Licence Appeal Tribunal File Number: 23-002041/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:
Andre Frater
Applicant
and
Wawanesa Insurance
Respondent
DECISION
VICE-CHAIR:
Kevin Kovalchuk
APPEARANCES:
For the Applicant:
Bianca Crocetti, Paralegal
For the Respondent:
James Schmidt, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Andre Frater, the applicant, was involved in an automobile accident on February 28,2020, 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? Note: The respondent confirmed that the MIG limit has been exhausted, noting that $3,529.24 has been paid for medical and rehabilitation.
ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Amena Syed Psychology PC in a treatment plan/OCF-18 (“plan”) submitted on May 5, 2021, and denied on July 23, 2021?
iii. Is the applicant entitled to $4,114.43 for psychological treatment, proposed by Amena Syed Psychology PC in a plan submitted on October 13,2021 and denied on November 1, 2021?
iv. Is the applicant entitled to $2,486.00 for a chronic pain assessment proposed by Downsview Healthcare Inc. in a plan submitted on July 15, 2022, and denied on July 28, 2022?
v. Is the applicant entitled to $2,486.00 for a neurological assessment proposed by Downsview Healthcare Inc. in a plan submitted on July 28, 2022, and denied on August 10, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.
4I find that the applicant is not entitled to any of the disputed benefits.
5As there are no overdue benefits payable, the applicant is not entitled to interest.
6I dismiss this application.
ANALYSIS
Applicability of the Minor Injury Guideline
7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3(1) of the Schedule 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. The terms “strain, sprain, subluxation and whiplash associated disorder” are also defined in section 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
8An 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.
9Here the applicant submits that he suffers from chronic pain as well as psychological impairments as a direct result of the accident.
10The respondent submits that the applicant’s impairments fall within the MIG. The respondent submits that the applicant sustained soft-tissue injuries. The respondent further submits that because the applicant has not made any psychological complaints to any O.H.I.P. funded doctor the applicant has not met his onus to establish that he should be removed from the MIG.
The applicant has not established chronic pain warranting removal from the MIG.
11I find that the applicant has not persuaded me on a balance of probabilities that he suffers from a chronic pain condition with functional impairments that would warrant removal from the MIG.
12In my view, in order to be taken out of the MIG due to chronic pain, there must be evidence of severe or functionally disabling pain that is constant and affects the applicant’s day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person's function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries.
13The applicant refers to a report of Dr. Peter Watson, neurologist dated July 30, 2020, in support of his submission that he suffers from chronic headaches.
14I have reviewed Dr. Watson’s report of July 30, 2020. The applicant told Dr. Watson that he gets headaches three times a week that are worse when he is active. They last for five or ten minutes. If he is more active, they may last for an hour. Dr. Watson opines that “there is nothing sinister or migrainous about the headaches they are most likely posttraumatic tension-type headaches”. Dr. Watson further opines that the applicant needs no further investigation and that he should become more physically active.
15The applicant refers to a report of Dr. Robertus of the Vaughan Pain Clinic dated January 6, 2021. The applicant told Dr. Robertus that most of his pain was in his head and neck with secondary focus on his low back. He told Dr. Robertus that his headaches were “daily, holocephalic, throbbing associated and with significant photophobia and phonophobia.” The applicant further noted that the headaches were associated with neck pain and pain in the right shoulder which pains were sharp, severe, and constant ranging between 4/10 and 8/10 on the numeric pain scale. Activities such as walking, climbing stairs, prolonged sitting or standing made the pain worse. Lying down, resting, and topical heat alleviated the pain. A dark and quiet environment alleviated his headaches. The applicant was taking cyclobenzaprine and celecoxib as needed.
16A physical examination revealed a “well appearing male in no obvious distress”. Cranial nerve II-XII examination was grossly unremarkable. Neck and upper back examination were remarkable for normal alignment. Tenderness was found on palpation of paravertebral regions of the cervical spine, right more than left. Tenderness was found on palpation of upper trapezius and para scapular muscles, again more on the right side. Range of motion was found with pain at extremes in all directions. Motor examination was remarkable for muscle strength of 5/5 on manual grading. Gross sensory examination was symmetric and unremarkable. Biceps, brachioradialis and triceps reflexes were 1+ bilaterally. Spurling teat was negative. Lower back examination was remarkable for no obvious deformities. Tenderness was found on palpation of right more than left paravertebral muscles of the lumbar spine. SI tenderness was also noted, right more than left. Range of motion was remarkable for slow rhythm. Gross motor and neurological examination of lower extremities was unremarkable. Knee and Achillies reflexes were 1+ bilaterally.
17The physical examination conducted by Dr. Robertus found tenderness of the spine as well as pain on extreme range of motion but otherwise revealed a “well appearing male in no obvious distress”. Aside from suggesting trigger point injections which the applicant decided to leave for future consideration, Dr. Robertus made no changes to the applicant’s therapy and no outside referrals were suggested. I further note that the applicant told Dr. Robertus that he was taking cyclobenzaprine and celecoxib as needed. This does not suggest a dependence on prescription drugs for pain management.
18Dr. Robertus notes under the heading IMPRESSION:
i. Myofascial pain
ii. Mechanical neck, upper back, mid back, low back pain
iii. Piriformis irritation syndrome
iv. Chronic daily headaches
v. Chronic pain syndrome
19The respondent submits that the applicant is not suffering from chronic pain as there is no evidence of functional impairment and complaints made by the applicant to his family doctor were soft tissue in nature.
20I find that although the applicant complained of pain and was diagnosed with chronic pain by Dr. Robertus, I find that Dr. Robertus did not address the effect of her chronic pain diagnosis on the applicant’s level of function or whether the pain was bearable without treatment. Because Dr. Robertus did not address the issue of functional impairment or whether the applicant’s pain was bearable without treatment, I place little weight on her diagnosis of chronic pain.
21I could find no compelling evidence from a medical practitioner in the applicant’s submissions that his accident-related injuries are chronic and ongoing, cause functional impairment or that the applicant suffers from functionally disabling pain that would be sufficient to remove him from the MIG.
22I find that a chronic pain diagnosis by itself does not remove an applicant from the MIG. Removal from the MIG requires that the applicant prove that their chronic pain is not merely a sequalae of soft tissue injuries, but rather that it is the applicant’s predominant injury that causes functional impairment. As such, I am not convinced, on a balance of probabilities, that the applicant suffers from chronic pain with functional impairment because of the accident.
The applicant has not established that he sustained a psychological impairment.
23I find that the applicant has not provided sufficient evidence of a psychological impairment that warrants removal from the MIG.
24Psychological impairments are not included in the definition of minor injury in s.3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not symptoms or sequalae of a minor injury.
25The applicant submits that he was diagnosed by Dr. Syed, a psychologist, with a specific phobia related to motor vehicles; somatic symptom disorder; and adjustment disorder with anxiety and depressed mood. The applicant saw Dr. Syed at the request of his lawyer.
26The respondent submits that the applicant has not sustained any psychological impairments as a result of the accident. In support of its position the respondent relies upon a s. 44 assessment completed by a psychologist, Dr. Dumitrascu. Dr. Dumitrascu opined that the applicant did not meet the DSM-5 criteria for a Psychological Disorder as a result of the accident.
27The applicant was seen by Dr. Syed on May 6, 2021. Dr. Syed performed a number of tests. On the Beck Anxiety Inventory, she found the applicant’s scores to be minimally elevated. On the Post-Traumatic Stress and Beck Depression Inventory-II, she found the applicant’s scores to be mildly elevated.
28The applicant saw Dr. Dumitrascu seven weeks later, on June 28, 2021.
29The applicant told Dr. Dumitrascu that his mood “has been positive lately”. With respect to his social life, he told Dr. Dumitrascu that he has friends and continues to socialize with them. They were waiting for the COVID-19 pandemic to end so they could resume playing soccer or basketball once a week after work. He told Dr. Dumitrascu that he sees his girlfriend almost every day. He did not report any intrusive recollections of the accident. He reported that his energy level had been better “lately”, his concentration had improved “lately” and that his memory was good. He did not report having any emotional difficulties with driving or being a passenger in motor vehicles. Dr. Dumitrascu administered a number of tests that revealed that the applicant did not experience any clinically significant symptoms of anxiety, depression or post-traumatic stress. The applicant did not report having any significant emotional symptoms as they pertained to the accident.
30A review of the clinical notes and records of the applicant’s family physician Dr. Goldman reveals a notation of “reduced mood” on February 21, 2021, and one complaint of “anxiety and depression” on May 4, 2021. A note dated November 28, 2022, reads “work induced stressors but otherwise doing well”. The last note in Dr. Goldman’s records is dated May 23, 2023, and reveals no psychological complaints.
31I am not persuaded that the applicant’s medical evidence supports that he suffered a psychological impairment as a result of the accident. I prefer the opinion of Dr. Dumitrascu because I find that it is consistent with the preponderance of the evidence including the dearth of psychological complaints to the applicant’s family physician, Dr. Goldman. I also find the applicant’s self reporting to Dr. Dumitrascu as well as the result of the tests performed by Dr. Dumitrascu support a finding that the applicant did not sustain a psychological impairment as a result of the accident.
32Based on the totality of the evidence before me, I find on a balance of probabilities that the applicant has not sustained a psychological impairment that would remove him from the MIG.
33As I have found the applicant to remain within the MIG I find that it is not required of me to review the treatment plans in dispute to determine if they are reasonable and necessary.
34However, the applicant argues that the denial letters dated July 23, 2021, denying a psychological assessment and November 1, 2021, denying psychological treatment were improper because they did not accurately reflect the medical evidence on file.
35The applicant further argues that the denial letters dated July 28, 2022, for a chronic pain assessment and August 11, 2022, for a neurological assessment were improper because they were merely boilerplate responses to the submissions of OCF-18’s by the applicant.
36The applicant has not referred to the section of the Schedule that supports his position that the denial letters were improper. The applicable section is section 38(8). It requires an insurer to inform an insured person within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
37The respondent argues that the denial letters noted above summarized the medical evidence in explaining why the treatment plans were not reasonable and necessary and specifically that the denial letters dated July 28, 2022, and August 11, 2022, were not merely boilerplate responses.
Denial letter dated July 23, 2021
38I find that the denial letter dated July 23, 2021, indicates that the determination was based on a full review of the Treatment and Assessment plan and medical information provided by the applicant as well as the section 44 assessment report of Dr. Dumitrascu dated July 12, 2021. A copy of Dr. Dumitrascu’s report was provide to the applicant.
39I find that the denial letter of July 23, 2021, provided medical reasons for denying the treatment plan. I find the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this plan is not payable.
Denial letter dated November 1, 2021
40I find that the denial letter dated November 1, 2021, indicates that the determination was based on a review of the OCF-18 and medical information provided by the applicant as well as the section 44 assessment report of Dr. Dumitrascu dated July 12, 2021. It noted that the applicant’s self report and objective data from the assessment did not meet the DSM-5 criteria for a Psychological Disorder as a result of the accident.
41I find that the denial letter of July 23, 2021, provided medical reasons for denying the treatment plan. I find the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this plan is not payable.
Denial letters dated July 28,2022 and August 11, 2022
42I find that these denial letters were not simply boilerplate responses as submitted by the applicant. The letters contained specific and comprehensive medical reasons for the respondent’s denials. Consequently, I find that these plans are not payable.
Interest
43As there are no overdue benefits payments the applicant is not entitled to interest.
ORDER
44As a result of the above and on a balance of probabilities I find that:
i. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
ii. The applicant is not entitled to the treatment plans.
iii. As there are no overdue benefits payments, the applicant is not entitled to interest.
45This application is dismissed.
Released: April 30, 2025
__________________________
Kevin Kovalchuk
Vice-Chair