Overview

1Raymond Maharaj, the applicant, was involved in an automobile accident on August 17, 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, BelairDirect 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?

ii. Is the applicant entitled to $2,200 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic, in a treatment plan/OCF-18 dated January 4, 2021 and denied on March 17, 2021?

iii. Is the applicant entitled to $4,709.56 for physiotherapy services, proposed by Total Recovery Rehab Centre, in a treatment plan/OCF-18 dated June 10, 2021 and denied on June 16, 2021?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

Result

3The applicant failed to prove that his injuries are not minor and could not be treated within the Minor Injury Guideline limits.

4Since the applicant's injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the Minor Injury Guideline are not reasonable and necessary.

5An award under s. 10 of Reg. 664 is not payable.

6Since no treatment plans are payable, no interest is payable.

Analysis

The applicant's physical injuries do not place him outside of the Minor Injury Guideline

7The applicant did not provide objective medical evidence that his pre-existing medical conditions were exacerbated by the accident such that he required treatment outside of the Minor Injury Guideline (MIG) to recover.

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury. 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."

9An insured 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that he should be removed from the MIG because of his pre-existing condition, specifically persistent and chronic lower back pain due to degenerative disc disease. The applicant has reported this lower back pain to his family physician, Dr. Chongen Liu, since 2008. To manage his pre-accident lower back pain, the applicant relied on prescription painkillers including oxycodone, a brand of hydromorphone. The applicant submits that his chronic pain condition prevents him from attaining maximal medical recovery unless he obtains treatment outside of the MIG. After the accident, the applicant submits that he continued to experience pain in his lower back, neck and right leg and took prescription painkillers, including oxycodone. In January and April of 2020, Dr. Liu noted ongoing neck pain as a result of the accident. In June 2020, Dr. Liu recommended that the applicant receive further physiotherapy to treat the applicant's functional limitations.

11In September 2019, the applicant consulted chiropractor Dr. Georgia Palantzas, of Total Recovery Rehab Centre, who documented that the applicant's previous accident in 2018 posed a barrier to recovery with respect to the subject accident. The applicant underwent chiropractic treatment within the MIG. Upon re-assessment in June 2021, Physiotherapist Ahmed Afifi of Total Recovery Rehab Centre recommended physiotherapy, active therapy and massage therapy in the OCF-18 submitted June 10, 2021. Specifically, the OCF-18 noted that the applicant requires treatment outside of the MIG to not delay recovery. The stated goals of the treatment plan are pain reduction, increased range of motion, and increased strength in order to return to activities of normal living and modified work activities.

12The applicant submits that a formal diagnosis of chronic pain is not an absolute requirement, citing C.G. v. The Guarantee Company of North America, where the Tribunal found that "chronic pain is a condition that persists for three to six months, and a formal diagnosis of chronic pain is not required to remove the applicant from the MIG." (2020 CanLII 63599 ON LAT).

13The respondent argues that the applicant's injuries are considered "minor" under the Schedule. It argues that there is no compelling evidence that the applicant had a pre-existing medical condition that was documented by a health practitioner before the accident and that the pre-existing condition, if it exists, would not prevent maximal recovery if treatment is restricted to the MIG.

14The respondent argues that the clinical notes and records (CNRs) of Dr. Liu are not objective evidence of chronic pain because the applicant's pain complaints are self-reported. The CNRs do not show any corroborating evidence such as diagnostic imaging or any referrals to a pain specialist. In December 2017, the applicant underwent imaging to his neck for reported neck lumps, but the ultrasound and carotid duplex exam showed no abnormalities. There is no other pre-accident diagnostic imaging to investigate the applicant's pain. Dr. Liu's treatment for the applicant's pain complaints was to prescribe opioids, specifically oxycodone and dilaudid, brand names for hydromorphone. The respondent points to Dr. Liu's CNRs that indicate prescriptions for 5,550 tablets of opioids over an 8-month period before the accident, from January to August of 2019.

15The respondent further argues for a pre-existing chronic pain diagnosis to be valid medically, the Tribunal relies on the American Medical Association's (AMA) Guides for evaluating chronic pain claims (see, for example, the Tribunal's analysis in 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 ON LAT). The AMA Guide states that at least three of the following six criteria must be met for a diagnosis of chronic pain:

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

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

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

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. 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.

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

16The respondent argues that the applicant meets only the first criterion of the AMA Guides and does meet criteria 2 through 6. As evidence that criteria 2 through 6 have not been met, the respondent submits that in the 8-month period before the accident, the applicant continued to work and go on vacations, and that he made no statements to his family physician of functional limitations.

17The respondent submits that post-accident imaging does not indicate any accident-related exacerbation of the applicant's lower back pain, relying on December 4, 2020, MRIs that showed mild degenerative changes with no indication of any bulging, nerve root interference or sciatica.

18The respondent further relies upon the insurer's examination (IE) by orthopedic specialist Dr. Esmat Dessouki, in his in-person assessment conducted on July 12, 2021. Dr. Dessouki noted many of the applicant's self-reported limitations on activities of daily living because of pain, including household cleaning and shoveling snow. Despite these limitations, Dr. Dessouki opined that there was "no objective evidence of residual musculoskeletal impairment which can be attributed to the injuries sustained in the accident." Specifically, Dr. Dessouki opines that the applicant's pre-existing conditions will not prevent Mr. Maharaj from achieving maximal medical recovery from the minor injury if subject to the $3500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.

19Dr. Dessouki conducted two paper addenda examinations following the receipt of additional medical information from the applicant. Both the March 28, 2021, addendum and the July 22, 2021, addendum concluded that the applicant sustained a "minor injury" as defined by the Schedule, and that the applicant's pre-existing medical condition would not prevent him from achieving maximal medical recovery if his treatment were limited to the MIG.

20I find that the applicant failed to provide objective, corroborating medical evidence, such as diagnostic images or a specialist diagnosis, that would indicate that the applicant suffered from a pre-existing chronic pain condition (as described by the AMA Guides) that would prevent maximal medical recovery if treated within the MIG limits, as required by s. 18(2). While I accept that a formal diagnosis of chronic pain is not an absolute requirement, per C.G. v. The Guarantee Company of North America cited above, I find that the applicant has not met the burden of proof.

21I prefer Dr. Dessouki's opinion that the applicant would be able to recover from his physical injuries through treatment within the MIG limits since it is more consistent with the applicant's medical record and the AMA Guides criteria.

22For these reasons, I find on a balance of probabilities that the applicant's accident-related physical injuries are within the MIG.

The applicant's psychological injuries do not place him outside of the Minor Injury Guideline

23As stated previously, the Tribunal has also determined that a psychological condition may warrant removal from the MIG. As with physical injuries, the burden of proof lies with the applicant.

24The applicant submits that he should be removed from the MIG because he sustained a psychological impairment as a result of the accident. Records from Dr. Liu indicate that the applicant experienced anxiety and nightmares as a result of the accident. Dr. Liu prescribed medications for the applicant's psychological symptoms and referred him for a psychological assessment. Dr. Shirleen McDowall, psychologist, performed a pre-screening interview and submitted a Treatment and Assessment Plan (OCF-18) recommending an in-depth psychological assessment to determine the extent of the applicant's impairments. In the OCF-18, Dr. McDowall provided the following clinical impressions: specific phobias, nightmares, non-organic sleep disorders, irritability and anger. She also indicated that the applicant was suffering from avoidance behaviour in regard to driving.

25The respondent argues that there is no diagnosis of any pre-existing psychological condition in the CNRs of Dr. Liu, aside from self-reporting from the applicant, which did not lead to any pre-accident follow-up or referrals. Pre-accident, the applicant was prescribed a medication, lorazepam, but there is no psychological condition identified in Dr. Liu's CNRs.

26The respondent argues that the applicant did not report any post-accident psychological issues to Dr. Liu with any consistency. The respondent relies on the in-person psychological IE assessment conducted by Dr. David Direnfeld, psychologist, on March 16, 2021, with in-person addenda assessments conducted on March 2, 2022, and April 4, 2022. These in-person assessments included paper reviews of the applicant's medical history. In his report of July 26, 2022, Dr. Direnfeld noted that the applicant had driven extensively since the accident and that the applicant's complaints of vehicular anxiety are sparse, with only three notations out of over 200 post-accident visits to Dr. Liu.

27During the 2021 IE assessment with Dr. Direnfeld, the applicant reported that he had no difficulties driving his delivery truck for work and that he did not experience any anxiety while driving for personal reasons.

28Over his three assessments, Dr. Direnfeld conducted psychometric testing combined with interviews and concluded that the applicant did not have a diagnosable psychological condition. In his final addendum report of July 26, 2022, Dr. Direnfeld states that "in my assessment reports respectively dated March 16, 2021, and April 19, 2022, I concluded that the respective OCF-18s under review, each requesting psychological assessment, were not reasonable and necessary because the results of my assessment of Mr. Maharaj produced insufficient evidence of an accident-related psychological impairment. The new documentation provided for review does not alter my original opinion."

29I find that Dr. Direnfeld's assessment of the applicant's psychological condition is compelling since it relies upon detailed testing and interviews, and it is consistent with the applicant's extensive medical records. For this reason, I find that, on a balance of probabilities, the applicant has not met the burden of proof that he is entitled to treatment outside of the MIG because of his accident-related psychological impairments.

The applicant is not entitled to the funding for the proposed treatment plans

30To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

31The applicant submitted two treatment and assessment plan (OCF-18) forms: one for a psychological assessment, on January 4, 2021; one for physiotherapy services on June 10, 2021

32On each of the OCF-18s, the applicant indicated that his impairments are not minor and sought treatment outside of the MIG.

33Since I have determined that the applicant's injuries are "minor" as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary. I note that the MIG limits have been exhausted, so further analysis is not required.

An award is not payable

34Regulation 664, R.R.O. 1990 (Reg. 664) states that if the Tribunal finds that an insurer unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

35Since I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.

Interest is not payable

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

Order

37The applicant has not demonstrated that his injuries cannot be treated within the limits set by the Minor Injury Guideline.

38The proposed treatment plans are not payable since they propose treatment outside of the Minor Injury Guideline.

39The applicant is not entitled to an award.

40Since no treatment plans are payable, no interest is payable.