Citation: Cheema v. Economical Insurance Company, 2023 ONLAT 21-003476/AABS

Licence Appeal Tribunal File Number: 21-003476/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:

Asim Cheema

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Asim Cheema, Applicant Jaipreet Nanra, Counsel

For the Respondent: Ryland MacDonald, Counsel

HEARD: In Writing October 2, 2023

OVERVIEW

1Asim Cheema, the applicant, was involved in an automobile accident on August 25, 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 by s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to a medical benefit in the amount of $2,629.07 for an attendant care assessment, proposed by Tier 1 Assessments Inc., in a treatment plan submitted on September 20, 2019 and denied on September 30, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $2,488.28 for chiropractic services, proposed by Heartland Wellness in a treatment plan submitted on September 18, 2020 and denied on September 30, 2020?

iv. Is the applicant entitled to a medical benefit in the amount of $2,629.50 for a chronic pain assessment, proposed by Tier 1 Assessments Inc. in a treatment plan submitted on January 4, 2021 and denied on January 6, 2021?

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

RESULT

3I find the applicant has proven that he suffers from chronic pain, and therefore should be removed from the MIG. The applicant has also proven their entitlement to the chronic pain assessment in the amount of $2,629.50, plus applicable interest. However, he has not demonstrated that the attendant care assessment nor chiropractic services are reasonable nor necessary.

ANALYSIS

Minor Injury Guideline

4I find that there is significant ongoing evidence of chronic pain and functional impairment, as well as a diagnosis by two different physicians, Dr. Khan and Dr. Nazvi, a pain specialist. This evidence has continued for more than two years. I am persuaded that the applicant is suffering from ongoing chronic pain and requires treatment.

5The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, I find that the applicant has met his burden of demonstrating that he suffers from chronic pain that warrants removal from the MIG.

6The applicant should be removed from the MIG based on substantial and ongoing evidence of ongoing chronic pain. He has received injections for more than a year and has consistently shown that he suffers from back pain and leg pain which has interfered with daily tasks.

7Section (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 MIG. Section 3(1) of the Schedule 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.” An insured may "An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule,” 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 the insured person is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition have been found to also exceed the definition of minor injury. In all cases, the burden of proof lies with the applicant.

8The applicant submits that he continues to experience upper and lower back pain, tingling in his lower extremities and numbness. Following the motor vehicle accident on August 25, 2019, the applicant was initially treated on September 3, 2019 by Dr. Jonathan Eto, chiropractor, where he reported neck, shoulder and back pain, including back pain that radiated to his right leg and resulted in numbness and tingling. Subsequent to this appointment, these injuries were reported to Dr. Khan. The doctor diagnosed muscle spasms and whiplash and prescribed nonsteroidal anti-inflammatory drugs and cyclobenzaprine for pain management.

9The applicant continued physical therapy treatment that was curtailed by COVID in March of 2020. He again reported back pain to Dr. Khan in an appointment on June 4, 2020. The physician diagnosed paraspinal muscle strain, and at a subsequent appointment on September 22, 2020, again diagnosed “chronic back pain after MVA.” An MRI and ultrasound were ordered at this latter appointment by Dr. Khan. The MRI, conducted in November 2020, showed “At L4/L5 – a mild degenerative arthropathy of the facet joints. There is mild narrowing of the neural foramen.” The ultrasound showed “mild lower lumbar spondylosis.”

10The assessment conducted by Dr. Razvi, a chronic pain specialist, on December 9, 2020 also indicated that the applicant was suffering from tenderness of the paraspinal, occipital, lumbar spine and sacroiliac. The applicant returned nine times to the CPM clinic in January and February, 2021, where he received nerve block injection treatments to control his pain. At a September 21, 2021 visit to Dr. Khan and at an October 2021 visit to the CPM clinic, the applicant noted that his ongoing pain affected his daily activities. For example, he reported to Dr. Khan and Dr. Rizvi of his inability to stand or sit for prolonged periods due to numbness radiating to his legs from his back, and it is worth noting that prior to the accident the applicant had no reports of numbness radiating to his legs. Furthermore, the applicant had difficulty kneeling due to knee pain. These pain treatments continued until March of 2022. All of these factors lead me to conclude there is justification for a diagnosis of chronic pain.

11The respondent believes the applicant’s injuries to be predominantly soft-tissue and relies on the s. 44 physiatry examination by Dr. Zabieliauskas and the six criteria of the AMA Guides. The AMA Guides criteria are not binding on the Tribunal and are an assistive tool. And while it may be true that the injuries to the applicant are soft tissue in nature, he has been under regular care for pain treatments (including nerve block injections) from his primary care provider and a pain clinic for more than two years. He has consistently said his pain numbers 7 out of 10 on the subjective pain scale, and all clinical notes and records say he has had trouble functioning. In addition, the respondent did not schedule a further s. 44 examination when there were MRI results and a report from the chronic pain specialist that were at odds with what Dr. Zabieliauskas’s initial s. 44 examination concluded, despite this new evidence.

12In summary, the applicant’s chronic pain and treatments to alleviate this, in addition to his documented functional impairments warrants a removal from and treatment beyond the MIG.

Attendant care assessment, chiropractic treatment and chronic pain assessment

13The test for the payment of medical benefits as set forth in s. 15(1) of the Schedule is whether the benefits claimed are reasonable and necessary expenses incurred as a result of the accident. In order to find that a medical benefit is payable, I must be satisfied that the applicant has proven on a balance of the probabilities that the treatment plans in question are reasonable and necessary.

Attendant care assessment

14The applicant says that he has been unable to perform housekeeping and other home maintenance. There is a lack of evidence showing the applicant’s inability to complete personal care tasks. The applicant indicated to Dr. El-Hage that he was independent with his personal care. Nothing in the OCF-3 submitted says that the applicant is incapable of personal care which would justify an attendant care assessment.

15Furthermore, the applicant has failed to demonstrate how housecleaning invoices are evidence of entitlement to an attendant care assessment. The applicant has not established that he was unable to complete personal care tasks, for example, cleaning himself, as a result of the accident. In addition, the applicant has not shown how the need for housecleaning is connected to the effects of the accident.

16Accordingly, this request for an attendant care assessment is denied.

Chiropractic assessment

17The applicant requested chiropractic assessments and services. However, his submissions for the first treatment plan, for $2,488.28 from Heartland Wellness, refers to physiotherapy treatments and recommendations from Dr. Khan for physiotherapy as justification for these treatments. While the applicant may indeed require physical therapy, the request before the Tribunal is for chiropractic services.

18The respondent had a s. 44 examination conducted on its behalf by Dr. Zabieliauskas. Dr. Zabieliauskas concluded the applicant made a full physical recovery. Dr. Khan’s diagnosis conflicts with the s. 44 examination. However, the request for chiropractic services are unjustified given that the request has been for chiropractic services while the applicant has cited Dr. Khan’s recommendation for physiotherapy services as evidence for this treatment.

19As the respondent has pointed out, chiropractic treatment is different than physiotherapy treatment, and LAT decisions confirm this. See EA vs. Aviva General Insurance Company, 2020 CanLII 37590 ON LAT.

Chronic pain assessment

20The applicant claims $2,629.50 for a chronic pain assessment, proposed by Tier 1 Assessments.

21On referral from Dr. Khan, the applicant’s family physician, the applicant was assessed by Dr. Nayyar Razvi, a chronic pain specialist, on December 9, 2020, at Centre for Pain Management in Oakville. Dr. Razvi refers to ongoing neck pain, headaches and low back pain, and prescribes muscle relaxants, topical medications, and a chronic pain self-management program, in addition to therapeutic injections (Dec. 9, 2020, letter from Dr. Razvi to Dr. Khan)

22Records show a series of treatments including nerve block injections, beginning on January 5, 2021 and eight other times through January, 2021 and February, 2021. These treatments have partially alleviated the applicant’s pain and improved his functioning.

23The respondent relies on the assessment of Dr. Zabieliauskas, who concluded the applicant made a full physical recovery. The objective evidence is different and demonstrates that the applicant has consistently complained about pain, numbness and headaches.

24Two years post-accident, that the applicant requires treatments for his lower back and neck suggests ongoing pain. On this basis, I conclude that based on this evidence, the chronic pain assessment was needed to diagnose chronic pain, and therefore the goals of this assessment were both reasonable and necessary.

Interest

25Interest shall apply on the treatment plan for a Chronic Pain Assessment, in the amount of $2,629.50, from Tier One Assessments Inc., pursuant to s. 51 of the Schedule.

ORDER

26I find:

i. The applicant has established that he suffers from chronic pain that warrants removal from the MIG.

ii. The applicant is not entitled to a medical benefit in the amount of $2,629.07 for an attendant care assessment, proposed by Tier 1 Assessments in a treatment plan submitted on September 20, 2019.

iii. The applicant is not entitled to a medical benefit in the amount of $2,488.28 for chiropractic services, proposed by Heartland Wellness in a treatment plan submitted on September 18, 2020.

iv. The applicant is entitled to a medical benefit in the amount of $2,629.50 for chronic pain treatment, proposed by Tier 1 Assessments Inc. in a treatment plan submitted on January 4, 2021.