Citation: Charles v. Intact Insurance Company, 2022 ONLAT 20-010159/AABS

Licence Appeal Tribunal File Number: 20-010159/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:

Justin Charles

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jessica Cavdar

APPEARANCES:

For the Applicant:

Davide Cortinovis, Counsel

For the Respondent:

Sivan Bune, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The respondent denied the benefits in dispute based on its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”), and further, that the requested treatment was neither reasonable nor necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

3The 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. If the applicant’s injuries are not considered to be predominantly minor, i. Is the applicant entitled to a medical benefit in the amount of $3,053.40 for chiropractic services, proposed by Gibson Wellness Centre in a treatment plan/OCF-18 dated September 18, 2018?
3. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant has not demonstrated that he sustained impairments as a result of the accident that justify removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, it follows that no interest or s. 10 award is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

5Section 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 Minor Injury Guideline (“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.”

6An insured may be removed from the MIG if they can 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 combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7In all cases, the burden of proof lies with the applicant.

8The applicant submits that he should be removed from the MIG because of pre-existing injuries. The applicant submits that he has raised compelling pre-accident medical evidence that shows that he will be prevented from achieving maximal recovery if kept within the MIG. He also alludes to removal from the MIG based on chronic pain.

9Specifically, the applicant submits that he suffers from “the pre-existing medical issue of lower back chronic pain, which a health practitioner documented prior to the subject accident that was exacerbated due to the accident.”¹

10To support his argument for removal from the MIG, the applicant submits that his family physician recommended that he receive physiotherapy treatments. He further submits that Dr. Mohamed Abounaja, who conducted a medical assessment of the applicant on May 26, 2021, “confirmed that the chronic pain condition that Mr. Charles suffers from as a result of the accident, require [sic] an intensive and multidisciplinary chronic pain treatment program.”²

11A review of the applicant’s pre-accident clinical notes and records (“CNRs”) from his family doctor demonstrate that, prior to the accident, the applicant had spoken to his doctor about the following:

• epigastric pain, causing him to have occasional constipation pain which occurred after meals;³
• pressure-like headaches with a 3 out of 10 severity that had been ongoing for three months. He reported that he snored and experienced these headaches in early mornings, and was subsequently referred for a sleep study;⁴
• mild-to-moderate lower back pain that had lasted for six days;⁵
• lower back pain and muscle pain when doing work at home or at the workplace;⁶ and
• another complaint of lower back pain but with normal reflexes, power, and sensation; and a diagnosis of lipoma.⁷

12Following the accident, the applicant visited his family doctor on several occasions. While he reported accident-related injuries on two occasions – both within the first six months post-accident – the applicant made no further complaints of his accident-related injuries to his family doctor after October 14, 2018 – despite his ongoing doctor’s visits for other non-accident-related issues.⁸

13The applicant relies on the medical assessment conducted by Dr. Mohamed Abounaja on May 26, 2021 to establish he suffers from chronic pain disorder causing a functional impairment. This assessment was conducted more than three years after the accident. Dr. Abounaja diagnosed the applicant with chronic pain syndrome; post-traumatic chronic headaches; chronic whiplash associated disorder (WAD) 2; Mechanical Lower Back Pain Pattern 4 PEN; osteoarthritis of lumber facet joints; rotator cuff syndrome; myofascial pain syndrome; bilateral sacroiliac joint disfunction; depression; anxiety; and PTSD.⁹

14The respondent submits that there is no evidence of a pre-existing condition that would support his removal from the MIG. The respondent relies on the musculoskeletal assessment that Dr. Christopher Aldridge, a physician who runs an interventional chronic pain clinic and family practice unit, conducted on the applicant dated December 7, 2018.

15The respondent further submits that the applicant’s CNRs and Dr. Aldridge’s report support the finding that the applicant’s injuries are predominantly minor and do not warrant removal from MIG.

16The respondent submits that the position of Dr. Abounaja (the medical examiner who examined the applicant on May 26, 2021 and opined that the applicant sustained depression, anxiety, and post-traumatic stress disorder) is unsupported by the applicant’s post-accident clinical notes and records.

17The December 7, 2018 report by Dr. Aldridge states that “[The applicant] report[ed] being in good physical health and denie[d] experiencing functional limitations prior to the subject accident.”¹⁰

18Dr. Aldridge wrote that “[the applicant] was able to demonstrate fluid, pain free range of motion of the cervical spine, both shoulders, lumbosacral spine and both knees, all of which were within normal limits in all planes of motion… [he] was able to perform complete squat in a fluid, pain free manner. [The applicant] was observed to perform fluid transfers (i.e. in moving from a sitting to standing position, getting onto and off the examination table, etc.) with no observed or reported difficulties.”¹¹

19Specifically, regarding the subject accident, Dr. Aldridge reported that “[the applicant]’s physical examination was… devoid of musculoskeletal findings attributable to the index motor vehicle accident with the sole exception of right lateral elbow pain reported with resisted wrist extension.”

20Dr. Aldridge noted that the applicant had “an observed sitting tolerance of 75 minutes, a normal gait and was observed to perform fluid transfers (i.e. in moving from a sitting to standing position, getting onto and off of the examination table, etc.) with no observed or reported difficulties. [The applicant] demonstrated the ability to perform a fluid (complete) squat that appeared pain free when demonstrating his home stretching exercises. All joints examined were within normal limits and the claimant was neurologically intact.”

21With respect to musculoskeletal injuries, it was Dr. Aldridge’s opinion that the applicant sustained uncomplicated soft tissue sprain/strain type injuries of the cervical spine, right shoulder girdle, lumbosacral spine and contusional injuries to both knees as a result of the accident.

22Considering the absence of any compelling musculoskeletal findings related to the subject accident and the fact that the applicant reported being able to return to his occupation of hairstylist one week after the accident, Dr. Aldridge remarked that the applicant’s prognosis was good, and that the applicant’s family doctor be the one to address any pain behaviors appreciated during the assessment.¹²

23Dr. Aldridge opined that the applicant “sustained uncomplicated soft tissue sprain/strain type injuries of the cervical spine, right shoulder girdle, lumbosacral spine and contusional injuries to both knees as a result of the index MVA… it is my opinion that [the applicant’s] injuries fall into the definition of a “minor injury” as defined in the Minor Injury Guideline.”¹³

24I agree with the respondent and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

25Firstly, the physical injuries listed in the applicant’s OCF-3, dated May 8, 2018, are muscle strain; sprain and strain of cervical spine; sprain and strain of lumbar spine; sprain and strain of elbow; sprain and strain of other and unspecified parts of knee; nonorganic sleep disorders; sprain and strain of other and unspecified parts of hand; and headache.

26I find that each of these injuries fall within the definition of “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.”

27Under s. 18(2), an applicant may be removed from the MIG if they provide evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if the applicant were to be kept within the confines of the MIG.

28The applicant has not led sufficient evidence of a pre-existing condition to otherwise demonstrate that his back injury is an impairment that would prevent maximal medical recovery if kept within the MIG. While the applicant’s back pain is mentioned in pre-accident clinical notes and records, I do not find that the post-accident clinical notes and records of the family physician demonstrate that the applicant’s back pain is an impairment that would prevent maximal medical recovery if kept within the MIG.

29The applicant relies on the medical assessment conducted by Dr. Mohamed Abounaja on May 26, 2021 to establish he suffers from chronic pain disorder causing a functional impairment. I place greater weight on Dr. Aldridge’s report because he examined the applicant seven months after the accident, whereas Dr. Abounaja’s examination of the applicant took place 37 months post-accident. Dr. Aldridge’s report occurred more contemporaneously to the subject accident and is therefore a more reliable source of information about the applicant’s injuries. I do not find that Dr. Aldridge’s report suffered from any substantive deficiencies that might otherwise undermine its reliability.

30Specifically, Dr. Aldridge’s 2018 report described the applicant’s ability to demonstrate fluid, pain free range of motion of the cervical spine, both shoulders, lumbosacral spine and both knees. The applicant was able to perform a complete squat in a fluid, pain free manner. Dr. Aldridge reported that the applicant was able to fluidly move from a sitting to standing position and get onto and off the examination table with no observed or reported difficulties. The applicant further was able to tolerate sitting for 75 minutes at Dr. Aldridge’s examination.

31Based on what Dr. Aldridge observed seven months after the accident, the applicant’s pain is not so severe of an impairment that it would prevent maximal medical recovery if he were kept within the MIG.

32I agree with the respondent that Dr. Abounaja’s opinion that the applicant sustained depression, anxiety, and post-traumatic stress disorder is unsupported by the applicant’s post-accident clinical notes and records.

33The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, the applicant’s submissions alluded removal from the MIG based on chronic pain. The applicant did not prove that any lingering accident-related pain has become chronic in nature nor is causing functional impairment. Further, the actions that Dr. Aldridge observed the applicant performing during the examination are not congruous with a finding that the applicant suffers from chronic pain causing functional impairment that would entitle him to treatment outside the MIG.

34I therefore find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Reasonable and Necessary

35Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plan in dispute is reasonable and necessary under s. 16 is not required.

CONCLUSION

36The applicant has not demonstrated that he sustained impairments as a result of the accident that justify removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, it follows that no interest or s. 10 award is payable.

Footnotes

1. 1Applicant’s written submissions, p. 13.
2. 2Ibid.
3. 3Clinical notes and records of Dr. Selvananthan Manivannan, located at pp. 31 and 35 of Tab 7 of the respondent’s written submissions.
4. 4Ibid., located at pp. 52 and 55 of Tab 7 of the respondent’s written submissions.
5. 5Ibid, located at pp. 67 of Tab 7 of the respondent’s written submissions.
6. 6Ibid, located at pp. 75 of Tab 7 of the respondent’s written submissions.
7. 7Ibid, located at pp. 85 of Tab 7 of the respondent’s written submissions.
8. 8Ibid, located at Tab 7 of the respondent’s written submissions.
9. 9Independent Pain Medicine Assessment Report of the applicant prepared by Dr. Mohamed Abounaja dated June 8, 2021, at Tab 8 of the Respondent’s document brief.
10. 10P. 3 of Insurer’s Examination report by Dr. Chris Aldridge dated December 4, 2018, located at p. 72 of Respondent’s written submissions.
11. 11Ibid., located at p. 73 of Respondent’s written submissions.
12. 12Ibid., located at p. 81 of Respondent’s written submissions
13. 13Ibid., located at p. 84 of Respondent’s written submissions