Licence Appeal Tribunal
Tribunal File Number: 18-012418/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:
K. A. M.
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
ADJUDICATOR:
Brian Norris, Adjudicator
APPEARANCES:
For the Applicant:
Ilan Liebner, Counsel
For the Respondent:
Jeffrey Naganobu, Counsel
HEARD:
In Writing on August 12, 2019
OVERVIEW
1The applicant was injured in an automobile accident on March 7, 2015 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. As a result, 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:
(i) Has the applicant sustained predominantly minor injuries as defined under the Schedule?
(ii) Is the applicant entitled to a medical benefit in the amount of $2,594.00 for chiropractic treatment recommended by Physio Art Rehabilitation in a treatment plan dated May 18, 2016?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant sustained predominantly minor injuries 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 the driver of a vehicle which, while stopped in traffic, was struck from behind by another vehicle. The claims forms indicate he suffered a lumbar sprain/strain and whiplash associated disorder as a result of the collision.
8Following the accident, the applicant engaged in treatment pursuant to the Minor Injury Guideline (“MIG”), funded by the respondent. The applicant claims pre-existing chronic back pain and ongoing pain preclude recovery within the MIG and the $3,500.00 funding limit and claims entitlement to benefits beyond the funding limit for minor injuries.
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.
10Upon review of the evidence and submissions, I find the applicant has sustained predominantly minor injuries as defined by the schedule and is subject to the $3,500.00 funding limit provided by section 18. My reasons are as follows.
Pre-Existing Back Pain
11I find no evidence the applicant’s pre-existing back pain would preclude recovery within the $3,500.00 funding limit.
12The only evidence of pre-existing back pain is a letter to “Whom it May Concern” by J. Chan, physiotherapist, from North Hamilton Community Centre, dated March 28, 2014. The note advises the applicant requires “frequent breaks from sitting due to long-standing chronic low back pain”.
13While the note is evidence that the applicant experienced prolonged back pain in 2014, it is not evidence of a pre-existing medical condition which, a year later, would preclude recovery within the MIG and the $3,500.00 funding limit. There is no evidence the condition was affecting the applicant when the accident occurred, nor is there any evidence that prolonged back pain will delay his recovery.
14Additionally, the claims forms indicate the applicant did not have a pre-existing medical condition at the time of the accident. The disability certificate completed by J. McDonald, nurse practitioner, dated March 31, 2015, notes no prior or current medical conditions. Likewise, the disability certificate dated March 16, 2015 and the treatment and assessment dated plan date May 16, 2016, note no prior or current medical conditions. This evidence shows the applicant’s treatment providers considered his pre-existing back pain immaterial to his post-accident care.
Chronic Pain
15I find the chronicity of the applicant’s pain does not predominate to the extent his injuries are no longer considered to be minor.
16The applicant claims to suffer from chronic pain as a result of the accident and he requires treatment outside the MIG and the $3,500.00 funding limit. He made no submissions on how he came to this conclusion, but pointed to several examples in his medical record where he complained on ongoing low back pain following the accident. There are a few times in early 2016 in which J. Aspros, nurse practitioner, referred to this ongoing pain as chronic low back pain, for which she prescribed physiotherapy. The respondent submits the applicant’s injuries have been consistently identified as soft tissue/sprain injuries which fall within the MIG. I agree.
17The evidence shows the applicant suffered a sprain/strain of the lumbar spine and a whiplash associated disorder with neck pain. The applicant provided no submissions or evidence to contest this. Minor injury is defined in section 3 of the Schedule and includes one or more sprain/strain and whiplash associated disorder injuries and any clinically associated sequelae to such an injury. As a result, the applicant’s sprain/strain and whiplash associated disorder injuries must be considered a minor injury. It appears that the applicant’s ongoing pain is a clinically associated sequelae to his minor injuries. The Insurer’s examination report by Dr. T. Bentley, physician, dated August 8, 2018, concluded the applicant sustained sprain/strain and whiplash associated disorder injuries which did not require treatment beyond the MIG and the $3,500.00 funding limit.
18The applicant’s evidence does not present the symptoms of a chronic pain condition which would warrant removal from the MIG and the $3,500.00 funding limit. Examinations in the applicant’s medical record show only mild range of motion limitation in the neck and low back and there is no evidence this has any significant impact on the applicant’s functionality. The applicant shows no symptoms of a pain disorder or any other psychological injury.
19The applicant’s ongoing pain complaints are undermined by contradictory evidence in the applicant’s medical record. For example, when discharged from physiotherapy on October 5, 2016, it was noted the applicant’s goals were met, his home exercise plan was working well, and he was no longer reporting significant pain. The medical report dated February 8, 2016, submitted to the Ministry of Transportation Ontario on behalf of the applicant and completed by J. Aspros, nurse practitioner, the same person who in January 2016 characterized the applicant’s ongoing pain as chronic low back pain, noted he had no diseases of the musculoskeletal and neurological systems, had normal locomotion, and considered him a “well 46-year-old male”. During the applicant’s most recent visits, in 2019, it is noted the applicant was not doing his home exercise program and attributes the applicant’s pain to inadequate exercise.
20Considering the above, I find the applicant has sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit.
THE DISPUTED TREATMENT PLAN
21I have found the applicant’s injuries as a result of the accident are minor in nature and fall within the MIG. The applicant has reached the $3,500.00 funding provided by section 18. Considering this, an analysis on entitlement to the disputed treatment plan is unnecessary.
INTEREST
22The disputed physiotherapy treatment plan is not payable because the applicant has reached the treatment funding limit provided by the MIG. No payments went overdue and, pursuant to section 51, no interest is owed as a result.
CONCLUSION
23Based on the submissions and 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 by section 18 of the Schedule.
24The disputed treatment plan is not payable because the applicant has reached the funding limit provided by the MIG.
25No interest is owed.
Released: January 31, 2020
Brian Norris
Adjudicator