OVERVIEW

1Shawn George Dixon, the applicant, was involved in an automobile accident on August 15, 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, Economical Insurance 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 $141.05 for physiotherapy services, proposed by Life Point Medical Inc. in a treatment plan ("OCF-18") dated November 1, 2019?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Life Point Medical Inc. in an OCF-18 dated November 8, 2019?

iv. Is the applicant entitled to $3,196.32 for physiotherapy services, proposed by Life Point Medical Inc. in an OCF-18 dated December 9, 2019?

v. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by One on One Assessment in an OCF-18 dated August 23, 2022?

vi. Is the applicant entitled to $2,591.28 for physiotherapy services, proposed by One on One Physio. in an OCF-18 dated June 9, 2022?

vii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by One on One Assessment in an OCF-18 dated August 3, 2022?

viii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by One on One Assessment in an OCF-18 dated June 20, 2022?

ix. Is the applicant entitled to $4,688.38 for psychological treatment, proposed by One on One Assessment in an OCF-18 dated August 3, 2022?

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

RESULT

3I find that:

i. The applicant's injuries fall outside of the MIG due to his chronic pain;

ii. The applicant is entitled to the following OCF-18s, with interest:

i. OCF-18 dated November 1, 2019 for physiotherapy services;

ii. OCF-18 dated June 9, 2022 for physiotherapy services; and

iii. OCF-18 dated June 20, 2022 for a psychological assessment.

iii. The applicant is not entitled to the following OCF-18s:

i. OCF-18 dated December 9, 2019 for physiotherapy services;

ii. OCF-18 dated November 8, 2019 for a psychological assessment;

iii. OCF-18 dated August 3, 2022 for psychological treatment.

iv. OCF-18 dated August 23, 2022 for a chronic pain assessment; and

v. OCF-18 dated August 3, 2022 for a neurological assessment.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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."

5An 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 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.

The applicant has established chronic pain warranting removal from the MIG

6I find that the applicant has met his onus to prove that he suffers from chronic back pain, with functional impairment, warranting removal from the MIG. The medical record establishes that within a few days after the accident, the applicant reported back pain, neck pain, wrist pain, fatigue, flashbacks, anxiety and fear of driving to his treatment providers at Life Point Medical chiropractic clinic. A week after the accident, the applicant attended a walk-in clinic due to his accident-related back pain. He was prescribed medication and referred for an X-ray of his back.

7The respondent argues that the fact that the applicant did not report ongoing back pain to a physician again until August 2021, is evidence that he did not suffer from chronic pain as a result of the accident. It relies on the applicant's OHIP record, which shows that his OHIP covered medical visits began in 2021. However, I note that the applicant consistently reported to his assessors in 2019 and 2020 that due to his residency status, he did not have OHIP coverage or a family physician. As such, he did not want to pay out of pocket for medical care, diagnostic imaging or prescription medication.

8Despite the applicant's reported inability to access public medical care, I find that the evidence establishes that the applicant still consistently reported ongoing back pain after the subject accident. The applicant attended treatment at Life Point Medical soon after the accident, from August 19, 2019 to November 1, 2019. At his reassessment on November 1, the applicant reported that his post-accident neck and wrist pain had resolved, but that he still suffered from back pain. Throughout 2020 the applicant continued to report constant back pain to his s. 25 psychological assessor Dr. Svetlana Gabidulina and the respondent's s. 44 assessors Dr. M. Elmpak and Dr. Eric Silver.

9In 2021, the applicant began to receive medical treatment for his ongoing pain. On August 9, 2021, the applicant paid out of pocket to attend a medical visit with Dr. Ramesh Asirwatham, and was referred to Dr. Jacky Chen at the Scarborough Pain Clinic. Dr. Chen's clinical notes and records ("CNRs") indicate that beginning in August 2021, the applicant began to receive bi-weekly epidural injections, and would receive anywhere from 17-22 injections at each visit.

10Although the respondent disputes that the applicant was diagnosed with chronic pain by Dr. Chen, I note that in his August 5, 2022 CNR entry, Dr. Chen expressly noted "rehab continue/chronic back pain/glutealgia persisted". Dr. Chen similarly referred the applicant to the North Toronto Sleep Clinic, to address his "chronic pain, snoring, insomnia, frequent awakening". The sleep clinic reported back to Dr. Chen that the applicant did not suffer from a sleep apnea, but that his sleep was disturbed due to pain and that he should continue to work with Dr. Chen to manage his pain, in order to improve his sleep quality.

11The respondent also disputes that the applicant's back pain was caused by the subject accident. It argues that the August 16, 2021 diagnostic imaging revealed mild scoliosis and spondylosis, which it argues is a degenerative condition and not accident related. The respondent further relies on its s. 44 assessment of Dr. Eric Silver, General Practitioner. In the report dated October 14, 2022, Dr. Silver found that despite the applicant's continued reporting of significant and constant low back pain, from a musculoskeletal perspective, his accident-related sprain and strain of the cervical and lumbar spine would have resolved. Dr. Silver reported that he could not directly attribute the ongoing pain to the accident-related musculoskeletal injuries.

12The respondent further argues that the applicant's chronic pain specialist, Dr. Chen, does not link the subject accident to the applicant's back pain. I disagree. In multiple CNR entries, Dr. Chen notes, "MVA/Back" and "MVA CAD WAD L34+OA/+Dextro", when referencing the applicant's chronic pain. In his referral for a back brace, Dr. Chen expressly noted "chronic back pain...MVA". Therefore, while Dr. Chen acknowledged the diagnostic findings in his CNRs, he also identified the subject accident as a cause of the applicant's ongoing pain. Finally, I note that no evidence has been submitted that the applicant complained of any back pain prior to the accident. As such, I find that the applicant has led sufficient evidence linking his chronic back pain to the subject accident.

13Further, I find that the applicant has led sufficient evidence that his chronic pain has caused functional impairment. The applicant reported sleep disruptions due to pain to Dr. Chen and all of his s. 25 and s. 44 assessors. Further, the North Toronto Sleep Clinic concluded that his sleep disruptions were due to pain, not sleep apnea. Although the respondent points to the fact that the applicant was able to work in the physically demanding construction industry as evidence that he did not suffer from functional impairment, the evidence establishes that the applicant was limited in his ability to work, due to pain. The respondent relies on the applicant's statement to Dr. Elmpak, its s. 44 psychological assessor, that in early 2020, he began working in construction. However, in his report, Dr. Elmpak further noted that the applicant was unable to stay at this construction work, due to his interfering pain and inability to complete his work duties. He also reported having to leave a subsequent driver job at FedEx due to an inability to lift heavy boxes.

14Finally, the respondent submits that the applicant did not meet three out of the six AMA Guides 6th Edition criteria for assessing chronic pain, per Y.F.T.L. v. the Co-Operators, 2020 CanLII 27398 (ON LAT). However, it concedes that the 6-factor test outlined in Y.F.T.L. is not a formal requirement for removal from the MIG, but rather, a useful tool in assessing chronic pain. I agree with the respondent that while the AMA Guides may be an assistive interpretive tool, it is not a mandatory assessment, particularly in a situation such as this, where the applicant was diagnosed with chronic pain, received ongoing chronic pain treatment and established functional impairment due to pain.

15As such, I find that the applicant has led sufficient evidence to establish chronic, severe and functionally-disabling accident-related pain, warranting removal from the MIG.

16Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

17The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

OCF-18 dated November 1, 2019 for physiotherapy services for $141.05

OCF-18 dated December 9, 2019 for physiotherapy services for $3,196.32

OCF-18 dated June 9, 2022 for physiotherapy services for $2,591.28

18I find that the applicant has met his onus to prove that the OCF-18s dated November 1, 2019 and June 9, 2022 are reasonable and necessary. The applicant has not established entitlement to the OCF-18 dated December 9, 2019.

19The OCF-18 dated November 1, 2019 had been partially approved for $1,095.85 up to the MIG limits. The respondent denied the remainder on the basis that the applicant had sustained only minor injuries. However, as I have found that the applicant's chronic pain takes him outside of the MIG, the applicant is entitled to the remaining balance if he can establish that it is reasonable and necessary. The applicant has met this onus.

20The treatment plan in dispute noted that the applicant had completed a previous session of physical therapy and that upon re-examination, his neck and wrist pain had resolved, and that his back pain improved from a 9-10/10 to a 7/10. It was proposed that additional therapeutic sessions were required to continue to address the stated goals of pain reduction, increase in strength and range of motion and a return to activities of normal living. I agree with the applicant that the remainder of the OCF-18 is reasonable and necessary. The applicant had shown improvement in pain reduction with the physical therapy he had received from August 19, 2019 to November 1, 2019, however, his lower back pain still remained. As such, the additional treatment was reasonable to continue his ongoing improvement.

21However, the applicant has not established entitlement to the subsequent OCF-18 dated December 9, 2019. In his submissions for this written hearing, the applicant provided many of the applicable OCF-18s. However, he did not provide the OCF-18 dated December 9, 2019. Nor did the applicant provide any specific submissions on this treatment plan, identify the proposed treatment or stated goals. Although the previous treatment plan dated November 1, 2019 had been partially approved, no updated records were provided by the clinic to indicate whether the applicant continued to progress with treatment. Without any specific evidence or submissions on this treatment plan, I find that the applicant has not established entitlement to the OCF-18 dated December 9, 2019.

22I find that the OCF-18 dated June 9, 2022 is reasonable and necessary. The applicant had stopped attending rehabilitative treatment in November 2019, as his MIG limits had been exhausted and he reported he was not able to pay out of pocket. On June 9, 2022, he submitted a new OCF-18 proposing physical therapy including electrotherapy, active treatment (exercises), massage, acupuncture, pillow, back support, heat pack and cream. I find that the proposed cost is reasonable, and note that physical therapy was recommended by Dr. Chen, the applicant's chronic pain specialist. In multiple CNR entries throughout 2022, Dr. Chen specifically recommended rehabilitation treatment and provided a referral for a back brace. I am persuaded by Dr. Chen's recommendation that such treatment be pursued to see if it would be beneficial for the applicant's chronic pain, and find the OCF-18 to be reasonable and necessary.

OCF-18 dated November 8, 2019 for a psychological assessment for $2,200.00

OCF-18 dated June 20, 2022 for a psychological assessment for $2,460.00

OCF-18 dated August 3, 2022 for psychological services for $4,688.38

23I find that the applicant has not established entitlement to the OCF-18 dated November 8, 2019 for a psychological assessment or the OCF-18 dated August 3, 2022 for psychological services. However, he has established that the OCF-18 dated June 20, 2022 for a psychological assessment is reasonable and necessary.

24To establish his claim, the applicant relies on two s. 25 psychological assessments. A March 2, 2020 psychological assessment report from Dr. Svetlana Gabidulina and a July 21, 2022 psychological assessment report from Ms. Lital Grinberg. The respondent objects to the applicant's s. 25 assessments, on the basis that the authors did not complete and sign an Acknowledgement of Expert's Duty form, or provide a CV, as required by Rule 10.2 of the Tribunal's Common Rules of Practice and Procedure ("Rules"). Given this breach, the respondent requests that to the extent the s. 25 reports are considered by the Tribunal, they should be limited to observational evidence only, not expert evidence. The applicant argues that these s. 25 reports had been previously submitted as part of his Case Conference Summary and were part of his CNRs. As such, he submits that there was no breach of the Tribunal's Rules.

25I agree with the respondent that the applicant has failed to comply with Rule 10.2 of the Tribunal's Rules. Although the applicant did submit the s. 25 reports as part of his Case Conference Summary, the Case Conference Report and Order dated December 8, 2022 is clear that any documents filed for the case conference, must be resubmitted for the hearing. As such, the applicant's s. 25 reports were resubmitted with his initial written hearing submissions on August 2, 2023. When re-filing these reports as evidence for the hearing, the applicant could have filed Acknowledgement of Expert's Duty forms and CVs, but did not.

26I do not agree with the applicant that the respondent was obliged to challenge the breach of Rule 10.2 at the time of the case conference, as the applicant could have provided an acknowledgment at any point prior to, or included with, his written hearing submissions and document brief. It was only upon receipt of the hearing submissions and evidence that it would have been clear to the respondent that such an acknowledgment would not be forthcoming. The applicant has not led any other argument in support of the reports' inclusion. Given the breach of Rule 10.2 and the failure to provide the stipulated acknowledgement, limited weight will be provided to the s. 25 reports, and I will consider them in the context of observational evidence, rather than expert evidence.

27The applicant submitted two OCF-18s for psychological assessments. I agree with the respondent that two such OCF-18s are duplicative. Moreover, the applicant has submitted into evidence only one of the OCF-18s for a psychological assessment, being the one dated June 20, 2022. The applicant has not submitted the OCF-18 dated November 8, 2019, or provided any submissions on this treatment plan. Without any evidence or submissions on this OCF-18, I find that the applicant has not met his onus to prove that it is reasonable and necessary.

28However, I find that the applicant has led sufficient evidence to establish that the OCF-18 dated June 20, 2022 for a psychological assessment is reasonable and necessary. Soon after the accident, the applicant reported psychological symptoms, including fatigue, flashbacks, anxiety and fear of driving to his chiropractic treatment providers. He further reported similar symptoms to Dr. Gabidulina on November 29, 2019. In his updated assessment with Ms. Grinberg, the applicant expressed feelings of sadness, anxiety and mood changes, stemming from the subject accident.

29In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect he has the condition for which he seeks the assessment. I find that the applicant has led sufficient evidence that further investigation into whether he has sustained an accident-related psychological impairment, is warranted. The medical record establishes that he has reported accident-related psychological symptoms to a number of assessors and treatment providers.

30Further, in denying the applicant's claim, the respondent relies on its s. 44 psychological assessments of Dr. Elmpak to argue that the applicant has not sustained an accident-related psychological impairment. While I agree with the respondent that Dr. Elmpak's initial s. 44 report dated January 21, 2020 found that the applicant did not present with a DSM-5 diagnosis of a mental health disorder, I do not agree that Dr. Elmpak's subsequent October 2022 report similarly stated that the applicant did not suffer from a DSM-5 diagnosis.

31Rather, in the updated report, Dr. Elmpak noted that the applicant's presentation on the psychological test results was a significant deterioration from three years previously, and that as the data was inconsistent, he was unable to point to a DSM-5 diagnosis. While Dr. Elmpak did state that he was unable to provide a DSM-5 diagnosis, Dr. Elmpak also requested that given these inconsistencies, further documentation be provided and possibly a "repeat assessment to further clarify [the applicant's] accident related diagnosis". No evidence has been provided from the respondent as to whether a repeat assessment was conducted or if additional documentation was provided to Dr. Elmpak. As such, I find that Dr. Elmpak's updated s. 44 assessment does not definitively state that the applicant does not suffer from a DSM-5 diagnosis, unlike the previous January 21, 2020 report.

32Therefore, I find that the applicant has led sufficient evidence that the OCF-18 dated June 20, 2022 for a psychological assessment is reasonable and necessary.

33With respect to the OCF-18 dated August 3, 2022 for psychological services, the applicant has not provided any submissions on this treatment plan or identified how the goals of the plan would be met by the proposed treatment. Without specific submissions on the OCF-18 for psychological treatment, I find that the applicant has not met his onus to prove its reasonableness and necessity.

OCF-18 dated August 23, 2022 for a chronic pain assessment

OCF-18 dated August 3, 2022 for a neurological assessment

34The applicant has not established that either of the proposed assessments are reasonable and necessary.

35With respect to the OCF-18 dated August 3, 2022 for a chronic pain assessment, I find that the applicant has not provided any evidence why an additional chronic pain assessment is needed. I note that at the time the OCF-18 was submitted, the applicant was already under the care of Dr. Chen at a chronic back pain clinic. In his submissions, the applicant reports that on August 21, 2021, he attended an assessment with Dr. Chen, that Dr. Chen ordered diagnostic testing, subsequently diagnosed him with chronic back pain, provided a plan of care and that he attends for bi-weekly epidural pain injections. The CNRs of Dr. Chen also indicate that Dr. Chen provided referrals for a back brace and physical therapy. As such, from the evidence it appears that the applicant was already assessed by Dr. Chen and is under the care of this chronic pain specialist. The applicant has not provided any evidence or submissions as to why an additional assessment is reasonable and necessary.

36I further find that the applicant has not established that the OCF-18 for a neurological assessment is reasonable and necessary. The applicant has provided insufficient evidence of any cognitive impairments as a result of the accident. There is no evidence of any reports of a concussion, or post-concussive symptoms. The applicant's only submission on this issue, is that in Dr. Gabidulina's s. 25 psychological assessment, he reported headaches and difficulties concentrating. However, this assessment was conducted on November 29, 2019, almost three years before the submission of the OCF-18. The applicant has not provided any contemporaneous evidence that a neurological assessment is reasonable and necessary.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18 dated November 1, 2019 and June 9, 2022 for physiotherapy services, and the OCF-18 dated June 20, 2022 for a psychological assessment.

ORDER

38For the foregoing reasons, I find that:

i. The applicant's injuries fall outside of the MIG;

ii. The applicant is entitled to the following OCF-18s, with interest:

i. OCF-18 dated November 1, 2019 for physiotherapy services;

ii. OCF-18 dated June 9, 2022 for physiotherapy services; and

iii. OCF-18 dated June 20, 2022 for a psychological assessment.

iii. The applicant is not entitled to the following OCF-18s:

i. OCF-18 dated December 9, 2019 for physiotherapy services;

ii. OCF-18 dated November 8, 2019 for psychological assessment;

iii. OCF-18 dated August 3, 2022 for psychological treatment;

iv. OCF-18 dated August 23, 2022 for a chronic pain assessment; and

v. OCF-18 dated August 3, 2022 for a neurological assessment.