Licence Appeal Tribunal File Number: 23-003287/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:
Sabine Bernard
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Nathan Prince
APPEARANCES:
For the Applicant: Marc Golding, Paralegal
For the Respondent: Karly Lyons, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sabine Bernard, the applicant, was involved in an automobile accident on October 1, 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 Mutual 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? Note: The MIG limit has been exhausted
ii. Is the applicant entitled to $2,332.23 for chiropractic services, proposed by Toronto Healthcare Clinic Inc. in a treatment plan dated April 27, 2021?
iii. Is the applicant entitled to $2,000.00 for shockwave therapy, proposed by Toronto Healthcare Clinic Inc. in a treatment plan dated August 25, 2021?
iv. Is the applicant entitled to $2,712.00 for chiropractic services, proposed by Spine Health Care Clinic in a treatment plan dated July 20, 2020?
v. Is the applicant entitled to $3,762.90 for chiropractic services, proposed by Spine Health Care Clinic in a treatment plan dated September 4, 2020?
vi. Is the applicant entitled to interest on any overdue payment of benefits.
RESULT
3The applicant has not demonstrated that she sustained an impairment which warrants removal from the MIG.
4As the MIG limits have been exhausted, the applicant is not entitled to the treatment plans in dispute.
5No interest is payable.
ANALYSIS
The applicant has not demonstrated that her impairments warrant removal from the MIG
6I find the applicant has not demonstrated, on a balance of probabilities, that she should be removed from the MIG.
7Section 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.”
8Under s. 18(2), an insured may be removed from the MIG if they can establish 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.
9The applicant submits that she should be removed from the MIG based on a pre-existing condition, chronic pain, and psychological impairments and relies on the OCF-3 submitted by Dr. Darren Hylton, chiropractor, the clinical notes and records (“CNRs”) of her family doctor, Dr. Karen Stel, the CNRs of urgent care doctor, Dr. Beenish Arif, and a s. 25 psychological assessment conducted by Ms. Nikki Barot, counsellor, under the supervision of Dr. Bita Sharifzadeh, psychologist.
10The respondent submits that the applicant has not demonstrated that she suffers from an impairment that would remove her from the MIG.
11For the reasons that follow, I find the applicant’s impairments do not warrant removal from the MIG.
The applicant has not demonstrated that she suffers from chronic pain with a functional impairment
12I find the applicant has not established, on a balance of probabilities, that she suffers from chronic pain with a functional impairment that would warrant removal from the MIG.
13The applicant submits that she suffers from chronic pain and relies on her OCF-3 and the CNRs of Dr. Stel and Dr. Arif.
14I find that the medical record before me is sparse, containing only two post-accident CNRs. The evidence shows that on October 3, 2018, two days after the accident, the applicant visited Dr. Stel and was found to have restricted movement and pain in her neck. She was advised to take Robaxacet and Aleve and to ice the area. A follow-up appointment was schedule for October 10, 2018; however, the applicant did not attend and, in fact, there is no record before me of her attending her family doctor again after her October 3, 2018 appointment.
15The CNRs from Dr. Arif are equally minimal. They show that the applicant attended on October 2, 2018 with neck strain and was prescribed Robaxacet and told to go to ER if symptoms reoccurred or got worse. There is no record before me that the applicant ever attended an ER and there were no other visits to Dr. Arif after October 2, 2018.
16Thus, I find that the totality of the treating physician records consists of two visits in the days after the accident. I find there is no suggestion in the medical record that the applicant suffers from ongoing pain, there is no diagnosis of chronic pain, and there is no referral to any pain specialist. As such, I find that the CNRs submitted by the applicant do not support a finding that she is suffering from chronic pain.
17Furthermore, I do not find the applicant’s OCF-3 to be persuasive evidence because it is not supported by any contemporaneous medical evidence. While the OCF-3 lists the applicant’s physical injuries as sprain/strain of the back, neck, wrist, and knee, as well injuries of the muscle and tendon of the head and neck, I find that there are portions of the OCF-3 which are inconsistent with the factual matrix before me. For example, the OCF-3 indicates that the applicant suffers a complete inability to carry on a normal life and is substantially unable to perform the essential tasks of her employment; however, the applicant returned to work at full capacity one week after the accident. In any event, the OCF-3 does not suggest that the applicant suffers from chronic pain and indicates that her accident-related impairments should resolve in 9-12 weeks.
18Even if I were persuaded that the applicant’s pain has become chronic in nature, which I am not, it is well settled that chronic pain, by itself, is not sufficient to remove the applicant from the MIG. The chronic pain must be accompanied by functional impairment. I was not pointed to evidence that the applicant suffers from functional impairments which would warrant removal from the MIG. As previously mentioned, she returned to work one week after the accident. With respect to her social life, the applicant indicated to Ms. Barot that she continues to enjoy her social parties and pleasurable activities and reported no changes in the relationships with her sons and boyfriend. Ms. Barot’s report also indicates that the applicant remains independent with grooming and personal hygiene and, while she does get help from her boyfriend and girlfriends with household chores, she tries to do most of the household chores on her own.
19The applicant pointed me to three prior decisions of the Tribunal which she suggests are analogous to her situation: D.K.M. vs. Aviva General Insurance Company, 2019 ONLAT 18-010072/AABS, B.M. vs. Allstate Insurance, 2019 ONLAT 18-008410/AABS, and M.C. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-002854/AABS. I note that I am not bound by prior decisions of the Tribunal and, in any event, I find these decisions are distinguishable from the matter before me as they all involved parties who had received a diagnosis of chronic pain by either their treating practitioner or a specialist. As I have found above, the applicant has not been assessed for chronic pain nor has she received a chronic pain diagnosis from any medical professional.
20I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from chronic pain with a functional impairment that would warrant removal from the MIG.
The applicant has not demonstrated that she has a pre-existing condition that will prevent maximal recovery within the MIG
21I find that the applicant has not established that she should be removed from the MIG on the basis of a pre-existing condition.
22As set out above, under s. 18(2) of the Schedule, the applicant must show, on a balance of probabilities, that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG.
23The applicant relies on a CNR from Dr. Arif dated October 16, 2018 wherein she noted that the applicant had “neck strain”.
24I find this singular note from almost one-year pre-accident is not sufficient to demonstrate that the applicant suffered from a pre-existing injury or condition. Moreover, the applicant did not make any submissions as to how this purported condition is preventing recovery within the limits of the MIG. Furthermore, I note that the applicant’s OCF-3 indicates that she does not have a pre-existing condition or injury.
25I find that the applicant has not demonstrated that she has a pre-existing condition that will prevent maximal recovery within the MIG.
The applicant has not demonstrated that she suffers from a psychological impairment
26I find that the applicant has not demonstrated on a balance of probabilities that she has a psychological impairment that warrants removal from the MIG.
27An injured person is not subject to the MIG if they can show that they have a psychological condition as a result of the accident. To be removed from the MIG, the psychological condition must be more than sequalae of the minor injury.
28The applicant relies on the OCF-3 completed by Dr. Hylton which indicates that the applicant suffers from “reaction to severe stress, and adjustment disorders” and “mixed anxiety and depressive disorder”, and the s. 25 assessment report conducted by Ms. Barot and overseen by Dr. Sharifzadeh which indicates that the applicant suffers from Post-Traumatic Stress Disorder – severe range (F431) and Somatoform Disorder (F451) and which was not rebutted by any insurer’s report.
29The respondent submits that the psychological diagnoses of Dr. Hylton should be afforded little weight as they are beyond the scope of a chiropractor. With respect to the s. 25 report, the respondent disagrees with the psychological diagnoses of Ms. Barot and Dr. Sharifzadeh. It argues that the applicant has not produced any clinical notes and records to support such a diagnosis and that the applicant did not report experiencing any psychological issues to other treating professionals.
30I put little weight on the applicant’s OCF-3 as diagnosing psychological impairments is beyond the scope of practice of a chiropractor. And while I am alive to the fact that the s. 25 report was not rebutted by any s. 44 report, I do not find it persuasive for the following reasons:
i. I find that the applicant has not pointed me to contemporaneous and corroborating evidence that she sustained an accident-related psychological impairment. There is no mention in either Dr. Arif’s or Dr. Stel’s CNRs that the applicant presented with psychological impairments or sought treatment for psychological impairments. There have not been any referrals to a specialist and no psychotropic medication has been prescribed.
ii. I find that the report does not address whether any validity testing was considered, which I find to be of particular importance give the extreme level of reporting found throughout the assessment. For example, the applicant reported the physical pain in her lower back and neck as being a 10 out of 10; however, I find that this does not align with the medical record. In my view, if the applicant were, in fact, experiencing pain of such a severity – the highest level of pain one could experience – she would have sought medical attention rather than waiting to report it to an assessor.
iii. I find that the applicant’s self-reported symptoms appear to be inconsistent with the outcomes from the psychometric testing. For example, the applicant rated her happiness as a 10 out of 10 which indicates that she is happy “all the time” while at the same time scoring high on the Clinical Assessment of Depression which indicates an elevated risk for clinical depression.
iv. I find the diagnoses are not supported by the post-accident psychological complaints of the applicant. For example, the applicant was found to have severe Post-Traumatic Stress Disorder; however, the applicant’s self-reported psychological complaints do not seem consistent with a severe diagnosis. The applicant reported that there were no major changes in her mood since the accident; she continues to drive, albeit she does get nervous while driving on the highway; she does not have nightmares; and there is no reporting of flashbacks. I find that these symptoms are not consistent with a severe Post-Traumatic Stress Disorder diagnosis.
31Based on the foregoing, I am not persuaded, on a balance of probabilities, that the applicant suffers from a psychological impairment which would warrant removal from the MIG.
The applicant is not entitled to the treatment plans in dispute
32As I have found the applicant to remain within the MIG, and the respondent has approved medical benefits up to the statutory limit of $3,500.00, it is not necessary to assess the treatment plans in dispute to determine if they are reasonable and necessary.
The applicant is not entitled to interest
33As there are no payments owed, the applicant is not entitled to interest.
ORDER
34For the reasons above, I find that:
i. The applicant’s injuries fall within the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. No interest is payable; and
iv. The application is dismissed.
Released: January 9, 2025
Nathan Prince
Adjudicator