In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
BETWEEN :
D. F.
Applicant
and
Primmum Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Matthew M. Létourneau
Appearances:
For the Appellant:
Murad Huseynov, Paralegal
For the Respondent:
Michelle Legault, Counsel
Written Hearing:
Heard by way of written submissions
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in an automobile accident on October 28, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2This decision sets out the findings and determinations made in concluding that the applicant’s injuries are minor and that he is not entitled to the examination expense and medical benefit, nor interest, as claimed in his application.
ISSUES
3The issues in dispute were determined in Adjudicator Gosio’s order of March 2, 2021 as follows:
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 Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to an examination expense in the amount of $2,579.78 for a chronic pain assessment recommended by Excel Medical in a treatment plan (OCF-18) submitted on November 9, 2018, and denied by the respondent on March 7, 2019?
iii. Is the applicant entitled to a medical benefit in the amount of $8,207.28 for a chronic pain program recommended by Excel Medical in a treatment plan (OCF-18) submitted on March 27, 2019, and denied by the respondent on April 4, 2019?
iv. Is the applicant entitled to interest on overdue payment of benefits?
4The applicant submits that his injuries do not fall within the MIG and that he is entitled to the benefits listed above. The respondent rejects the applicant’s claim that his injuries are not minor, and argues they were not caused by the accident and that the treatment plans are not reasonable or necessary. The respondent requests a denial of all benefits and interest.
5I find that the injuries were predominantly minor as defined in s. 3 of the Schedule after considering the medical evidence and the submissions of both parties. As such, the applicant is not entitled to the claimed assessment, the claimed medical benefit, nor interest.
ANALYSIS
6The applicant’s injuries are subject to the MIG. The applicant can only be removed from the MIG, as defined by ss. 3(1) of the Schedule, if he can show that his injuries are not predominantly minor, if he can show that he has a pre-existing condition, or that he suffers chronic pain or psychological impairments due to the motor vehicle collision.
7I will first analyze the applicant’s injuries in relation to the MIG. I will then review whether he suffers from a pre-existing condition, chronic pain or psychological impairments due to the accident.
Applicant’s Injuries are Predominantly Minor
8The applicant was involved in an accident on October 28, 2015. He was in a motor vehicle accident, where his minivan was struck by another vehicle and he sustained injuries.
9I find that a review of the applicant’s injuries demonstrate that they were within the MIG. The applicant argues that the applicant suffered from physical and psychological injuries that remove him from the MIG, including Chronic Pain Disorder.
10On October 29, 2015, the applicant’s family physician, [DR. JG], initially noted complaints of pain in his neck, shoulders, and back due to the collision. Whiplash was diagnosed and medication was prescribed for the pain.
11As of November 5, 2015, [DR. JG] treated the applicant’s injuries as soft tissue strains and an x-ray report was ordered for the cervical, thoracic and lumbar spine. This report showed normal alignment and no fractures. Minor degenerative changes were noted in the cervical spine. An ultrasound on the right shoulder was then received on November 23, 2015 which showed the bicep tendon is intact, but that there were signs of calcific tendinopathy of the subscapularis tendon.
12I find that injuries sustained by the applicant were within the MIG in review of the x-ray, the ultrasound and the family doctor’s Clinical Notes and Records (“CNRs”). The injuries diagnosed all meet the definition at s. 3 of the Schedule. The injuries qualify as a “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation”. I agree with the respondent that applicant’s tendinopathy is included in the definition of a “sprain”.
13Dr. C. Walton confirms in a letter to [DR. JG] on December 22, 2015 that the applicant’s injuries appear to be “soft tissue strain following his accident in October 2015”. This finding is helpful as it clearly links the accident to the injuries which I find are in the MIG.
14[DR. JG] further notes on February 9, 2016 regarding the applicant that: “back pain improving” (sic) and that he was receiving physiotherapy and, while having bad days, this was becoming less frequent. This is the last entry by [DR. JG] in his CNRs before March 8, 2016 where he observed the applicant further to a workplace injury where he fell on his back and reported back pain and right paraspinal tenderness. [DR. JG]’s notes later confirm on, November 3, 2016, that the applicant’s back pain remained and physiotherapy was still recommended.
15An IE Physiatry Assessment by Dr. Julie Millard was conducted on November 16, 2016 regarding the application of the MIG. Dr. Millard reports on December 22, 2016 that the applicant sustained soft-tissue injuries to the neck, upper and lower back and right wrist. She ordered an MRI of the applicant’s spine and recommended an EMG/NCS. She did not conclude whether the injuries were minor at that time.
16The IE Report of Dr. J. Millard of December 22, 2016 does point to mainly soft tissue injuries. I find that Dr. Millard’s report weighs in favour of finding that the applicant’s injuries were not outside of the MIG as of this date.
17Furthermore, [DR. JG] notes on January 13, 2016 that the applicant had improving shoulder and back health, he also stated that the applicant was largely able to resume his daily activities, including a full work load and school.
18For the reasons I state above, I find the applicant’s injuries are not predominantly minor. I will now review whether the applicant suffered from a pre-existing condition, chronic pain or psychological impairments due to the accident.
Other Injuries Not Removing Applicant From MIG
19The applicant submits that he is removed from the MIG due to a medical diagnosis of Chronic Pain Disorder, among other physical and psychological injuries identified by his treating health professionals. I disagree.
20The Chronic Pain assessment and related treatment plan were denied by the respondent due to the applicant having reached his MIG threshold for treatment. I agree with this assessment.
21On March 10, 2019, Dr. Brown of Excel Medical conducted a Chronic Pain Assessment and diagnosed the applicant with Chronic Pain Syndrome and chronic pain lumbar and cervical spine (including degenerative disc disease). Dr. Brown confirms that more than 3 years after the accident, the pain remains and has exacerbated the applicant’s physical health and caused psychological issues of anxiety and depressed mood. An OCF-18 for Chronic Pain was submitted by Excel Medical to address the impairments as assessed.
22Based on my review of the assessments and CNRs noted above, I find that the applicant did not have signs of a pre-existing condition that would remove him from the MIG. No prior finding of degenerative diseases appeared in the evidence provided by the applicant.
23I also find that the psychological injury did not result from the accident, given Dr. Ralph Lubbers, psychologist, who, in December 2015, determined that the applicant did not have any DSM-V disorders to warrant removal from the MIG. This report was before the workplace accident in March 2016 and relates specifically to the injuries following the collision.
24The medical information provided shows that the applicant was not diagnosed with any injuries other than soft tissue sprains or strains for 18 months after the accident. The information in the evidence regarding the workplace fall and injuries from the applicant’s job as a forklift driver are an intervening factor that tends to lessen the reliability of the medical information that comes afterwards.
25The applicant cannot establish entitlement to the Chronic Pain benefits in pursuant to the Schedule, that the applicant remained in the MIG, and that any impairments were the result of the work accident rather than the motor vehicle accident.
26I find on a balance of probabilities that the applicant has not met his onus in proving that he suffers chronic pain due to the subject motor vehicle accident.
27The criteria for demonstrating chronic pain are defined in AA v Technology Insurance Company Inc. 2020 CanLII 12719 (ON LAT) and includes whether the applicant is disrupted or disabled from activities of daily living. I find based on the above that the applicant was able to continue his daily activities further to the accident in 2015.
28In 17-002948 v Wawanesa Mutual Insurance Company, 2018 CanLII 76442 (ON LAT), the Tribunal found that gaps in treatment, medication and assessment can demonstrate that an applicant does not suffer from chronic pain.
29The gaps in treatment are lengthy and do not point to consistent pain of the nature required to demonstrate chronic pain. Between the initial visits of 2015 to this visit in 2019, there are no referrals to chronic pain in the CNRs. I cannot find in favour of the applicant given that there is a lengthy period, especially between the MVA and the workplace accident, where the reports of injuries are not consistent with chronic pain.
30The reports state that there are gaps in treatment and that the applicant was not disrupted or disabled from daily living, as noted by [DR. JG], the IE assessors, Dr. Walton and Dr. Lubbers.
31The respondent views the applicant’s claims of impairments resulting from the accident as being exacerbated by a work accident in March 2016 and were not caused by the motor vehicle accident or are too remote given the gaps in treatment. I agree.
32The applicant’s injuries were improving until the first workplace accident. Given that the claimed treatment is in 2019, the causation cannot be established with the medical evidence presented. It is too remote to be substantially linked to the subject motor vehicle accident.
33The respondent points to reports of improvement, such as in statements of January 2016 from [DR. JG], that the applicant was “progressing towards recovery” as signs that this back pain was minor or was not an issue until the workplace accident of March 8, 2016. I agree. I find that there is a lack objective medical information showing that Chronic Pain Syndrome can be properly linked to the accident. The applicant suffered soft tissue impairments initially that were being treated with medication and progress was being made until the workplace accident.
34The applicant’s injuries were mainly soft tissue in nature or were caused by the work accident.
35On a balance of probabilities, the applicant is not removed from the MIG due to a medical diagnosis of Chronic Pain Disorder, among other physical and psychological injuries.
Interest
36Interest is not owing on the benefits as none have been found to be payable.
ORDER
37The applicant’s injuries are minor injuries, as defined by the Schedule. The applicant is not entitled to the claimed medical benefits and treatment plan claimed in the application. Interest is not payable.
Released: December 13, 2022
Matthew M. Létourneau
Adjudicator