Released Date: 01/23/2020
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:
[C.Y.]
Applicant
and
Jevco Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
[C.Y.], Applicant
Jennifer Carter, Counsel
For the Respondent:
Geoffrey Wilson, AB Specialist
Daniel Côté-Finch, Counsel
HEARD: In Writing
July 15, 2019
OVERVIEW
1C.Y. (the “applicant”) was injured in an automobile accident on April 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent.
2The respondent denied the applicant’s claims on the basis that the applicant’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).
3As a result, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
4The parties were unable to resolve their dispute at a case conference and thus, the matter proceeded to a written hearing on July 15, 2019. All submissions and evidence were filed with the Tribunal in advance of this date. A review of those documents forms the basis of this decision.
ISSUES TO BE DECIDED
5The following issues are to be decided:
(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
i. If the answer to issue (i) above is “no,” then I must determine the following issues:
(a) Is the applicant entitled to receive a medical benefit in the amount of $2,461.52 for physiotherapy services recommended by P&C Rehabilitation Services in a treatment plan submitted on June 19, 2018, and denied by the respondent on July 18, 2018?
(b) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant’s injuries fall within the MIG and therefore, it is unnecessary to consider the reasonableness or necessity of the treatment plans in dispute or the issue of interest because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.
ANALYSIS
The Minor Injury Guideline
7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the MIG.
8Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
9The onus is on the applicant to show that his injuries fall outside of the MIG.
Did the applicant sustain a predominantly minor injury?
10I find that the applicant has not provided the evidence necessary to establish on a balance of probabilities that his injuries fall outside of the MIG.
11In his submissions, the applicant asserts that his accident-related impairments do not fall within the definition of “minor injury.” It is his position that some of these injuries have prevented him from achieving maximal recovery within the confines of the MIG.
12The respondent argues that the applicant has not provided the evidence necessary to establish on a balance of probabilities that his injuries fall outside of the MIG.
13The applicant met with his family physician, Dr. Olaniyi Ajisafe, on April 18, 2017. In the physician’s clinical notes and records (“CNRs”), it was documented that the applicant was experiencing pain and swelling in his left temple, along with pain in his lower back and right knee.
14On April 26, 2017, the applicant commenced physiotherapy at P&C Rehabilitation Services.
15On May 30, 2017, Mr. Astur Sarkisyan, a physiotherapist at P&C Rehabilitation Services, completed a disability certificate (“OCF-3”) and listed the following injuries: sprain and strain of cervical spine, patellofemoral disorders, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of other collateral ligament of knee, sprain and strain of anterior cruciate ligament of knee, sprain and strain of shoulder joint, superficial injury of head and headache. On August 3, 2017, Mr. Sarkisyan completed an OCF-18.
16From May 30, 2017 to September 28, 2017, there are multiple notations in the physiotherapist’s SOAP notes that document that the applicant reported that he was gradually improving with therapy. On July 27, 2017, the patient noted an 80% improvement in function since starting therapy. On September 14, 2017, the applicant reported that his lower back felt good and that there were no major complaints of pain or major restrictions. On September 26, 2017, Mr. Sarkisyan noted, “no changes since last visit. Low back overall feels good. No major complaints.” This was the applicant’s last visit in 2017.
17Dr. Ajisafe’s CNRs also make similar notations regarding the applicant’s improvement. On May 16, 2017, Dr. Ajisafe states, “getting better gradually now though still has pain in the back, the right knee is much better.” On July 13, 2017, Dr. Ajisafe noted that the applicant was feeling better and, to that end, noted that baclofen and physiotherapy were helping.
18However, approximately eight months later on May 24, 2018, the applicant went back to P&C Rehabilitation and met with physiotherapist, Mr. Ritesh Patel. The applicant complained to Mr. Patel that he was experiencing low and upper back pain, knee pain and constant neck pain on both sides which was “getting worse with persistent position.” Mr. Patel recommenced physiotherapy treatment on the same day.
19On June 19, 2018, Mr. Patel completed an OCF-18. The injuries listed were identical to the previous OCF-18 completed by Mr. Sarkisyan. However, the OCF-18 included stress (not elsewhere classified) as an additional condition.
20On August 17, 2018, the applicant attended an insurer examination with Dr. Ahmad Belfon, who is a family physician. Dr. Belfon opined that the applicant’s accident-related injuries were consistent with sprain/strain of the lumbar spine, left shoulder and right knee. He noted that the applicant’s neck pain had seemingly resolved and that there was an ongoing hematoma on the left side of his forehead which was reported not to be painful.
21On December 6, 2018, Mr. Vishalkumar Patel, a physiotherapist at P&C Rehabilitation Centre completed a second OCF-3. The injuries listed were consistent with the other OCF-18s completed by Mr. Ritesh Patel and Mr. Sarkisyan. However, stress was not listed under part 6 as an injury/sequelae.
22Based on the SOAP notes, the applicant attended P&C Rehabilitation Centre for physiotherapy treatment from May 24, 2018 to December 6, 2018.
23It should be noted that during this time period, the applicant did not see Dr. Ajisafe for his pain-related complaints/injuries. A note from Dr. Ajisafe dated December 28, 2018 states: “This is to acknowledge receipt of your request for medical record [sic] of the above named. This office does not have record of this client from January 17, 2018 to date.”
24The following year on April 2, 2019, the applicant met with Dr. Ajisafe for a follow up. It was noted that the applicant was still complaining of having pain two years after the accident. It was reported that the pain was located in the left shoulder joint, lumbar spine, anterior left knee and anterior right knee.
25On April 11, 2019, Dr. Ajisafe diagnosed him with rotator cuff syndrome and referred the applicant for an ultrasound of the left shoulder joint.
26On April 15, 2019, an ultrasound of the left shoulder was performed. It was found that there was a small amount of fluid around the bicipital tendon. Two calcifications were seen in the supraspinatus tendon that were approximately 3 mm. The remaining tendons were found to be unremarkable. There was no evidence of bursitis or impingement. The radiologist, Dr. S. Young, opined that this may indicate calcific tendinopathy.
27On May 6, 2019, the applicant was informed of the ultrasound results. Dr. Ajisafe listed calcific tendinosis as the diagnosis in the CNRs.
28However, on May 29, 2019, Dr. Ajisafe diagnosed the applicant with “rotator cuff strain following MVA”.
29Based on my review of the evidence, I find that the applicant’s injuries are minor in nature. This is reflected in the records of Dr. Ajisafe, Dr. Belfon, Mr. Ritesh Patel, Mr. Vishalkumar Patel and Mr. Sarkisyan who all came to similar findings/diagnoses in relation to his physical conditions.
30Additionally, if the applicant’s injuries were more than minor in nature, I would expect that he would have visited his family doctor on a more regular basis. The fact that there is such a huge gap in between the visits leads me to believe that his injuries are not as serious as he claims them to be. The applicant’s family doctor’s records did not persuade me that the physical injuries are more than minor in nature.
31Moreover, based on the SOAP notes, it appears that the physiotherapy treatment was successful, and his pain had resolved by September 2017. However, eight months after, his pain returned. This begs the question whether the pain was a result of the accident or something else.
32Finally, I am not persuaded that the calcific tendinopathy was caused by the accident. The applicant has not advanced any evidence that connects this condition to the accident. While I acknowledge that this condition most likely causes the applicant some discomfort, I cannot attribute it to the accident.
Pre-existing Condition
33Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt 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 medical documentation supports that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit on treatment costs under the MIG.1
34A pre-existing medical condition will not automatically remove a person with predominantly minor injuries from the MIG. The pre-existing medical condition must be shown to prevent maximal recovery within the cap imposed by the MIG.
35I find that the applicant does not have a pre-existing medical condition that warrants removing him from the MIG for the following reasons.
36The applicant submitted that his pre-accident medical history is rather unremarkable. He takes blood thinners on a regular basis for remote left deep vein thrombosis. He asserts that he was a healthy man who was not undergoing any treatment or taking any medications at the time of the accident.
37The CNRs of Dr. Ajisafe do not establish that the applicant had a pre-existing condition that would exclude him from the MIG. Based on my review of the evidence, his medical history is quite unremarkable prior to the accident.
38Based on the totality of evidence before me, I find that the applicant did not have a pre-existing condition that would remove him from the MIG.
Post-Concussive Syndrome
39Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, he suffered a concussion or post-concussive syndrome.
40The applicant’s submissions mention a head injury and head pain. However, the submissions do not provide an analysis as to whether he sustained a concussion or has post-concussive syndrome as a result of the accident.
41In order to determine if the applicant’s injuries fall outside the MIG, I have considered whether or not there is evidence that the applicant sustained a concussion or has post-concussive syndrome as a result of the accident. I am not satisfied that he did.
42On April 18, 2017, the applicant reported to Dr. Ajisafe that there was swelling in his left temple. Dr. Ajisafe noted “head injury” in the CNRs. He did not make any recommendations for diagnostic testing or a referral to a specialist. In my view, this does not support that this was serious enough for further investigation. Moreover, Dr. Ajisafe did not diagnose him with a concussion or post-concussive injury.
43The disability certificate completed by the applicant’s physiotherapist dated May 30, 2017 mentions that the applicant has a bulge on his head due to the accident. Mr. Sarkisyan states “he might have suffered a concussion during the collision. He might be able to benefit from imaging to his head to rule out any intracranial pathology.” There is no evidence before me that this was ever done.
44The treatment plans and disability certificates note that the applicant reported that he suffered from headaches. However, there is nothing to substantiate that there ever was a diagnosis. Furthermore, the treatment plans and disability certificates are not evidence of a diagnosis.
45Based on the totality of the evidence before me, I do not find that the applicant has sustained a concussion or post-concussive syndrome as a result of the accident that would remove him from the MIG.
Psychological Impairment
46A psychological impairment, if established, may fall outside the MIG because the MIG only governs “minor injuries,” and the prescribed definition does not include accident-related psychological impairments.
47I find that the applicant has not demonstrated that he suffers from a psychological injury that would remove him from the MIG.
48On June 19, 2018, Mr. Ritesh Patel, a physiotherapist at P&C Rehabilitation Services, completed an OCF-18 listing “stress, not elsewhere classified”.
49There is nothing in Dr. Ajisafe’s CNRs that show a history of ongoing psychological complaints. If the applicant had psychological issues, I would have expected that he would have spoken to his doctor for the purpose of treatment and/or referrals.
50In his affidavit dated January 25, 2019, the applicant does not mention any psychological impairments stemming from the accident.
51The applicant did not mention any psychological impairments to Dr. Belfon during the insurer examination.
52The other treatment plans and disability certificates do not mention any psychological impairments.
53Based on the totality of the evidence before me, I do not find that the applicant has sustained a psychological impairment as a result of the accident that would remove him from the MIG.
Chronic Pain
54The applicant takes the position that he suffers from chronic pain, which should remove him from the MIG.
55The respondent argues that there is no evidence that the applicant’s chronic pain is more than just a sequelae or a symptom arising from his minor injuries. Moreover, the applicant has not provided any evidence to support a finding that his pain has been accompanied by a functional impairment.
56I am not satisfied that the applicant has chronic pain as a result of the accident.
57One of the difficulties I find in this case is the lack of any medical documents, assessments or suggested treatment plans that address chronic pain and support the applicant’s self-diagnosed condition. Although the applicant reported that he continues to experience pain two years after the accident, he has not provided a single medical report which has diagnosed him with chronic pain or chronic pain syndrome.
58Dr. Ajisafe did not diagnose him with chronic pain or chronic pain syndrome. Nor did he refer him to see a pain specialist. The disability certificates and the treatment plans do not mention chronic pain or chronic pain syndrome.
59While a formal diagnosis of chronic pain or a report from a specialist is not mandatory in order to be removed from the MIG, I find that the evidence of chronic pain is lacking.
60Another issue I find in this case is that there is a significant gap in Dr. Ajisafe’s CNRs from January 17, 2018 to April 1, 2019. If the applicant was experiencing chronic pain, it begs the question why he did not see his family doctor during that time period for treatment or a referral to a specialist?
61While I recognize that that the applicant has experienced pain since the accident, I have not been provided with compelling evidence that he should be removed from the MIG on this basis.
62As such, the applicant has not satisfied his onus to establish that he has chronic pain that may remove him from the MIG.
CONCLUSION
The treatment plans and interest
63As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.
64Interest is not payable as there are no overdue amounts owing.
ORDER
65For the reasons outlined above, I find:
(i) The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, the applicant is not entitled to the treatment plans claimed in this application;
(ii) The applicant is not entitled to interest; and
(iii) The application is dismissed in its entirety.
Released: January 23, 2020
Tavlin Kaur
Adjudicator
Footnotes
- Minor 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”.