Amoako v. Economical Insurance Company, 2020 CanLII 123144

Citation: Amoako v. Economical Insurance Company, 2021 ONLAT 20-009345/AABS

Licence Appeal Tribunal File Number: 20-009345/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:

Joel Amoako

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Salome Lopes, Paralegal

For the Respondent: Modasir Rajabali, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on May 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the ‘Schedule’)¹.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a Case Conference on January 12, 2021 but were unable to resolve the issues in dispute.

ISSUES

3The parties agreed that the following issues were before the Tribunal:

a. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

b. Is the applicant entitled to $1,955.33 for a Psychological Assessment, recommended by Humber Civic Care Centre in a treatment plan (OCF -18) dated August 21, 2018?

c. Is the applicant entitled to $2,326.04 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan dated January 31, 2019?

d. Is the applicant entitled to $1,971.70 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan dated, May 1, 2019?

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

RESULTS

4The applicant’s injuries are predominantly minor in nature. As such, he is not entitled to the assessment or medical benefits in dispute, nor any interest on it.

THE LAW

5Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

6Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that he has a pre-existing medical condition that will prevent him from achieving maximal recovery from the minor injury if he is subject to the Minor Injury Guideline (“MIG”) funding limit.

EVIDENCE & Positions

Minor Injury Guideline

7The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the MIG². The applicant’s position is the opposite.

8If the applicant’s position is correct, then I must address the issue of whether the medical treatments claimed are reasonable and necessary.

9If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

10The onus is on the applicant to show that his injuries fall outside of the MIG³.

11The applicant argued that he should be removed from the MIG on the following bases: his physical injuries, his pre-existing condition, his psychological injury, and his chronic pain syndrome.

Did the applicant sustain predominantly minor physical injuries?

12I find that the applicant has not demonstrated that he sustained a physical injury that warrants removal from the MIG as a result of the accident for the following reasons:

a. The applicant submitted that as a result of the accident, he suffered a full thickness tear to his right shoulder, which is not a predominantly minor physical injury. He relied on an ultrasound⁴, which identified a focal tear to his right shoulder, and an exacerbation to his pre-existing injury left shoulder. This injury was not disputed by the respondent. Instead, it submitted that the applicant’s physical injuries were not as a result of the accident.

b. The respondent submitted that the Schedule requires causation and questioned why the applicant has not provided reasons as to why he would experience this injury three years after the accident. The respondent argued that the applicant has not met this burden since he provided no evidence to support that the tear was as a result of the accident. It submitted that the applicant’s injury occurred sometime between August 28, 2020 and January 29, 2021, well beyond the expected time for the applicant to discover this injury. It submitted that the applicant’s injuries were as a result of his employment.

c. It also relied on the section 44 Insurer Examination (‘IE’) of Dr. Sangita Sharma, Physician, conducted on October 9, 2018. During this examination, Dr. Sharma found that the applicant suffered from soft tissue injuries as a result of the accident and found that he had no physical impairment. Based on this, the respondent submitted that the applicant did not have a full thickness tear as a result of the accident.

d. The applicant also addressed causation. The respondent submitted that the applicant’s injuries were not as a result of the accident, but rather, as a result of the applicant’s repetitive strain of his employment. The applicant submitted that had the accident not occurred, he would not have suffered an exacerbation to his left shoulder injury and a full thickness tear to his right shoulder.

e. The applicant provided a letter from Dr. Samuel⁵, which states the applicant’s history of symptoms. The letter states that the applicant sustained “soft tissue injuries to his ankles, shoulders and back as a result of the accident”. The letter does not specifically state that the applicant’s shoulder tear is as a result of the accident.

f. I agree with the respondent and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. I did consider although that the applicant was able to demonstrate that he has been experiencing shoulder pain for an extended period of time, the applicant has fallen well short of meeting his burden to prove that, but for the accident, he would not have sustained the tear.

Does the applicant have any pre-existing conditions?

13Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁶

14The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

15The applicant submitted that he suffers from a pre-existing condition, namely chronic left shoulder pain and tendinosis with a positive impingement test based on the clinical notes and records of his family doctor, Dr. Oded Samuel⁷.

16The respondent rejected this position, submitting that the applicant did not have a pre-existing injury.

17For the following reasons, I find that the applicant does have a pre-existing injury. However, I do not find that this injury would remove him from the MIG for the following reasons:

a. The applicant was able to demonstrate via medical records from Dr. Samuel, dated June 1, 2016 that he had previously--meaning before the accident--complained about his left shoulder issues. This was supported by an ultrasound of the applicant’s left shoulder dated July 27, 2017.This shoulder pain was also reported after the accident, on May 29, June 5, June 7, June 28, August 14, August 21, August 28, September 11, October 18, and December 13, 2018. It continued on January 31, February 7, February 15, February 21, March 5, March 29, April 4, April 11, April 25, May 2, and May 10, 2019⁸.

b. I do not agree with the respondent’s position of the applicant not having a pre-existing injury simply because he failed to mention it during the section 44 IE of Dr. Sharma conducted on October 9, 2018.

I found during my review of this report that Dr. Sharma noted on page 6 of his report that the applicant was involved in a previous motor vehicle accident in 2017 and sustained injuries to his bilateral shoulders.

Though the applicant reported during the IE that this injury had fully healed, I do not accept this as medical fact, but rather, find that this is the applicant self-reporting.

c. However, I did not accept that this pre-existing injury prevents the applicant from achieving maximal recovery from the injury if the applicant is subjected to the limits of the MIG; the applicant has not demonstrated in submissions or evidence how this condition would prevent the applicant from reaching maximal medical recovery if subjected to the $3,500.00 limit on treatment by the MIG.

The applicant has not provided medical evidence beyond the treatment plan in dispute and the clinical notes and records of his physiotherapist which showed that the applicant required more passive treatment for his shoulder injury than that provided within the MIG limits.

The applicant directed me to the clinical notes and records of Dr. Samuel from January 14, 2020, which states that Dr. Samuel advised the applicant to continue with further chiropractic treatment. However, this recommendation does not state if this is to address the applicant’s pre-existing condition, or other injuries.

I relied on the letter of Dr. Samuel⁹, which does not specifically recommend more passive treatment. Instead, Dr. Samuel referred the applicant to the Fracture Clinic at Humber River Hospital¹⁰.

Dr. Stephen Halman, Orthopaedic Surgeon, recommended that the applicant stop physiotherapy-based treatment and consider a home exercise program.

Does the applicant have a psychological impairment(s)?

18The Tribunal has also determined that chronic pain or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant¹¹.

19The applicant claims that he sustained a psychological injury as a result of the accident that places his claims outside of the MIG.

20Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments.

21After considering the parties’ evidence, based on a balance of probabilities, I find the applicant does not have a psychological injury that would take him out of the MIG for the following reasons:

a. The applicant was referred for a psychological assessment by Dr. Samuel¹². The applicant submitted that on August 21, 2018, he underwent a psychological screening with Marco Chiodo, Registered Psychologist Associate on August 21, 2018. The applicant submitted that he was diagnosed with Adjustment Disorder.

Unfortunately, the applicant did not provide any medical evidence, namely the clinical notes and records of Mr. Chiodo, for the Tribunal to review exactly how and why he diagnosed the applicant with Adjustment Disorder and if this was as a result of the accident.

b. Instead, I preferred the respondent’s position, that the applicant did not have a psychological injury that would remove him from the MIG, as it was able to support this position with medical evidence based on psychometric testing.

The respondent directed my attention to its s. 44 examination conducted by Dr. Arthur H. Rubenstein, Clinical Psychologist, on October 16, 2018. This report, which was provided to me, found that the applicant had no psychological impairment due to validity concerns with the applicant’s presentation during the assessment.

Though the applicant took issue with Dr. Rubenstein not presenting the applicant’s psychometric scores, the doctor noted that the applicant’s scoring was elevated on all validity scales, which led to the validity concerns.

Does the applicant suffer from chronic pain?

22The applicant submitted that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

23After considering the parties’ evidence, based on a balance of probabilities, I find the applicant does not have a chronic pain that would take him out of the MIG for the following reasons:

a. The applicant submitted that he was suffering from chronic pain. He supported this position by relying on his medical evidence relating to his pre-existing condition, namely left shoulder pain and tendinosis¹³.

The applicant continued reporting his pain to his family doctor, Dr. Samuel, and to Humber Civic Care centre in 2018 and 2019.

The applicant also directed me to Dr. Sharma’s s.44 exam¹⁴, where Dr. Sharma stated that he was unable to determine if the applicant had developed chronic pain since not enough time had elapsed since the accident. This position was echoed in Dr. Sharma’s paper review¹⁵.

The applicant also submitted that since the respondent did not provide Dr. Sharma with the applicant’s updated medicals, especially the ultrasound of his shoulder¹⁶, Dr. Sharma was not able to actually determine if the applicant suffers from chronic pain.

Though the applicant has demonstrated a history of complaints of pain, this alone is not enough to remove an applicant from the MIG¹⁷, and that the applicant must demonstrate that their pain is more than just sequelae or symptom from their minor injury, which the applicant has not done on a balance of probabilities.

b. I preferred the respondent position that the applicant has not demonstrated, based on a balance of probabilities, that he suffers from chronic pain. The respondent submitted that the applicant had not fulfilled the Tribunal’s required factors¹⁸, based on the AMA Guides, to establish chronic pain, which are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. 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;

The respondent argued that the applicant does not use prescription medication, works full-time, cares for his children and has no accident-related limitations to his activities of daily living (ADLs).

Furthermore, it submitted that the applicant had not shown that he has a psychological impairment, as demonstrated in the s.44 examination of Dr. Rubenstein.

Based on all of the above, the respondent submitted that the applicant has not shown that his pain meets the severity threshold of the AMA Guides and causes him a level of impairment that rises to remove him from the MIG.

c. I agree with the position of the respondent. Although I am not bound by the AMA Guides in respect of chronic pain and the Schedule does not incorporate the AMA Guides in this context (unlike for catastrophic impairment), I find the AMA Guides to be a useful tool. In this respect, the applicant has not demonstrated, based on a balance of probabilities, that the pain he is experiencing meets the designation of chronic pain in relation to the AMA guides. Though I do believe that the applicant continues to experience on-going pain, I am not persuaded that this pain meets the AMA Guides’ threshold, nor that this pain is as a result of the accident.

24Since the applicant has not demonstrated that he suffers from an injury or impairment that would remove him from the MIG, I do not need to consider if the treatment plans and assessments in dispute are reasonable and necessary and reasonable.

Interest on any overdue payment of benefits

25Since no benefits or assessments in dispute are overdue, no interest is owing.

CONCLUSION

26I find that the applicant’s injuries are predominately minor injuries as defined by the Schedule. Therefore, treatment outside the limits outlined in the MIG is not reasonable and necessary.

27I find no benefits are overdue and the applicant is not entitled to interest. Therefore, the application is dismissed.

Footnotes

1. 1O. Reg. 34/10: STATUTORY ACCIDENT BENEFITS SCHEDULE - EFFECTIVE SEPTEMBER 1, 2010
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Dr. Samuel’s Clinical notes and records, dated August 28, 2020
5. 5Dated December 24, 2020
6. 6Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
7. 7Clinical notes and records dated June 1, 2016 and the ultrasound of the left shoulder dated July 27, 2017
8. 8As reported to the treatment providers at Humber Civic Care Centre from May 17, 2018 to July 10, 2019
9. 9Dated December 24, 2020
10. 10Based on the clinical notes and records of Dr. Stephen Halman from March 11, 2021 to March 25, 2021
11. 11See: Scarlett v. Belair Insurance, 2015 ONSC 3635 (Ont. Div. Ct.).
12. 12Clinical notes of Dr. Oded Samuel dated May 11, 2018 and Psychological referral dated August 8, 2018
13. 13As submitted in the clinical notes and records of Dr. Samuel dated June 1, 2016 and the applicant’s ultrasound of his left shoulder dated July 27, 2017
14. 14Dated October 30, 2018
15. 15Dated February 28, 2019
16. 16Dated August 28, 2020
17. 17R.J. v Pembridge Insurance Company, 2020 CanLII 80289 (ON LAT)
18. 1817-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT)