Licence Appeal Tribunal File Number: 20-005391/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:
Neermal Rambharat
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Anastasiya Chepak, Paralegal
For the Respondent:
Grant Black, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, N.R., was involved in an automobile accident on February 23, 2018, and sought accident benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). Economical denied N.R.’s benefits claim on the basis of its determination that his impairments were within the Minor Injury Guideline (the “MIG”) and that the treatment plans were not reasonable and necessary. N.R. disagreed and applied to the Tribunal for resolution of the dispute.
PRELIMINARY ISSUE
2At the case conference, Economical raised the preliminary issue that N.R. was statute-barred from proceeding with his claim under s. 56 of the Schedule because he failed to appeal the denial of a treatment plan (OCF-18) dated April 25, 2018, within the two-year limitation period1. The preliminary issue was scheduled to be addressed with the substantive issues in this proceeding.
ISSUES
3The Case Conference Order identified the issues in dispute as follows:
a. Are N.R.’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?
4If N.R.’s injuries are not predominantly minor, then I must determine:
a. Is the medical benefit in the amount of $2,057.66 for physiotherapy treatment recommended by Doctor Med Rehabilitation Centre in an OCF-18 dated July 27, 2018, reasonable and necessary?
b. Is the medical benefit in the amount of $1,300.00 for chiropractic treatment recommended by Doctor Med Rehabilitation Centre in an OCF-18 dated May 29, 2018, reasonable and necessary?
c. Is the medical benefit in the amount of $1,982.26 for a psychological assessment, recommended by Doctor Med Rehabilitation Centre in an OCF-18 dated April 25, 2018, reasonable and necessary?
d. Is the medical benefit in the amount of $1,298.00 for an attendant care assessment, recommended by Doctor Med Rehabilitation Centre in an OCF-18 dated June 12, 2018, reasonable and necessary?
e. Is the medical benefit in the amount of $1,600.00 for a functional abilities assessment recommended by Doctor Med Rehabilitation Centre in an OCF-18 in an OCF-18 dated August 1, 2018, reasonable and necessary?
f. Is N.R. entitled to interest on any overdue payment of benefits?
RESULT
5N.R. has not demonstrated that removal from the MIG is warranted. The disputed treatment plans are not reasonable and necessary, and no interest is payable.
PRELIMINARY ISSUE
6Economical raised a preliminary issue, submitting that N.R. is statute-barred from proceeding with his claim for the April 25, 2018, OCF-18, in accordance with s. 56 of the Schedule.
7Having found that N.R. remains in the MIG, it is not necessary to address whether the April 2018 OCF-18 is statute-barred.
DISCUSSION
May 25, 2021, correspondence from Economical
8Economical filed a sur-reply challenging N.R.’s reply submissions. In light of my decision, I did not consider Economical’s sur-reply and do not feel that it is necessary to address this issue further.
ANALYSIS
Applicability of the MIG
9Section 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.”
10An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.
11N.R. submits that the impairments he sustained as a result of the accident – described as pain in his lumbar spine, radiating pain in both lower extremities, numbness and tingling in both lower extremities and pain in his bilateral shoulders – warrant treatment beyond the MIG due to their affect on N.R.’s activities of daily living.
12In addition, N.R. relies on the clinical notes and records (CNRs) of the following: MCL Healthcare Inc.; family physician, Dr. Liss; chronic pain specialist Dr. Prutis and MRI reports of the lumbar spine and right shoulder.
13In response, Economical argues that N.R.’s injuries are soft tissue in nature and fall within the definition of minor injuries under the Schedule. Economical relies on the opinions of two insurer examinations: a June 22, 2018, report from Dr. Safir, orthopaedic surgeon, who concluded that N.R. suffered a resolved cervical spine sprain/strain, a thoracolumbar strain/sprain and a shoulder contusion and a July 28, 2018, report from Dr. McCutcheon, psychologist, who concluded that there was no evidence indicating the presence of a diagnosable psychological condition.
Does N.R. have a pre-existing condition that removes him from the MIG?
14N.R. submits that he has been suffering from pre-existing bilateral shoulder pain and back pain. N.R. had right shoulder pain from a work accident in 1995, which resolved. In 2013, he presented with left shoulder pain which eventually resolved. Further, he has the following pre-existing conditions: partially healed supraspinatus tendon tear in the right shoulder, subscapularis tendon tear in the right shoulder, infraspinatus tendon tear in the right shoulder, and degenerative disk changes in the lumbar spine. This is documented in the April-May 2012 CNRs of MCL Healthcare.
15Although these pre-existing conditions are documented, N.R. has not directed me to any evidence that states that these pre-existing conditions will prevent maximum medical recovery if he is kept within the MIG limits. There is no opinion from any medical practitioner that comments on his pre-existing condition being a barrier to N.R.’s recovery.
16For these reasons, I am unable to determine that N.R.’s pre-existing condition prevents recovery if he remains in the confines of the MIG.
Did N.R. suffer physical injuries that warrant removal from the MIG?
17N.R. relies on the CNRs of family physician, Dr. Liss, who notes in a September 17, 2019, entry, that N.R. continues to suffer from ongoing right shoulder and low back pain related to the accident. However, in the same entry, Dr. Liss also notes that he discussed “that the relationship to the MVA of the ongoing back, shoulder and elbow pain at this late date will be hard to establish.”
18I also note that despite the result of the right shoulder ultrasound, being a chronic full-thickness supraspinatus tear, there is no clear connection that the accident caused the tear.
19In her January 22, 2020, consultation note, chronic pain specialist Dr. Prutis summarized that N.R. suffered moderately sever myofascial lumbar strain, right shoulder sprain and right elbow sprain and contusion as a result of the accident. While Dr. Prutis opines that the accident aggravated pre-existing degenerative changes the lumbar spine, resulting in chronic low back pain, there is no opinion as to how this alleged chronic low back pain causes any functional limitations.
20The accident-related injuries that N.R. claims he sustained, are supported by the medical evidence. However, these injuries are captured under the MIG definition of ‘minor’. N.R. has not provided persuasive evidence that his physical injuries require removal and treatment beyond the MIG limits.
Did N.R. suffer psychological impairments that require removal from the MIG?
21N.R. relies on a pre-screen report from the OCF-18 author, psychologist Dr. Tenenbaum. N.R. complained of psychological distress regarding his employment and activities of daily living since the accident. Dr. Tenenbaum diagnosed N.R. with adjustment disorder, somatic symptom disorder, and specific phobia (vehicle, driving-related).
22In response, Economical submits that N.R. has not provided any evidence or opinions that suggest he is suffering any psychological impairments as a result of the accident. Its position is that he is relying solely on the OCF-18 as support for the existence of a psychological impairment.
23Economical relies on the opinion of s. 44 assessor, psychologist Dr. McCutcheon. In a report dated July 28, 2018, Dr. McCutcheon opined that N.R.’s symptoms were sub-clinical and there was no evidence to indicate a diagnosable psychological condition. Dr. McCutcheon further opined that N.R.’s psychological symptomatology fell within the MIG, as accident-related sequelae. Dr. McCutcheon went on to conclude that there was nothing preventing N.R. from reaching maximum medical recovery within the MIG limits.
24I agree with Economical. First, I do not find the OCF-18 on its own compelling evidence. Further, the CNRs of Dr. Liss do not contain any entries of accident-related psychological complaints. In addition, submissions are also not evidence. Despite claiming in his submissions that the accident had an impact on his daily life, R.N.’s evidence is silent on any referrals, prescriptions or referrals for treatment for any accident-related psychological impairments.
25For these reasons, I find that N.R. did not suffer from any significant psychological impairment as a result of the accident that warrants removal from the MIG.
Did N.R. suffer from chronic pain as a result of the accident?
26N.R. submits that he suffers from chronic pain as a result of the accident. He relies on the report from Dr. Prutis, who diagnosed him with chronic low back pain.
27Economical submits that N.R. has failed to establish that he suffers from chronic pain as a result of the accident.
28In reply, N.R. submits that a diagnosis of chronic pain or chronic pain syndrome is not required for a determination to be made that he suffers from chronic pain as a result of the accident.
29While not required, I find that the AMA Guides criteria is a useful interpretive tool to make determinations regarding chronic pain claims. I agree with Economical that N.R.’s evidence falls short of meeting three of the six criteria, as required, as there is no evidence that he is dependent on prescription drugs, he is not excessively dependent on health care providers or his family, and he has not withdrawn from social, work or recreational activities because of his pain (the evidence shows a post-accident return to work), or that he has developed any psychosocial sequelae. N.R. has not provided any opinion from any treatment provider that suggests he meets the AMA Guides criteria, nor does his own self-reporting suggest otherwise.
30Consequently, I find that N.R. has not established that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.
Are the treatment plans reasonable and necessary?
31I have found that N.R. has not met his burden of demonstrating on a balance of probabilities that removal from and treatment beyond the MIG is required. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, no interest is payable.
CONCLUSION
32N.R. has not demonstrated that removal from and treatment beyond the MIG is required. The OCF-18s in dispute are not reasonable and necessary and no interest is payable.
Released: June 13, 2022
Derek Grant
Adjudicator