A.A. v. The Personal Insurance Company, 2020 CanLII 80299

A.A. vs. The Personal Insurance Company, 2020 ONLAT 19-004185/AABS

Citation: A.A. vs. The Personal Insurance Company, 2020 ONLAT 19-004185/AABS

Released Date: 09/17/2020

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:

A. A

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: [A.A.], Applicant Zenan Babb, Paralegal

For the Respondent: Caroline Mowat, Counsel

HEARD: In Writing

OVERVIEW

1The applicant was injured in an automobile accident on August 14, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective June 1, 2016 (''the Schedule'').

2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”). The parties participated at a case conference and were unable to resolve the issues in dispute. This matter proceeded to a hearing.

ISSUES IN DISPUTE

3The issues in dispute were identified and agreed to as follows:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to the cost of examination in the amount of $2,144.94 for a psychological assessment recommended by In Counselling and Psychotherapy Service in a treatment plan submitted on April 8, 2017 and denied by the respondent on April 17, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $1,926.00 for chiropractic treatment recommended by Dr. Nevin Wadehra Chiropractic in a treatment plan submitted on March 30, 2017 and denied by the respondent on April 18, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $2,789.00 for chiropractic treatment recommended by Dr. Nevin Wadehra Chiropractic in a treatment plan submitted on September 13, 2018 and denied by the respondent on October 5, 2018?

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

vi. Is the applicant entitled to receive an award for unreasonably withheld or delayed payments pursuant to section 10 of Reg. 664, R.R.O. 1990?

RESULT

4The applicant’s injuries are predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG.

5The applicant is not entitled to the cost of examination in the amount of $2,144.94 for a psychological assessment recommended by In Counselling and Psychotherapy Service in a treatment plan submitted on April 8, 2017 and denied by the respondent on April 17, 2017.

6The applicant is not entitled to medical benefits for chiropractic treatments set out in treatment plans, dated March 30, 2017 and September 13, 2018, by Dr. Wadehra.

7The applicant is not entitled to interest or to an award.

BACKGROUND

8The applicant was injured in Queens, New York, in the United States in a motor vehicle accident on August 14, 2016. He reported the accident to the police and then drove his vehicle home, a trip of over 700 kilometers. The applicant sought no medical treatment on the day of the accident. No ambulance attended at the scene of the accident.¹ The applicant returned to work as an auto mechanic full time, taking one day off since returning home from the United States.

9The applicant visited his family doctor, Dr. Mohamed, on September 24, 2016, who referred the applicant for imaging. An X-ray of the cervical spine dated November 5, 2016, showed mild degenerative through the c-spine, and more prominent from C5- to C-7. There was no prevertebral soft tissue swelling and no acute fracture². An X-ray of the thoracic spine dated November 5, 2016 showed mild to moderate degenerative changes from T-7 to T-9. There was no compression fracture.³ An X-ray of the lumbar spine dated November 5, 2016 showed Mild degenerative changes throughout the lumbar spine. There was also no compression fracture.⁴

10The applicant saw Dr. Wadhera, chiropractor, on August 30, 2016. Dr. Wadhera diagnosed the applicant with a sprain/strain of the lumbar spine with radicular symptoms to the left leg, sprain/strain of the thoracic spine, and tension type headaches. He recommended treatment three times a week for six weeks.⁵ Dr. Wadhera later noted on December 8, 2016, that there was good progression with decreased pain and increase in range of motion with respect to L/S, C/S and T/S.⁶

11The applicant received chiropractic treatment once per week until December 16, 2016 and attended once or twice a month until July 2017.The applicant was involved in a workplace accident on January 19, 2018 and received treatment from April 2018 until August 2018.

12The applicant submits that he suffers from the pre-existing medical condition of cervical spine pain which existed two years before the accident. The applicant provided no medical reports or details with respect to this problem. The applicant was also involved in an accident one month before the accident at issue and in another accident approximately six years ago. He reported that he was fully recovered from both.⁷

ANALYSIS

Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (the “MIG”)?

13Section 3(2) of the Schedule describes a minor injury as one or more of a strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury. Section 18 of the Schedule limits the benefits to $3,500.00, unless the insured person’s health practitioner determines and provides compelling evidence of a pre-existing medical condition that was documented by a health practitioner before the accident, and that will prevent the insured person from receiving maximum recovery from the minor injury if the insured person is subject to the $3,500.00.

14The onus is on the applicant to show entitlement to medical benefits in excess of the $3 500.00 limit under the MIG.⁸ I find that the applicant has not satisfied his onus for the following reasons.

15There is no medical evidence before me to show that the applicant had a pre-existing medical condition that was documented by a health practitioner before the accident, and that will prevent the insured person from receiving maximum recovery from the minor injury if the insured person is subject to the $3,500.00.

16The applicant went back to work after one day off. All of the medical reports show a sprain/strain which meet the definition of MIG under the Schedule. The applicant’s position is that he has Chronic Pain Syndrome and therefore he should be taken out of limits of the MIG.

17Chronic pain can be a sequelae of soft tissue injuries.⁹ Chronic pain, to be removed from the MIG, requires the applicant to prove that his chronic pain is not merely sequelae of the soft tissue injuries, but that it is the applicant’s predominant injury.¹⁰ A diagnosis of chronic pain without any discussions of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that chronic pain is more than a sequelae.¹¹

18There has been no evidence put before the Tribunal as to any discussion of the level of pain, its effect on the applicant’s function or whether the pain is bearable without treatment. The applicant has been working full time after the accident. There is no evidence before the Tribunal that the applicant has met any three of the criteria for a diagnosis of chronic pain, set out in the case of M.N.M. and Aviva Insurance, Tribunal file No; 17-007825/AABS. That case sets out six criteria described in the American Medical association (AMA) Guides which state that at least three of them must be met for a diagnosis of chronic pain:

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

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

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

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

e. 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; and

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behavior.

19I therefore find that the applicant’s injuries are predominantly minor injuries as defined in the Schedule.

MEDICAL AND REHABILITATION EXPENSES

20Section 15 of the Schedule requires all medical and rehabilitation expenses to be paid by an insurer, if they are reasonable and necessary.

21In order to establish that goods and services are reasonable and necessary, an insured person has to show that the goods and services requested will have a rehabilitative purpose or at a minimum lead to a reduction of pain. This is proven through primary care records from a family doctor as an example or on the recommendation of a medical expert qualified for that purpose.^{12 13}

Is the applicant entitled to the cost of examination in the amount of $2,144.94 for a psychological assessment recommended by In Counselling and Psychotherapy Service in a treatment plan submitted on April 8, 2017 and denied by the respondent on April 17, 2017?

22I find that the applicant is not entitled to the cost of a psychological assessment for the reasons set out below.

23Dr. Elmpak, clinical psychologist, in his Insurer’s Examination (“IE”) report dated November 8, 2016 concluded that the applicant’s complaints did not rise to the level of a psychological diagnosis and also that no psychological treatment was required.¹⁴ He also opined that any psychological injuries were included in the MIG.

24There is no evidence before me that the applicant complained of any psychological problems to his family doctor that related to the accident.

25I find therefore that a psychological assessment is not reasonable and necessary.

Is the applicant entitled to a medical benefit in the amount of $1,926.00 for chiropractic treatment recommended by Dr. Nevin Wadehra Chiropractic in a treatment plan submitted on March 30, 2017 and denied by the respondent on April 18, 2017?

Is the applicant entitled to a medical benefit in the amount of $2,789.00 for chiropractic treatment recommended by Dr. Nevin Wadehra Chiropractic in a treatment plan submitted on September 13, 2018 and denied by the respondent on October 5, 2018?

26I find for the reasons set out below, that the applicant is not entitled to medical benefits for chiropractic treatments.

27On an IE examination, Dr. S. Dharamshi, general practitioner in his report dated November 8, 2016, concluded that the applicant did not require any further treatment or medication as a result of the accident beyond the current treatment program under the MIG.¹⁵

28In accordance with the requirements set out in paragraphs [20] and [21] above, the applicant has not shown that the chiropractic treatment would have a rehabilitative purpose or at a minimum lead to a reduction of pain. There are no medical reports submitted by the applicant showing that chiropractic treatments would have a rehabilitative purpose or lead to a reduction of pain.

29I find that the medical benefits for chiropractic treatment are not reasonable and necessary.

Interest/Award

30I find that there is no interest owing as no benefits are owing

31I find that no award is owing, as the applicant has not shown that the respondent has unreasonably withheld or delayed payments.

Conclusion

32For the reasons set out above, the application is dismissed

Released: September 17, 2020

_____________________________

Robert Watt

Adjudicator

Footnotes

1. 1Initial consultation dated August 30, 2016 Applicant’s submissions Tab 4, North York Medical Rehabilitation Records.
2. 2Imaging from Applicant’s Tab 3 Dr. Mohamed’s records at page 27.
3. 3Ibid.
4. 4Ibid.
5. 5Initial consultation dated August 30, 2016 from Applicant’s Tab 4, North York Medical Rehabilitation’s Records.
6. 6Dr. Wadhera’s note December 8, 2016, from Applicant’s Tab 4, North York Medical Rehabilitation Records.
7. 7Report by Dr. Elmpak dated November 8, 2016, Applicant’s submission Tab 9.
8. 8Scarlett v. Belair Insurance 2015 ONSC 3635.
9. 9B.U. v. Aviva 2015 CanLII 96167(Ont Lat) Tab 9.
10. 10LJ v. TD Insurance 2018 CanLII 13142(ONT LAT) Tab 10.
11. 11YXY v. The Personal 2017 CanLII 59515 (ONT LAT) Tab 11.
12. 12Tab 30 D.J. v Aviva Insurance Canada 2016 CanLII 93136 (ON LAT) at para 34-36.
13. 13Tab 31 A.K. v. Aviva Canada 2017 CanLII 93460 (ON LAT) at para 16-18.
14. 14Report by Dr. Elmpack dated November 8, 2016, Applicant’s Submissions Tab 9.
15. 15Report of Dr. Dharamshi dated November 8, 2016 Applicant’s submissions Tab 9.