRs of Dr. Bugada, her family doctor, and an orthopaedic assessment by Dr. Abbas.
24The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that she suffers from chronic pain with a functional impairment. The respondent relies on the CNRs of Dr. Bugada, her family doctor, and an orthopaedic assessment by Dr. Abbas.
25The CNRs of Dr. Bugada, uses the term “chronic” twice. Both of those instances were on a visit by the applicant of May 25, 2021. The first instance is “chronic hx (history) of R knee pain” in his symptoms section of his note in the doctor’s CNR record for that visit. In his opinion section the doctor states, “chronic, no acute flareup”.
26As discussed in the above section, the orthopaedic assessment by Dr. Abbas, an orthopaedic surgeon, from October 5, 2021, diagnosed a sprain of the right knee that the doctor reports is an injury minor in nature. This assessment does not corroborate the claim by the applicant that she suffers from chronic pain.
27Reviewing the evidence, the applicant has not proven on a balance of probabilities that she has chronic pain with a functional impairment. The applicant has not directed me to compelling medical evidence that the applicant suffers from chronic pain with a functional impairment. Neither the CNRs of Dr. Bugada, nor the orthopaedic assessment by Dr. Abbas outline any functional impairment that the applicant may be suffering in association with her right knee pain. Additionally, in the orthopaedic assessment by Dr. Abbas, the applicant noted that she is completely independent with her activities of daily living.
28I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from chronic pain with a functional impairment due to the motor vehicle accident.
Does the applicant suffer from a psychological condition warranting removal from the MIG?
29I find that the applicant has not me her onus to prove on a balance of probabilities that she suffers from a psychological condition.
30The Tribunal has determined that a psychological condition may warrant MIG removal.
31The applicant submits that she suffers from a psychological condition because of the motor vehicle accident. The applicant relies on a pre-screen evaluation report from Dr. Aghamohseni.
32The respondent submits that that the applicant has not met the burden of proof that she suffers a psychological condition. The respondent relies on a psychological assessment completed by Dr. Saunders and the CNRs of Dr. Bugada.
33The psychological assessment report was completed by Dr. Aghamohseni on April 8, 2021. The assessment was in-person and included a clinical interview and psychometric testing. During the clinical interview, the applicant noted that she is unable to sit for prolonged periods, stand for extended periods, bend, twist and ascend or descent stairs/steps. The applicant also noted issues with her sleep, that she was not taking any medication, and has cognitive challenges following the accident. Also noted that the applicant has seen a psychotherapist once before due to a personal social issue. She also reported anxiousness on highways, and she feels uneasy as a pedestrian. The psychometric testing included:
i. Beck depression Inventory 2nd edition – the result was moderate depression.
ii. Beck Anxiety Inventory – the result moderate anxiety.
iii. Pain Patient Profile – the result was an above average range for depression, anxiety, and somatization.
iv. Symptom checklist 90 Revised– The result was a mild through severe difficulties.
v. Davidson Trauma Scale – the result was a range from “a little bit” to extremely.
34Based on the clinical interview and testing, Dr. Aghamohseni diagnosed the applicant with major depressive disorder, somatic symptom disorder and specific phobia, situational type, vehicular.
35An independent psychological evaluation was completed by Dr. Saunders, psychologist, on October 28, 2021. The assessment was in-person and was a combination of clinical interview and psychometric testing. During the clinical interview, the applicant reported that she was continues to preform all of her previous household chores and that she was independent with her activities of daily living. The applicant noted that she is sleeping more than usual, describing that she sleeps 8-10 hours of uninterrupted sleep per night verses the 6 hours per night prior to the accident. She also reported that she is driving, but is more cautious, has minimal passenger or pedestrian anxiety, and does not take public transportation. The psychometric testing included:
i. Personality Assessment Inventory – the result showed that that the applicant attended appropriately and responded consistent to the test. It also showed that the applicant’s pattern of responses indicates a tendency to consistently endorse items that portray herself in an especially negative or pathological manner relative to her objective clinical status. The doctor noted that deliberate distortion of her clinical picture may be present, and her profile likely consists of a notable over representation or exaggeration of the actual degree of psychopathology.
ii. Depression Adult Scale – The result was a moderate elevation in depressive symptoms.
iii. Multi-Dimensional Anxiety – The result is consistent mild anxiety. In addition, pain-related symptoms, and indications that her profile over represents or exaggerates her actual symptoms, there is no reliable evidence of psychological impairment related to anxiety. for physiological panic, social phobia, worry-fears, and negative affectivity.
36Based on the clinical interview and testing by Dr. Saunders, he diagnosed the applicant with no reliable evidence of accident-related psychological impairment.
37In the CNRs of Dr. Bugada, there is only one entry regarding psychological issues. On April 25, 2019, the applicant reported that she was not getting along with her mother, so she was living with her grandmother. She indicated issues with schooling, and financial issues. The doctor also notes the applicant is unsure if she went through a depression. The CNRs do not mention anxiety or a major depressive disorder. There is only a passing mention of the motor vehicle accident in the entry, which notes “has been in two MVA – passenger once and driver once in the last year”. There is no mention in the CNRs that any psychological issues were related to the subject motor vehicle accident.
38In review of the evidence, I agree with the respondent that the applicant has not met her burden to prove on a balance of probabilities that she suffers from a psychological condition.
39I find that there is a lack of compelling and objective medical evidence that a psychological condition is present. In the evidence presented, there is competing diagnosis of the applicant, one that a psychological condition is present, and one that it is not. The report by Dr. Aghamohseni does diagnosis the applicant with several psychological conditions, but most of the psychometric testing shows moderate levels, and the diagnosis was major depressive disorder. In contrast, Dr. Bugada specifically notes that no major depressive disorder is present, and Dr. Saunders did not find any reliable evidence of any accident-related psychological condition. I am more persuaded by the diagnosis of Dr. Saunders that the applicant does not suffer from a psychological condition.
40The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from a psychological condition due to the motor vehicle accident.
Conclusion
41For the reasons noted above, the applicant has not proven that she suffers from a more than minor injury, chronic pain with a functional impairment, or a psychological condition that would warrant removal from MIG.
The Treatment Plans
42As I have found the applicant remains within the MIG and is subject to its limits for treatment plans, and as the treatment plan in question is beyond the MIG limits remaining, the applicant is not entitled to payment for either plan.
Interest
43As there are no overdue benefits, I find that the applicant is not entitled to interest .
ORDER
44I find that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to payment for the disputed treatment plan.
iii. As nothing is owed, no interest is due.
iv. The application is dismissed.
Released: October 8, 2024
Robert Rock
Adjudicator