Thakkar v. Unifund Assurance Company, 2023 CanLII 110947

Citation: Thakkar v. Unifund Assurance Company, 2023 ONLAT 21-015472/AABS

Licence Appeal Tribunal File Number: 21-015472/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:

Prashant Thakkar

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Linda M Spurrell, Paralegal

For the Respondent: Jack Burke-Gaffney, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Prashant Thakkar, the applicant, was involved in an automobile accident on May 16, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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 Minor Injury Guideline limit?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 4, 2020 to May 16, 2021?

iii. Is the applicant entitled to $2,248.00 for physiotherapy services, proposed by Physiocare and Wellness in a treatment plan/OCF-18 (“plan”) dated December 16, 2019?

iv. Is the applicant entitled to $2,260.00 for a psychological assessment, proposed by Medex Assessments in a plan dated September 26, 2019?

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

RESULT

3The applicant failed to prove that his injuries are not minor and could not be treated within the Minor Injury Guideline (“MIG”) limits.

4The applicant has not proven that he satisfies the criteria for entitlement to any further income replacement benefit (“IRB”).

5Since the applicant’s injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the MIG are not reasonable and necessary.

6Since no benefits are payable, no interest is payable.

ANALYSIS

The applicant’s physical injuries do not place him outside of the MIG

7The applicant did not provide objective medical evidence that the physical injuries he suffered in the accident were non-minor, nor that he had pre-existing physical conditions that were exacerbated by the accident, such that he required treatment outside of the MIG to recover.

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury. 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.”

9An insured person 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. In all cases, the burden of proof lies with the applicant.

10The applicant was involved in a rear-end collision on May 16, 2019. Upon seeing his family physician, Dr. Mandeep Wadhwa, on May 24, 2019, he was diagnosed with back pain and neck pain and was provided a requisition for physio- and massage therapy. In a follow-up visit with Dr. Wadhwa on June 14, 2019, the applicant was prescribed Naproxen and she requisitioned further physio- and massage therapy.

11The applicant argues that his back and neck pain caused by the accident have resulted in diagnoses of headaches, anxiety disorders, nonorganic sleep disorders and post-concussion syndrome.

12The applicant argues further that he continued to have back and neck pain long after the accident, and long after the limits for physical therapy within the MIG had been exhausted, more than two years after the accident. The applicant argues that he requires more physical therapy to alleviate the pain that he experiences daily. The applicant argues that he has developed chronic pain along with functional impairment that warrant his removal from the confines of the MIG.

13The respondent argues that the applicant has failed to meet the burden of proof that he be removed from the MIG due to chronic pain and resulting functional impairment.

14The respondent argues that the applicant suffered soft-tissue injuries for which the MIG applies. The respondent relies on the insurer’s examination (“IE”) assessment of Dr. Ahmad Belfon, general practitioner, who examined the applicant on November 21, 2019 and provided his findings and conclusions in a report dated December 23, 2019. Dr. Belfon opines that the applicant sustained sprain/strain injuries to his cervical and lumbar spine that fall within the Schedule’s definition of MIG injuries. In his review of the applicant’s medical history, Dr. Belfon did not find any evidence of pre-existing physical or musculoskeletal conditions that would prevent the applicant from attaining maximal medical recovery if he were restricted to treatment within the MIG.

15The respondent argues that the applicant’s diagnoses of headaches, anxiety disorders, nonorganic sleep disorders and post-concussion syndrome were made by the applicant’s physiotherapists, Krishan Sood and Nikunj Patel, of Physiocare and Wellness Clinic, in disability certificates/OCF-3s they completed on June 24, 2019 and November 20, 2019 respectively. The respondent submits that these diagnoses are not indicated in the clinical notes and records (“CNRs”) of Dr. Wadhwa. The respondent argues that the physiotherapists are not qualified to make these diagnoses and their medical opinions should be given less weight than that of Dr. Wadhwa.

16The respondent disputes that the applicant has developed chronic back pain as a result of the accident that would warrant removal from the MIG. In support of this argument, the respondent cites 17-007825 v. Aviva Insurance Canada (2018 CanLII 16432 ON LAT), where the Tribunal indicates that it relies on the American Medical Association (AMA) Guides to determine whether an injured persons suffers from a medical diagnosis of chronic pain. The AMA Guides indicate that three of the following six criteria must be met for a chronic pain diagnosis:

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 contracts.

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.

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

17The respondent argues none of the six criteria for chronic pain under the AMA Guides have been met. In particular, the respondent argues that the applicant has not provided any evidence that he had used prescription drugs beyond the recommended duration, i.e., criterion (i), and that the pain medications he has been prescribed, Naproxen and Tylenol, are available over the counter without a prescription.

18The respondent indicates that the applicant did not attend a hospital, has not seen any specialists and was not referred for any imaging in the two years following the accident. The respondent argues that the applicant does not meet criterion (ii) of the AMA guides.

19Regarding criteria (iii) through (vi), the respondent relies on the IE of Dr. Ian Smith, psychologist, who assessed the applicant on December 3, 2019 and provided his findings and conclusions in a report dated December 23, 2019. The respondent argues that Dr. Smith’s IE did not find any evidence of physical deconditioning (criterion iii), withdrawal from social milieu (criterion iv), inability to pursue work, family or recreational needs (criterion v) or development of psychosocial sequelae (criterion vi).

20I am persuaded by the opinions of Dr. Belfon and Dr. Smith that the applicant’s physical injuries did not meet the criteria for chronic pain as defined by the AMA Guides. While the applicant provided evidence of pain complaints to Dr. Wadhwa and to his physiotherapists, I did not see evidence that the applicant’s pain complaints met the criteria of chronic pain as defined by the AMA Guides.

21I agree with the respondent that the physiotherapists’ diagnoses of headaches, anxiety disorders, nonorganic sleep disorders and post-concussion syndrome have less weight than had these diagnoses been provided by a physician. The applicant has not provided any evidence that these diagnoses were made by the applicant’s treating physician, Dr. Wadhwa.

22The applicant did not meet the burden of proving that his musculoskeletal injuries resulted in chronic pain as described by the AMA Guides (a test that is generally accepted by the Tribunal) that would warrant treatment outside of the MIG.

23The applicant did not make any claims that he had pre-existing musculoskeletal injuries that required treatment outside of the MIG to recover.

24For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related physical injuries that could not be treated within the MIG.

The applicant’s psychological injuries do not place him outside of the MIG

25The applicant did not provide objective medical evidence that the psychological injuries he suffered in the accident were non-minor such that he required treatment outside of the MIG to recover.

26As stated previously, the Tribunal has also determined that a psychological condition may warrant removal from the MIG. As with physical injuries, the burden of proof lies with the applicant.

27The applicant submits that he had previous stressors and anxiety and that he experiences sadness, sleep disturbance and over-eating as a result of the accident. The applicant submits that these conditions are contributing factors to his psychological health and that a second opinion, from the denied treatment plan for a psychological assessment, is necessary for him achieve a full psychological recovery from the accident.

28The respondent submits that the applicant provided only one mention of a psychological condition in his medical records, namely in a CNR from Dr. Wahdwa where she noted “feel low”. The respondent submits that there are no other records of psychological complaints, medications, referrals or treatment.

29The respondent relies further on the IE of Dr. Smith, who opined in his report that the applicant did not sustain a psychological injury as a result of the accident. The respondent submits that the applicant indicated, in his psychological assessment, that he continued to attend to chores, errands, family events, self-care and meal preparation, and that he attended a gym four to five times per week. In addition, the respondent submits that the applicant’s OCF-18 seeking a psychological assessment indicated that there was no pre-existing psychological condition that would impact the applicant’s response to psychological treatment.

30I find that the applicant has not met the burden of proving that he suffered a non-minor psychological injury as a result of the accident. Furthermore, I find the opinion of Dr. Smith persuasive since it is based on a psychological assessment of the applicant, which included a review of the applicant medical records, and it is consistent with the medical records of the applicant’s family physician.

31For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related psychological injuries, nor exacerbation of pre-existing psychological impairments, that could not be treated within the MIG.

The applicant is not eligible for any further income replacement benefits

32The applicant did not meet the burden of proving that he is entitled to further IRBs beyond those already paid.

33To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

34The applicant submits that he was unemployed at the time of the accident and was collecting Employment Insurance (EI) benefits. When his EI benefits were stopped on October 12, 2019, the applicant submitted an Election of Benefit/OCF-10 form for which he was approved, and the applicant was paid an IRB of $400.00 per week from October 13, 2019 to January 3, 2020. The applicant seeks a continuation of an IRB of $400.00 per week from January 4, 2020 to May 16, 2021 (to two years post-accident.)

35The applicant submits that the lack of treatment for pain has impacted his employment opportunities post-accident. His pre-accident employment involved prolonged walking, standing, carrying a bag and driving as a neighbourhood marketing team lead with OSL Direct Services Inc., a door-to-door marketing and sales company. The applicant submits that his ongoing back and neck pain prevented him from working in a similar role.

36The applicant relies upon the CNRs of Dr. Wadhwa as evidence of his ongoing back and neck pain. The applicant also relies on the OCF-3 submitted by his physiotherapist, Mr. Patel, on November 20, 2019 that indicated that the applicant was substantially unable to perform the tasks of his employment. The applicant further submits that in Dr. Belfon’s IE report of December 27, 2019 (on the referral question of the IRB), Dr. Belfon acknowledges that the applicant’s myofacial pain persisted.

37The respondent submits that the only supporting evidence provided by the applicant that he was unable to perform the tasks of his employment came from the OCF-3s submitted on June 24, 2019 and November 20, 2019 by his treating physiotherapists. As mentioned previously, the respondent argues that the applicant’s physiotherapists are not qualified to make their diagnoses of headaches, anxiety disorders, nonorganic sleep disorders and post-concussion syndrome, and that more weight should be given to the records of the applicant’s treating physician, Dr. Wadhwa. The respondent submits that Dr. Wadhwa’s CNRs do not comment on the applicant’s ability to perform the tasks of his employment.

38The respondent relies on the IEs of Dr. Belfon and Dr. Smith, in their IRB reports of December 27, 2019, as well as the functional abilities evaluation report of Dennis Polygenis, physiotherapist, also dated December 27, 2019. The respondent submits that Dr. Belfon, Dr. Smith and Mr. Polygenis opined that the applicant did not meet the test for entitlement to IRBs. In particular, the respondent submits that the applicant’s complaints of ongoing pain are inconsistent with the lack of pain medication, imaging and specialist referrals.

39The respondent submits that during the time period for the IRB in dispute, between January 23, 2020 and May 14, 2021, the applicant saw Dr. Wadhwa multiple times and did not mention any accident-related symptoms.

40I am persuaded by the respondent’s arguments that the applicant’s claimed inability to perform the activities of his pre-accident employment, due to pain, is inconsistent with the applicant’s CNRs of his treating physician. I do not have evidence before me that Dr. Wadhwa recommended any pain medication beyond Tylenol and Naproxen, nor any imaging or specialist referrals.

41I agree with the respondent that Dr. Wadhwa’s failure to mention any accident-related symptoms during three doctor visits, on July 24, 2020, February 5, 2021 and February 9, 2021, during the IRB time period in dispute, suggests that the applicant’s pain symptoms were manageable, and they were not his main health concerns.

42I agree with the respondent that the applicant’s treating physician is more qualified than the applicant’s treating physiotherapists to determine whether the applicant suffers from the physical and psychological injuries identified in the submitted OCF-3s, and I therefore assign more weight to the CNRs of Dr. Wadhwa. The lack of any mention in Dr. Wadhwa’s CNRs on (a) the applicant’s inability to perform the tasks of his employment, (b) more intensive pain management therapies or (c) accident-related symptoms during the IRB time period in dispute indicate to me that the applicant has not met the burden of proving his entitlement to further IRBs.

43For the reasons above, I find on a balance of probabilities that the applicant has not met the burden of proving that he suffered a substantial inability to perform the essential tasks of his pre-accident employment and he is not entitled to any IRBs beyond those already paid.

The applicant is not entitled to the funding for the proposed treatment plans

44To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

45On both of the treatment plans in dispute, the applicant indicated that his impairments are not minor and sought treatment outside of the MIG.

46Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary. I note that the MIG limits have been exhausted, so further analysis is not required.

Interest is not payable

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

ORDER

48The applicant has not demonstrated that his injuries cannot be treated within the limits set by the MIG.

49The applicant has not proven that he is entitled to receive any further payments for an IRB beyond those already paid.

50The proposed treatment plans are not payable since they propose treatment outside of the MIG.

51Since no benefits are payable, no interest is payable.