Why client claim doesn’t clear minimum injury hurdles

An applicant claiming she sustained a functional impairment from auto accident injuries did not provide sufficient evidence for removal from the $3,500 minor injury guideline (MIG), Ontario License Appeal Tribunal determined in a Jan. 9 decision.

In Bernard v. Economical Mutual Insurance Company, applicant Sabine Bernard submitted she should be removed from the MIG due to a pre-existing condition, chronic pain and psychological impairments. Bernard submitted two clinical notes and records (CNRs), one from her family doctor and one from an urgent care doctor. She also submitted assessments from a chiropractor and a psychologist.

“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,” Adjudicator Nathan Prince wrote.

The applicant also submitted a disability certificate (Form OCF-3), indicating an inability to carry on a normal life and substantially perform essential employment tasks. “I was not pointed to evidence that the applicant suffers from functional impairments which would warrant removal from the MIG,” wrote Prince, who added Bernard returned to work one week after the accident.

Filings about the applicant’s conversations with a counsellor (Nikki Barot, working under the supervision of psychologist Dr. Bita Sharifzadeh) indicated she continued to enjoy social activities and did not report changes in her relationships with her children 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,” Prince wrote.

Addressing the psychological impairment claim, the tribunal noted the applicant’s OCF-3 completed by the chiropractor, Dr. Hylton, indicated she suffers from “reaction to severe stress, and adjustment disorders” and “mixed anxiety and depressive disorder.” Further, an s. 25 assessment report conducted by Barot and overseen by Dr. Sharifzadeh indicated the applicant suffers from post-traumatic stress disorder and somatoform disorder. It was not rebutted by any insurer’s report.

“I put little weight on the applicant’s OCF-3 as diagnosing psychological impairments is beyond the scope of practice of a chiropractor,” Prince wrote. Regarding the s. 25 report, he noted the applicant didn’t point “to contemporaneous and corroborating evidence that she sustained an accident-related psychological impairment,” adding there were no referrals to specialists or prescription of psychotropic medication.

Prince wrote the report doesn’t address ‘validity testing,’ “which I find to be of particular importance give[n] 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.”

The adjudicator added the reported symptoms appeared inconsistent with the psychometric testing — which rated the applicant’s happiness as a 10 out of 10 while simultaneously scoring high on the clinical assessment of depression.

“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,” Prince wrote.

 

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