Released Date: 06/15/2021
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:
Audley Williams
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Apurva Shah, Counsel
For the Respondent:
Patrick Sinclair, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on December 28, 2017 and sought various benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Economical 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 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 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 $2,378.03 for physical therapy, recommended by Pro Active Health Group Inc in a treatment plan (OCF-18) dated November 6, 2018?
iii. Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, recommended by Pro Active Health Group Inc in a treatment plan dated October 25, 2018?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that removal from and treatment beyond the MIG is warranted. 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 or a psychological condition 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. Specifically, he submits that he suffers from “unresolved biomechanical dysfunction of his thoracic and lumbar spine which involves the three joint complexes and myofascial lumbar pain that involves chronic inflammation.” He relies on the clinical notes of his family physician; the treatment notes from Pro Active Health Clinic; the report of Dr. Bare, chiropractor, dated January 24, 2020, who determined that he suffers from chronic pain warranting removal from the MIG; and the report of Dr. Brooks, physician, dated October 20, 2020, who also determined that he was suffering from a chronic pain condition as a result of the accident, warranting treatment outside of the MIG.
6In response, Economical asserts that Dr. Bare’s opinion is outside the scope of his practice and that the diagnosis is inconsistent with the applicant’s range of motion and functional abilities. It submits that Dr. Brooks’ opinion is inconsistent with the evidence of the applicant’s function, that he incorrectly applied diagnostic criteria and the AMA Guides criteria and failed to address causation. Further, Economical points to the dearth of accident-related pain complaints to his family physician, his return to a physical job within three weeks of the accident and the s. 44 report of Dr. Moolla, who found myofascial strain injuries, treatable within the MIG.
7On balance, I agree with Economical. The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or chronic pain syndrome. Here, while the applicant provided two reports—one from Dr. Bare, a chiropractor, and the other from Dr. Brooks, a physician—that both determined that he suffers from chronic pain, I prefer the s. 44 report of Dr. Moolla from December 2018, who found normal range of motion and diagnosed myofascial strain injuries treatable within the MIG. I find Dr. Moolla’s report is more proportional to the medical evidence.
8The reports on which the applicant relies were authored in January 2020 and October 2020, or over two years and nearly three years post-accident, raising significant causation concerns. Dr. Bare found normal range of motion throughout the spine, with only end range pain in the lumbar spine. I find his diagnosis of “anxiety, pain avoidance and adjustment disorder due to ongoing very serious impairments” is not only beyond the scope of his practice as a chiropractor, but unsupported by the medical evidence he purportedly reviewed. There is no objective medical evidence to support a “very serious impairment” where the applicant’s own self-reporting in the treatment notes reveals intermittent complaints of inconsistent severity. Further, there is limited indication that the applicant still has to modify his work other than shifting his position due to discomfort, that his interaction with his family is more strained as a result of his pain, that he developed psychosocial sequelae or that he has secondary de-conditioning due to disuse or avoidance, as the report concludes.
9The applicant was then referred to physician Dr. Brooks by his counsel and not by a physician. It is unclear what formed the basis for the referral where Dr. Bare assessed the applicant only a few months before. In any case, I find Dr. Brooks’ diagnosis to be similarly detached from the medical evidence. It revealed range of motion within normal limits and reports of pain in the 4-5/10 range. A physical examination was performed, however, it was conducted from six feet away due to Covid-19 protocols, so the applicant’s movements were simply observed as he pointed to his areas of pain. This subjective assessment led Dr. Brooks to findings of pain, generalized weakness, fatigue and some restricted functional AROM, purportedly “very suggestive of chronic pain syndrome.”
10The report then seemingly engages with the criteria for chronic pain under the AMA Guides. While not binding, the Tribunal has used the AMA Guides criteria as an interpretive tool for chronic pain claims. I agree with Economical that the applicant’s evidence falls well-short of meeting three of the six criteria, as required, as there is no evidence he is dependent on prescription drugs where he only takes over-the-counter Tylenol, there is nothing to suggest he is excessively dependent on health care providers or his family, that he has withdrawn from social, work or recreational activities because of his pain (other than no longer playing soccer perhaps), that his physical capacity is insufficient to pursue work where he continues to be employed full-time or that he has developed any psychosocial sequelae. Dr. Brooks’ suggestion that the applicant meets the AMA Guides criteria is not supported by the medical evidence or by the applicant’s own self-reporting. Contrary to the applicant’s claim that it is clear, I find it difficult to see how Dr. Brooks arrived at his chronic pain syndrome diagnosis on the report in evidence.
11While I recognize the applicant’s position that his pain has lingered and his reliance on treatment records as evidence of this, there are no contemporaneous accident-related pain complaints in the clinical notes of the family physician that discuss the severity of the applicant’s pain or the alleged effect on his function. The last note is dated November 9, 2018. In this vein, that the applicant returned to work within weeks of the accident and continues to work full-time supports that his pain is not functionally disabling, even if he feels pain after driving for more than 30 minutes or doing a task for 2 hours. The applicant self-reported to Dr. Moolla that his pain is 4.5/10, which can hardly be described as severe or debilitating in nature and especially so where it is not accompanied by functional impairment, other than his subjective report that household activities that require endurance are aggravating factors. While I recognize that the report also states that the applicant reported that the pain can reach “12 out of 10”, this level of severity of pain would obviously be crippling, if it were supported by the bulk of the medical evidence in the file. On balance, I find that it is not.
12In the 2018 assessment by Dr. Moolla, there was no evidence of musculoskeletal impairment and no associated radiculopathy or neurological impairment. Dr. Moolla found nothing to suggest that the applicant sustained anything other than soft-tissue injuries. Since that assessment, the applicant has provided no diagnostic imaging results or reports that speak to an underlying musculoskeletal or mechanical issue that would support the development of a chronic pain condition or the type of facet joint shearing Dr. Bare describes over two years later. Neither of Dr. Bare nor Dr. Brooks’ opinions seem to be based on any objective evidence or imaging (or even a thorough physical examination in Dr. Brooks’ report), but rather on speculation based on the applicant’s own reporting, which in my view calls into question their diagnoses. In any event, the applicant’s pain is reportedly relieved by shifting or stretching and by taking Tylenol Extra Strength in the morning and all of the assessments revealed normal ranges of motion. On balance, I assign greater weight to the report of Dr. Moolla over the reports of Dr. Bare and Dr. Brooks. I see no reason to interfere with Economical’s determination.
13Accordingly, I find the applicant has not met his burden of demonstrating on a balance of probabilities that his accident-related pain warrants removal from and treatment beyond the MIG.
Are the treatment plans reasonable and necessary?
14Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required. As no benefits are overdue, no interest is payable.
CONCLUSION
15The applicant has not demonstrated that removal from and treatment beyond the MIG is warranted. The treatment plans in dispute are not reasonable and necessary and no interest is payable.
Released: June 15, 2021
__________________________
Jesse A. Boyce
Vice-Chair
Footnotes
- O. Reg. 34/10, as amended.