Licence Appeal Tribunal File Number: 23-005677/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:
Jennifer Lewis Applicant
and
Wawanesa Insurance Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Adam Moftah, Counsel
For the Respondent: Marco Fantin, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jennifer Lewis, the applicant, was involved in an automobile accident on March 9, 2021, 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, Wawanesa Insurance, 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 chiropractic services proposed by Revive Health Centres Inc. as follows:
(a) $1,682.97 in a treatment plan/OCF-18 (“plan”) dated August 6, 2021?
(b) $1,339.15 in a plan dated June 27, 2022?
(c) $1,254.54 in a plan dated October 12, 2022?
(d) $1,423.76 in a plan dated December 7, 2021?
(e) $1,339.15 in a plan dated March 22, 2022?
(f) $1,254.54 in a plan dated January 6, 2023?
(g) $1,169.93 in a plan dated May 8, 2023?
iii. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Network Health Assessment & Rehabilitation Centre in a plan dated May 5, 2021?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Pearson Medical Assessment Centre Inc. (“Pearson”) in a plan dated June 14, 2021?
v. Is the applicant entitled to $1,651.00 for an occupational therapy assessment proposed by Pearson in a plan dated August 12, 2021?
vi. 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.
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 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 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 based on a pre-existing condition, chronic pain, as well as a psychological impairment.
The applicant does not suffer a psychological impairment as a result of the accident that would take her out of the MIG
9I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related psychological impairment.
10The applicant relies on the following medical information in support of her position.
11The applicant refers to an initial consult with Dr. Salim Dahmis in the clinical notes and records (“CNRs”) from Releva Chronic Pain Centre dated May 27, 2021, outlining her symptoms relating to the accident, which includes a notation of “disturbances in mood, sleep, and energy, irritability/frustration/anger.” I have reviewed this document and I note that Dr. Dahmis also indicates “Mental status examination: good eye contact, co-operative, normal affect.” A Treatment plan was discussed for her physical symptoms, but not for any psychological ones. As such, I find that Dr. Dahmis made note of the applicant’s symptoms but did not diagnose a psychological impairment.
12The applicant relies on her reporting of various accident-related psychological symptoms to Dr. Tony Toneatto, psychologist, during a screening interview on June 15, 2021. The applicant further relies on Dr. Toneatto’s psychological assessment report which is based on a clinical interview on March 14, 2022, and the administration of five psychological tests. Dr. Toneatto indicated that the results of the Miller Forensic Assessment of Symptoms Test, which is designed to identify individuals who are feigning psychopathology, was not indicative of malingered symptomatology. Dr. Toneatto made provisional diagnoses of Somatic Symptom Disorder with predominant pain, persistent, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (Driving/Vehicular Anxiety).
13The applicant also filed an OCF-3 that was completed on March 30, 2021 by Dr. Bradley Sugar, chiropractor, which describes one of the applicant’s injuries as “Other anxiety disorders.” In assessing psychological injuries, I give no weight to the opinion of Dr. Sugar, because he is a chiropractor and is not able to diagnose psychological injuries.
14The respondent relies on the Insurer Examination (“IE”) report of Dr. Tatiana Dumitrascu, psychologist, who assessed the applicant on January 25, 2022. The assessment was based on a review of medical documents and CNRs, a clinical interview, and the administration of five psychological tests. Dr. Dumitrascu indicated that on The Trauma Symptom Inventory-2-A, the applicant’s scores on a validity scale indicated that she tended to over-endorse her emotional symptoms, therefore her results were considered invalid on this test. The Structured Inventory of Malingered Symptomatology test was also administered, which is used for the detection of malingering across a variety of clinical and forensic settings. Dr. Dumitrascu indicated that the applicant’s score on the Affective Disorders scale was significantly elevated, suggesting that she tended to over-endorse her emotional symptoms, which likely affected her responses on all administered psychometric measures. Dr. Dumitrascu concluded from her assessment that the applicant does not meet the DSM-5 criteria for a psychological disorder because of the accident.
15I find that Dr. Toneatto’s report is not compelling because he makes provisional, rather than formal, diagnoses. Further, I note that Dr. Dumitrascu’s assessment was conducted on January 25, 2022, and Dr. Toneatto’s assessment was conducted on March 14, 2022, less than two months apart; however, I find that there are inconsistencies in the applicant’s reporting according to the two reports.
16The applicant reported to Dr. Toneatto that she is no longer able to care for her father in the same capacity and relies on her spouse to do everything. She indicated that she takes Diclofenac, Tylenol #3, and Advil extra strength on a regular basis. With respect to her pain, she reported little improvement in her condition. She also reported that she cannot sit or stand for long periods of time. The applicant told Dr. Toneatto that she is no longer able to perform her housekeeping tasks and must rely on her spouse to complete the tasks she would normally complete on her own. She reported that she is unable to engage in most of her pre-accident activities, such as spending time with her family, going to the restaurant, watching movies, and socializing with friends. She reported having intrusive thoughts and images about the accident, and she reported an increase in her appetite.
17The applicant reported to Dr. Dumitrascu that her father resides with her, and she provides care for him. She reported that she uses over-the-counter Tylenol on an “as needed” basis. She estimated that her overall pain symptoms have improved by approximately 60% to date. She denied having difficulties with walking, standing, and sitting, and she reported that she does exterior patrols at work, which takes about one hour, taking breaks when needed. The applicant reported that she shares housekeeping tasks with her husband, but that he usually does the heavier tasks. She reported that she has friends, and they socialize mostly over the telephone or do video chatting during the pandemic. She denied experiencing intrusive recollections of the accident and reported a normal appetite.
18I have considered both psychological assessments. Based on the inconsistencies in some of the reporting, the opposing results on the validity testing, and the opposite conclusions reached with respect to whether the applicant has a psychological impairment because of the accident, I am not persuaded by Dr. Toneatto’s report in support of the applicant’s position.
19The applicant did not direct me to any CNRs which reference any psychological diagnoses made in relation to the accident. I have reviewed the CNRs of Dr. Alkarim Damji, the applicant’s family physician, which are handwritten and largely not legible. From what I can read, Dr. Damji did make a notation in March 2021 that the applicant’s mother had passed away and Dr. Damji appears to indicate “very emotional.” A notation in April 2021 indicates that she is “managing ok, feels emotions under control, stable.” I find there are no legible CNRs with emotional complaints related to the accident. Further, I do not see any referrals that were made by Dr. Damji to a psychologist.
20I have also considered that, other than the applicant’s reporting of accident-related psychological symptoms to Dr. Dahmis on May 27, 2021, and to Dr. Toneatto on June 15, 2021, I have not been directed to any psychological complaints that were made by the applicant until the preparation of the psychological assessments in January and March of 2022. Considering this gap of time, and the absence of corroborating medical evidence in support of Dr. Toneatto’s assessment, I find that the applicant has not met her burden of proof.
21For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that she suffers from an accident-related psychological impairment that would remove her from the MIG.
The applicant does not have a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG
22The applicant has not proven on a balance of probabilities that she should be removed from the MIG because of any pre-existing conditions.
23Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
24The applicant points to the following medical evidence of pre-existing conditions:
i. She refers to an OHIP summary which indicates there was testing for glaucoma in 2018 and knee and chest diagnostic imaging in 2019;
ii. The applicant indicated that hypertension and asthma are mentioned “in later records,” but did not refer me to the records; and
iii. The applicant argues that her degenerative disc disease was a pre-existing condition, and that the accident caused a more debilitating set of pain symptoms that impacted her functional abilities at home and work.
25Although I find there is medical evidence that the applicant had pre-existing degenerative disc disease, and that there was testing for glaucoma and knee and chest diagnostic imaging, the applicant did not direct me to medical evidence stating that these conditions preclude recovery from the minor injuries if she is kept within the confines of the MIG.
26For this reason, I find that the applicant has not established on a balance of probabilities that she should be removed from the MIG because of any pre-existing conditions.
The applicant has not established that she suffers from chronic pain
27I find that the applicant has not proven on a balance of probabilities that she has chronic pain with functional impairment because of the accident.
28In support of her argument that she suffers from chronic pain, the applicant submits that descriptions of chronic, limiting pain are in the records from 2021 onward, and that Dr. Dahmis reports an impression of chronic mechanical cervical/lumbar pain almost three months after the accident.
29The applicant refers to the following medical evidence that she submits are accident-related injuries:
i. On March 10, 2021, the applicant reported neck, back, and shoulder pain. Dr. Damji assessed her with whiplash;
ii. On March 15, 2021, Dr. Damji’s CNRs indicate neck, back, shoulder and left side pain;
iii. The OCF-3, completed on March 30, 2021, indicates complaints of anxiety, injury of muscle and tendon at the neck, thorax, abdomen, lower back, pelvis, shoulder/upper arm, and the lower leg, sprain and strain of the hip, and radiculopathy in the cervicothoracic and lumbosacral region;
iv. On April 16, 2021, Dr. Damji’s CNRs indicate back pain;
v. During a consult on May 27, 2021 with Dr. Dahmis from Releva Chronic Pain Centre, the applicant reported pain that is worse with activity, range of motion, bending, lifting, standing, sitting, walking, stairs, working at a computer, and driving. She reported that her pain was sharp, achy, stabbing, shooting, burning, and throbbing, and radiated down the left leg and arm with constant frequency. Further, she reported that pain negatively affected her functional ability, work, and social activities. She also reported disturbances in mood, sleep, energy, irritability/frustration/anger, and difficulty coping with pain. Dr. Dahmis noted an antalgic gait and indicated an “impression” of chronic mechanical cervical/lumbar pain;
vi. Psychological complaints to Dr. Toneatto during a screening interview on June 15, 2021, including sadness, loss of interest, irritability, flashbacks, decrease in appetite, vehicular anxiety, nightmares, and general anxiety;
vii. With complaints of left-neck numbness, diagnostic imaging of the cervical spine on July 31, 2021 found mild multilevel degenerative disc disease with mild to moderate neuroforaminal narrowing;
viii. Ultrasounds and x-rays on March 2, 2022 found impressions of tendinopathy and bursitis in the left shoulder, and mild to moderate degenerative changes, as well as increased joint effusion in the left knee;
ix. Complaints to Dr. Toneatto on March 14, 2022, of pain in the shoulders, lower back, left side of the body, leg numbness, driving anxiety, bouts of crying, reduced energy, reduced ability to focus, and issues with prolonged standing, lifting, bending, and carrying;
x. The applicant submits that Dr. Damji’s March to April 2023 CNRs, “while extremely difficult to interpret, appear to describe ‘L) sided…CBP’ (chronic back pain?) and sciatica.” I have reviewed these CNRs and I am not able to decipher them clearly. As such, I place no weight on them;
xi. Lumbar spine imaging on October 1, 2023, which describes moderate to severe degenerative disc disease with mild spinal canal stenosis, as well as exiting nerve root impingements; and
xii. Notations of left shoulder pain in Dr. Damji’s CNRs dated November 13, 2023, and January 26, 2024.
30The applicant further submits that her time off her work as a security guard following the accident is an additional factor in assessing her condition, referring to documentation indicating that she was paid income replacement benefits from March 16 to August 17, 2021. Further, the applicant points to her meeting with Dr. Dahmis on May 27, 2021, where she described activities that would cause her pain, which correspond with her work: sitting, standing, bending, lifting, and reaching. There was also reported reductions of range of motion in the lumbar spine and pain-avoidant gait. The applicant submits that this indicates a more severe injury that would remove her from the MIG.
31The respondent relies on the IE report of Dr. Jacqueline Auguste, orthopaedic surgeon, who assessed the applicant on February 8, 2022, based on a review of medical documents and CNRs relating to the applicant, an interview, and a physical examination. The applicant reported that she took six months off work, and she is currently working her regular duties full time. She shares cooking and housekeeping tasks with her husband, and she continues to drive. On examination, Dr. Auguste found that the applicant demonstrated a full range of motion of the axial and appendicular skeleton, with full strength in her upper and lower extremity muscle groups. Dr. Auguste found no objective clinical evidence of any substantive musculoligamentous, osseous, or neurologic impairments on clinical testing that could be causally linked to the accident. She indicated that prognosis is favourable. Dr. Auguste concluded that the applicant sustained a WAD 2 cervical strain/sprain on the background of multilevel degenerative changes, as noted on an MRI report of the cervical spine dated July 31, 2017, a left shoulder strain/sprain, and a lumbar strain/sprain. Dr. Auguste opined that the applicant’s accident-related, musculoskeletal injuries are considered minor as defined by the Schedule.
32The respondent submits that the CNRs from the applicant’s family physician do not indicate that she was advised to take the period of March 16 to August 17, 2021 off work due to the accident, but that the applicant chose to take this time off, without a recommendation from her physician. I have reviewed the CNRs from this time, and I find that, from what is legible, Dr. Damji made notations that the applicant told him on May 3 and May 13, 2021 that she was unable to work due to accident-related injuries. Otherwise, Dr. Damji indicates that he provided the applicant with notes for work on March 10, March 20, April 16, and June 10, 2021, without any indication of what was written in the notes. I find that it is unclear whether Dr. Damji advised the applicant to take time off work during this period, because this was not indicated in the CNRs.
33The respondent refers to the decision of Morrison v. Economical Insurance, 2024 CanLII 23444 (ON LAT) for the proposition that ongoing or chronic pain does not automatically remove an applicant from the MIG, but rather there must be a significant reduction in an applicant’s functionality. I agree with this reasoning.
34The applicant did not direct me to sufficient medical evidence of a functional impairment related to chronic pain between her reporting to Dr. Toneatto during his screening interview on June 15, 2021, and her reporting to him during a clinical interview on March 14, 2022. This is a significant gap of nine months. Further, as indicated above, according to the reports, there are inconsistencies in the applicant’s reporting to Dr. Toneatto and to Dr. Dumitrascu with respect to her functional impairment. In addition, I am persuaded by Dr. Auguste’s assessment, because she is an orthopaedic surgeon who reviewed the applicant’s medical history and conducted an in-person examination. The assessment does not indicate a functional impairment. As such, I am not satisfied on a balance of probabilities that the applicant had a significant reduction in her functionality because of the accident.
35In addition, although Dr. Dahmis indicated an initial impression on May 27, 2021, less than three months after the accident, that the applicant might have chronic pain, I was not directed to any CNRs indicating that the applicant was later diagnosed with chronic pain or that she was referred to a chronic pain specialist.
36For these reasons, I find that the applicant has not proven on a balance of probabilities that she has chronic pain with functional impairment because of the accident.
37As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. If there is any funding left under the MIG, the applicant is entitled to treatment up to the MIG limit.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest as there are no overdue payments.
ORDER
39For the above reasons, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule, and therefore subject to treatment within the MIG limit.
ii. As 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.
iii. No interest is payable.
iv. The application is dismissed.
Released: February 18, 2025
Laura Goulet Adjudicator