Citation: Akwa v. Sonnet Insurance Company, 2022 ONLAT 20-010154/AABS

Licence Appeal Tribunal File Number: 20-010154/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:

Chick Akwa

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Diana Verkhovets, Counsel

For the Respondent:

Paul Irish, Counsel

HEARD:

By Way of Written Submissions

1Chick Akwa (the “applicant”) was involved in an automobile accident on May 16, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”)¹ from Sonnet Insurance Company (the “respondent”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The applicant was the front seat passenger in a car that was struck on the driver’s side as it pulled onto the street. He sustained injuries to his back and neck.

3The applicant sought funding for chiropractic treatment, medication, and chronic pain and psychological assessments. The respondent refused on the grounds that he had sustained a predominantly minor injury as defined in s. 3 of the Schedule, and that he was therefore limited to $3,500.00 in medical and rehabilitation benefits subject to the Minor Injury Guideline (the “MIG”).

4The applicant seeks determinations that he is not subject to the $3,500.00 limit on benefits and the MIG, and that he is entitled to the benefits, medication, and assessments in dispute with interest.

ISSUES

5The following issues are to be decided:

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 the MIG?
Is the applicant entitled to the following medical benefits:

i. $2,575.12 for chiropractic services, proposed by Dr. Oleksandr Pivtoran in a treatment plan (“OCF-18”) dated June 15, 2018;²

ii. $400.19 ($1,665.14 less $1,264.95 approved) for chiropractic services, proposed by Dr. Donald Wong in an OCF-18 dated April 27, 2020;

iii. $27.19 for medication purchased on July 4, 2018; and

iv. $2,659.01 for chiropractic services, proposed by Dr. Rahim Jessa in an OCF-18 dated September 27, 2018?

Is the applicant entitled to the following costs of assessments:

i. $2,400.00 for a chronic pain assessment, proposed by Dr. Donald Wong in an OCF-18 dated December 16, 2019; and

ii. $2,000.00 for a psychological assessment, proposed by Dr. Andrew Shaul in an OCF-18 dated August 31, 2018?

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

RESULT

6The applicant continues to be subject to the $3,500.00 limit on benefits and the MIG.

7The applicant is not entitled to the OCF-18s in dispute or interest.

ANALYSIS

Did the Applicant Sustain a Predominantly Minor Injury?

8Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.

9A minor injury is defined at s. 3 of the Schedule 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.”

10The onus is on the applicant to prove that his injuries are not subject to the $3,500.00 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

11The applicant’s initial back and neck injuries were diagnosed as whiplash associated disorder, strains, and sprains, which fall within the definition of minor injury at s. 3 of the Schedule.³ The applicant argues that he is not subject to $3,500.00 limit on benefits and the the MIG on three grounds:

He suffers from chronic pain in his back and neck;
He suffers from a psychological impairment; and
A previous back injury is a documented pre-existing medical condition that prevents him from achieving maximal recovery under the MIG.

12The respondent argues:

The applicant obtained very little treatment for his injuries and did not exhaust the benefits available to him under the MIG:

i. He attended a walk-in clinic for his injuries on May 17 and July 4, 2018.⁴ After that, he did not see a doctor for his accident-related injuries;

ii. The clinical notes and records of Downsview Healthcare Inc. indicate that the applicant received physiotherapy, chiropractic treatment, and massage therapy from June 18 to August 31, 2018.⁵ After that, the only treatment he received was two sessions of chiropractic treatment on July 7 and 14, 2020;⁶ and

iii. As of April 29, 2021, there remained $1,443.03 in unused benefits under the MIG.⁷ The applicant did not explain why he had not used those benefits;

The applicant provided little evidence to support his claims, and there are inconsistencies in that evidence; and
Independent examinations (“IEs”) conducted by Dr. A. Belfon, a general practitioner,⁸ and Dr. M. Elmpak, a psychologist,⁹ concluded that the applicant’s injuries were minor.

Payment of Non-Earner Benefits

13The applicant argues that the respondent admitted his injuries were non-minor because it paid him non-earner benefits (“NEBs”), which are available if an insured person “suffers a complete inability to carry on a normal life” as a result of the accident: Schedule, s. 12(1). The respondent denies that it made that admission, and argues that the test for NEBs is unrelated to whether the applicant sustained minor injuries.

14I find that the respondent did not admit that the applicant had sustained non-minor injuries. It consistently took the position that he had sustained a minor injury,¹⁰ and did not admit otherwise when it agreed to pay NEBs.¹¹ I agree with the respondent that whether the applicant is entitled to NEBs and whether he sustained a minor injury are separate issues and distinct legal tests. The test for NEBs is not concerned with the type of injuries the applicant sustained, but whether they render him completely unable to carry on a normal life. The Schedule does not specify that NEBs are available only if the applicant sustained a non-minor injury, as it does with respect to attendant care benefits: s. 14(2).

Chronic Pain

15The applicant may be removed from the MIG if he suffers from chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.¹² The applicant alleges that he suffers from both kinds of chronic pain. I disagree for the following reasons.

Chronic Pain Syndrome

16The applicant relies on an “intake report” dated October 31, 2019 by Dr. Katherine Siu, a chiropractor at Shoreham Chronic Pain & Assessment Center Inc.¹³ Dr. Siu opined that the applicant had developed chronic facet joint syndrome and myofascial pain secondary to trauma in his cervical and lumbar spine.¹⁴ The respondent argued that as a chiropractor, Dr. Siu was not qualified to diagnose chronic pain syndrome. In reply, the applicant cautioned that she did not make a formal diagnosis, but only stated her “clinical impressions and opinion.”¹⁵

17The respondent relies on Dr. Belfon’s IE report, which concluded that the applicant was experiencing ongoing myofascial back and neck pain due to strains and sprains of his cervical and lumbar spine.¹⁶ Dr. Belfon did not directly comment on whether the applicant suffered from chronic pain syndrome, but he opined that the applicant was expected to make a full recovery from his injuries, and that there was no evidence of any factors that would prevent such a recovery.¹⁷

18Dr. Siu and Dr. Belfon agree that the applicant was experiencing ongoing myofascial pain. They disagree on whether the applicant also suffers from chronic facet joint syndrome. I do not accept Dr. Siu’s opinion that he does for the following reasons:

She did not conduct a full-fledged chronic pain assessment, but only an “initial intake” to recommend whether an assessment was justified. The intake consisted of a questionnaire and an interview that appears to have been relatively short given the brevity of Dr. Siu’s notes;¹⁸
Her opinion is not a medical diagnosis. As a chiropractor, Dr. Siu is not qualified to diagnose chronic pain syndrome: De Leon v Scottish & York Insurance Company, 2020 CanLII 98737 (ON LAT) at para 10;
Her opinion appears to be based solely on the applicant’s self-reported pain in his back and neck. There is no indication that she conducted a physical examination or other objective testing; and
It is unclear why Dr. Siu considered the applicant’s pain to be indicative of facet joint syndrome rather than the applicant’s myofascial injuries or other causes.

19The respondent argues that the applicant’s pain does not meet at least three of the six criteria necessary for a diagnosis of chronic pain syndrome under the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th edition. This is not a binding legal test, but rather a tool that may be useful for assessing chronic pain claims: 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at para 6. The criteria are:

Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
Excessive dependence on health care providers, spouse, or family;
Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
Withdrawal from social milieux, including work, recreation, or other social contacts;
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
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

20According to these criteria, the applicant’s pain does not qualify as chronic pain syndrome:

The applicant told Dr. Belfon that he started taking pain medication after the accident.¹⁹ However, there is no evidence that he has taken medication beyond the recommended duration, or to the extent that he abuses or is dependent on it;
As noted above, the applicant obtained remarkably little treatment over the years following the accident. There is no evidence of excessive dependence on his spouse or family;
There is no evidence of secondary physical deconditioning;
There is no evidence of withdrawal from social milieux;
As I discuss in the following section regarding functional impairment, the applicant has not established that pain has prevented him from returning to his pre-injury function, including his ability to pursue work, family, or recreational needs; and
As I discuss in the section regarding psychological impairment, the applicant has not established that he developed ongoing psychosocial sequelae.

21I conclude that the applicant has not established that he suffers from chronic pain syndrome.

Functional Impairment

22The applicant alleges that chronic pain has limited his ability to work and perform activities of daily life. He reported to Dr. Belfon that he lost his job in October 2018 because he frequently left work early due to pain.²⁰ He relies on Dr. Siu’s intake report²¹ and a “psychological pre-screen interview report” by Dr. Andrew Shaul, a psychologist,²² which both state that he has been unable to return to his pre-accident level of function and activities of daily living.

23The respondent denies that the applicant’s pain has caused any functional impairment. It argues that he provided inconsistent evidence regarding his ability to work. It relies on Dr. Elmpak’s IE report, which concluded that pain interfered with his activities of daily living to a minor extent.²³

24I am not persuaded that pain has impaired the applicant’s ability to work. He provided no evidence that corroborates his statement to Dr. Belfon that he lost his job in October 2018 due to pain. To the contrary, he reported to Dr. Elmpak on October 10, 2018 that he worked eight-hour shifts full-time, and did not mention missing any work due to pain.²⁴ He reported to Dr. Siu at the intake appointment on October 31, 2019 that he was employed full-time as an information technology specialist.²⁵

25I do not accept the opinions of Dr. Siu and Dr. Shaul that the applicant’s pain and other symptoms impair his function and have prevented him from resuming activities of daily living:

Both opinions are based on cursory examinations. As noted above, Dr. Siu’s report was based on a questionnaire and a brief interview. Dr. Shaul’s report is also not a full-fledged assessment, but a “pre-screening” based on an interview conducted by an unspecified person “under [Dr. Shaul’s] direct supervision”;²⁶
Both opinions are solely based on the applicant’s self-reported limitations. Dr. Siu and Dr. Shaul did not, for example, review the applicant’s medical records, obtain a history, or conduct any objective testing; and
Even taking the applicant’s self-reported limitations at face value, they do not support the broad conclusion that the applicant has been unable to return to many of his pre-accident activities of daily living. The applicant reported to Dr. Siu only that “his wife does the cooking and cleaning,”²⁷ and to the interviewer in the psychological pre-screen that “his pain and limitations impact his ability to perform household chores.”²⁸

26In contrast, Dr. Elmpak assessed the extent to which pain interfered with the applicant’s activities of daily life by administering a diagnostic test called the Pain Patient Profile. She found that his score on the depression axis of the test “points to an individual who may reduce some activities based on pain.”²⁹ However, she noted that his score was below the average score for pain patients, and that “he has returned to most of his pre-accident activities, including homemaking activities, as well as recreational activities.”³⁰

27I find that the applicant has not established that he suffers from chronic pain causing functional impairment. Dr. Elmpak’s report indicates that as of October 10, 2018, pain may have limited his pre-accident activities to some extent, but that he had returned to most of those activities.³¹ After August 2018, he obtained only two sessions of chiropractic services on July 7 and 14, 2020, and did not exhaust the benefits available to him under the MIG.³² The only evidence that he experienced ongoing pain causing functional impairment is Dr. Siu’s report, which I do not accept.

Psychological Impairment

28Psychological impairments are not included in the definition of minor injury at s. 3 of the Schedule. The onus is on the applicant to establish that he has a psychological impairment rather than psychological symptoms that are sequelae of a minor injury: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 38.

29The applicant relies on Dr. Shaul’s pre-screen interview report, which recommends “a comprehensive psychological assessment to gain a better understanding of the many adverse changes that have occurred in his life since the time of the accident, including his reported feelings of pain, sleep difficulties, concentration difficulties, and nervousness when travelling in a vehicle.”³³

30The respondent argues that Dr. Shaul’s opinion should not be accepted because the complaints it records are uncorroborated and Dr. Shaul did not conduct the interview himself. It relies on Dr. Elmpak’s report, which observed that due to pain, the applicant was experiencing shortened hours of sleep and could become slightly more irritable and agitated. However, he reported no changes in his mood or driving anxiety, and scored in the minimal range on diagnostic tests for depression and anxiety. Dr. Elmpak concluded that he did not suffer from a DSM-5 mental health disorder.³⁴

31For the following reasons, I find that the applicant has not established that he suffers from a psychological impairment that would remove him from the MIG:

Dr. Elmpak and Dr. Shaul agree that the applicant was experiencing pain and difficulties with sleep and concentration. They only differ on whether he was experiencing driving anxiety. Even if he were, he has not proven that these symptoms constitute a psychological impairment rather than sequelae of his physical injuries;
Dr. Shaul’s and Dr. Elmpak’s reports are dated August 31, 2018 and October 22, 2018, respectively. There is no evidence regarding the applicant’s mental health over the years following Dr. Elmpak’s report;
The applicant provided no evidence that he suffers from a psychological impairment other than Dr. Shaul’s report;
I give little weight to Dr. Shaul’s report because it is a “pre-screen” based on an interview and not a full-fledged assessment, it is unclear who conducted the interview and whether Dr. Shaul was present, and it is based on solely the applicant’s self-reported symptoms; and
The applicant did not obtain any psychological treatment despite having benefits available to him under the MIG.

Pre-Existing Medical Condition

32Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500.00 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

33The applicant argues that prior to the accident, he suffered from low back pain due to a soccer injury in 2015. This injury was diagnosed as a “lower back contusion” by Dr. Steven Macdonald in a clinical note dated December 21, 2015.³⁵ The applicant argues that it is a documented pre-existing medical condition that removes him from the MIG. The respondent argues that the applicant has not proven that it prevents him from achieving maximal medical recovery under the MIG.

34I find that the applicant’s back injury is a documented pre-existing medical condition, but he has not established that it prevents him from achieving maximal recovery under the MIG. He identified documents that refer to the injury, but none that prove it interfered with his recovery from his accident-related injuries. Furthermore, he provided inconsistent information to the assessors on this point:

According to Dr. Belfon, the applicant denied “any pre-existing issues with his neck, back or joints;”³⁶
According to Dr. Siu, he reported having fully recovered from the 2015 injury;³⁷ and
According to Dr. Elmpack, he reported having pre-existing low back pain from his 2015 injury. She opined that this pre-existing pain was exacerbated by the accident, but not that the pre-existing injury prevented him from achieving maximal medical recovery from his accident-related injuries.³⁸

Is the Applicant Entitled to the OCF-18s In Dispute?

35In a letter dated May 11, 2020, the respondent advised that it had approved benefits up to the $3,500.00 limit.³⁹ Given my finding that the applicant continues to be subject to this limit, I need not consider whether the services, cost of medication, and assessments in dispute are reasonable and necessary.

36The applicant argues that the respondent did not provide any medical reasons for denying the treatment plan dated June 15, 2018,⁴⁰ which proposed benefits in the amount of $2,575.12 for chiropractic services. He argues that because the respondent did not comply with s. 38(8) of the Schedule, he is entitled to the services proposed in the treatment plan pursuant to s. 38(11)(2).

37The respondent argues that the applicant should not be allowed to raise this issue because he did not provide notice that he intended to do so. I disagree. The respondent was aware that the OCF-18 was in dispute given that this is stated as an issue in the Case Conference Report and Order of February 11, 2021. The parties are not required to provide notice of the arguments they intend to make in their written submissions. Furthermore, the respondent extended its written submissions two pages beyond the page limit to address the issue. I have therefore considered it.

38The respondent argues that it provided reasons in accordance with s. 38(8). In a letter dated July 18, 2018, it denied the treatment plan on the grounds that the applicant was subject to treatment under the MIG.⁴¹ In a letter January 21, 2019, it maintained that position based on Dr. Belfon’s IE report.⁴²

39Section 38(8) provides that if an insurer denies a treatment plan, it must provide “the medical reasons and all of the other reasons” why it considers the proposed services not to be reasonable and necessary. Subsection (9) provides that if an insurer believes that the MIG applies, the notice under ss. (8) must so advise.

40The respondent denied the treatment plan on the grounds that the MIG applied, and that the proposed services were therefore not reasonable and necessary. It appears to have mistakenly thought that the applicant had exhausted the $3,500.00 in benefits available to him under the MIG. As noted above, he did not exhaust those benefits.⁴³ However, this error is not a breach of s. 38(8), which requires that the respondent provide reasons, but not that those reasons be legally correct: Turner v State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ONCA) at para 8.

41I find that the respondent complied with s. 38(8) by providing the medical and other reasons why it considered the treatment not to be reasonable and necessary. It explained why it took the position that the MIG applied in both letters:

In the July 18, 2018 letter, it stated that based on its review of the OCF-18 and the other information in its file, it determined that the applicant’s injuries fell within the definition of minor injury in the Schedule. It stated that it had not received compelling evidence that the applicant’s injuries were non-minor, or that he had a documented pre-existing medical condition that would prevent him from achieving maximal medical recovery if he were limited to $3,500.00 in benefits.⁴⁴
The respondent arranged Dr. Belfon’s IE to assess whether the MIG applied and whether another treatment plan for chiropractic services dated September 27, 2018 was reasonable and necessary.⁴⁵ In the January 21, 2019 letter, it maintained its denial of the June 15, 2018 treatment plan on the grounds that the MIG applied. It advised that Dr. Belfon had concluded that the applicant had sustained a minor injury, enclosed a copy of the report, and quoted passages where Dr. Belfon stated that conclusion.⁴⁶

42Given that the respondent complied with s. 38(8), the applicant is not entitled to the proposed services pursuant to s. 38(11)(2).

Is the Applicant Entitled to Interest?

43As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

44I find:

The applicant continues to be subject to treatment under the $3,500.00 limit on benefits and the MIG;
The applicant is not entitled to the disputed OCF-18s;
The applicant is not entitled to interest; and
The application is dismissed.

Released: September 28, 2022