Samuel Ofori-Duodu v. Economical Mutual Insurance Company, 2023 CanLII 26950

Licence Appeal Tribunal File Number: 20-006267/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:

Samuel Ofori-Duodu

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Wendy Sokoloff / Melissa Gizzo, Counsel

For the Respondent: Krista Groen, Counsel

HEARD: By way of written submissions

OVERVIEW

1Samuel Ofori-Duodu, the applicant, was involved in an automobile accident on October 25, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Insurer, 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 predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $3,000.00 per month for an attendant care benefit from October 25, 2018, to date and ongoing?

iii. Is the applicant entitled to $3,696.50 for chiropractic services recommended by Mackenzie Medical Rehabilitation in a treatment plan (“OCF-18”) dated January 9, 2019?

iv. Is the applicant entitled to $215.48 for physiotherapy services recommended by Mackenzie Medical Rehabilitation in an OCF-18 dated May 17, 2019?

v. Is the applicant entitled to $1,977.05 for physical treatment services recommended by Mackenzie Medical Rehabilitation in an OCF-18 dated June 28, 2019?

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

vii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As such the treatment plans in dispute are not payable and no interest or award is payable.

4The applicant is not entitled to an attendant care benefit.

ANALYSIS

5The applicant was driving when the vehicle he was driving was rear-ended and pushed into the vehicle ahead. No emergency services were called to the accident, and the applicant did not seek any immediate medical care.

Applicability of the Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder [WAD], contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

8An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 MIG cap on a balance of probabilities.

Did the applicant suffer physical injuries that warrant the removal from the MIG?

10I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a physical impairment.

11I do not agree with the applicant’s assertion that his physical impairments justify removal from the MIG. The medical evidence before me, inclusive of clinical notes and records (CNRs) of Dr. Wayne Thai, family physician, and disability certificate (OCF-3) submitted by Hashim Khan, chiropractor at Makenzie Medical Rehabilitation Centre, and Insurer Examination a physiatry assessment by Dr. Michael Hanna all opined that the applicant suffered from soft tissue sprain and strains.

12A further review of the CNRs of Dr. Thai reveal that the applicant first saw Dr. Thai post-accident on December 31, 2018, and again on January 2, 2019, and at neither appointment was the subject accident mentioned. At the third post-accident visit with Dr. Thai on January 7, 2019, the applicant first mentioned the subject accident and complaints of pain in his neck, right arm, and left fingers in addition to some mild lumbar pain. Dr. Thai concluded that the applicant’s pain were soft tissue injuries.

13I agree with the respondent that the applicant’s post-accident treatment record is sparse, and his accident-related injuries are limited to soft tissue-based physical complaints.

14In my view, the medical evidence is consistent with the fact that the applicant sustained soft tissue injuries. As such, I find that the applicant’s injuries fall squarely within the definition of a minor injury as defined by section 3(1) of the Schedule and therefore, I find that the applicant’s physical injuries do not warrant a removal from the MIG.

Did the applicant suffer psychological injuries that warrant the removal from the MIG?

15I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

16I do not agree with the applicant’s assertion that his psychological impairments justify removal from the MIG. The applicant relies on the psychiatrist report prepared by Dr. David Slyfield, dated December 29, 2021, and February 27, 2022. The report considered the applicant’s self reporting three years post accident and concluded that the applicant demonstrated cognitive impairment in the context of a post motor vehicle accident anxiety disorder, prescribing the applicant Paxil 20 mg.

17However, a review of the applicant’s family physician’s CNRs make no mention that the applicant suffered a psychological impairment supporting a psychiatric diagnosis as a result of the accident. Other then a referral to Dr. Slyfield, I have not been directed to any other notations of psychological concerns from the applicant’s family physician nor other medical practitioners who may have treated the applicant on an ongoing basis in order to support the applicant’s submission that he has a psychological injury that would take him out of the MIG.

18I agree with the respondent that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. In my view, the July 2, 2019, opinion of Dr. Arnold Rubenstein, psychologist, that the applicant did not sustain any diagnosable psychological impairment as a result of the accident, is in line with the medical evidence.

19I find the applicant has not presented compelling evidence that he sustained a psychological impairment as a result of the accident. The lack of psychological complaints in the CNRs of the family physician other than a single referral, and the findings of Dr. Rubenstein contradicts the conclusions of the self-reporting findings in the applicant’s psychological report. Accordingly, I find that there is no corroborating evidence of an accident-related psychological condition or impairment to warrant removal from the MIG.

Chronic Pain

20I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

21In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries.

22I do not agree with the applicant’s position that because he remains in pain, he now suffers from chronic pain because of the accident. The medical evidence I was directed to of Dr. Thai and Dr. Hanna shows that the applicant was diagnosed with musculoskeletal neck, upper and lower back soft tissue pains. A further review of the CNRs of Dr. Thai and Dr. Hanna make no mention of chronic pain, offer a referral to a chronic pain specialist, or suggest any negative impact on his activities of daily living. The applicant reported to Dr. Hanna that he remains independent with pre-accident personal tasks.

23I agree with the medical evidence as presented by the respondent that the applicant’s accident-related injuries are soft tissue and sprains/strains, and the mere presence of pain is not sufficient for a finding of chronic pain.

24As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain because of the accident that warrants removal from the MIG.

Attendant Care Benefits

25To establish entitlement to attendant care benefits, the applicant must show that his expenses are reasonable and necessary as well as provided by a party in the normal course of their employment or if provided by a relative or friend they must show a loss of income as a result of provision of the service to the applicant. Additionally, under the Schedule the claims for these benefits must not be incurred more than 104-weeks following the onset of the disability unless the party is determined to be catastrophically impaired and are thus exempt form this time limit.

26I find that the applicant has not proven, on a balance of probabilities, that he is entitled to attendant care benefits.

27The applicant has not provided evidence that attendant care has been incurred, nor has a Form 1 ever been submitted. The applicant did not provide evidence of economic loss. Furthermore, self-reports from the applicant to Dr. Hanna indicate that he was independent with all aspects of his personal care and mobility activities.

AWARD AND INTEREST

28Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to an award or interest.

ORDER

29The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable;

iii. The applicant is not entitled to the attendant care benefit; and

iv. The applicant is not entitled to an award or interest.