M. F. X. v. Certas Home and Auto Insurance Company, 2019 CanLII 43874

Licence Appeal Tribunal

Tribunal File Number: 18-004282/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:

M. F. X.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

PANEL:

Brian Norris, Adjudicator

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Michael McChesney, Counsel

HEARD:

In Writing on: December 3, 2018

OVERVIEW

1The applicant was injured in an automobile accident on July 1, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The respondent determined the applicant’s injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Has the applicant sustained a “minor injury” as defined under the Schedule as a result of the accident?

2. Is the applicant entitled to a medical benefit in the amount of $1,553.76 for chiropractic treatment recommended by Point Grey Physio in a treatment plan dated January 16, 2017?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit.

5The applicant is not entitled to the disputed treatment plan.

6The applicant is not entitled to any interest.

BACKGROUND

7The applicant was struck by an opening passenger-side door while walking on the sidewalk. The impact knocked the applicant to the ground. Emergency services attended at the scene and transported the applicant to hospital, where the applicant was diagnosed with soft tissue injuries. The applicant was advised to ice the injury, take non-prescription pain medication as required, and discharged. About a week later, the applicant visited Dr. D. Au, family physician, and complained of knee and back pain. Dr. Au prescribed anti-inflammatories and recommended the applicant engage in exercise as a course of treatment.

8The applicant initiated a claim for accident benefits and the respondent characterized the applicant’s injuries as falling within the MIG. The respondent refused to pay for the disputed chiropractic treatment plan because the applicant has consumed all $3,500.00 of funding allocated under the MIG.

THE MINOR INJURY GUIDELINE

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The applicant submits ongoing back, shoulder, and knee pain has developed into chronic pain, an injury that the applicant asserts falls outside the MIG.

Chronic Pain

11The applicant argues that the MIG is meant for injuries expected to respond quickly to treatment. The applicant suggests chronic pain does not respond quickly to treatment and submits the MIG, and the funding limit it provides, should not apply.

12The respondent disagrees and submits the applicant does not meet any of the criteria for chronic pain as described in the American Medical Association Guides. The respondent argues that the applicant has not provided compelling medical evidence to establish that maximal medical recovery cannot be reached within the MIG and the MIG funding limit applies.

13The 6 criteria for a chronic pain condition as outlined by the American Medical Association Guides are;

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
2. Excessive dependence on health care providers, spouse, or family.
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
4. Withdrawal from social milieu, including work, recreation, or other social contracts.
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

14For the reasons that follow, I agree with the respondent and find the applicant’s injuries as a result of the accident are minor in nature and fall within the MIG.

15The basis of the applicant’s argument relies on a single mention by a chiropractor in a treatment and assessment plan. Under part 6 (Injury and Sequelae Information) of the treatment and assessment plan dated January 16, 2017, completed by Dr. P. Counti, chiropractor, “other chronic pain” is noted as the least significant injury. This appears to be the only time chronic pain is mentioned throughout the applicant’s medical records and I do not accept it as a diagnosis of a chronic pain condition, especially one which would warrant removal from the MIG. As noted by the respondent and despite having the opportunity for reply submissions, the applicant has not provided a single medical report which diagnosed the applicant with a chronic pain condition.

16The lack of a chronic pain diagnosis does not automatically preclude the applicant from entitlement to benefits beyond the MIG. The applicant may overcome this burden by, for example, providing evidence the applicant is disabled by chronic pain or there is a psychological injury related to or as a result of chronic pain.

17The 6 criteria outlined in the American Medical Association Guides are an excellent way to analyse whether the applicant is disabled by chronic pain. However, the applicant did not provide specific evidence or submissions to indicate the applicant meets any of the 6 chronic pain criteria referenced above. The applicant submits the findings in the physiatry assessment by Dr. S. Baker, dated March 10, 2017, and commissioned by the respondent, shows the applicant’s limitations and, I infer, the detrimental impact of the applicant’s chronic pain. I find this position unpersuasive when reviewing the entire report. Dr. Baker found, on separate occasions during the course of the various tests, the applicant was self-limiting or demonstrated no effort. This self-limiting and lack of effort causes concern over whether the reported limitations are credible. Regardless, after conducting the examination, the physiatrist concluded the applicant’s injuries fall within the MIG and felt that no further medical treatment is required. In addition to the physiatry assessment report, I have reviewed the applicant’s evidence, specifically the hospital and family physicians’ clinical notes and records, and find no evidence the applicant is disabled by chronic pain or satisfies any of the chronic pain criteria above.

18Lastly, the applicant claims to have sustained psychological injuries (anxiety) and specifically, emotional distress. However, the submissions fail to include reference to any evidence of or a diagnosis of a psychological injury other than the disputed treatment plan, completed by a chiropractor who is not qualified to render a diagnosis on a patient’s psychological health. The applicant’s family physician’s clinical notes and records are absent a recommendation for psychological intervention or any complaints of a psychological nature.

19Considering the above, I find no evidence the applicant has sustained a psychological injury or any other injury which is not included within the MIG.

THE DISPUTED TREATMENT PLAN

20I have found the applicant’s injuries as a result of the accident are minor in nature and fall within the MIG. The applicant has consumed all of the $3,500.00 funding provided by the MIG. Considering this, an analysis on entitlement to the disputed treatment plan is unnecessary.

INTEREST

21The applicant claims entitlement to interest on overdue payments pursuant to section 51.

22The disputed treatment plan is not payable because the applicant has reached the treatment funding limit provided by the MIG. No payments went overdue and no interest is owed as a result.

CONCLUSION

23Based on the medical evidence before me, I find that the applicant’s injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed in the MIG.

24The disputed treatment plan is not payable because the applicant has reached the funding limit provided by the MIG.

25No interest is owed.