Licence Appeal Tribunal File Number: 22-013431/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:
Gamze Demirtas
Applicant
and
Pembridge Insurance
Respondent
DECISION
ADJUDICATOR:
Kevin Yarde
APPEARANCES:
For the Applicant:
Christina Trotta, Counsel
For the Respondent:
Pembridge Insurance,
Simran Walia, Counsel
HEARD:
In Writing
OVERVIEW
1Gamze Demirtas, the applicant, was involved in an automobile accident on February 6, 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, Pembridge Insurance Canada, 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 therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit in the amount of $394.40 per week from February 13, 2022, to November 2, 2022?
iii. Is the applicant entitled to $2,200.29 for a Psychological Assessment, proposed by Scarborough South Physio and Rehab Centre Inc. in a OCF18/treatment plan dated June 27, 2022?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG treatment limits.
4The applicant is not entitled to an income replacement benefit.
5The applicant is not entitled to an award.
6As there are no overdue benefits, the applicant is not entitled to interest.
ANALYSIS
Applicability of 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.”
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 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.
9The applicant received chiropractic treatment and physical therapy paid for by the respondent, however, the benefit statement dated November 22, 2019, sets forth that the respondent determined the applicant’s injuries, resulting from the accident, were found to be appropriately limited to treatment within the limits of the MIG and that the applicant could reach maximal recovery if she was limited by the MIG.
10The applicant submits she should be removed from the MIG because of a psychological impairment. The applicant submits that she suffers from feeling anxious, extreme fear, nightmares, flashbacks, loss of interest, difficulty concentrating, insomnia, fatigues, shortness of breath and palpitation at times as a result of the accident. The applicant argues that these conditions have developed into depression and emotional distress. She largely relies on the report of Dr. Boyrazian, family physician and psychologist Dr. Gronkowska. On February 15, 2022, the examination with Dr. Boyrazian the applicant complained of psychological impairments caused by the accident including anxiety, extreme fear, difficulty concentrating, stress and poor sleep. Dr. Boyrazian prescribed Celebrex 200mg once daily and Clonazepam 0.5mg to be taken at night. Additionally, on June 27, 2022, Dr. Grazyna Grace Gronkowska, Psychologist, with Scarborough South Physio and Rehab Centre Inc., reported the applicant had other sleep disorders; anxiety disorders; nervousness; problems related to life-management difficulty; stress, not elsewhere classified; symptoms and signs involving emotional state; and state of emotional shock and stress, unspecified. There is a request for a psychological assessment.
11The respondent submits that the applicant suffers from mere sequelae which does not warrant a MIG removal. The respondent relies on the insurance examination report of Dr. Tatiana Dumitrascu, Psychologist. Dr. Dumitrascu s.44 report dated August 23, 2022, noted during the applicants TSI-2-A testing there were no indications of anxiety, depression or post-traumatic stress disorder. The tests revealed symptom magnification which yielded invalid results. Based on these findings Dr. Dumitrascu concluded the applicant did not meet the DSM-5 threshold.
12On February 6, 2022, the day of the accident the applicant went to North York General Hospital. The clinical notes and records show neck pain with a discharge diagnosis of MVC – head and neck injuries.
13On February 12, 2022, the applicant met with Dr. Boyrazian. The applicant submitted that she suffers from headaches, dizziness, pain in her neck, lower and upper back, bilateral shoulder, limited range of motion, restricted mobility in her neck to flexion, extension, rotation, abduction with paravertebral muscle spasms as well as insomnia and fatigue as a result of the accident. She had no pre-existing medical concerns at that time. She also submits that she is not able to squat and had difficulty walking on her toes and heels. The applicant submits that she is prevented from reaching maximal recovery if she is kept within the limits of the MIG. On February 15, 2022, the applicant was assessed by Dr. Michelle Clarke at Scarborough South Physiotherapy and Rehab Centre Inc. The applicant also reported ongoing and constant lower back pain, thoracic back pain, lumbar sprain, bilateral shoulder pain and temporal headaches. Dr. Clarke noted the applicant had difficulties with personal care, housekeeping tasks and inability to work and attend school. On March 1, 10, 15, 24, 2022 the applicant had follow up assessments with her physician. Dr. Boyrazian reported the same symptoms, and that the applicant did not have any major improvements from her previous visits. The expected duration of disability was estimated at 9-12 weeks. Dr. Boyrazian prescribed medication Mobicox 15mg and Tylenol 500 (extra strength). On June 23, 2022, the applicant underwent a chiropractic re-assessment at Scarborough Physiotherapy and Rehabilitation Centre. It was reported the applicant continued to suffer from constant sharp neck pain and, low back pain. Massage therapy, electrotherapy and exercises assisted with providing temporary pain relief.
14The respondent relies on the insurer examination report conducted by Dr. Roger Lam on July 25, 2022. Dr. Lam concluded that the applicant sustained injuries from the accident that are predominantly minor in nature as defined by the Schedule. Dr. Lam opined that the applicant sustained cervical spine strain, WADII, left shoulder strain, lumbar spine stain and cervicogenic headaches. The applicant sustained no fractures as found during the February 7, 2022, Cervical Spine X-ray report at North York General Hospital. The findings detailed no prevertebral soft tissue swelling. The assessment on August 9, 2022, the applicant submitted that the physical therapy from attending Scarborough South Physio and Rehabilitation Centre has improved her overall pain symptoms by approximately 60% to date.
15I agree with the respondent. For the applicant to meet her burden to demonstrate that the injuries fall outside the limits of the MIG, there is the requirement for medical evidence showing the applicant’s injuries are not minor or mere sequelae. The applicant has not been treated by any medical professional since October 13, 2022, and was last seen her family doctor on August 20, 2022. In addition, following the prescription for Mobicox 15mg and Tylenol 500 (extra strength) on March 10, 2022, the applicant does not request further prescriptions for pain.
16I also find that the applicant has not provided sufficient medical evidence to meet her burden showing that she cannot reach maximal recovery within the limits of the MIG on the basis of her accident-related impairments. I am persuaded by Dr. Dumitrascu report of August 23, 2022, where there were no indications of anxiety, depression or post traumatic stress disorder.
17For the above reasons, the applicant has not supported her claim to be removed from the MIG on the basis of psychological impairment, or another condition that falls outside of the Schedule’s definition of a minor injury. She remains within the MIG and its $3,500.00 limit on treatment.
Income Replacement Benefits
18I find that the applicant is not entitled to income replacement benefits.
19To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
20The applicant submits that she is entitled to an income replacement benefit in the amount of $400.00 per week from February 13, 2022, to November 2, 2022. She argues that, prior to the accident she was working full time as an administrative assistant at the City Wall Systems Ltd. Upon a recalculation by the applicant, she submits that respectfully she is entitled to $394.40 per week for IRB. Therefore, the applicant is claiming a different amount than what was in the CCRO. The applicant argued that her use of pain-relieving medication, anti-anxiety medication and medication to assist with poor sleep “interjected” her ability to perform her job. She also indicated during her July 25, 2022, assessment by Dr. Roger Lam, GP, an inability to resume her pre-accident employment secondary to pain and nervousness symptoms.
21The applicant relies on her Employment confirmation Form (“OCF-2”), her employment paystubs from October 1, 2021 to January 31, 2022, from City Wall Systems Ltd., her T4 for 2021 from City Wall Systems Ltd., her T1 for 2021, a Disability Certificate form (“OCF3”) dated March 10, 2022, various bank statements from March 31, 2022, to June 28, 2022, September 2021 and deposit explanation for March 31, 2022 to June 28, 2022 as well as weekly timesheet logs from September 27, 2021 to January 31, 2022. The applicant also relies on the report of Dr. Michelle Clarke, Chiropractor, Scarborough Physio & Rehab of February 15, 2022, and June 23, 2022 and Dr. Boyrazian’s report of March 1, 2022.
22The Disability Certificate form (‘OCF3”) dated March 10, 2022, states the applicant suffered a complete inability to carry on a normal life and a substantial inability to perform essential employment tasks and pre-accident housekeeping and home maintenance tasks for an anticipated duration of 9-12 weeks. In the February 15, 2022, assessment by Dr. Clarke the applicant showed ongoing and constant lower back pain, thoracic back pain, lumbar sprain, bilateral shoulder pain and temporal headaches. Dr. Clarke noted the applicant’s pain increased at night aggravated by bending, lifting which led to difficulties with performing essential tasks such as personal care, housekeeping tasks and inability to work and attend school. Dr. Boyrazian also reported on March 1, 2022, the applicant was unable to perform essential tasks of her employment and was unable to return back to work even on modified duties and or hours at that time due to the injuries sustained as a direct result of the accident.
23The respondent submits that the applicant worked at her father’s office in a sedentary position. The respondent also submits that the applicant did not attempt to return to work and has not been advised by any medical professionals that she should remain off work. The respondent also submits the applicant did not produce time logs for the disputed time and that the applicant has not met her onus of proving she suffers a substantial inability to perform essential tasks of her employment and therefore is not entitled to IRB during the above noted time.
24The respondent relies on the insurer examination reports of Dr. Dumitrascu on August 9, 2022, and Dr. Lam report on July 25, 2022. Dr. Dumitrascu reported (already detailed in the MIG section of this decision) strictly from a psychological perspective the applicant does not meet the DSM-5 criteria for a psychological disorder therefore does not suffer a substantial inability to perform essential tasks of her pre-accident employment because of the MVA. Dr. Lam opined that from a physical perspective the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment as an office assistant at City Wall System Ltd., because of soft tissue injuries sustained in the accident. Dr. Lam continues that the applicant can return to her pre-accident employment hours and duties. Dr. Lam recommends increased independent active exercise completion and activity participation for task specific conditioning. The respondent also submits there are inconsistencies regarding the applicants pre and post accident income and hours. The applicant submitted she was working full-time prior to the accident, however during her IE she reported working part-time 4 hours a day 5 days a week. Also, after the accident as of February 15, 2022, the applicant was working part-time as a waitress at a restaurant 10 to 12 hours a week. She quit that job, then on August 9, 2022, she started working as an administrative assistant working more hours since it was not as physically demanding.
25I find the applicant has provided nominal argument and evidence to show that she meets the pre-104 test. There is nothing before me to substantiate the applicant’s allegations that she was unable to continue working in the office due to pain and anxiety. All that the applicant puts forward to bolster this argument are her pay stubs. Although these pay stubs demonstrate that the applicant earned progressively less income in 2022 this does not prove that the decreased income was the result of accident-related disabilities, let alone show the applicant suffers a substantial inability to perform the essential tasks of that employment as required by the pre-104 test established in the Schedule.
26The applicant has the onus of proving her entitlement to income replacement benefits. She has not discharged that onus. I am persuaded by the reports of Dr. Dumitrascu and Dr. Lam that the applicant has not met the requirements of the pre-104 IRB test along with the applicant’s pre and post employment files. Therefore, I find the applicant is not entitled to income replacement benefits.
$2,200.29 for a Psychological Assessment, proposed by Scarborough South Physio & Rehabilitation Centre in a plan dated June 27, 2022.
27I find this treatment plan is not payable. The applicant is entitled to treatment up to the MIG limits.
28The applicant submits that the treatment plan is reasonable and necessary, as the medical records confirm her psychological impairments, and she should have an opportunity to explore the extent of these injuries.
29To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary because of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
30June 27, 2022, Dr. Gronkowska, Psychologist, with Scarborough South Physio and Rehab Centre Inc., reported (already detailed in the MIG section of this decision) the applicant had other sleep disorders; anxiety disorders; nervousness; problems related to life-management difficulty; stress, not elsewhere classified; symptoms and signs involving emotional state; and state of emotional shock and stress, unspecified.
31On August 6, 2022, the applicant complained to her family physician Dr. Boyrazian of feeling anxious, extreme fear, nightmare, flashback, loss of interest, difficulty concentrating, insomnia, fatigues, shortness of breath and palpitations at times. The applicant also expressed difficulty with going into the community and interacting with others. Dr. Boyrazian provided the applicant with supportive care, counselling, and strategies to cope with stress.
32The respondent relies on the insurer assessment of Dr. Dumitrascu, psychologist of August 9, 2022. Dr. Dumitrascu opined that the applicant does not meet the DSM-5 criteria for a psychological disorder because of the subject accident, and therefore no psychological interventions are warranted. She further explains that the clinical assessment of depression was considered invalid due to a tendency for symptom magnification. The applicants result on the Trauma Symptom Inventory-2-A were within the normal range. Also, the applicants overall clinical presentation was not suggestive of any significant symptoms of accident-related emotional distress.
33The applicant argues that she requires a psychological assessment and treatment, but she is financially unable to incur the full cost of the denied treatment plan as she is a young student who recently moved to Canada.
34I am not persuaded by Dr. Gronkowska’s report as it is based solely on the applicant’s reporting. In addition, there is no contemporaneous medical documentation from any other treatment providers that supports a psychological impairment because of the accident. The applicant’s failure to provide a psychological assessment and her family doctors admission that she is improving since the subject accident are taken into consideration. I am persuaded by Dr. Dumitrascu’s findings that psychological interventions are not warranted because she does not meet the DSM-5 criteria for a psychological disorder and the Trauma Symptom Inventory-2-A were within the normal range.
35Therefore, I find the applicant is not entitled to a psychological assessment.
The respondent is not liable to pay an award.
36The applicant sought an award under s. 10 of O. Reg. 664, arguing that the respondent unreasonably withheld or delayed payments.
37The Tribunal assesses an award based on whether the insurer’s behaviour is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate,” and may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed benefit payments.
38The applicant did not provide any evidence to substantiate that the respondent unreasonably withheld or delayed payments.
39Therefore, as she has not met her onus, I find the applicant is not entitled to any award.
ORDER
40I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to an income replacement benefit.
iii. The respondent is not liable to pay an award.
iv. The applicant is not entitled to interest.
Released: January 30, 2025
__________________________
Kevin Yarde
Adjudicator