Obiri-Yeboah v. Unifund Assurance Company, 2022 CanLII 106453

Citation: Obiri-Yeboah v. Unifund Assurance Company, 2022 ONLAT 20-006394/AABS

Licence Appeal Tribunal File Number: 20-006394/AABS

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:

Addo Obiri-Yeboah

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Addo Obiri-Yeboah, Applicant Andrea Seecharan, Representative

For the Respondent: Farzana Merchant, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant claims that as a result of the accident on June 22, 2018 he sustained a number of physical and psychological injuries and sought accident benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule"). The applicant applied for the cost of an examination for a psychological and orthopaedic assessment and medical benefits for chiropractic and physiotherapy treatments, all of which were denied by the respondent on the basis that the applicant's injuries are within the Minor Injury Guideline ("MIG"). The MIG limits have been exhausted. The respondent further argues that the minor and uncomplicated nature of the applicant's soft tissue injuries and complaints of pain to his family doctor are related to his job responsibilities that require him to drive a forklift all day.

2The applicant maintains his injuries are not within the MIG due to chronic pain and a psychological impairment. He maintains further that he is entitled to the medical benefits and cost of examinations in dispute as they are reasonable and necessary.

ISSUES IN DISPUTE

3The issues are as follows:

a. Did the applicant sustain a predominantly minor injury as defined under the MIG and, thus, limited to a $3,500 limit on treatment?

b. If the applicant's injuries are found to be outside of the MIG, is the applicant entitled to the disputed medical benefit and the cost of the examinations because they are reasonable and necessary:

i. Is the applicant entitled to a medical benefit for $449.94 ($2399.29 less the approved amount of $1950) ¹ for chiropractic services recommended by Complete Rehab Centre in a treatment plan submitted on October 24, 2018, and denied on October 25, 2018?

ii. Is the applicant entitled to a medical benefit for $2108.11 for physiotherapy recommended by Complete Rehab Centre in a treatment plan submitted on January 7, 2019, and denied on January 11, 2019?

iii. Is the applicant entitled to a medical benefit for $1803.73 for chiropractic services recommended by Complete Rehab Centre in a treatment plan submitted on January 3, 2020, and denied on January 8, 2020?

iv. Is the applicant entitled to payment for the cost of an examination for $2680 for an orthopaedic assessment, recommended by Complete Rehab Centre in a treatment plan submitted February 13, 2019 and denied on February 28, 2019?

v. Is the applicant entitled to payment for the cost of an examination for $2460 for a psychological assessment, recommended by Complete Rehab Centre in a treatment plan submitted on February 27, 2019, and denied on February 28, 2019?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4For the reasons set out below, I find that the applicant's impairment falls within the MIG. As such he is not entitled to the disputed treatment plans. As his injuries are within MIG, and as the MIG limits have been exhausted, it is not necessary to determine if the disputed treatment plans are reasonable and necessary. The claim for interest is dismissed.

THE LAW - THE MINOR INJURY GUIDELINE

5The main consideration in this appeal is whether the applicant's injuries fall within the MIG.

6The MIG establishes a framework for the treatment of minor injuries. The term "minor injury" is defined in s. 3 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 also defined in s. 3. Section 18(1) limits treatment when the MIG applies to $3500.

7An insured person 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 or a concussion may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The Position of the Parties

8The applicant submits that his injuries are not minor, since, as a result of the accident, he suffered a severe psychological impairment ² and the medical records support a chronic pain diagnosis. ³ He submits he has reported nightmares, stress and anxiety and depression, fear of driving and flashbacks of the accident.⁴

9The applicant submits the medical records support a chronic pain diagnosis as this is consistent with ongoing pain complaints from time to time in his neck and back as a direct result of the accident.⁵ He submits this condition has had a significant impact on all facets of his life which takes him out of the MIG. His injuries have deteriorated over time. He states he has had continuous treatment of ongoing pain for over 3 years since the accident.

10The respondent maintains the applicant sustained soft tissue injuries and the applicant did not sustain any physical or psychological injury to take him out of the MIG. It denies he has developed chronic pain syndrome and submits the applicant has not submitted medical evidence to support a chronic pain diagnosis or a psychological impairment. The respondent maintains that the applicant's return to work in a physically demanding job after the accident confirms the injuries are of a minor nature and are uncomplicated soft tissue injuries.⁶ In addition, the applicant has failed to show the treatment plans have been incurred, as required under the Schedule.

11For the reasons set out below, I find that the applicant's impairment falls within the MIG. The applicant has failed to prove, on a balance of probabilities, that his injuries place him outside MIG. As the MIG limit is exhausted, he is not entitled to any of the treatment plans in dispute. As such, it is not necessary to determine if the disputed treatment plans are reasonable and necessary

The Applicant's Injuries

12At the time of the accident, the applicant states he immediately experienced pain in his neck and chest from hitting the steering wheel. He started experiencing low back pain the day after the accident. He attended at his family doctor's office in June 2018 and complained of low back pain and was diagnosed with a residual back strain.⁷ He attended at an urgent care centre in October 2019 where he was diagnosed by Dr. Bemmo with a neck sprain. ⁸

13On June 25, 2018, Dr. Rahim Jessa, chiropractor, completed a disability certificate (OCF-3)⁹ in which he noted the applicant sustained the following injuries: radiculopathy possible lumbar and cervical, sprain and strains of the cervical, lumbar and thoracic spine, shoulder, joint and ribs and sternum. The OCF-3 states the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident. I give little weight to the statement about work in the OCF-3. As the applicant returned to work within 6 days of the accident, the statement that he was unable to perform the essential tasks of his employment is not accurate. The respondent states the applicant also presented no evidence that he returned to his full-time job requiring any modifications. ¹⁰ Moreover, there is no medical evidence presented of any injury to the ribs and sternum.

14The applicant attended for physical rehabilitation treatment beginning in June 2018 and continued until the fall of 2020. He received chiropractic and massage treatment at the Complete Rehab Centre¹¹ for his neck, lower back, and shoulders. The clinical notes and records from Complete Rehab Centre indicate ongoing pain to the applicant's neck and back. Many of the records contain handwritten notes which are illegible. In his questionnaire completed on February 8, 2019 the applicant indicated his pain was very mild. ¹² He had further treatment at a different treatment facility between July and September 2020 to treat his neck and wrist pain related to his physically demanding job.¹³ The physical therapy evaluation of the treating facility of July 2, 2020 indicate the MOI (which I assume refers to mode of injury) is heavy lifting at work. ¹⁴

15On June 26, 2018, the applicant saw his family doctor, Dr. Berenbaum ¹⁵ with complaints of neck pain, elevated blood pressure and lower back pain. The clinical notes of January 2, 2018, which pre-date the accident, indicate he saw his family doctor for pre-existing neck and left shoulder pain. The applicant showed evidence of a pre existing condition (his neck and shoulder) but did not present evidence of how this would prevent him from achieving maximum medical recovery from his injuries and thus remove him from the MIG. He saw the family doctor again on September 27, 2018 and complained of ongoing back pain. The applicant told his family doctor on September 27, 2018 that he was attending physiotherapy and his back was getting better. There is no mention of neck pain during this visit.

16A review of the clinical notes of the family doctor indicate the applicant visited his family physician only on five occasions between June 2018 to March 2020. Between June 2018 and September 2019, he only complained once about the accident, or neck and back pain. The respondent notes that the applicant also did not visit his family doctor between September 27, 2018 and September 18, 2019. ¹⁶

17On October 29, 2019, he attended an urgent care facility and complained of neck pain complaint and related it to his physically demanding job.¹⁷ He was diagnosed with neck strain. In November 23, 2019 the applicant had an X-ray of his cervical spine which revealed some ossification in the ligamentum. ¹⁸ The X-Ray report stated no acute abnormality. The applicant also had an MRI on October 28, 2020 which revealed mild to moderate degenerative changes most significant at C3-4 resulting in severe foraminal stenosis. The respondent states the MRI was not produced to the respondent in advance of the hearing and an adverse inference should be drawn from this. I find the MRI report which reported mild to moderate degenerative changes is of little value as degenerative changes are not shown by the medical evidence to be the result of the accident.

Psychological Impairment

18The evidence submitted by the applicant to support a psychological impairment is a psychological screening report completed by Dr. Jon Mills, psychologist, dated February 8, 2019. Dr. Mills proposed a psychological assessment. The applicant in responding to questions stated "No" when responding to the questions "Are you feeling nervous, irritable or depressed" and "Are you scared of driving or travelling in a vehicle". The psychological screening report noted that the applicant was experiencing "ongoing fearfulness related to driving since the accident" and he was feeling "irritable, frustrated and worried".

19The respondent scheduled a psychological Insurer's Examination ("IE") on February 4, 2020. Despite notice of the assessment, the applicant did not attend.

The IE Assessment by Dr. Walters

20The medical evidence of the applicant has to be examined in light of the IE assessment completed by the respondent. The applicant attended an IE on January 28, 2020 performed by Dr. Lawrence Walters, general practitioner. His examination did not reveal any objective evidence of muscular impairment. The applicant reported left shoulder pain during the examination. The applicant demonstrated full functional ranges of motion as well as normal strength and reflexes. In addition, he reported that his back pain had resolved. ¹⁹

21Dr. Walters diagnosed the applicant with WAD-II strain and lumbosacral strain, the latter which had resolved. He concluded that these were minor injuries as defined in the Schedule. Furthermore, Dr. Walters confirmed that the applicant did not present with any pre-existing conditions that would require treatment outside of the MIG.

Are the Applicant's Impairment's within MIG?

Chronic Pain

22The Tribunal has determined that an applicant may escape MIG if they suffer from chronic pain that causes functional impairment. A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain. Tribunal decisions have held that ongoing pain alone is insufficient to remove one out of the MIG. Ongoing pain also must be accompanied by some functional impairment."

23Based on the totality of the evidence before me, I find there is insufficient evidence the applicant suffers from chronic pain from the accident that removes him from the MIG.

24The evidence presented by the applicant indicates the applicant is suffering ongoing pain but not chronic pain sufficient to take him out of the MIG. The family doctor records indicate the applicant had gaps in his visit to his family doctor. For example, between September 2018 and September 2019 he never visited the family doctor regarding his ongoing pain. When he did see his family doctor in September 2019 the pain was related to his physically demanding job. As well, in July 2020 the treatment facility indicated his neck and wrist pain was due to a work related injury.

25There is also no diagnosis of chronic pain. There is also no referral to any chronic pain clinic. A diagnosis is not necessarily required but there must be evidence of chronic pain that causes a functional impairment. There is no such evidence. The applicant has continued to work in a physically demanding job after the accident as a forklift operator which I find shows he has functioned well by returning to work after the accident. I find that the return to work after the accident for 2 years is not evidence of chronic pain that is continuous and of such a severity that it causes suffering and distress accompanied by functional impairment or disability.

Did the applicant sustain a psychological impairment?

26I find the applicant has not submitted medical evidence that supports the diagnosis of a psychological impairment or need for an assessment to determine if there is a psychological impairment that takes the applicant out of the MIG.

27The applicant's family doctor's records do not mention any psychological complaints. The screening report by Dr. Mills refers to several reported various psychological complaints by the applicant including fear of driving and stress. I do not accept this is evidence sufficient to establish a psychological impairment to take the applicant out of the MIG including the fact that the applicant has returned to driving. Moreover fear of driving is a symptom and not a diagnosis.

Are the Treatment Plans Reasonable and Necessary?

28Having determined that the applicant has not established that due to his injuries he should be removed from the MIG, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under sections 14 and 15 of the Schedule is not necessary. The evidence indicates that the treatment plans were denied on the basis of MIG and the MIG limits having been exhausted. The treatment available to the applicant would be subject to $3500.

29I also point out that the proposed treatment plan for a psychological assessment is proposed by Dr. Jessa who is a chiropractor. Any diagnosis of a psychological impairment is beyond his area of speciality.

30The claim for interest is dismissed.

Conclusion

31For the reasons outlined, I find that the applicant's impairment falls within the MIG. As such the limits for any treatment is limited to the MIG limits being $3500. It is also not necessary to determine if the treatment plans are not reasonable and necessary as the applicant's injuries fall within MIG. The claim for interest is dismissed.

Released: November 7, 2022

Thérèse Reilly, Adjudicator

Footnotes

1. 1The respondent partially approved the treatment plan and denied the balance as the MIG limits had been exhausted, Explanation of Benefit, dated October 25, 2018, respondent document brief.
2. 2Paragraph 4, applicant written submissions.
3. 3Paragraphs 17 and 23, applicant written submissions.
4. 4Paragraph 21, applicant written submissions.
5. 5Paragraphs 17 and 19, applicant written submissions.
6. 6Paragraphs 15, 22, 43 and 45, respondent written submissions.
7. 7Paragraph 9, applicant written submissions.
8. 8Paragraph 10, applicant written submissions.
9. 9OCF-3 dated June 25, 2018, tab 12, respondent document brief.
10. 10Paragraph 40, respondent written submissions.
11. 11Complete Rehab Centre, clinical records dated June 13, 2019 and March 27, 2020, tabs D and E, applicant written submissions.
12. 12Ibid, page 28.
13. 13Paragraph 45, respondent written submissions, tab 8, page 8 of the respondent hearing brief.
14. 14Fit Physiotherapy records, tab 8, page 8 of the respondent hearing brief.
15. 15Dr. Berenbaum, clinical records between August 8, 2017 and June 27, 2018, tab c, applicant written submissions.
16. 16Paragraph 21, respondent written submissions.
17. 17Respondent hearing brief, page 7 of tab 5, page 2 of tab 6, paragraph 23, respondent written submissions.
18. 18X-Ray November 23, 2019, tab E, applicant document brief.
19. 19IE Assessment report of Dr. Walters, January 28, 2020, tab 3, respondent document brief, pages 3 and 9.