Madimba v. Primmum Ins. Co., 2022 CanLII 11159

Licence Appeal Tribunal

Citation: Madimba v. Primmum Ins. Co., 2022 ONLAT 20-000372/AABS

Licence Appeal Tribunal File Number: 20-000372/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:

Nessa Madimba

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Ilona Agivaeva, Counsel

For the Respondent: Annemarie White, Counsel

HEARD: In Writing

BACKGROUND

1The applicant was injured in an accident on May 22, 2017, and sought benefits from the respondent, Primmum, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). The applicant was denied the benefit in dispute because Primmum determined that her accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

a. 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 Minor Injury Guideline?

b. Is the applicant entitled to $1,892.30 for chiropractic treatment, recommended by Gold Standard Medical in a treatment plan (OCF-18) dated November 24, 2017?

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

RESULT

3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest applies.

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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant.

5The applicant submits that she suffers from “permanent and serious impairments of important physical, mental and psychological functions” as a result of the accident, which she identifies as back pain and sciatica. As I understand it, she submits that her diagnosis of sciatica and the chronicity of her pain warrants removal from the MIG. She relies on a single visit note with her family physician, Dr. Yuh, the hospital records from St. Joseph’s and the account statement from Gold Standard Medical where she received treatment post-accident.

6In response, Primmum submits that the applicant sustained minor injuries that are treatable within the MIG, as the applicant only submitted a single note from Dr. Yuh and is seemingly relying on an OHIP billing code to support her assertion that she was diagnosed with sciatica. Further, Primmum submits that the applicant has never been diagnosed with chronic pain and, in any event, has not furnished evidence of functional impairment as a result of the accident. It relies on the s. 44 Insurer’s Examination (IE) report of Dr. Oshidari who determined that the applicant sustained minor injuries treatable within the MIG.

7I agree with Primmum. The applicant has simply failed to provide compelling evidence to justify removal from the MIG. On review of the July 10, 2017 visit note from Dr. Yuh, the applicant was assessed as having “mechanical back pain MVA whiplash” and advised to “continue therapy Voltaren gel baseline imaging RTC prn.” These impairments clearly fall within the definition of a minor injury under s. 3(1), are in line with the hospital report that found mechanical low back pain the day following the accident and also the sprain and strain injuries that were diagnosed by Dr. Oshidari in his s. 44 report.

8While the applicant submits she was diagnosed by Dr. Yuh with sciatica that warrants removal from the MIG, on review, it is evident that she is relying solely on the generic OHIP diagnostic billing code “724”, which encompasses all of Lumbar strain, lumbago, coccydnia and sciatica, as well as general posterior pain and low back pain. Suffice to say, a billing code encompassing several conditions is not an express diagnosis and especially so where there is no mention of sciatica in Dr. Yuh’s note or in any of the other documents provided by the applicant. Indeed, the applicant’s own Disability Certificate (OCF-3), submitted by Primmum, does not list sciatica as an impairment, but indicates that her accident-related impairments are all back sprain and strain injuries and headaches. Further, the applicant did not submit evidence of any diagnostic imaging, investigations into or referrals for her purported condition.

9In reply, the applicant also asserts that the duration of her pain constitutes a chronic pain condition. However, her submissions and evidence fall well short of meeting any of the standards the Tribunal has utilized for assessing chronic pain claims. For instance, the Tribunal was not directed to an actual diagnosis of chronic pain or chronic pain syndrome. On the two pieces of medical evidence provided, the applicant has clearly not demonstrated consistent reporting of pain of a severity that causes functional impairment. Indeed, she has not articulated a functional impairment at all and reported to Dr. Oshidari that she is independent in her daily and household activities. Similarly, in the absence of a diagnosis or consistent complaints of functional impairment, the applicant did not engage with any of the six criteria under the AMA Guides that the Tribunal has adopted as an interpretive tool for assessing chronic pain claims.

10While the applicant points to her complaints of pain in Dr. Oshidari’s report, it is difficult to find that these subjective complaints are evidence of a chronic pain condition that warrants removal from the MIG where Dr. Oshidari diagnosed the applicant with minor injuries that are treatable within the MIG. I find there is no contemporaneous evidence to support the applicant’s position or to undermine Dr. Oshidari’s opinion. As a result, on the limited medical evidence before the Tribunal, I see no reason to interfere with Primmum’s determination that the applicant’s accident-related impairments are predominantly minor injuries that are treatable within the MIG.

Is the treatment plan reasonable and necessary?

11Having determined that the applicant has not demonstrated that removal from the MIG is required, it is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the treatment plan is reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

12The applicant has not demonstrated that her injuries warrant removal from the MIG or that the treatment plan is reasonable and necessary.