Citation: Russell v. Economical Mutual Insurance Company, 2022 ONLAT 20-009752/AABS

Licence Appeal Tribunal File Number: 20-009752/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:

Joshua Russell

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

Modasir Rajabali, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on October 24, 2018, and sought benefits from the respondent, The Economical Mutual Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). Economical Mutual Insurance denied his claims based on its determination that he sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. 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?

2. Is the applicant entitled to medical benefits for chiropractic services recommended by Brampton Civic Care Centre as follows:

i. $3,245.94 submitted March 7, 2019 and denied March 21, 2019;

ii. $2,681.88 submitted May 29, 2019 and denied June 12, 2019?

iii. $206.66 (after partial approval) submitted January 30, 2019 and denied February 8, 2019?

3. Is the applicant entitled to $1,995.33 for a psychological assessment, recommended by Brampton Civic Care Centre submitted June 19, 2019 and denied July 8, 2019?

4. Is the applicant entitled to $1,400.00 for an in-home attendant care assessment recommended by Ontario Independent Assessment Centre submitted September 30, 2019 and denied October 7, 2019?

5. Is the applicant entitled to $2,200 for a chronic pain assessment recommended by Ontario Independent Assessment Centre submitted October 2, 2019 and denied October 7, 2019?

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

result

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. It is therefore unnecessary to consider the reasonableness and necessity of the treatment plans or the issue of interest.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person 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.”

5In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

6The applicant submits that his injuries fall outside the MIG as he has chronic pain and a psychological condition. He relies on the Disability Certification (OCF-3) completed by chiropractor Dr. Roger Singh from the Brampton Civic Care Centre, the clinical notes and records (CNRs) from his family doctor, Dr. Felix Ashkomhe, and a consultation report from Dr. David Mula at the Ravlin Medical Group.

7The respondent submits the applicant has failed to prove, on a balance of probabilities, that he suffers from an accident-related impairment that is not within the MIG. The respondent questions the causality of the applicant’s back pain as the applicant did not visit his family doctor until 10 months after the accident. It also submits he does not meet the criteria for a finding of chronic pain as set out in 17-007825 v Aviva Insurance Canada 2018 CanLii 98282 ON LAT.

Does the applicant suffer from a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG?

8The applicant did not argue or submit any evidence to support that he should be removed from the MIG as a result of a pre-existing medical condition. Therefore, I do not find that the applicant is removed from the MIG as a result of a pre-existing medical condition.

Did the applicant sustain predominantly minor physical injuries?

9I find the applicant suffered predominantly minor injuries as a result of the accident.

10The physical injuries identified on the OCF-3 are sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of shoulder girdle, sprain and strain of parts of knee, contusion of forearm, superficial injury of head, and tension-type headaches. The physical injuries sustained fall within the definition of a “minor injury” under s. 3(1).

Does the applicant suffer from chronic pain as a result of the accident?

11I find the applicant has not demonstrated that his pain causes functional impairment necessitating removal from the MIG.

12The applicant submits that he suffers from chronic pain, which removes him from the MIG as evidenced in the CNRs of Dr. Asekomhe and from the consultation report from Dr. Mula.

13The respondent submits that the applicant does not meet the criteria for a finding of chronic pain.

14The American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition 2008, pp 23-24 (AMA Guides) identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome:

1. the 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 form social milieu, including work, recreation, or other social contracts;

5. a 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; and

6. the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.

15The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule for MIG purposes. The Tribunal has adopted the use of the AMA Guides as an interpretative tool for evaluating chronic pain claims in the absence of a diagnosis.

16In reviewing the criteria, I agree with the respondent and find the following:

i. The applicant was prescribed Naproxen at the hospital on October 24, 2018. At the time of the insurer’s examination of April 2019, the psychologist, Dr. Jason Bacchiochi, recorded the applicant as not taking any medication. The applicant did not visit his family doctor until 10 months after the accident on August 23, 2019, whereby the doctor prescribed Celebrex. He visited his family doctor again on October 2, 2019 and was prescribed Arthrotec and Flexeril. While the June 2020 consultation report documented that the applicant was taking Effexor, there is no indication what the medication was prescribed for, when it was prescribed, or by whom. As such, I do not find the applicant was dependent on prescription drugs beyond the recommended duration.

ii. As previously stated, the applicant did not visit his family doctor until 10 months after the accident. He visited his family doctor on August 23, 2019 complaining of back pain and again on October 2, 2019. His next visit was on November 27, 2019 for a painful right ear and right heel. There are no further family doctor entries until March 21, 2021. I do not find that four family doctor visits in two and a half years is indicative of someone who has an excessive dependence on health care providers.

iii. The applicant’s accident benefit statement of March 25, 2019 stated that the applicant was working at the time of the accident but resigned, as he did not like his job. He went on to get a new job as a full time cook at the beginning of March 1, 2019. He noted that he is able to shower, dress, go to work, have friends over, and that he sometimes goes out to eat. He documented that he takes out the garbage, vacuums, and cleans the bathrooms, which are all chores he was responsible for prior to the accident.¹ I find the applicant was able to look after himself, pursue full-time work, complete household chores, and socialize after the accident.

17While I acknowledge the applicant has back pain complaints, I find the applicant does not meet at least three of the criteria identified in the AMA Guides to establish chronic pain syndrome. I also find that as the applicant can work full-time, socialize with family and friends, complete household chores, and is able to attend to his self-care needs, that he has not demonstrated that his pain is of an ongoing or consistent severity that it causes functional impairment thereby necessitating removal from the MIG.

Does the applicant suffer from a psychological impairment as a result of the accident that would remove him from the MIG?

18I find the applicant does not suffer from a psychological impairment as a result of the accident that would remove him from the MIG.

19The respondent submits that when the applicant was assessed by its s. 44 psychologist on April 25, 2019, the applicant was not taking any prescription medication, and did not believe he required any psychological treatment.

20The applicant submits that he developed notable psychological impairments following the motor vehicle accident and relies on the June 24, 2020 consultation report of Dr. Mula and the CNRs from Dr. Asekomhe from March 17, 2021.

21I do not put much weight on either the June 2020 consultation report or Dr. Asekomhe’s CNRs from March 2021. The CNRs of March 2021 noted the applicant “still feels depressed and more than anxiety disorder” and is currently on Effexor, however, none of Dr. Asekomhe’s CNRs prior to March 2021 document the applicant complaining of depression or anxiety nor is there an entry showing when the applicant started taking Effexor. Also, there is no psychological diagnosis nor any indication that even if the applicant is suffering from depression and anxiety, that these psychological impairments are as a result of the accident that occurred two and a half years earlier.

22The consultation report noted the applicant has a past history of depression and anxiety and is currently taking Effexor, however, there is no indication on when the applicant was originally prescribed it, which doctor prescribed it, or why it was prescribed. Also, there is no psychological diagnosis by Dr. Mula, just a notation.

23Although a psychological diagnosis is not strictly required, I find that there is a lack of compelling evidence to support the presence of a psychological impairment as a result of the accident.

24Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required. As no benefits are overdue, no interest is payable under s. 51.

CONCLUSION AND ORDER

25The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

26The applicant is not entitled to the treatment plans claimed in this application and therefore, no interest is owing to the applicant.

Footnotes

1. 1Applicant’s submission, Tab 4