Released Date: 06/14/2021
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:
Doris Owusu
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Anita John
APPEARANCES:
For the Applicant:
Doris Owusu, Applicant
Glen Bushi, Counsel
For the Respondent:
Fraser Chorley, Counsel
HEARD:
By way of written submissions
OVERVIEW
1D. O. (“the applicant”) was injured in an automobile accident (“the accident”) on September 29, 2017. She attended the William Osler Health System via ambulance. The ambulance call report indicates that the applicant was the belted driver of an SUV that was rear-ended with minor damage to the rear bumper. She sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'') from the respondent. She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline2 (“the MIG”). The applicant’s position is the opposite.
3If the applicant’s position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and, in turn, a determination of whether the claimed medical benefit is reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES
5Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?
6If the applicant’s injuries are not minor, then I must determine the following issues:
(i) Is the applicant entitled to a medical and rehabilitation benefit, in the amount of $2,355.58 for chiropractic treatment and physical therapy, recommended by 2121587 Ontario Inc., in a treatment plan (OCF-18) submitted on May 17, 2018 and denied on May 29, 2018?
(ii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant’s injuries are minor and therefore fall within the MIG. It is therefore unnecessary to consider the reasonableness and necessity of the treatment plan or the issue of interest.
ANALYSIS
The Minor Injury Guideline
8Section 3(1) of the Schedule 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.
9The onus is on the applicant to show that her injuries fall outside of the MIG3 The respondent relied on the decision of Scarlett v. Belair Insurance,4 where the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the applicant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500.00 cap for minor injuries on a balance of probabilities.
Does the applicant suffer from chronic pain?
10The applicant submits that she suffers from chronic pain, which removes her from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions.
11Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain.
12The respondent relies on the test for chronic pain as outlined in the Tribunal’s decision of 17-007825 v. Aviva Insurance Co.5 The respondent submits that the applicant’s claim for chronic pain should be assessed against six criteria described in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 6th Edition, which state that at least three of them must be met for a diagnosis of chronic pain:
(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances
(2) Excessive dependence on health care providers, spouse, or family
(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain
(4) Withdrawal from social milieu, including work, recreation, or other social contracts
(5) 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
(6) Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviours.
13The applicant does not contest these criteria nor does she disagree with the respondent that she must establish that she suffers from chronic pain as a result of the accident in order to be entitled to treatment outside of the Minor Injury Guideline.
14Although the Schedule does not require me to consider the AMA Guides’ criteria in relation to chronic pain, I accept the AMA criteria as key factors in assessing the applicant’s claim of chronic pain.
15The applicant relied on the following evidence to support her claim:
(i) In the clinical notes and records (“CNR”) of the Brampton Civic Hospital dated September 29, 2017, the emergency room physician, Dr. Aman Sikand, noted that the applicant complained of neck pain and headache at the frontal lobe rated as 7/10 in pain intensity for both.
(ii) On September 30, 2017, the applicant visited her family doctor, Dr. Safieh, who prescribed her Vimovo and Tylenol 3 and informed her to stay off work for seven days.
(iii) On October 10, 2017, the applicant visited Dr. Safieh and asked for a referral for x-rays for pain in her upper back and left shoulder.
(iv) On October 12, 2017, the applicant participated in an ultrasound and x-ray examinations of her cervical spine, thoracic spine and left shoulder. The examination of the cervical spine revealed mild degenerative disc disease at C3-4, C4-5 and C5-6 with minimal degenerative change at the other visualized levels. The left shoulder did not demonstrate any evidence of fracture and no definite evidence of dislocation. The thoracic spine demonstrates a mild S-shaped scoliosis convex to the right centered at T5 and convex to the left centered at T11-12. There is mild degenerative change in the thoracic spine. No definite compression fracture is seen.
(v) On November 14, 2017, the applicant complained of lower back pain, general weakness, bilateral back pain during a visit with Dr. Safieh, who advised her to continue with physiotherapy.
(vi) On May 14, 2018, the applicant reported to Dr. Safieh that she has been experiencing chronic pain in lumbar region, knees, neck, bilateral shoulders, and headaches. She also noted that she is unable to sleep, and her mood is low. The applicant continued with her physiotherapy treatment.
(vii) On May 31, 2018, the applicant complained of chronic bilateral knee pain to Dr. Safieh. The applicant asserted that the knee pain was aggravated by the subject motor vehicle accident.
(viii) On May 31, 2018, the applicant underwent an x-ray and an ultrasound on both knees at Gore Diagnostic Imaging. In terms of the x-ray for both knees, there were no arthropathy or fractures bilaterally. The ultrasound revealed that on the right knee, there is a small fluid collection along the pes anserine tendon in keeping with a small area of inflammation or small pes anserine bursitis. However, the x-ray revealed no collateral ligament tearing and no meniscal tearing. The ultrasound revealed on the left side that there is no tendinopathy or tendon tearing. In addition, the ultrasound revealed no collateral ligament tearing and no meniscal tearing.
(ix) On September 17, 2018, October 30, 2018, May 9, 2019 the applicant complained to Dr. Safieh of chronic back and neck pain. Dr. Safieh noted that the applicant’s chronic back and neck pain is due to the motor vehicle accident. The applicant indicated that she was participating in physiotherapy and massage therapy. Sleep has also been an issue due to pain.
(x) On November 26, 2019, the applicant complained to Dr. Safieh of bilateral knee pain and cracking associated with lower back pain.
16The respondent submits the following submissions to rebut the applicant’s claim for chronic pain:
(i) The first criterion requires that the applicant be on prescription drugs beyond their recommended duration. The clinical note from May 14, 2018 indicates that the applicant is not taking any analgesia. The applicant’s prescription summary indicates that she was prescribed 15 pills of Lenoltec #3 on September 30, 2017. She did not get another prescription for Lenoltec #3 filled until August 7, 2018.
(ii) There is no evidence that the applicant is excessively dependent on a health care provider or spouse.
(iii) There is no evidence that the applicant has undergone secondary deconditioning due to disuse or fear-avoidance. To the contrary, she continues to work in a physically demanding job.
(iv) There is no evidence that the applicant has withdrawn from social milieu.
(v) There is no evidence that the applicant has failed to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs. To the contrary, she continues to work in a physically demanding job. She has worked as a packer at Johnson Controls since 1998 and continues to work post-accident. The respondent has made no submissions on family or recreational needs.
(vi) There is no evidence that the applicant has developed psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours. While the records do suggest some stress and anxiety, the treating family doctor’s records indicate this is related to her son’s personal problems and, not as a result of the accident.
17I find that the arguments of the respondent are more persuasive than that of the applicant. I come to this conclusion because:
(i) On the date of loss (September 29, 2017), the applicant attended the William Osler Health System, where the emergency room physician, Dr. Aman Sikand, diagnosed the applicant’s injuries as “MVA soft tissue injuries” on the emergency CNR.
(ii) On September 29, 2017, the applicant underwent an x-ray of her c-spine at William Osler Health System – Brampton Civic Hospital, which showed mild multilevel degenerative disc disease. The examination revealed no malalignment and no bone destruction. There were no acute findings.
(iii) The Disability Certificate (OCF-3) dated October 25, 2017 and completed by Dr. Savreet Saini, does not identify “chronic pain” as one of the applicant’s impairments. Instead, it lists injuries that fall squarely within the Minor Injury Guideline: (i) sprain and strain of the cervical spine; (ii) sprain and strain of the lumbar spine; (iii) whiplash associated disorder with complaint of neck pain, stiffness or tenderness only; and (iv) injury of the muscles and tendons of the rotator cuff of the shoulder. There is no evidence of any injuries beyond soft tissue injuries.
(iv) The treatment plan (OCF-18), dated May 28, 2018, does not identify “chronic pain” as one of the applicant’s impairments.
(v) Dr. Safieh does not refer the applicant to any specialist. This suggests that the applicant’s injuries are not as severe as to require more than conservative treatment.
(vi) Although a diagnosis of chronic pain is not required, there must be compelling evidence of symptoms that are continuous, and of a severity that they cause suffering and distress accompanied by functional impairment or disability. There is no evidence that the applicant was diagnosed with chronic pain syndrome or needed to consult with a chronic pain clinic.
(vii) I am persuaded by the Tribunal Decision, 17-007825 v. Aviva Insurance Canada,6 that the respondent relies on. At paragraph 16 of that decision, Adjudicator Ferguson states: “while the applicant’s assessors diagnose chronic pain, they do not elaborate how the diagnoses were reached, against what criteria and accounting for [the applicant]’s everyday activities. This weakens their probative weight, especially when assessed against the evidence of [the applicant’s] post-accident social and occupational functionality.”
(viii) To the case at hand, I find that although Dr. Safieh assumes the applicant’s chronic pain stems from the motor vehicle accident, I find that he does not elaborate how the diagnoses was reached, against what criteria nor does he account for the applicant’s post-accident occupational functionality. I find Dr. Safieh’s evidence to be conclusionary in nature. I give his evidence little weight.
18Given the above, I find that the applicant does not meet the definition of chronic pain.
Does the applicant have a pre-existing condition?
19Subsection 18(2) of the Schedule provides that insured persons with minor injuries and who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
(i) There is a pre-existing medical condition that was documented by a health practitioner before the accident; and
(ii) The pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury if the insured is subject to the $3,500 on treatment costs under the MIG.7
20Removing an insured person from the MIG on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition alone will not automatically remove a person from the MIG; it must be shown to prevent maximal recovery within the cap imposed by the MIG.
21In terms of pre-accident medical history, on August 2, 2016, the applicant visited her family doctor and complained of a spinning sensation when she moved her head from left to right. The applicant was prescribed Serc 24 mg.
22In addition, on October 17, 2016, an ultrasound of the applicant’s right ankle revealed mild tenosynovitis of the extensor digitorum. There was also tenosynovitis of the peroneus brevis tendon identified.
23Furthermore, on August 14, 2017 the applicant complained that she experienced general weakness, headaches and lots of stress.
24I find that the respondent’s submissions more persuasive than the applicant’s submissions. I come to this conclusion because:
(i) The OCF-18 in dispute identifies the applicant’s injuries as pertaining to her cervical spine, lumbar spine, shoulders, or knee. The applicant’s pre-accident health describes no instances of ongoing pain or other ailments related to these areas.
(ii) On May 31, 2018, the applicant complained of bilateral knee pain. The report indicates the pain was aggravated by the motor vehicle accident, suggesting the pain pre-dates the accident, despite no records being made available to that effect, were submitted into evidence.
(iii) On June 14, 2018, an examination showed no swelling, no effusion, no scars or deformity and the ACL, LCL, MCL, and menisci were intact. Dr. Safieh assessed bursitis.
(iv) On August 6, 2018, the applicant underwent an x-ray of her lumbar spine and pelvis. The diagnostic imaging result at the William Osler Health System indicated that the alignment of the lumbar spine is normal with no significant abnormality. There is no evidence of fracture, dislocation or destructive charge. The imaging resulted noted that no significant abnormality was identified in the pelvis.
(v) In a progress note, dated February 26, 2019, Dr. Safieh diagnosed her back pain as arthritis.
(vi) On May 9, 2019, the applicant underwent an x-ray at Gore Diagnostic Imaging of her lumbar spine which showed mild degenerative disc disease at L1-L2 and L2-L3 as well as facet osteoarthritis of the two lower lumbar segments bilaterally.
25Two years after the motor vehicle accident, the applicant informed Dr. Safieh about her back pain and her treating doctor does not link the pain to the accident but instead diagnoses the applicant with osteoarthritis.
26For the purposes of the pre-existing condition test, I note that that mild degenerative disc disease was not diagnosed until after the accident, and therefore, fails on the part of the test that requires that the pre-existing condition to have been identified by a healthcare practitioner prior to the accident.
CONCLUSION
27For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that fall within the MIG. The applicant has not satisfied her onus of a pre-existing condition to be removed from the MIG under s. 18(2) of the Schedule. As the $3,500.00 limit on funding for minor injuries has been exhausted, I do not need to analyze the reasonableness and necessity of the disputed treatment plan. Accordingly, she is not entitled to the treatment plan claimed in this application. As no payments are overdue, it follows that there is no interest payable under the Schedule. This application is dismissed.
Released: June 14, 2021
Anita John
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24 [hereinafter Scarlett].
- 2015 ONSC 3695.
- 17-007825 v. Aviva Insurance Company, 2018 CanLII 98282 (ON LAT)
- 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT)
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.```