Licence Appeal Tribunal File Number: 23-002621/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:
Bancroft Morgan
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Patrick Molloy
APPEARANCES:
For the Applicant: Jae Hyon Cho, Counsel
For the Respondent: Robbie Brar, Counsel
HEARD: By way of written submissions
OVERVIEW
1Bancroft Morgan, the applicant was involved in an automobile accident May 24, 2022, 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, Intact Insurance Company Inc., and applied to the Licence Appeal Tribunal- Automobile Accident Benefits Services (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have not been exhausted.
Is the applicant entitled to $4,615.00 for psychological services, proposed by David Ian Ross in a plan dated May 14, 2023?
Is the applicant entitled to $2,200.00 for chronic pain and psychiatric assessments, proposed by Direct Comfort Ltd. in a plan dated January 10, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG funding limit.
4As the applicant has been found to be within the MIG, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.
5No interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
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 person 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.
The Applicant does not have a psychological impairment that warrants removal from the MIG
8I find that the applicant does not have a psychological condition that warrants removal from the MIG.
9The applicant submits that he is suffering from difficulties sleeping, and has symptoms of anxiety and driver anxiety, specifically near the site of the accident. He also submits that his mood has changed post-accident and he feels dizzy at times. The applicant relies on the Psychiatric Assessment supervised by Dr. Seif, Psychiatrist and conducted by Mr. David Ross, Clinical Social Worker and Registered Psychotherapist dated February 22, 2023
10Mr. Ross included in his psychological assessment a number of “Beck” scores; the posttraumatic stress score was 6 out of 33 indicating a minimal presence of PTSD symptoms. The report also indicated mild levels of anxiety. The applicant scored in the minimal range of those experiencing depression like symptoms the applicant’s household tasks have become difficult completing, the applicant reported he was currently independent with completing all household tasks, despite experiencing pain in his neck shoulder and lower back. The applicant reportedly experiences intrusive accident thoughts and flashbacks. The applicant also reported acute non-restorative sleep challenges, he described difficulties with respect to sleep onset, interruptions throughout the night, and early wakening. The applicant continues to drive. He described in-vehicle psychiatric/psychosocial and behavioral anxiety issues as a driver and passenger following the subject accident. The report also indicates a diagnosis of Major Depressive Disorder, single episode with anxious distress.
The applicant’s responses indicate that psychiatric/psychosocial symptoms, thoughts, feelings, and coping style may impede recovery. The report indicates a treatment plan is warranted in order to further investigate these psychiatric/psychosocial factors and help the applicant recover from the present psychiatric/psychosocial issues. Statements made by the applicant in Dr. Jwely’s report do not agree with the statements made in this report.
11Dr Ahmed Jwely, Psychiatrist, in a comprehensive IE MIG Psychiatry report March 8, 2023, concluded the applicant does not have any motor vehicle related psychiatric conditions, The applicant reported some disruptions to sleep at night. He noted more significant sleep disturbances following the MVA due to pain in his shoulder and expressed some improvement in this area.
12An IE MIG Psychiatry Report was completed by Dr. Ahmed Jwely on March 22, 2023, addressing the items from Issues #1 and 4 in dispute. Dr. Jwely concluded that the applicant does not have any motor vehicle accident-related psychiatric conditions.
13Dr. Jwely’s report referenced the applicant’s own comments as being able to engage in multiple enjoyable activities. He denied having any major disturbance in his appetite or energy level. He did report that sleep is causing minor disturbance which he is mainly related to the severity of his physical pain. He also denied having any history of manic episode. He denied having any active anxiety symptoms and feel relax mostly of the time. He denied any psychotic features (e.g., hearing voices and seeing things), and deny any thought insertion or broadcasting. The applicant denied having any active mood symptoms or major disturbance in his appetite or energy level and denied any history of manic episodes or active anxiety symptoms. His affect was reactive and mood congruent, and normal in range. His mood was euthymic, and thought processes were logical and goal directed. There were no suicidal or homicidal ideations, hallucinations, or delusions during the interview.
14In Dr. Dinesh Ram Krishna’s, Emergency Physician, Initial assessment October 25, 2022, and a paper review completed January 6, 2023, the applicant denied having any change in his social and recreational activities following the subject accident. The applicant denied experiencing difficulties with sleep. The applicant has returned to driving since the subject accident. He denied experiencing anxiousness when driving or being a passenger in a vehicle. In the applicant’s examination. I am persuaded by his comments indicating he has returned to his pre accident lifestyle and activities.
15I find the evidence does not establish that the applicant has a psychological impairment that warrants removal from the MIG. In reaching this conclusion, I note that while the report of Dr. Seif and Mr. Ross indicates that the applicant has mild levels of anxiety and minimal indications of PTSD and diagnoses him with a depressive disorder in February 2022, the applicant reported to Dr. Jwely in March 2022 that he has no anxiety or post-accident psychological issues. Dr. Jwely concluded the applicant has no psychological conditions that warrants removal from the MIG.
16I place significant weight on the reporting of Dr. Jwely because as a psychiatrist he is qualified to render this opinion and because he examined the applicant before giving his opinion. I put less weight on the report of Dr. Seif and Mr. Ross because although the report indicates it was supervised by Dr. Seif, the assessment of the applicant was conducted by Mr. Ross who is a social worker and psychotherapist, not a psychiatrist. Further, I find that the reporting and opinion of Dr. Jwely is corroborated by Dr. Krishna’s assessment in October 2022 and his paper review in January 2023, In the January 2023 assessment the applicant’s comments do not support Mr Ross’s diagnosis.
17On a consideration of the evidence, I find on a balance of probabilities, that the applicant has not established that he has a psychological impairment that warrants removal from the MIG.
The Applicant does not have chronic pain that warrants removal from the MIG.
18I find that the applicant has not met his onus of proving on a balance of probabilities that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
19The applicant submits that he suffers from Chronic Pain Syndrome due to shoulder, neck and back pain he experiences because of the accident. The respondent submits that there is no evidence that the applicant has chronic pain.
20Included in Dr. Jianfar, physician, and Dr. Mohsini, chiropractor conducted a clinical interview of March 10, 2023, in that interview the applicant reported thathe that he had been prescribed Tylenol 3 and reports a pain level of 5 out of 10. The report indicates the applicant is limited in his return to his pre-accident leisure, sports and social activities due to pain. In the report the applicant suffers a musculoskeletal impairment but reported he remains mostly independent with daily living activities. In the cervical spine and thoracic and spine examination his pain level was mild to moderate.
21The applicant reported developing right neck, shoulder, and low back pain with intermittent numbness into the right hand and lower limb, approximately one week following the applicant. He reported experiencing a 70% improvement in his physical pain symptoms to date.
22I accept the evidence that the applicant gets headaches two to three times a week, described as achy. He manages his headache symptoms by taking Tylenol No. 3. He noted that his headache was 1 out of10 on a pain scale at worst before the accident. Today, his headache is 5 out of 10. The applicant indicated experiencing improvement in his headache symptoms by 50% since the accident.
23In a Functional Abilities Evaluation conducted by Michele Becker B.SC. (Kinesiologist) dated January 6, 2023, the applicant demonstrated normal ranges of motion in the cervical spine, lumbar spine, and shoulders, and demonstrated a medium job strength rating for waist to overhead lifting and heavy job strength rating for floor to waist level and waist to shoulder level lifting. This demonstrates the ability of the applicant to return his pre accident employment.
24The report of Dr Krishna, Emergency Physician, January 6, 2023, in an examination and paper review concluded that the applicant continues to complete all household tasks, despite experiencing pain into his right neck, shoulder, and low back. He reported completing chores in moderation. The applicant receives weekly help from his daughter to complete his laundry. The applicant denied having any change in his social and recreational activities following the subject accident. He denied experiencing difficulties with sleep. From a strictly musculoskeletal perspective, there was no objective evidence of a significant ongoing physical impairment identified during this current assessment. “Overall, based on the information available for review, and the results of my assessment, it is this assessor’s opinion that, from a musculoskeletal perspective, the applicant does demonstrate the ability to perform the essential tasks of his pre-accident employment.
25Dr. Krishna concluded there is no objective evidence from a diagnostic imaging or clinical perspective to support a finding that the applicant sustained a significant acute structural ligamentous, osseous, or neurological injury as a result of the motor vehicle accident in question which would be considered beyond the Minor Injury Guideline.
26I find that although the medical evidence of Dr. Jianfar and Dr. Mohsini indicates that the applicant had some pain and headaches following the accident and some impact on his function, it does not support a finding that he has chronic pain with a functional impairment. I find that the medical evidence indicates that the applicant has not been diagnosed with chronic pain, and he has not made submissions in support of meeting the criteria for chronic pain in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition which, while not incorporated into the Schedule, are frequently referenced by the Tribunal in assessing chronic pain. Therefore, I find that the applicant has not met his onus on a balance of probabilities.
27I find on a balance of probabilities that the applicant does not have a chronic pain condition that warrants removal from the MIG.
28Given that I have found the applicant is subject to the MIG and the MIG limits have not been exhausted, the applicant is entitled to treatment up to the MIG limits.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue therefore, the applicant is not entitled to interest.
ORDER
30For the reasons outlined above, I find that:
a. The applicant is subject to the MIG.
b. The applicant is not entitled to the disputed treatment plans. He is entitled to treatment up to the MIG limits.
c. The applicant is not entitled to interest.
d. The application is dismissed.
Released: February 13, 2025
Patrick Molloy
Adjudicator