Citation: S.S. vs. Allstate Insurance Company of Canada, 2020 ONLAT 19-005491/AABS

Released Date: 05/28/2020

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:

S.S.

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Kateryna Vlada, Paralegal

For the Respondent:

Crystal Schulz, Counsel

HEARD

By way of written submissions

OVERVIEW

1The applicant ("S.S.") was involved in an automobile accident on August 22, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). S.S. was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the "Tribunal").

2Allstate argues that S.S.'s injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline ("the MIG").¹ S.S. disagrees.

3If Allstate is correct, S.S. is then subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will not be needed as S.S. has exhausted the $3,500.00 maximum benefit for minor injuries.

4I must, therefore, decide whether S.S.'s injuries are predominantly minor as defined by the Schedule. If they are not, I must then determine whether the disputed medical benefit, as well as the associated fees and expenses, are reasonable and necessary.

ISSUES

5The issues in dispute were identified and agreed to as follows:

i Did S.S. sustain predominantly minor injuries as defined under the Schedule?

ii Is the cost of examination in the amount of $$2,200.00 for a Chronic Pain Assessment, recommended by Dr. Nayyer Razvi in a treatment plan dated April 23, 2019, and denied on May 10, 2019, reasonable and necessary?

iii Is S.S. entitled to interest on any overdue payment of benefits?

RESULT

6Based on a review of all the evidence put before me, I find that S.S.'s physical injuries meet the definition of "minor injury" under the Schedule. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

LAW

Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term "minor injury" is defined in subsection 3(1) of the Schedule as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The terms "sprain", "strain", "subluxation", and "whiplash associated disorder" are also defined in subsection 3(1).

8The onus is on S.S. to show that his injuries fall outside of the MIG.²

9S.S. argues that his injuries go beyond the definition of "minor injury" because he has sustained physical injuries and suffers from chronic pain which remove him from the MIG.

10I disagree with S.S.'s position for the following reasons. I acknowledge S.S. suffered injuries in the August 2014 accident. However, I find that the medical evidence demonstrates that it is the injuries he suffered later, as a result of subsequent May 2015 and October 2018 accidents, that are more significant. Since this application is based on the August 2014 accident, I find that S.S. has not provided me with the evidence necessary to establish his August 2014 accident-related injuries are not predominantly 'minor'.

ANALYSIS

Did S.S. did sustain physical injuries that remove him from the MIG?

11Although S.S. has provided medical evidence confirming he sustained injuries as a result of the August 2014 accident, none of this evidence shows that these injuries fall outside the MIG. To the contrary, the evidence submitted by Allstate confirms that S.S.'s physical injuries fall within the MIG.

12My finding that S.S.'s physical injuries fall within the MIG is supported by the following evidence:

a. A disability certificate ("OCF-3") was completed by Dr. Edward Hayes, chiropractor, dated September 7, 2014. In the OCF-3, Dr. Hayes lists S.S.'s injuries as: right shoulder strain, right knee (patellofemoral syndrome), left ankle/foot sprain, lower back pain, lumbar facet joint inflammation, cervical WAD II Injury, and myofascial pain trapezium. These injuries are considered predominantly 'minor'. Dr. Hayes indicated that the anticipated duration of disability is 5-8 weeks;

b. A second OCF-3 was completed by Dr. Alireza Kachooie, general physician on March 27, 2015. Dr. Kachooie diagnosed S.S. with whiplash limited cervical ROM, right shoulder tendinopathy, right wrist tendinopathy, left knee arthropathy, and lumbar spine dysfunction. These injuries are also predominantly 'minor';

c. There are no physiotherapy records for the period of August 22, 2014 to February 2016, despite S.S.'s reports that he was receiving this treatment;

d. At the first post-accident visit to Dr. Tang, family physician, on October 25, 2014, two months post-accident, S.S. reported right wrist pain, left ankle pain, left knee pain, resolving right shoulder pain, and occasional left hip/buttock pain. This is the first report of right wrist pain, left knee pain, and left hip pain since the accident. It should be noted that S.S. did not present with any low back or neck pain complaints to Dr. Tang at the October 25, 2014 visit. Dr. Hayes' OCF-3 indicated that S.S.'s knee pain was on the right side, not the left;

e. S.S. was involved in a second accident on May 4, 2015. S.S. did not report the accident to Dr. Tang until October 2015. S.S. presented to Dr. Tang with neck and back pain. S.S. underwent x-rays of his cervical and lumbar spine in October 2015 which were normal. The medical records note that the reasons for diagnostic testing was due to "pain following MVA trauma 6 months ago", i.e. the May 2015 motor vehicle accident;

f. On December 10, 2015, Dr. Tang referred S.S. to the Pain Clinic. It appears from the referral form that Dr. Tang ascribes S.S.'s complaints of neck pain and low back pain to be as a result of the May 2015 accident; and

g. The clinical notes and records of Dr. Tang confirm that S.S. did not seek medical attention from the family physician for any physical injury complaints including medication management or referrals for further subject accident-related treatment between October 2016 and September 2018, although he did attend on two occasions to report unrelated conditions (ear pain and cold symptoms).

13S.S. submits that Tribunal jurisprudence has established an individual may suffer from chronic pain where "the applicant had continued pain complaints and the treatment he was receiving did not seem to assist in his recovery. The treating practitioner believed he needed to be referred to another doctor for a chronic pain assessment. The applicant was exhibiting enough signs and symptoms that left his treating practitioner to believe that his injuries were more than just strains and sprains": 17-002907 v Aviva Insurance Company ("17-002907").³

14The 17-002907 case is distinguishable from this proceeding. In this proceeding, the subject accident was subsequently followed by two additional accidents, both of which the evidence supports were of much greater significance than the subject accident.⁴ 17-002907 did not have similar circumstances that lead to a claim for a chronic pain assessment. Further, there is no evidence in 17-002907 that the insured had already undergone at least one chronic pain assessment. S.S. has already received two chronic pain assessments and seeks funding for a third.

15The medical evidence suggests that the injuries from at least one of the subsequent accidents have caused his injuries and contributed to his ongoing pain complaints. I do not find that S.S. has met his onus that the injuries suffered as a result of the August 2014 accident are not predominantly 'minor'.

16My finding is further supported by the following:

a. On October 16, 2018, two weeks after the most recent motor vehicle accident, Dr. Razvi submitted an OCF-18 for a chronic pain assessment, noting that S.S.'s injuries included: low back pain, dislocation/sprain/strain of shoulder girdle, dislocation/sprain/strain of the thorax, WAD 2 with complaint of neck pain, and sprain/strain of the thoracic spine. The OCF-18 is dated June 26, 2018, however, it was submitted to Allstate on October 16, 2018. I find this most directly relates to the October 2018 accident. It should be noted that this OCF-18 contains the first reference to any reported pain in the thorax and thoracic spine;

b. The OCF-18 in dispute clearly relates to injuries other than those sustained as a result of the August 2014 accident;

c. Upon review of Dr. Razvi's April 2019 report, there is no mention of the May 2015 and October 2018 accidents. At the time of his assessment with Dr. Razvi, S.S. reported his pain complaints include headaches, neck pain, right shoulder pain, and left gluteal/buttock pain. There is no reference to the injuries to the thorax and thoracic spine as referred to in the OCF-18 in dispute; and,

d. In addition to my finding that in addition to being minor, many of the injuries S.S. suffered as a result of the 2014 accident appear to have resolved. A review of the medical evidence further confirms my finding, for example:

i. S.S.'s last report of headache was to Dr. Kachooie in March 2015 where he reported suffering from occasional headaches. Further there is no report of headache in the disputed OCF-18;

ii. S.S.'s last report of neck pain prior to the October 2018 accident was to Dr. Pirzada in December 2015;

iii. The last report of right shoulder pain prior to the October 2018 accident was to Dr. Tang in May 2016; and

iv. The last report of left gluteal/buttock pain was to Dr. Tang in October 2014, although it is noted that S.S. reported stiffness in left glute/buttock to Dr. Sinoff (May 2016) and in June 2018 noted that his left gluteal muscle was restricted when "supporting for martial arts kick".

17Allstate submits that S.S. has not provided any compelling evidence that he suffers from a pre-accident or post-accident condition that has prevented him from achieving maximal recovery for his injuries under the MIG as a relates to the August 22, 2014 accident. I agree.

18S.S. has therefore failed to persuade me that the physical injuries he sustained in the August 22, 2014 accident require treatment beyond that provided for in the MIG.

CONCLUSION

19S.S. sustained predominantly minor physical injuries that fall within the MIG. Accordingly,

a. S.S. is not entitled to payment for the OCF-18 claimed in this application; and

b. The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para. 24.
3. 32018 CanLII 13153 (ON LAT) at para. 20.
4. 4As a result of the May 2015 and October 2018 accidents, S.S. complained of neck pain, back pain, left knee pain, and left posterior rib pain with increasing pain with breathing and coughing.