Licence Appeal Tribunal File Number: 21-000054/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:
Ali Hossain
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Clive Forbes
APPEARANCES:
For the Applicant:
Syed Raza, Counsel
For the Respondent:
Lori Sprott, Counsel
HEARD
By Way of Written Submission.
OVERVIEW
1Ali Hossain, the applicant, was involved in an automobile accident on March 25, 2019 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 certain benefits by the respondent, Intact Insurance Company, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are in dispute:
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)?
If the applicant’s injuries are not considered to be predominantly minor:
i. Is the applicant entitled to $112.81 for chiropractic services recommended by Spinal Touch Wellness Centre (“SPWC”) as set out in a treatment plan (“OCF-18”) denied on July 29, 2019?
ii. Is the applicant entitled to $1,850.00 for chiropractic services recommended by SPWC as set out in an OCF-18 denied on September 16, 2020?
iii. Is the applicant entitled to $1,271.70 for chiropractic services recommended by SPWC as set out in an OCF-18 denied on November 06, 2019?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment plans in dispute are not reasonable and necessary and no interest is payable.
The applicant has not demonstrated that his impairments are outside of s. 3 of the Schedule and therefore removal from the MIG is not warranted
4The applicant has not demonstrated that he suffers from chronic pain or a psychological impairment that warrants removal from the MIG.
5Section 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 in accordance with the MIG. 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.” An 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 confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant on a balance of probabilities.
6The applicant submits that the following factors remove him from the MIG:
i. his chronic pain as a result of the accident; and
ii. his psychological impairments.
7To this end, he relies on his OCF-3 Disability Certificate, the findings of an independent chronic pain medical assessment by Dr. Igor Wilderman dated January 13, 2020, and the clinical notes and records (CNRs) from Dr. Sivagami Jeevanandam, his family physician, and the CNRs from Spinal Touch Wellness Centre.
8The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that he has developed a chronic pain condition or that he sustained an actual psychological impairment from the accident. It relies on the s. 44 reports of Dr. Ijaz Chaudhry, dated October 25, 2019, February 25, 2020, and October 16, 2020.
The applicant does not have chronic pain as a result of the accident
9I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.
10In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain or 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. Unfortunately, the phrase “chronic pain” is not defined in the Schedule. In assessing the applicant’s claim of chronic pain, I have applied the following criteria or characteristics from paragraph 16 in A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT):
i. Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.
ii. Whether the applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.
iii. Whether the pain is not a clinically associated sequela to minor injuries.
iv. Whether the applicant’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.
11I do not agree with the applicant’s position that he now suffers from chronic pain because of the accident. The applicant relies on the chronic pain medical assessment report of Dr. Wilderman, dated January 13, 2020, who reported that the applicant suffers from chronic pain syndrome that is so functionally disabling that it interferes with a substantial amount of his pre-accident activities of daily living (ADL). The report provides that the pain especially limits function in employment and risks being associated with permanent symptoms, such as severe pain and sleep disorder. I find that the severity of the symptoms and functional limitations mentioned by Dr. Wilderman is not supported by the bulk of the medical and documentary evidence.
12I agree with the respondent that there is no evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal from the MIG under this ground. The respondent relies on the s. 44 reports of Dr. Ijaz Chaudhry, dated October 25, 2019, February 25, 2020, and October 16, 2020, who concluded that the applicant sustained uncomplicated sprain and strain injuries to the cervical spine and left shoulder as a result of the accident.
13A review of the CNRs of the applicant’s family physician and other treating practitioners make no mention of chronic pain, do not offer a referral to a chronic pain specialist or suggest any negative impact on his ADL. In addition, the applicant has not been prescribed any medication in relation to his pain complaints to Dr. Wilderman, in fact the applicant has returned to work as an Uber driver following the accident and there is no evidence of sleep issues relating to the accident. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain that would require him to be removed from the MIG.
14Given the above, I do not find that the accident contributed to a pain condition causing functional impairment that requires treatment beyond the confines of the MIG. As such, the applicant has failed to establish that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.
The applicant has not suffered a psychological impairment as a result of the accident
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. He relies on Dr. Wilderman’s report where he stated that the applicant has developed psychological sequelae after the accident including excessive worry, difficulties relaxing, tension and restlessness. Dr. Wilderman also indicated that the applicant reported experiencing intrusive thoughts of the accident in the form of nightmares and flashbacks with associated palpitations, as well as anxiety driving. It was reported also that the applicant scored mild for symptoms of PTSD.
17However, a review of the applicant’s family physician’s records reveals that the applicant complained on January 19 and 24, 2017, more than two years pre-accident about being upset and anxious and that he was having significant marital problems with suspicions of infidelity and constant fighting. In addition, Dr. Jeevanandam made no mention in his CNRs that the applicant suffered a psychological impairment pre-accident or post-accident as a result of the accident.
18Also, on the OCF-3 dated May 22, 2019, that was submitted by Dr. Dev Sarathy, chiropractor, mainly physical injuries were listed, and anxiety disorders were mentioned. Furthermore, it is outside the scope of practice of a chiropractor to make psychological diagnoses. In addition, I have not been directed to any other notations of psychological concerns from the applicant's family doctor 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.
19I agree with the respondent that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. From the psychological testing done by Dr. Wilderman and as stated in his report, for anxiety the applicant scored 11, which corresponds to mild anxiety; for depression he scored 11, which corresponds to minimal depression and for PTSD screening he scored mild for symptoms of PTSD. In my view, the opinion of Dr. Wilderman that the applicant was presenting with an array of psychological symptoms, without contemporaneous reporting in the medical documentation and with no evidence of psychological impairment or emotional distress, does not demonstrate that removal from the MIG is required.
20I find the applicant has not presented compelling evidence that he sustained a psychological impairment as a result of the accident. First, there is limited continuous or contemporaneous reference to any psychological or emotional symptoms in the CNRs of his family physician that would provide objective confirmation of his struggles. Second, I find the opinion of Dr. Wilderman that the applicant was presenting with an array of psychological symptoms is unsupported by the balance of the evidence. Accordingly, for these reasons, I find the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
21I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As the parties have agreed that the MIG limit has been exhausted, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The MIG limit have been exhausted and, as no benefits are payable, no interest is payable under s. 51.
ORDER
23The applicant has not demonstrated that removal from the MIG is warranted. The MIG limit have been exhausted. As such, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required.
24Given that there is no payment of benefits overdue, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.
25The application is dismissed.
Released: May 10, 2023
Clive Forbes
Adjudicator