Released: January 28, 2021
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:
Valentin Lukash
Applicant
and
Coseco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Patrick M. Baker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on July 17, 2017, and sought various benefits from the respondent, Coseco (then operating as The Co-Operators), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Coseco denied the benefits in dispute on the basis that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?
ii. Is the applicant entitled to a medical benefit in the amount of $283.80 (the balance of a partially approved plan in the amount of $1,560.80) for physiotherapy recommended by Health Pro Wellness in a treatment plan submitted on November 29, 2017 and denied by the respondent on December 24, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to receive an award for unreasonably withheld or delayed payments pursuant to s. 10 of O. Reg. 664?
result
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the balance of the treatment and interest are not payable. I decline to order an award.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that, as a result of the accident, he suffers from back pain that warrants removal from the MIG. Specifically, he asserts that an August 2017 x-ray revealed degenerative disc disease and a bone “fragment” adjacent to his iliac spine that has since led to a diagnosis of chronic pain syndrome. In addition to this x-ray, he relies on various notes and records from his family physician, Dr. Portnoi, a Disability Certificate (“OCF-3”) dated August 22, 2017 and the clinical notes from his treatment provider, Health-Pro Wellness.
6In response, Coseco asserts that the applicant sustained predominantly minor, soft-tissue injuries as a result of the accident. It submits that the x-ray report indicated that the bone fracture is a remote injury not related to the accident, that the applicant has made inconsistent accident-related complaints of pain to his family physician, that the back pain he complains of is related to his age and occupation and not the accident and, finally, that the applicant has failed to demonstrate that he meets three of the six criteria for chronic pain syndrome under the AMA Guides.2
7I agree with Coseco and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. First, the actual physical injuries identified in the OCF-3 are all sprain and strain-type injuries that clearly fall within the definition of a minor injury under s. 3(1). On the evidence, I find that the applicant was able to address these soft-tissue injuries through the facility-based treatment he underwent in the weeks and months following the accident that was available under the MIG.
8With regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. While the applicant, a gentleman in his 60s, points to a diagnosis of degenerative disc disease and mild to moderate facet arthropathy in the x-ray report, there is no indication from a medical practitioner that these largely age-related impairments would prevent maximal medical recovery if the applicant was kept within the MIG. Similarly, the applicant’s history of hypertension and high blood pressure (which seemingly was identified as a chest contusion post-accident) cannot reasonably be considered an impediment to his accident-related impairments if he is in the MIG.
9The applicant asserts that the bone fragment, identified in the x-ray report dated August 25, 2017 as a “tiny well-corticated fragment measuring 3 mm adjacent to the right anterior-inferior iliac spine, likely related to a remote injury/remote avulsion injury of the right rectus femoris” removes him from the MIG, as it constitutes “sufficient evidence of objective reasons for his ongoing upper, mid and lower back pain.” In response, Coseco argues that the bone fragment was an old injury not related to the accident, as evidenced by the term “remote injury” and the fact that the accident occurred just one month prior to the x-ray.
10I agree with Coseco. While the applicant asserts that this specific fracture was sustained as a direct result of the accident, I find it difficult to ignore the terms “well-corticated”, “remote injury” and/or “remote avulsion injury” used in the x-ray report, as they clearly indicate, in my view, that this tiny bone fragment was an old injury that had healed and was not related to the accident. I agree with Coseco that the fact that the fragment was identified as “well-corticated”, or consistent with an old injury, casts significant doubt that the injury occurred in the accident that occurred only one month prior to the x-ray. While I am alive to the possibility that this old injury is in a tender area that may result in pain, I do not find that this is the type of “evidence of objective reasons for his ongoing upper, mid and lower back pain” to escape the MIG, as alleged, nor do I find evidence that this injury was documented prior to the accident by a medical practitioner that would allow the applicant to escape the MIG under s. 18(2).
11The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain or chronic pain syndrome that causes functional impairment. Here, the applicant asserts that he has developed a chronic pain condition as a result of the accident, directing the Tribunal to the clinical notes of Dr. Portnoi from February 22, September 20 and November 1, 2019 that refer to entries for “recurrent low back pain”, “chronic pain syndrome” and “persistent lower back pain.” The applicant submits that his accident-related pain and functional difficulties have persisted well beyond the acute stage and now must be considered chronic and therefore outside of the MIG.
12In response, Coseco submits that the applicant has not demonstrated that he suffers from chronic pain or chronic pain syndrome. First, it points to the gap in the applicant’s complaints to Dr. Portnoi between September 14, 2017 and February 22, 2019, and again between February 22 and September 20, 2019, as evidence that the applicant’s pain is not persistent or chronic in nature. Second, Coseco submits that Dr. Portnoi never diagnosed the applicant with chronic pain syndrome, but rather the notes indicate that chronic pain syndrome was the applicant’s subjective reporting. Third, that the applicant’s most recent complaints in September and November 2019 following the gaps in reporting only came after the applicant had applied to the Tribunal and attended for a case conference. Finally, Coseco submits that the applicant has failed to demonstrate that he meets any of the six AMA Guides criteria for chronic pain.
13I agree with Coseco. I find the significant gap in the applicant’s reporting to his family physician, coupled with his reports from 2017 that he was feeling better and had returned to work, severely undermine his claim that his back pain is chronic or persistent in nature, or a result of the accident that occurred in July 2017. I further agree with Coseco that the timing of the most recently documented complaints to Dr. Portnoi in September and November 2019—which I agree are subjective reports by the applicant and not a diagnosis of chronic pain syndrome—are convenient given the previous gaps in his complaints, as the two complaints of chronic pain (and the latter chronic pain syndrome, specifically) were only generated after the applicant had filed his dispute with the Tribunal, with the latter following the case conference for same. In any case, despite these flaws, I also agree with Coseco that the applicant has failed to demonstrate on a balance of probabilities that he suffers from chronic pain or chronic pain syndrome on the medical evidence.
14The applicant submits that I should rely on the reconsideration decision of T.S. v. Aviva General Insurance Canada3 where the Executive Chair accepted that chronic pain is a condition that persists for three to six months after an initial trigger or injury.4 Coseco relies on the six criteria provided in the AMA Guides. I find that T.S. v. Aviva and the six criteria set out in the AMA Guides can be read harmoniously and both are persuasive in determining whether it was reasonably possible that the applicant suffered from chronic pain syndrome. In T.S. v. Aviva, the Executive Chair’s description of chronic pain encompassed adverse effects on an individual's well-being. As such, the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool to determine if an individual’s pain is adversely affecting their functional capacity such that it would be reasonably possible that the individual was suffering from chronic pain syndrome.
15While the applicant must meet three criteria, I find the applicant has not demonstrated that he meets any of the criteria provided for in the AMA Guides or adverse affects on his well-being. First, while Gabapentin was prescribed and the applicant has previously taken Tylenol 3, I agree with Coseco that there is no indication that the applicant is abusing prescription drugs for his pain. Second, as the MIG limits were barely exhausted over two years and there are significant gaps in his visits to Dr. Portnoi, it cannot be said that the applicant has an excessive dependence on treatment providers or on his family. Third, there is no indication of social or work withdrawal or deconditioning that can not be attributed to the applicant’s age where he returned to his pre-accident employment. Fourth, other than a back brace prescribed in February 2019, there is limited evidence that the applicant’s pre-accident function has not been restored, as Dr. Portnoi did not renew his modified duties note after the applicant returned to work. Finally, the applicant has adduced no evidence or made any submissions on any psychological or emotional distress he experienced as a result of the accident. Accordingly, while the applicant may have lingering pain, I find limited evidence to support his contention that it is chronic pain syndrome as a result of the July 2017 accident. On the evidence, I find no reason to interfere with Coseco’s determination that he is properly within the MIG.
16For these reasons, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Is the balance of the treatment plan reasonable and necessary?
17Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the balance of the treatment plan in dispute is reasonable and necessary is not required as the balance is not payable.
Section 10 Award
18The applicant also sought a 50% award under s. 10 of O. Reg. 664, submitting that Coseco unreasonably delayed the payment of his benefits, kept him within the MIG and did not consider all of the medical evidence, thus delaying his recovery further. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
19I find an award is not appropriate. The applicant has failed to meet his burden of proof to escape the MIG and no benefits are payable. Accordingly, it cannot be said that benefits were unreasonably withheld or delayed justifying an award.
ORDER
20The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The balance of the treatment plan in dispute and interest are not payable. I decline to order an award.
Released: January 28, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
- 2018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
- Ibid. at para. 19.