20-003703/AABS

Licence Appeal Tribunal File Number: 20-003703/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:

Francis Sarkodie

Applicant

And

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Anita John

APPEARANCES:

For the Applicant:

Francis Sarkodie, Applicant

David Carranza, Paralegal

For the Respondent:

Kelvin Brown, Counsel

HEARD: In Writing

February 21, 2023

OVERVIEW

1Francis Sarkodie, the applicant, was involved in an automobile accident on November 26, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2On November 26, 2018, the applicant was the front seat passenger of a 2014 Range Rover travelling westbound on Finch Avenue West near Champagne Drive, in the city of Toronto, when suddenly they were struck head on at the driver’s side by a vehicle exiting a plaza, and the impact was so severe that it caused the airbags to deploy. The damage to the applicant’s vehicle was extensive and the vehicle was later written off.

ISSUES

3The 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 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $3,257.16 for chiropractic treatment recommended by Malton Spine Clinic and Chronic Pain Centre in a treatment plan (OCF-18) denied on August 2,2019?

iii. Is the applicant entitled to $2,817.68 for chiropractic treatment recommended by Malton Spine Clinic and Chronic Pain Centre in a treatment plan (OCF-18) denied on August 13,2019?

iv. Is the applicant entitled to $2,601.25 for a physiatry assessment recommended by Excel Medical Diagnostics in a treatment plan (OCF18) denied on February 3, 2020?

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

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

RESULT

4On a balance of probabilities, I find that the applicant’s injuries are predominantly minor injuries as defined in the Schedule. As a result, the applicant is subject to the funding limit of $3,500.00 provided by the MIG. As this limit has been exhausted, the applicant is not entitled to the benefits in dispute.

5The applicant is not entitled to interest as no payments are overdue.

6The application is dismissed.

ANALYSIS

The Minor Injury Guideline

7Section 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

8The onus is on the applicant to show that his/her injuries fall outside of the MIG¹.

Did the applicant sustain predominantly minor physical injuries?

9The applicant submits the following evidence to support his/her claim:

10On January 2, 2019, Dr. Reza Babaloui, completed a Disability Certificate (i.e., OCF-3) and stated that the applicant sustained sprain and strain of the cervical, thoracic, and lumbar spine; headaches, dislocation, sprain and strain of the joints and ligaments of the knee; and dislocation, sprain, and strain of joint and ligaments of hip. On March 9, 2019, Dr. Francisco, completed a second Disability Certificate indicating that the applicant sustained neck strain and lower back strain because of the accident. Sprains and strains are minor injuries under the Schedule.

11On February 20, 2020, the applicant underwent an MRI of his right knee, which confirmed a low-grade sprain. The applicant’s medial collaterals were intact. There was a delaminating cartilage tear and defect along the anterior weightbearing aspect of the medial femoral condyle measuring 12 x 12 mm. The remainder of the cartilage was well preserved. The applicant argues that this should take him out of the MIG. However, there is no evidence in any of the medical reports that this is a complete tear that will take the applicant out of the MIG. Sprains and partial tears are defined as minor injuries under the Schedule.

12In his report, dated March 26, 2020, Dr. Bharrgava diagnosed the applicant with patella-femoral chondromalaica and made a non-surgical recommendation for physiotherapy and a PF brace.

13In the respondent’s submissions, the respondent submits that chondromalacia patella is abnormal softening of the cartilage of the underside the kneecap (patella). It is a cause of pain in the front of the knee. Chrondromalacia patella is results from degeneration of cartilage due to poor alignment of the kneecap as it slides over the lower end of the thighbone.

14The applicant submits that his chondromalacia patella results in chronic knee pain where surgical intervention has been required. However, the applicant has not been recommended for surgery. In addition, IE assessor Dr. Michael Hanna, diagnosed the applicant with patellofemoral syndrome. Dr. Hanna did not flag the applicant’s right knee patella-femoral syndrome as an injury to be treated beyond the MIG. It was Dr. Hanna’s opinion from a musculoskeletal perspective, that the applicant’s injuries were minor in nature.

15On August 17, 2020, the applicant underwent a physiatry assessment with physiatrist, Dr. Yen-Fu Chen and reported experiencing pain to his neck, back and knee. The applicant was diagnosed with myofascial injuries of spine and limb muscles, knee dysfunction at both knees and chronic pain disorder.

16It should be noted that Dr. Chen diagnosed the applicant with chronic pain disorder. This opinion, provided in the August 17, 2020, physiatry assessment, is without any explanation. The diagnosis of chronic pain disorder is undermined, because it is unlike the other diagnoses included in Dr. Chen’s report, such as soft tissue injuries, which is followed up with evidence to support the diagnoses of neck pain, back pain, and knee pain.

17The respondent submits the following evidence in response to the applicant’s claim:

18The respondent relies on the insurer examination report of Dr. Hanna, dated September 10, 2019. Dr. Hanna’s assessment included an interview, physical examination, and review of documentation.

19In Dr. Hanna’s report, the applicant reported intermittent pain in his neck, upper back, and right knee, as well as constant low back pain. The applicant denied any psychological symptoms or sleep disturbances.

20On physical examination, the applicant was able to demonstrate full range of motion in all major joint groups. He demonstrated no reflex, strength, or other neurological deficits. He walked with a normal gait and was able to sit and stand normally.

21Dr. Hanna stated that the applicant’s injuries are considered minor as defined in the Schedule. Dr. Hanna opined that there was “no objective evidence of more than sprain/strain type of injury to his neck, back, left shoulder, and right knee. There was no evidence of radiculopathy, myelopathy, or neuropathy. There was no evidence of permanent impairment.”

22I find that the evidence establishes that the applicant sustained injuries that are defined as predominantly minor.

Does the applicant suffer from chronic pain?

23The applicant submits that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

24The applicant relies on the physiatry assessment report of physiatrist, Dr. Chen, dated August 17, 2020, to argue for a removal from the MIG based on a chronic pain disorder.

25After considering the parties evidence, based on a balance of probabilities, I find that the applicant has not established that he suffers from chronic pain.

26First, the applicant relies on the August 1, 2020, physiatry assessment which I find is without any explanation. I find the diagnosis of chronic pain disorder is undermined because it is unlike the other diagnoses in Dr. Chen’s report, such as soft tissue injuries, which is followed up with evidence to support the diagnoses.

27Second, the diagnosis of chronic pain disorder is supported only by a finding that the applicant continued to report pain long after the accident. Chronicity of pain complaints alone do not warrant treatment outside the MIG. There is no evidence of significant functional impairment, because of the pain. The applicant, an owner and operator of a clothing fashion company, continued to work after the accident. The evidence shows that the applicant was able to work, despite his injuries.

28Lastly, Dr. Chen did not investigate the applicant’s psychological health. This means the physiatrist’s diagnosis of chronic pain disorder is without a psychological component.

29In contrast, the respondent submitted that the applicant had not fulfilled the Tribunal’s required factors², based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) to establish chronic pain, which are:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

b. Excessive dependence on health care providers, spouse, or family.

c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

d. Withdrawal from social milieu, including work, recreation, or other social contacts.

e. 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.

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

30Although I am not bound by the AMA Guides in respect of chronic pain and the Schedule does not incorporate the AMA Guides in this context (unlike for catastrophic impairment), I find the AMA Guides to be a useful tool.

31Applying the criteria listed above to the facts of this case, the applicant does not use prescription medication, and isn’t dependent on health care providers or his family. The applicant works full-time, can carry out personal care tasks and housekeeping. The applicant has never sought psychological treatment and reported to Dr. Hanna that he had no psychological complaints.

32Based on all the above, the respondent submitted that the applicant has not shown that his pain meets the severity threshold of the AMA Guides and causes him a level of impairment that rises to remove him from the MIG.

33Since the applicant has not demonstrated that he suffers from an injury or impairment that would remove her from the MIG, I do not need to consider if the treatment plans in dispute are reasonable and necessary.

Did the respondent meet notice requirements under subsection 38(8) of the Schedule?

34The applicant submits the respondent failed to provide notice of the denial of the treatment plan within the ten days required by subsection 38(8) of the Schedule.

35The applicant raises non-compliance by the respondent with subsection 38(8) for not providing sufficient reasons for the denial of the treatment plan.

36The applicant relies on Tribunal decision, T.F. v. Peel Mutual Insurance Company³ which established the parameters that insurers are required to fulfill while providing their medical and all of their reasons for the notices to be sufficient and valid, by stating that those are met when they provide specific details about the insured’s condition forming the basis for their decision, or alternatively identify information about the insured’s condition that they do not have but they require.

37The respondent relies on N.A. vs. Aviva General Insurance,⁴ where Adjudicator Hines held that “the medical reasons provided by adjusters are not held to a standard of perfection as adjusters are not medical experts. It’s the overall sufficiency of the notice that is to be assessed.”

38The treatment plan for chiropractic treatment, denied on August 2, 2019, for $3, 257.16, which stated “as your impairments are considered to meet the definition of Minor Injury, the policy limit for your medical and rehabilitation benefits is $3,500.00 which has been reached at this point. Because of this, we are unable to consider this Treatment plan.” The same letter also advised of an IE with Dr. Hanna and provided the medical reason that “upon review of the minor injury guideline and the treating practitioner’s medical opinion, the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”

39The treatment plan for chiropractic treatment, denied on August 13, 2019, for $2,817.68, stated “as your impairments are considered to meet the definition of Minor Injury, the policy limit for your medical and rehabilitation benefits is $3,500.00 which has been reached at this point. Because of this, we are unable to consider this Treatment plan.” The same letter also advised of an IE with Dr. Hanna and provided the medical reason that “upon review of the minor injury guideline and the treating practitioner’s medical opinion, the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”

40The respondent submits that the treatment plan for a physiatry assessment, in the amount of $2,601.25 was denied in a letter, dated February 3, 2020. The respondent submits that the letter indicated that the plan was “not reasonable and necessary” because Dr. Hanna’s IE report had stated that “the CNRs of his family physician did not identify any conditions that would prevent the applicant from achieving the applicant from achieving medical recovery if subject to the MIG.”

41I agree, based on the evidence presented, that the disputed treatment plans were denied within the 10 business days required under s. 38 of the Schedule. I find the reasons for the denial that were provided were sufficient. The explanation of benefits provided the reasons for the denials as well as scheduling of an insurer examination or a scheduled insurer examination, which had concluded there was no evidence that the injuries sustained were not predominantly minor and to be treated outside of the MIG.

Award

42The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

43The assessment of whether an insurer conducted itself reasonably will differ on a case-by-case basis. An insurer is not obligated to simply approve a benefit claim based on claim forms and treatment evidence in hand. This is especially the case when, as in this case, the treatment evidence did not provide compelling evidence that the applicant’s injuries were more than minor.

44Consequently, I find that no award under Regulation 664 is payable to the applicant with respect to the respondent’s determination of the benefits at issue.

Are the treatment plans in dispute reasonable and necessary?

45Because I have found the applicant’s injuries to fall within the MIG and since the MIG limit has been exhausted, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.

CONCLUSION

46For the reasons outlined above, I find that:

i. The applicant did sustain predominantly minor injuries that fall within the MIG. Accordingly, he is not entitled to the treatment plan(s) claimed in this application or an award. No interest is payable. The application is dismissed.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635 para.24
2. 217-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at para 6.
3. 3Tribunal File Number 16-000634/AABS.
4. 42020 CanLII 94814 (ON LAT).