Citation: Joseph v. The Personal Insurance Company, 2021 ONLAT 20-004065/AABS

Released Date: 05/13/2021

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:

Shayla Joseph

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Marc Golding, Paralegal

For the Respondent:

Michael Chadwick, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Shayla Joseph, was injured in an automobile accident on November 16, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from The Personal Insurance Company, the respondent.

2The respondent denied the applicant’s claims for various medical benefits and assessments because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on July 22, 2020. The matter was initially scheduled for a written hearing on February 1, 2021 which was adjourned to March 15, 2021.

ISSUES IN DISPUTE

4The following issues are to be decided:³

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

(ii) Is the applicant entitled to chiropractic treatment recommended by Mackenzie Medical Rehabilitation Centre Inc. (“Mackenzie Medical”) as follows:

(a) $1,367.50 ($1,977.05 less $611.55 approved) in a treatment plan (“OCF-18”) submitted on May 17, 2018, and denied May 18, 2018?

(b) $1,384.70 in an OCF-18 submitted on June 29, 2018, and denied February 23, 2019?

(c) $1,384.70 in an OCF-18 submitted on August 7, 2018, and denied June 3, 2019?

(d) $2,569.40 in an OCF-18 submitted on April 30, 2019, and denied June 3, 2019?

(iii) Is the applicant entitled to $2,520.00 for an orthopaedic assessment recommended by Princeton Hills Medical Assessment Inc. in an OCF-18 submitted on March 13, 2018, and denied March 19, 2018?

(iv) Is the applicant entitled to $2,055.32 for a psychological assessment, recommended by Princeton Hills Medical Assessment Inc. in an OCF-18 submitted on March 1, 2018, and denied March 19, 2018?

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

RESULT

5I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. As the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been approved by the respondent, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is not entitled to interest and the application is dismissed.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The 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 Schedule.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain.

8I find that the applicant has not met her burden⁴ of proving that her accident-related impairments require treatment beyond the MIG based on chronic pain, a psychological impairment or a pre-existing condition.

Chronic Pain

9In analyzing the issue of chronic pain and the MIG, the applicant relied upon the Tribunal’s decision in B.M. v. Allstate Insurance⁵ for the position that a finding of chronic pain removes an insurer person from the MIG. In B.M. v. Allstate, the Tribunal also agreed with the reconsideration decision in T.S. v. Aviva General Insurance Canada,⁶ which further described chronic pain as, “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being (my emphasis added).”⁷

10On the other hand, the respondent submitted that the Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the American Medical Association (“AMA”) Guides,⁸ which state that at least three of the following criteria must be met for a diagnosis:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) 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

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

11The applicant did not contest the AMA Guides criteria and, in fact, filed no reply submissions for the hearing.

12I find that both the Executive Chair’s comments in T.S. v. Aviva and the AMA Guides criteria can be read harmoniously, and both are persuasive in determining whether the applicant should be removed from the MIG as a result of chronic pain. In T.S. v. Aviva, the Executive Chair’s description of chronic pain encompassed adverse affects on an individual's well-being and the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting an individual’s functional capacity.

13Based on all of the evidence before me, and in consideration of both T.S. v. Aviva and the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

14In support of her position, the applicant primarily relied upon an October 12, 2020 Chronic Pain Assessment Report by Dr. Mohamed Abounaja, physician.⁹ In this report, Dr. Abounaja diagnosed the applicant with, among other conditions, chronic pain disorder.¹⁰ Dr. Abounaja opined that the applicant’s accident-related conditions fell outside of the MIG.¹¹

15Dr. Abounaja also recognized that chronic pain encompasses difficulty functioning in daily activities. In fact, Dr. Abounaja reported that the applicant’s chronic pain, “substantially affected the quality of her life and prevented her from performing her pre-accident activities of daily living.”¹² Dr. Abounaja further reported that the applicant:

(i) was “severely unable to perform the housekeeping and home maintenance functions she performed normally prior to the accident;”¹³

(ii) was unable to resume even light cooking;¹⁴

(iii) experienced difficulties with self-care and used pacing and certain body techniques to avoid pain flareups;¹⁵ and

(iv) curtailed all her pre-accident recreational and social activities and, “she reports that, most of the time, she lies down in bed.”¹⁶

16I place little weight on Dr. Abounaja’s October 12, 2020 report, and his diagnosis of chronic pain disorder, because Dr. Abounaja’s report is not supported by any other contemporaneous medical records, and is a standalone document in terms of its description of the severity of the applicant’s injuries and functionality. For example, other evidence before me showed that the applicant:

(i) was not prescribed any medication post-accident;

(ii) only visited a walk-in clinic once post-accident for accident-related complaints on November 20, 2017;¹⁷

(iii) did not attend her family physician at any time post-accident for any accident related complaints;

(iv) only missed 2 days of work post-accident;¹⁸

(v) returned to her post-secondary program at Humber College as of November 29, 2017 and graduated in May 2019;¹⁹

(vi) stopped attending for physical treatment at Mackenzie Medical on April 2019 after reporting to her treatment providers that she was “feeling good” and that her pain was improving; and

(vii) the clinical notes and records (“CNRs”) from Mackenzie Medical show no reports of any functional limitations.

17I also place little weight on Dr. Abounaja’s report because it lacks details, as it merely provided overly general and broad statements about the applicant’s functionality. Dr. Abounaja also failed to provide any discussion of the applicant’s function against the undisputed facts that the applicant returned to her college program in the same month as the accident, completed her college program in May 2019 and returned to work almost immediately post-accident.

18The respondent submitted a May 16, 2019 Musculoskeletal Insurer’s Examination Assessment (“IE”) by Dr. James Kenneth Stewart, orthopaedic surgeon²⁰ which reported little issues with the applicant’s functionality. In this report, Dr. Stewart noted that the applicant had no changes to her housekeeping duties since the accident, she continued to do her own laundry and cleaning, she was independent with her personal care tasks and that she returned to the previously enjoyed activity of shopping but for shorter periods of time due to pain.²¹ Dr. Stewart stated that the applicant, “has continued to perform her usual activities of daily living without any reported limitations.”²²

19While I agree with the applicant that there was a period of time between Dr. Stewart’s assessment and Dr. Abounaja’s assessment, there is still no other objective evidence before me to support the significant deterioration of the applicant’s condition and functionality as described in Dr. Abounaja’s report from the time of Dr. Stewart’s assessment.

20Moreover, in reference to the AMA Guides criteria to assist in determining whether the applicant’s pain has had an adverse effect on her well-being, there is no evidence before me that the applicant:

(i) used any prescription medication for any accident-related condition;

(ii) was dependent on health care providers or her family, as she only saw one physician post-accident for accident-related complaints and stopped physical treatment in April 2019;

(iii) withdrew from work or failed to pursue work as a result of any accident-related conditions; or

(iv) withdrew from social milieu or other social contacts as she had returned to college and was shopping as she had done pre-accident although for shorter periods of time.

21Additionally, while Dr. Abounaja diagnosed the applicant with depression and anxiety, I do not place weight on these diagnoses as there was no psychological testing or information provided in his report as to how these diagnoses were made.

22For all of the reasons set out above, I find that, while the applicant reported ongoing pain beyond the three-to six-month post-accident period, she has failed to prove that this pain adversely affects her well-being and does not meet any of the six AMA Guides criteria. Therefore, she is not removed from the MIG based on chronic pain.

Psychological Impairment

23I find that the applicant has failed to prove on a balance of probabilities that she sustained a psychological impairment as a result of the accident.

24The applicant relied upon the psychological diagnoses made by Dr. Abounaja in his October 12, 2020 report to support a finding that she did sustain a psychological impairment as a result of the accident. As discussed in paragraph [21] above, I do not place weight on Dr. Abounaja’s diagnoses of depression and anxiety as he performed no psychological testing as part of his assessment of the applicant. Additionally, his diagnoses are not supported by any other contemporaneous medical evidence, as the applicant made no psychological complaints to her family physician or any other treating physicians post-accident.

25The applicant also submitted that her post-accident anxiety was raised in two Disability Certificates (“OCF-3s”) dated November 29, 2017 and April 4, 2019. These OCF-3s, however, only refer to the applicant’s “psychological healing barrier” and again were not supported by any documented psychological complaints. Both OCF-3s were completed by chiropractors at Mackenzie Medical and there is no mention of any psychological complaints in the Progress Notes from Mackenzie Medical aside from the one note of “stress” on June 22, 2018.

26For these reasons, I find that the applicant has not met her burden of proving that she sustained a psychological impairment as a result of the accident and, therefore, she is not entitled to treatment beyond the MIG on this basis.

Pre-existing Condition

27It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

28The only pre-accident evidence before me are the CNRs of Dr. Geetha Rao, the applicant’s family physician, and the CNRs from the Dr. Langer Family Medicine & Walk-In Clinic. Dr. Rao’s CNRs show no ongoing health condition or impairment and noted the applicant as being “healthy” at a March 21, 2017 visit. In the Walk-in Clinic’s CNRs, the applicant attended on September 6, 2016 to have a form completed for her employment and this entry notes, “healthy 21-year-old female, no medical condition, no current med[icines].”²³

29While the applicant submits that she suffered from asthma and anxiety prior to the accident, there is no evidence before me of these diagnoses. In any event, even if the applicant suffered from these conditions prior to the accident, which I do not agree, the applicant submitted no evidence that supports a finding that either asthma or pre-existing anxiety would prevent her maximal recovery under the MIG. Therefore, I find that the applicant has failed to prove on a balance of probabilities that her injuries fall outside of the MIG as a result of a pre-existing condition.

30As I have found that the applicant’s injuries fall within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the respondent has approved the maximum amount of medical and rehabilitation benefits of $3,500.00 available under the MIG as of May 19, 2018.²⁴

Interest

31As there are no benefits owing, no interest is payable.

CONCLUSION

32For the reasons outlined above, I find that:

(i) The applicant has not met her burden of proving that her accident-related impairments warrant removal from the MIG. Accordingly, it is not necessary for me to determine whether the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been approved by the respondent;

(ii) No interest is payable; and

(iii) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3The Tribunal’s July 22, 2020 Case Conference Report and Order listed Non-earner benefits as an issue in dispute between the parties. Neither party, however, made any submissions on this issue. As a result, I accept that the applicant’s claim for non-earner benefits is no longer in dispute between the parties and I need not make a determination on this issue.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 52019 CanLII 101616 (ON LAT) (“B.M. v. Allstate”).
6. 62018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
7. 7Ibid. at para. 23.
8. 8American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
9. 9Applicant’s Brief of Documents, tab 8.
10. 10Ibid. at page 9.
11. 11Ibid. at pages 12-13.
12. 12Ibid. at page 3.
13. 13Ibid. at page 523
14. 14Ibid. at page 5.
15. 15Ibid.
16. 16Ibid.
17. 17Dr. Langer Family Medicine & Walk-In Clinic clinical notes and records (“CNRs”), Applicant’s Brief of Documents, tab 6.
18. 18CNRs from Mackenzie Medical, Initial consultation – Data Sheet & Notes dated Nov. 29/17, Applicant’s Brief of Documents, tab 7.
19. 19Ibid.
20. 20Applicant Brief of Documents, tab 9.
21. 21Ibid. at page 6.
22. 22Ibid. at page 10.
23. 23Applicant’s Brief of Documents, tab 6.
24. 24May 19, 2018 correspondence from the respondent to the applicant, Respondent’s Hearing Brief, tab 1.