Sean Ramsay v. Economical Insurance Company, 2023 CanLII 122948

Licence Appeal Tribunal

Citation: Ramsay v. Economical Insurance Company, 2023 ONLAT 21-011451/AABS

Licence Appeal Tribunal File Number: 21-011451/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:

Sean Ramsay

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Moninder Khattra, Counsel

Dayana Soto Santana, Paralegal

For the Respondent:

Yann Grand-Clement, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Sean Ramsay (the “applicant”) was involved in a motor vehicle accident on September 11, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical Insurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2I find that the preliminary issue raised by the respondent in written submissions is not properly before the Tribunal. Therefore, I am not considering it.

3In submissions, the respondent raises a preliminary issue requesting that the applicant be “barred from bringing the issue of the applicability of the [MIG] before the Tribunal considering he failed to attend insurer’s examinations to assess same.” The respondent provides further information relating to this matter demonstrating that multiple attempts were made to schedule examinations from 2019 through early 2023 to address the MIG determination and the treatment plans in dispute.

4However, the case conference report and order (“CCRO”) released July 18, 2022 that set this matter down for a hearing does not list any preliminary issues in dispute. There is no indication in Tribunal records of any request to amend this CCRO. Nor do Tribunal records indicate that the respondent filed a notice of motion to add a preliminary issue as required and as detailed in Rule 15 of this Tribunal’s Common Rules of Practice & Procedure.

5In addition, the applicant seems unaware that this preliminary issue would be raised by the respondent. The applicant does not refer to it in his initial submissions and he did not file reply submissions (the applicant sent correspondence to the Tribunal on April 21, 2023 confirming that no reply submissions would be filed).

6As a result, I am not considering this preliminary issue in the context of rendering my decision.

SUBSTANTIVE ISSUES

7The following substantive 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 of the MIG?

2. Is the applicant entitled to $199.92 ($1,299.92 less $1,100.00 approved) for chiropractic services, proposed by 101 Physio in a treatment plan/OCF-18 dated February 6, 2020?

3. Is the applicant entitled to $4,912.80 for psychological services, proposed by 101 Assessments in a plan dated January 20, 2020?

4. Is the applicant entitled to the assessments proposed by 101 Assessments, as follows:

i. $2,460.00 for a psychological assessment, in a plan dated October 22, 2019;

ii. $2,460.00 for an environmental assessment, in a plan dated January 20, 2020; and

iii. $2,460.00 for a neurological assessment, in a plan dated January 20, 2020.

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

8Neither the CCRO that set this matter down for a written hearing nor the parties in their submissions confirm if there was any funding remaining within the MIG limit of $3,500.00.

RESULT

9I find that:

i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

10Section 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 minor injuries. 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.”

11An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

12The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from the MIG due to a pre-existing history of back pain that was exacerbated by the accident to the point where it should be considered chronic pain. The applicant argues that he meets three of the criteria required to establish a diagnosis of chronic pain in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (the “AMA Guides”). Further, the applicant relies on T.S. v. Aviva General Insurance Company, 2018 CanLII 83520 (ON LAT), a past Tribunal reconsideration decision that held that chronic pain was not a minor injury as defined by the Schedule and that chronic pain could be described as ongoing or recurrent pain lasting more than three to six months that was adversely affecting an individual’s well-being.

13The respondent argues that the applicant should not be removed from the MIG, as he has not substantiated that any pre-existing injury or condition precludes his recovery within the MIG, nor that he suffers from chronic pain or a psychological condition (an issue not raised by the applicant) not defined as a minor injury in the Schedule. The respondent further submits that the applicant does not meet the criteria established in the AMA Guides regarding chronic pain.

The applicant remains within the MIG

14I find that the applicant has not met his onus and demonstrated that his accident-related impairments warrant removal from the MIG.

The applicant does not suffer from an injury or condition that precludes his recovery within the MIG

15The applicant submits that the accident exacerbated pre-existing symptoms involving his back and neck, but he does not direct me to sufficient medical evidence indicating that such symptoms precluded his recovery within the MIG.

16With that said, the clinical notes and records (“CNRs”) of Dr. Steven Kramer, family physician, substantiate a history of back pain. The applicant reported lower and upper back pain to Dr. Kramer on at least five occasions in 2017 and 2018. He further reported shoulder and back pain on April 1, 2019 as the result of a motor vehicle accident prior to the subject accident. The applicant also attended Dr. Kramer on April 4, 6, 8, and 12, 2019 due to a fall where he hit his head, and reported back pain, neck pain, limited shoulder range of motion, and headache. At the April 6, 2019 appointment, Dr. Kramer diagnosed the applicant with a mild concussion and soft-tissue strain with spasm in the neck and back. The family physician recommended range-of-motion exercises and no screen time.

17However, Dr. Kramer’s CNRs do not indicate that any of the above injuries and related symptoms precluded the applicant’s recovery within the MIG. The 2017-2018 back pain was seemingly resolved by March 8, 2018, with Dr. Kramer writing that the applicant just had “an occasional [back] twinge” that he treated effectively with NSAIDs. The April 2019 motor vehicle accident and fall shortly afterward also do not seem to have had any lasting impact. In the CNRs of an appointment on April 6, 2019, Dr. Kramer notes that the applicant reported feeling “a lot better now,” and that pain had lessened, range of motion had increased, and the headaches had resolved. Improvement was also noted in the records of the April 8 and April 12, 2019 appointments.

18After the April 12 visit, these issues are no longer noted in the CNRs of Dr. Kramer. Lower back pain is noted in the records of an appointment following the subject accident, on October 17, 2019. But Dr. Kramer does not connect this pain to previous injuries or symptoms, which go unmentioned in his notes of this appointment. At this October 17, 2019 appointment, the family doctor prescribed physiotherapy, massage therapy, and Tylenol E8, and advised the applicant to stop naproxen due to an adverse reaction, all of which accord with the treatment of uncomplicated minor injuries as defined in the Schedule and do not indicate the presence of any pre-existing injuries or conditions. This conclusion is further supported by the cervical spine x-rays and left shoulder ultrasound diagnostic imaging reports adduced by the applicant, both of which are unremarkable.

19Lastly, the accident is not mentioned in the CNRs of Dr. Kramer after October 17, 2019 (CNRs were not submitted after November 2019). This again indicates that the pain sustained as a result of that accident was transitory and uncomplicated by prior injury or condition.

20Accordingly, the applicant has not substantiated that a pre-existing injury or condition precluded his recovery within the MIG.

The applicant does not suffer from chronic pain

21Minimal evidence has been submitted by the applicant to support his claim of experiencing chronic pain with a functional impairment that would warrant his removal from the MIG.

22The applicant bases his chronic pain argument largely on the AMA Guides. While the test in the AMA Guides is not binding or definitive, this Tribunal has long held that it provides a helpful tool for the evaluation of chronic pain. This test establishes that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

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 behaviours.

23The applicant argues that he meets three of the six criteria. Namely, he submits that his use of oxycodone post-accident reveals a dependence on medication that meets criteria (i); that he has failed to restore pre-injury function and is unable to return to daily work, social, and recreational activities, which meets criteria (v); and that he has developed anxiety after the accident due to “vehicular situations,” satisfying criteria (vi).

24However, the applicant has not directed me to sufficient evidence supporting these claims.

25First, to address criterion (i) of the AMA Guides. While Dr. Kramer notes in his records of the appointment on October 17, 2019 that the applicant had “some Oxycontin from previous,” it is not clear in the submitted evidence when this medication was prescribed. Nor is there any indication in the CNRs or elsewhere in the applicant’s evidence that he used this drug or other drugs beyond the recommended duration or that he showed a dependence on any form of prescription medication or other substance.

26Second, insufficient evidence has been submitted to show that the applicant failed to restore his pre-injury function in accordance with criterion (v) of the AMA Guides. On the contrary, the applicant reported to Lital Grinberg, psychological associate, during a psychological assessment on December 4, 2019 (which resulted in a report completed under the supervision of Dr. Peter Waxer, psychologist, dated December 10, 2019), that he was able to “resume his workplace responsibilities as a driver and mover” following the accident.

27This report also contains notes about the applicant experiencing significant changes to his social life post-accident and that he was unable to engage in household duties. But I assign these observations nominal weight as they consist of the applicant’s self-reporting and are not supported by objective medical evidence. For example, these issues are not noted in the CNRs of Dr. Kramer, which as mentioned above were not submitted following November 2019.

28Third, minimal evidence supports the applicant’s claims to vehicular anxiety, which would meet criterion (vi) of the AMA Guides. As noted above, the psychological assessment report details the applicant reporting that he had returned to his previous employment and was driving a vehicle in the role of his job as a mover. Granted, much of his self-reported anxiety seems to involve riding as a passenger (he was a front-seat passenger in the subject accident). Still, even this section of the report is hard to connect to the accident, as during the examination the applicant focused on public transit and said that he would “always panic when there are no buses to take me home.” At any rate, I do not find that the applicant has established that he suffers from vehicular anxiety.

29Lastly, I accept the description of chronic pain in T.S. v. Aviva General Insurance Company as referenced by the applicant, even though I am not bound by prior decisions of the Tribunal. However, it is well accepted by this Tribunal that, to warrant removal from the MIG, chronic pain must involve a significant disruption to an applicant’s life, not just pain of a set duration beyond three to six months, and include a functional impairment.

30Here, the applicant does not substantiate that pain has disrupted his regular activities, nor does he provide sufficient evidence that he suffers a functional impairment. The applicant does not mention post-accident limitations to Dr. Kramer in the submitted CNRs. In the psychological assessment report, the applicant reported returning to work. And the remainder of the psychological assessment report dealing with the impact of the accident on the applicant’s life and activities consists of self-reporting.

31To summarize, the applicant has not demonstrated that he suffers from chronic pain with a functional impairment.

Conclusion

32For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

33As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

34However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ORDER

35I find that:

i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The application is dismissed.