Licence Appeal Tribunal
Release date: 06/09/2021
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:
Zulfiquar Ganani
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Peter Cimino, Counsel
For the Respondent:
Rebecca Udler, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on August 9, 2018, and sought various benefits from the respondent, Pembridge, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Pembridge denied the benefits in dispute on the basis of its determination 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 submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. Is the applicant entitled to a medical benefit in the amount of $2,860.58 for medical services recommended by Midland Wellness in a treatment plan (OCF-18) submitted on April 3, 2019, and denied on April 25, 2019?
iii. Is the applicant entitled to a medical benefit in the amount of $2,564.96 for medical services recommended by Midland Wellness in a treatment plan (OCF-18) submitted on August 6, 2019, and denied on August 26, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that he sustained an impairment that warrants removal from the MIG. The treatment plans in dispute are not reasonable and necessary and no interest is payable.
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 he should be removed from the MIG on the basis of chronic pain. As evidence he points to diagnostic imaging that revealed mild to marked narrowing of his intervertebral discs, osteoarthritis and degenerative changes. He also relies on clinical notes of his family physician, Dr. Leung and the treatment records of All About Health and Midland Wellness Centre.
6In response, Pembridge submits that the applicant sustained soft-tissue injuries as a result of the accident, has never been diagnosed with chronic pain syndrome and has never sought a chronic pain assessment. Further, it submits that there are no accident-related complaints to Dr. Leung after November 15, 2018; that he has not attended for treatment since December 2019; that he has not missed any time from work as a self-employed businessman; and that he only filled two prescriptions for Naproxen post-accident.
7I agree with Pembridge and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. I find there is limited indication in the file that the applicant’s impairments should be considered outside of the definition of minor injury under s. 3(1) where his impairments were identified by Dr. Leung as likely soft-tissue in nature, where he demonstrated full neck and spine range of motion and where he only filled pain relief prescriptions on two occasions post-accident, and has not done so since November 2018. The applicant only visited Dr. Leung three times post-accident and it does not appear that he has visited his family physician since November 8, 2018. On the evidence, it is difficult to accept that his pain was consistent and of a severity that required intervention where there are limited contemporaneous complaints.
8In a similar vein, the applicant has never been referred for a chronic pain assessment or undergone treatment specifically for chronic pain. He has never been diagnosed with chronic pain syndrome. It is unclear if he has any functional impairment, as there is no evidence that any of his daily activities, personal care or employment has been affected by his alleged pain. There is no discussion of the severity of the pain, its frequency or its affect on the applicant’s function. While not binding, his submissions do not engage with any of the six chronic pain criteria under the AMA Guides that the Tribunal has used as an assistive tool. The physical injuries listed in the Disability Certificate (“OCF-3”) are WAD-II, neck pain with musculoskeletal signs, lumbago, complex subluxation, malaise/fatigue and sleep disorders. I agree with Pembridge that OCF-3’s are not medical evidence and the non-physical injuries diagnosed are beyond the scope of chiropractor Dr. McCutcheon’s practice. The remaining physical impairments listed clearly fall within the MIG. For these impairments, Pembridge provided $3,500 in funding, up to the MIG limits. On the medical evidence, I agree that this was appropriate.
9An applicant may be removed from the MIG under s. 18(2) if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that will preclude maximal medical recovery if they are kept within the confines of the MIG. However, the applicant provided no indication of a pre-existing condition that would affect his recovery under the MIG and did not offer specific submissions or a medical opinion on this ground.
10The diagnostic imaging reports on which the applicant relies reveal degenerative changes that cannot reasonably be attributed to the accident. While these conditions may cause him pain, the medical evidence does not support a chronic pain diagnosis because of these conditions and the applicant did not provide a medical opinion that speaks to removal from the MIG under s. 18(2). In any case, absent a diagnosis, for removal from the MIG on the basis of chronic pain, the applicant must demonstrate that his pain is the predominant injury and that it is causing functional impairment. His submissions and evidence do not meet this burden. I agree with Pembridge that the applicant sustained soft-tissue injuries as a result of the accident, and he provided no compelling medical evidence to support removal from the MIG on the basis of chronic pain.
11Accordingly, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
12Having 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 treatment and assessment plans in dispute are reasonable and necessary is not required. As no benefits are overdue, no interest is payable under s. 51.
CONCLUSION
13The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment plans in dispute are not reasonable and necessary and no interest is payable.
Released: June 9, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.