Licence Appeal Tribunal File Number: 20-014150/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:
Ryan Weeks
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Ian Maedel
APPEARANCES:
For the Applicant:
Emily Foreman, Counsel
For the Respondent:
Francine Papadopoulos, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ryan Weeks, the applicant, was involved in an automobile accident on August 26, 2018, 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, TD General 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 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 $1,010.00 for chiropractic services proposed by Dr. F. Fonti in a treatment plan ("OCF-18") submitted March 23, 2019?
iii. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant entitled to costs pursuant to Rule 19 of The Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017)("Common Rules")?
RESULT
3The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18s, as they propose goods that fall beyond the MIG and the $3,500.00 treatment limit.
5Given there are no benefits owed, or payments outstanding, the applicant is not entitled to an award, nor interest.
6The applicant is not entitled to costs pursuant to the Common Rules.
ANALYSIS
The Minor Injury Guideline
7The 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, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The terms, "strain," "sprain," "subluxation," and "whiplash associated disorder" are defined in the Schedule.
8Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding 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 chronic pain with a functional impairment that is not included in the minor injury definition.
9It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).
10The applicant submits he suffers from chronic pain, which is not included in the definition of a minor injury. He also submits he has a pre-existing condition which precludes his recovery if subject to the MIG. The respondent submits the applicant has failed to establish that his injuries are not predominantly minor and that they can be treated within the confines of the MIG. I agree with the respondent.
The applicant has not established he suffers accident-related chronic pain
11The applicant has not established he suffers chronic pain, or a chronicity of pain symptoms causing a functional impairment as result of the accident.
12I place no weight upon the diagnosis of chronic pain syndrome provided by Dr. K. Sequeira, physiatrist in his report dated January 21, 2021. The applicant reported that he suffered neck and upper back pain with spasms, headaches, and decreased mood following the accident. However, upon examination the applicant demonstrated full range of motion in his neck, normal stability in his shoulders, and range of motion within normal limits in his upper extremities and lumbar spine. Additionally, in the forms provided to the applicant as part of the examination, he checked only boxes related to headaches and mental stress. Otherwise, for the functional screening, he indicated no issues with self-care, homemaking, nor any issues with his upper limbs, neck, trunk, or lower limbs. The applicant highlighted only issues with sleep and a decrease in leisure and recreation activities.
13The evidence tendered does not establish the applicant meets three of the six criteria for chronic pain as identified in the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) ("AMA Guides"). Dr. Sequeira's diagnosis of chronic pain syndrome fails to make any reference to the AMA Guides. The records do no establish abuse or dependence upon prescription drugs, excessive dependence upon health care providers or family, any secondary deconditioning due to disuse or fear-avoidance, no withdrawal from social milieu, failure to restore pre-injury function insufficient to pursue work, family, or recreational needs (despite a reported cessation of golfing and skiing due to residual pain), nor any psychosocial sequelae stemming from the accident, except some general frustration regarding pain.
14The clinical notes and records provided do not include a diagnosis of chronic pain, nor do they demonstrate an ongoing functional impairment due to pain symptoms linked to the subject accident. There are only three entries in the clinical notes and records of the applicant's family physician, Dr. E. Armogan, that speak to the accident, or any reports of back pain/musculoskeletal pain. All three entries occurred between October and December 2018. Otherwise, the remaining entries addressed unrelated issues linked to life stress, sleep issues, and high cholesterol. None of the additional complaints were connected to the accident and the applicant was never referred to any specialists for further consultation for any accident-related impairment.
15Similarly, the records of Function First and S. Verhaeghe, registered massage therapist ("RMT") also fail to provide compelling evidence to support any claim of chronic pain. The applicant first visited this provider one day following the subject accident, where he described a stiff mid to upper back. The only additional reference to the accident was on August 12, 2019 where he reported "still not the same since accident, back has never fully recovered". While these notes do speak to some evidence of tightness and stiffness in his neck and back, I find the sporadic and limited reporting of accident-related pain and the clinical notes and records are uncompelling evidence in support of any chronic pain diagnosis.
16I find the insurer's examination ("IE") reports to be compelling evidence that the applicant does not suffer from chronic pain. Both reports describe an individual who is independent in his personal care and housekeeping, physically active, and had returned to full-time work, albeit with less work-related travel. The IE report provided by Dr. N. Abram, general practitioner, dated November 15, 2019 diagnosed the applicant with whiplash associated disorder I, and thoracic strain and sprain. She noted the applicant's range of motion was full in the neck and back with some discomfort, but noted the applicant met the criteria for a minor injury as described in the Schedule. Dr. Abram further noted the examination was "essentially normal" with no evidence of any significant orthopaedic findings or neurological compromise. Additionally, Dr. M. Khaled, general practitioner, in his IE report dated June 4, 2021 provided a similar diagnosis of grade 2 whiplash of neck with associated upper back sprain/strain and uncomplicated soft tissue injuries, without evidence of significant orthopaedic or neurological sequela. He concluded the applicant suffered a minor injury, as the applicant demonstrated no objective evidence of ongoing permanent accident-related impairment.
17Based on the totality of evidence tendered, and in consideration of the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities he suffered chronic pain as a result of the accident, nor that his injuries are beyond the definition of a minor injury and the MIG funding limit.
The applicant has not established he suffers from a pre-existing impairment that precludes his recovery in the MIG
18I am not persuaded the applicant has established on a balance of probabilities that he suffered from any pre-existing condition which would otherwise preclude his recovery following the accident if he is subject to the MIG and the $3,500.00 treatment funding limit.
19Pursuant to s. 18(2) of the Schedule, a pre-existing condition will not automatically exclude a person's impairment from the MIG: it must be documented by a health professional before the accident and shown to prevent maximal medical recovery within the cap imposed by the MIG.
20The applicant has not tendered any evidence of a pre-existing condition that was documented by a health practitioner before the accident. Neither the clinical notes and records provided by Dr. Armogan, nor the treatment records from Function First provide any evidence of a documented pre-existing health condition.
21Even if I were to disregard the requirement that the pre-existing condition be documented by a health practitioner before the accident, the evidence does not demonstrate that the applicant's recovery would be impaired by a pre-existing condition.
22I place no weight upon Dr. Sequeira's conclusion that the applicant's involvement in two previous accidents made the applicant more susceptible to sequelae of the subject accident. These comments from Dr. Sequeira, are the only commentary related to any pre-existing impairment in the evidentiary record provided. The previous accidents occurred in 2005 and 2012 however, the applicant repeatedly reported to assessors that impairments from these accidents had resolved prior to the subject accident in 2018.
23Instead, the reports tendered noted no compelling evidence of any significant pre-existing condition that would prevent the applicant from achieving maximal recovery from his minor injury if subject to the $3,500.00 MIG limit. The Cervical Spine Assessment report by the Mckenzie Institute dated November 1, 2018 indicated the applicant had been involved in an accident five years previous but had a "full recovery". Likewise, the applicant reported to Dr. Abram that following the 2012 accident he sought short-term disability benefits and chiropractic treatment, but all symptoms had resolved. The applicant further reported to Dr. Khaled that he suffered whiplash from the 2012 accident, had sought chiropractic, massage, and physiotherapy, but had returned to work within a few weeks and had recovered from these injuries. The applicant's comments to the assessors regarding his pre-existing condition are contrary to his submissions and indicate that impairments from prior accidents do not preclude his recovery from accident-related sprain and strain injuries.
24The applicant has failed to provide compelling medical evidence of a pre-existing condition preventing maximal recovery within the MIG. I view Dr. Sequeira's opinion as an outlier in light of the applicant's repeated comments related to his recovery from the previous 2005 and 2012 accidents. None of the clinical or treatment records provided demonstrate any evidence related to a pre-existing condition. When I consider the totality of this evidence, and the strength of the IE reports provided, I cannot conclude the applicant has established his pre-existing condition would prevent maximal recovery of the minor injuries sustained in the accident.
The applicant is not entitled to the OCF-18 in dispute
25Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed OCF-18, as it proposes goods and services that fall outside of the MIG and the $3,500.00 treatment limit.
The applicant is not entitled to an award, nor interest
26Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of O. Reg. 664. Thus, no award is payable.
27Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to costs
28The applicant's request for costs is denied. Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Common Rules. The threshold for costs is high, and they are rarely awarded. The applicant has failed to provide any submissions with regard to this application for costs other than a vague reference to "the insurer's conduct throughout the course of this claim". In my view, this is insufficient evidence to reach the high threshold for costs. As such, the applicant's request for costs is denied.
ORDER
26The application is dismissed, and I find:
i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the disputed OCF-18, as it proposes goods that fall beyond the MIG and the $3,500.00 MIG funding limit;
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iv. The applicant is not entitled to an award pursuant to s. 10 of O. Reg. 664;
v. The applicant is not entitled to costs pursuant to Rule 19 of the Common Rules.
Released: May 4, 2023
Ian Maedel Vice-Chair