Licence Appeal Tribunal File Number: 20-009097/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:
Hung Nguyen
Applicant
and
Wawanesa Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR: Claudette Leslie
APPEARANCES:
For the Applicant: Sharndip Singh Khaira, counsel for the Applicant
For the Respondent: Erica Lewin, counsel for the Respondent, Wawanesa Insurance
HEARD: In Writing June 14, 2021
OVERVIEW
1The applicant was involved in an automobile accident on February 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied certain benefits by the respondent insurer, Wawanesa Insurance. The appliant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on December 17, 2020, and consequently the matter proceeded to a written hearing.
ISSUES
3The following are the issues to be decided:
(i) Are the applicant’s injuries predominantly minor as defined by the Schedule and subject to a $3,500 treatment limit under the Minor Injury Guideline (“MIG”)
(ii) Is the applicant entitled to receive the following medical/rehabilitation, assessment benefits:
(iii) in the amount of $1,250.00 for physiotherapy services, recommended by Pain Rehabilitation Clinic in a treatment plan dated June 1, 2018, and denied by the respondent on June 11, 2018?
(iv) in the amount of $2,300.00 for physiotherapy services, recommended by Pain Rehabilitation Clinic in a treatment plan dated June 16, 2018, and denied by the respondent on July 23, 2018?
(v) in the amount of $2,300.00 for physiotherapy services, recommended by Pain Rehabilitation Clinic in a treatment plan dated December 16, 2018, and denied by the respondent on December 21, 2018?
(vi) in the amount of $2,600.00 for physiotherapy services, recommended by Pain Rehabilitation Clinic in a treatment plan dated July 10, 2019, and denied by the respondent on July 24, 2019?
(vii) in the amount of $2,500.00 for social worker assessment recommended by Pain Rehabilitation Clinic in a treatment plan dated July 16, 2018, and denied by the respondent on July 23, 2018?
(viii) in the amount of $2,200.00 for chronic pain assessment, recommended by Pain Rehabilitation Clinic in a treatment plan dated July 10, 2019, and denied by the respondent on July 23, 2019?
(ix) in the amount of $2,000.00 for a chronic pain functional evaluation assessment recommended by Pain Rehabilitation Clinic in a treatment plan dated July 10, 2019, and denied by the respondent on July 24, 2019?
(x) Is the applicant entitled to interest on any overdue payment of the benefit?
RESULT
5I find no evidence that the applicant sustained ongoing/chronic pain or psychological impairments as a result of the accident, that would remove him from the MIG treatment limit of $3,500. Having determined that the MIG limit has been exhausted, I find it unnecessary to consider the reasonableness or necessity of the disputed treatment plans; or the issue of interest on overdue payments.
BACKGROUND
6In regard to the accident, on February 13, 2018, the applicant reported that he was driving in the right curb lane, approaching an intersection. He slowed, due to traffic conditions and had come to a complete stop, when his vehicle was rear -ended. Reportedly, he experienced discomfort in his neck and left shoulder areas. The applicant indicated that he started experiencing pain the day after the accident. The evidence indicates that he sought medical attention at the Pain Rehabilitation Clinic (“PRC”), on or about February 23, 2018, due to reports of increased pain in his left shoulder and neck, instead of three days after the accident as he initially indicated.
6The applicant is the owner/operator of what was initially, a formal clothing manufacturing and distribution business, which he later developed into a formal wear manufacturing and wholesale/retail business, with a store located in Yorkville. Following the accident, the applicant stated that he continued to work for approximately two weeks. Then, in the spring of 2018, he indicated that due to stress, he travelled with his family to Vietnam; returning in June 2018. Upon the applicant’s return he continued working; as well, he continued treatment at the PRC clinic.
The law/THE MINOR INJURY GUIDELINE
7Under section 3(1) of the Schedule,
“a minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
For clarity, the Schedule further defines a “whiplash injury” as an injury to a person’s neck due to sudden acceleration-deceleration force. A “whiplash associated disorder” is defined as a whiplash injury that does not show: “objective, demonstrable, definable and clinically relevant neurological signs…a fracture in or dislocation of the spine.”
8Section 18 of the Schedule states that the sum of medical and rehabilitation benefits payable to an insured person who sustained predominantly minor injuries, is a maximum of $3,500. The provisions also indicate that the $3,500 treatment limit does not apply if the insured person provides compelling evidence that:
(i) Their impairment sustained in the accident is not predominantly a minor injury; or
(ii) They have a pre-existing condition that prevents them from achieving maximum recovery from the minor injury(ies) under the MIG treatment maximum of $3,500.
9The Tribunal has also determined that chronic pain with functional impairment or apsychological condition is a reasonable consideration that may warrant removal from the MIG treatment limit. The burden of proof rests with the applicant; to prove, not “beyond a reasonable doubt”, but rather “on a balance of probabilities” that their accident-related injuries are not predominantly minor/treatable within the $3,500 MIG limit. I must first determine whether or not the applicant’s injuries are within the MIG treatment limit, before turning my mind to the disputed claims.
Issue (i): Whether the applicant’s injuries are predominantly minor as defined under the Schedule and therefore, subject to $3,500 treatment limit under the MIG The parties’ positions
10The applicant submits that he had recovered from and was not experiencing any significant discomfort or pain from his pre-existing fractured, left clavicle bone and muscle rupture, which had been surgically repaired in 2012. However, he contends that the fracture was exacerbated by the accident, as thereafter he began experiencing on-going pain in his shoulder, which led to emotional setbacks; specifically, some mood, sleep disturbance and driving anxiety. He argues that for this reason, he requires treatment beyond the MIG treatment limit to achieve Maximum Medical Recovery (“MMR”).
11I note here that, while the Schedule does not define the term “maximum medical recovery”, the term is reasonably understood to mean that no further medical improvement is required or can be achieved.
12The insurer rejects the applicant’s argument that he should automatically be removed from the MIG treatment limit because of ongoing pain; and in the absence of any evidence indicating, functional impairment, disability or distress that has prevented him from achieving maximal recovery.
THE EVIDENCE
The applicant’s evidence/submissions
13The applicant’s evidence includes the following. A University Health Network, September 26, 2012 X-ray of his left shoulder showed a fracture of his clavicle with muscle rupture. On October 7, 2012 the record indicates and that he underwent a procedure to fix this left clavicle. There is no evidence that the applicant was experiencing any discomfort from this operation, at the time of the accident.
14Post accident, a February 23, 2018, PRC pain diagram, shows left shoulder pain, shoulder, neck upper back and right shoulder pain; and among other things, the consulting chiropractor confirms that there is compelling evidence of previous left shoulder fracture. A left shoulder X- ray review on the same day confirms that there was “mild osteoarthic”.
15PRC notes dating from March 22, 2018 – July 27, 2020 indicate that: the applicant started receiving physiotherapy treatment at the clinic, and he consistently reported pain in the following areas; bilateral upper trapezius, bilateral upper back pain, left shoulder/clavicle pain, neck pain, and lower back pain.
16These notes indicate that in 2018 the applicant attended twice during the months of March, June, and August; once during the months of May and September; and three times during the month of July. In 2019, the applicant attended twice during the month of March, once during the months of April, May, July, August and September. In 2020, the applicant attended once during the month of July, at which time he reported pain in his neck most of the time and “numbness in left region”.
17According to the evidence provided, in one instance during this period, the applicant reported that, he experienced improvements due to the physiotherapy treatment. For example, at the September 2018 treatment (7 months, post-accident) he reported reduced pain overall. Although in the July 27, 2020 (over 2 years post accident) treatment, the applicant reported “pain in neck, most of time… numbness in area left region”. A PRC pain diagram shows the applicant reported pain on/off in left clavicle with numbness most of time in his neck region.
18Further medical consultations included a September 4, 2020 appointment with Chiropractor, Dr. San Bui, to evaluate the applicant’s functional ability, as a result of ongoing pain symptoms in his left shoulder. The March 9, 2021 Functional Abilities Evaluation (“FAE”) report indicates that Dr. San Bui reviewed the medical history documentation and he conducted a physical examination. The Doctor of Chiropractic found that the applicant’s previous injury was aggravated by the accident leading to left shoulder chronic pain; and there was some reduction in range of motion due to pain in his left clavicle/shoulder that resulted in emotional set back.
19The assessor opined, the applicant “is suffering from chronic pain and fatigue, as well as numbness and weakness in his hands. Mr. N. also experiences depression, anxiety, low mood, and sleeping problems, feels tired and pain inventory test intensity rated as severe- mood and physical functioning…is suffering from chronic pain and fatigue, as well as numbness and weakness in his hands…has limitations as a result.” Dr. San Bui found that the applicant had not reached MMR at that point. He proposed a chronic pain program.
20In a February 10, 2021 social assessment by Registered Medical and Psychiatric Social Worker, Sebastian Joseph to evaluate the applicant’s psychological status since the motor vehicle accident, the applicant reported constant pain in areas including his collar bone, left shoulder and neck. Mr. Joseph found that the applicant was suffering from chronic pain and fatigue, sleeping issues and that the applicant’s “cognitive ability, concentration and organizational skills deteriorated significantly”.
21The applicant indicates that he consistently complained of pain, particularly in the area of his pre-existing injury, to a number of Insurer Examination (“IE”) assessors.
In June/July, 2018 during an orthopaedic IE assessment, the applicant reported pain in his neck and left shoulder as well as tenderness including at the site of his clavicle fracture; and some anxiety with driving. On September 11, 2018 he attended a psychological IE. He reported a 20% improvement in pain and that he was not relaxed when driving, which impacted his work, as it involved driving. The applicant further reported that he had started working from home by computer and telephone. In an April 5, 2019 second orthopaedic IE, the applicant reported sensitivity in his left shoulder and discomfort if he sleeps on that shoulder, as well as stiffness in his neck.
On May 27, 2019 the applicant submitted to a functional capacity IE assessment with Mr. Vincent Yip. He reported to the assessor that he experienced pain in the same areas: his clavicle, neck stiffness and numbness and sleep disturbance. In the June 21, 2019 report the IE physiotherapist notes that the applicant’s chief complaint was heightened awareness and mood disturbances due to physical pain, which he reported occurred from time to time. In a second, August 15, 2019 IE, family medicine physician assessment, the applicant reported clavicle pain and neck pain; chiefly left clavicle mostly under the scar. The pain, he indicated occurred 3-19 times daily, depending on his level of physical activity. He described the pain in his clavicle area as at times intense. In a second, IE psychological assessment on August 28, 2019 with psychologist Randy Silverman, the applicant again reported ongoing, physical and psychological complaints, heightened anxiety, mood disturbance connected to his physical pain and its adverse impact on his overall functioning.
The applicant’s work
22It is important to understand the nature of the applicant’s work, as it relates to the issues at hand. Evidence provided indicates the applicant reported that, his business initially involved, manufacturing and supplying formal wear, made in Vietnam, to retail stores. This involved occasional travel to Vietnam. Later, while he continued to have the clothes manufactured in Vietnam, he no longer supplied them to stores as in November 2018 (9 months post accident) he opened his own wholesale/retail, suit/formal wear business in Yorkville. From a functional, work perspective the applicant reported to assessor(s) that he had problems carrying heavy clothing, although he also submitted his pain while aggravated, did not limit his regular work activities.
The respondent’s evidence/submissions
23In its rebuttal, the respondent first points out that there are several unclear points and inconsistencies in the submissions and evidence provided by the applicant, such as: the duration of his trip to Vietnam after the accident; the fact that he did not seek immediate medical attention; the records/notes of the applicant’s attendance at the PRC for physiotherapy are unclear; and the applicant provided no explanation as to why the record indicates a long hiatus from treatment, which had started receiving long before the COVID-19 pandemic outbreak.
24Also unexplained, according to the respondent, is the footprint of medical consultations gleaned from the applicant’s OHIP Summary. It indicates that for the period of January 1, 2011 to March 2, 2018 only a few entries appear. For example, from March 2, 2018 to June 2018 there is a single entry for a vaccination and in 2020 the record shows no OHIP entries.
25In an October 14, 2020, self-rated, symptom form and notes completed by the applicant, the respondent highlights the fact that the applicant reported leading an active lifestyle, including modified gym activities and that he was working five (5) days per week. Yet, a few months later, according to Social Worker Joseph’s report of February 10, 2021, the applicant reported social functioning limitations, chronic pain and fatigue and he provides no indication as to whether the complaints were directly as a result of the accident or other events. Similarly, the respondent points to discrepancies in the applicant’s reporting of pain, including Chiropractor, Dr. San Bui’s assessment conducted on September 4, 2020. According to the report, dated March 9, 2021, the doctor points out that the applicant self-reported experiencing a variety of emotional, psychological and physical difficulties and ongoing pain symptoms in his neck, back, shoulder and knee. Yet Dr. San Bui’s diagnosis was: i) left shoulder chronic pain; and ii) aggravation of previous injuries, without reference to other areas reported.
26The respondent contends that the fact that the applicant had a pre-existing injury, and his reported, on-going pain, do not automatically remove him from the MIG treatment limit, as the applicant suggests. The respondent argues that its IE assessments provide clear, reliable evidence that disputes the applicant’s claim that he was unable to achieve maximal recovery under the MIG, or that the treatment plans at issue meet the test of “reasonable and necessary”. The respondent also notes that as per Tribunal decisions, it is beyond the scope and expertise of a chiropractor (Dr. San Bui in this case) and a social worker (Sebastian Joseph in this case), to render a diagnosis of chronic pain, as per the evidence relied upon by the applicant and as such little weight should be awarded.
27The respondent relies on several IE assessments in support of its position.
a) Orthopaedic Surgeon, Dr. Patrick Tansey in his report dated July 12, 2018 found that the applicant had sustained “uncomplicated myofascial strain type injuries to his neck and back.” The applicant demonstrated full range of motion; and there was no objective evidence of ongoing impairment, or that the clavicle fracture would prevent maximal recovery.
b) Psychologist, Randy Silverman in the IE report dated September 25, 2018, indicates that the applicant’s only reported persistent, accident-related physical complaint was, intermittent left side neck pain and tightness extending to his shoulder which had improved approximately 20%. The assessor reports that the applicant did not want to participate in mental health counselling, or social work therapy, although he reported heightened anxiety irritability and mood disturbance in connection with physical pain, and adverse effect on overall functioning/his business. For example, the applicant indicated that his response to a customer’s account was such, that he lost the account; further amplifying his concerns about achieving success in his business. The assessor concluded that the applicant had no psychological disorder, as evidenced by the fact that he had resumed his regular, random employment hours.
28The respondent submitted multi-disciplinary, IE assessment reports
conducted by Orthopaedic Surgeon, Victor Naumetz, Physiotherapist, Vincent Yip and Psychologist, Dr. Randy Silverman, dated June 21, 2019, in each case.
a. The orthopaedic surgeon’s examination found no significant spasm or tenderness of the cervical thoracolumbar spine. The doctor’s diagnosis was “sprain/strain of the cervical spine and perhaps a mild sprain of the left shoulder region…” he opined that no further treatment was required.
b. Physiotherapist Yip reported that the applicant complained of intermittent, sharp, pain in the mid shaft of his left clavicle, especially when lying on his left side, carrying items in his left hand, and in cold weather, among other things. The applicant also reported that at times the pain awakened him from sleep. Upon examination, Mr. Yip found that the applicant “demonstrated functional mobility in his neck, shoulders, upper extremities, lower back, and lower extremities and decreased strength of his left upper extremity. “His reflexes, dermatomes and myotomes in his cervical and lumbar spine were grossly within normal limits bilaterally. During functional testing…Mr. N. reported increased symptoms during the following tasks of left clavicle pain during waist to floor lift, waist to crown lift, front carry and sustained elevated.”
c. Following a series of tests , psychologist Dr. Silverman concluded that the applicant had not developed significant psychological symptoms as a result of the accident, “as reflected by his self-report, clinical presentation, and the results of objective psychometric testing, which yielded a pattern of scores that fell below clinically significant ranges on a number of scales designed to measure depressive, anxiolytic, and post-traumatic symptomatology.” Dr. Silverman also noted that a diagnosis “of Adjustment Disorder is not applicable because the applicant has not been experiencing marked distress in excess of what would be expected from exposure to the stressor (i.e. motor vehicle accident and related situational stressors) and has not developed a significant impairment in his social, occupational, or other important areas of functioning, including his employment, which he has resumed.”
29The respondent also relied upon an IE report, by Dr. Eric Silver, family medicine physician, dated August 28, 2019. The applicant complained of left clavicle pain; which he stated was momentarily relieved by treatment, although, overall, there was no improvement. The applicant reported to the assessor that he was able to do normal work, cooking and housekeeping. Dr. Silver found the applicant’s clavicle complaints were not accident related, and he directed the applicant to consult with his family physician instead.
ANALYSIS
Should the applicant be removed from the MIG on the basis of reported, on-going, post accident pain complaints preventing maximum medical recovery?
30I have considered all of the relevant evidence provided and for the following reasons, I find that while the applicant reported, intermittent, on-going pain particularly in the area of his pre-accident, healed, right clavicle, for some time post accident, the evidence provided does not lead me to make a finding that that this pain caused any functional or psychological limitations, or disability, or that the pain prevented him from achieving maximal medical recovery. Therefore, I find that the applicant’s injuries are not outside of the MIG treatment limit, because of on-going/chronic pain.
31I agree with determinations that when chronic pain causes functional impairment or disability, treatment cannot be covered under the MIG limit; and that the definition of minor injury in s. 3(1) of the Schedule does not include an impairment such as chronic pain. As well, and while I am not bound by another member’s decision, I also agree with Tribunal decisions which hold that removal from the MIG as a result of ongoing/chronic pain, should be based on functional impairment or disability; and should be assessed against the six criteria set out in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (“AMA Guides”). The AMA Guides state that at least three of the following criteria must be met for such a diagnosis; none of which, in this case, were met by the applicant.
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(ii) Excessive dependence on health care providers, spouse, or family;
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;
(v) 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
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32In my view, and on the basis of the evidence provided, the accident – being rear-ended while at a complete stop - did not appear to be of a severe nature; there was no need for paramedics to attend the scene, nor was there need for medical attention for several the days after the accident; he travelled to Vietnam shortly after the accident; and he received approximately 20 pain treatment sessions at PRC, between March 22,2018, through 2019 and a single session on July 27, 2020.
33Also undisputed is the fact that, from a physical perspective, although the treatment clinic’s notes and/or medical reports indicate that the applicant continued to report pain on an on-going basis during the treatment period or thereafter, there is no evidence that it was of a severe nature, or of such that his work, or everyday functional abilities were compromised, that he was disabled, or that his well being was adversely affected. In fact, in one assessment, although he reported that he would experience pain 3-19 times daily, it was not constant, but as he reported, “depending on his level of physical activity”.
34I also find that the applicant failed to provide any compelling evidence that the pain/accident-related injuries led to psychological impairments. Of note is psychologist, Dr. Randy Silverman’s assessment report, approximately seven months later in September 2018. In that assessment the applicant self-reported that, not only had his intermittent left side neck pain and tightness extending to left shoulder, improved approximately 20% , he told the doctor that the mild mood and sleep disturbance he experienced after the accident, had largely been resolved. In my view the applicant sustained no psychological impairments, confirmed by the evidence that he indicated to the psychologist that he was not interested in pursuing, and or that it was unnecessary to pursue mental health or social work counselling.
35On the contrary, the evidence indicates that the applicant was fully functional to the extent that he not only travelled to Vietnam where he had the formal wear he offered for sale made, but it appears, he continued his business immediately following the accident. He reported that he had problems carrying heavy clothing, and that pain did not limit his regular work activities. Given the nature of his business, carrying heavy clothing, in my view, posed no limitations, as it was not a requirement; as he had a choice of carrying less clothing at a time, or securing help from others to carry the clothing. In fact, it appears that the applicant had developed his business into a more manageable, less physical in nature format, when it evolved from a manufacturer/supplier type operation into a wholesale/retail business with a physical location, which he administered electronically and by phone.
36Notably, in regard to his personal activities, the applicant reported to IE family medicine physician, Dr. Silver in August of 2019 (approximately 18 months post accident), no overall improvements and that he experienced, only brief relief from the treatments he received. The applicant also told the physician that he was fully independent with personal care tasks; he had resumed his pre-accident cooking and housekeeping activities; and he was able to travel as a passenger in a vehicle or drive a vehicle without difficulty.
37Furthermore, measured against the six AMA Guides criteria, and although the applicant continued to report some, on-going, intermittent pain in particular in the area of is pre-accident left clavicle area, the determination is the same: there is no indication of functional impairment or adverse affect on his well being:
a. Other than reporting that he would occasionally take Tylenol for pain relief, there was no evidence of prescription drug use or drug dependence;
b. There is no evidence of excessive dependence on health care providers, or family. In fact, the evidence indicates that he had a total of approximately 20 sessions of physiotherapy between March of 2018 through 2019, and one session in August of 2020.
c. There is no evidence of physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
d. There is no evidence that he withdrew from social, work, recreational activities or other social contacts because of accident-related injuries/pain. No such break, or withdrawal was evident. Although he reported that he went to Vietnam for an extended period a few weeks after the accident, there is no reason provided and I am not persuaded that his visit concerned accident-related injuries. I find it likely his visit was business-related, as the suits/formal wear the applicant sold were made in Vietnam;
e. I find no evidence that his pre-accident injury compromised him functioning physically or otherwise, including his capacity to pursue, work family or recreational needs; and
f. The evidence clearly indicates, and by his own admission, the applicant did not develop any lingering psychosocial/psychological issues; and he denied any desire/need to pursue any, psychological counselling.
38The applicant submitted four plans for physiotherapy treatment and three plans for cost of examination/evaluation. They were denied by the respondent. By my calculation, the claims total well over $10,000. Neither party has explicitly indicated whether the $3,500 MIG treatment limit has been exhausted. Notwithstanding, considering that the applicant received approximately 20 physiotherapy treatments, and the claims in dispute total well over the MIG limit, I can only infer that the MIG treatment limit has been exhausted.
39Consequently, having found that the applicant has not proven, on a balance of probabilities, that he has sustained ongoing/chronic pain that would remove him from the MIG treatment limit; and having inferred that the MIG limit has been exhausted, there is no need for me to consider the treatment plans which are over that limit. If I am wrong in this finding, the Tribunal offers other avenues that would allow for reconsideration of the issues, in the event that the MIG limit has not been exhausted. As I find no benefits are payable, no consideration of interest is warranted.
Conclusion/Order
40I have considered all of the relevant evidence provided and find that the applicant failed to prove that his accident-related impairment(s) warrant removal from the MIG. Consequently, having determined that the $3,500 MIG treatment limit may have been exhausted, it is not necessary for me to determine whether the treatment plans for medical/cost of examinations, are reasonable and necessary. No interest is payable.
41The application is dismissed.
Released: February 1, 2022
Claudette Leslie
Adjudicator