Alfaro v. Intact Insurance Company, 2023 CanLII 55968

Alfaro v. Intact Insurance Company, 2023 CanLII 55968

Citation: Alfaro v. Intact Insurance Company, 2023 ONLAT 21-004057/AABS

Licence Appeal Tribunal File Number: 21-004057/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:

Erik Alfaro

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Hiba Fasih, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Erik Alfaro, the Applicant, was involved in an automobile accident on August 27, 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 Intact Insurance Company, the Respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute to be decided in the hearing are:

i. Are the Applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the MIG and the $3,500.00 funding limit on treatment?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,894.33 for chiropractic services proposed in a treatment plan dated December 20, 2019?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a neurological assessment proposed in a treatment and assessment plan dated January 13, 2020?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for an orthopaedic assessment proposed in a treatment and assessment plan dated November 24, 2019?

v. Is the Applicant entitled to a medical benefit in the amount of $2,100.00 for a psychological assessment proposed in a treatment and assessment plan dated September 12, 2019?

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

3The Applicant indicated in their written submissions that a further treatment plan for chiropractic services in the amount of $3,010.71 was no longer in dispute.

RESULT

4The Applicant sustained a minor injury as a result of the accident.

5The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

6Given there are no benefits owed, no interest is payable.

ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment 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.

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 provide evidence of an injury 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 that he suffered chronic pain syndrome that falls outside the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The Respondent submits that he has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. I agree with the respondent.

Chronic Pain Syndrome

11I find that the Applicant has failed to discharge his burden of proof to establish that he sustained anything more than a minor injury as a result of the accident.

12No doctor has ever diagnosed the Applicant with chronic pain or chronic pain syndrome, nor does the evidence support such a diagnosis.

13The Applicant was a passenger in an Uber that was rear-ended while stopped at a red light. The airbags did not deploy, no EMS or police attended at the scene of the accident, and the Applicant did not seek immediate medical attention. The Disability Certificate ("OCF-3") completed by Dr. P. Bruni dated August 28, 2019, confirms the Applicant suffered soft tissue physical injuries as a result of the accident. It lists whiplash associated disorder, pain, headache, dizziness, and radiculopathy. Aside from these predominantly soft-tissue physical injuries, diagnoses of depressive episode, malaise, nervousness, and disordered sleep are beyond the scope of Dr. Bruni's practice as a chiropractor.

14The Applicant's neurological and psychological reports are uncompelling. Neurological and psychological pre-screening reports were included with the Applicant's submissions however, they had never previously been produced to the Respondent. I admit them but give them little weight. There is no name attributed to the documents. They are self-reported checklists signed only by the Applicant.

15Clinical notes and records from the family doctor demonstrate that the Applicant suffered predominantly soft-tissue injuries that are included in the minor injury definition. The records span the period from July 2019 to July 2021 and contain only one entry – on September 5, 2019, the Applicant complained of pain in his neck and low back radiating into his shoulder and arm. He reported that he continued to work on light duties, with no lifting. The doctor diagnosed cervical and lumbar and left shoulder myofascial strain, with possible cervical nerve root irritation. He was prescribed Anaprox for pain and told to follow up in a month. The records indicate that the Applicant never followed up. The Applicant reportedly received treatment at a rehabilitation clinic, however those records were not provided.

16I prefer the Insurer's Examination report of Dr. Gelman, MD, dated August 27, 2021, and place weight upon it. The Applicant's self-reported symptoms documented in this report indicate that he sustained a minor injury as a result of the accident. The Applicant reported that his doctor arranged x-rays of his neck after the accident, but he didn't go because he didn't have time. He had not returned to see the family doctor since the accident, nor any other medical doctors for any accident-related injuries. He reported a 50% improvement to his symptoms, but still had intermittent neck discomfort. He reported that any neurological or radicular symptoms resolved within a month of the accident. He was not taking any prescription or over the counter medication. The Applicant reported that prior to the accident, his wife did the majority of the housekeeping and he would help out where he could. He still did this as needed and was independent with all self-care. His only hobby was watching movies, which he continued to do. At the time of the accident, he was working in construction – he told Dr. Gelman that he took a month off and then returned, however this statement is contradicted by the "Additional Comments" on the treatment plan for a psychological assessment. The psychological assessment plan dated September 12, 2019, notes the Applicant reported that he had already returned to work, and had not received modifications or accommodations. The physical examination was unremarkable, and Dr. Gelman diagnosed strain/strain injuries to the cervical spine and shoulder girdle, which fall within the definition of a minor injury.

17The Applicant does not meet the criteria for chronic pain syndrome per the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 ("the AMA Guides"). These criteria are not binding, however the Tribunal has found the AMA Guides provide a useful and persuasive analytical tool for assessing functional capacity as it relates to chronic pain. The AMA Guides require that at least three of the six criteria are met in order to qualify for a diagnosis of chronic pain syndrome.

18The Applicant submits that Dr. A. Syed, psychologist, in the Insurer's Examination report dated December 14, 2021, "stops short of admitting that by the time of the assessment the Applicant developed chronic pain syndrome". However, Dr. Syed is a psychologist, and it is not within her expertise to diagnose chronic pain syndrome.

19In any event, I am not satisfied that the Applicant sustained continuous pain of such severity that it causes distress accompanied by a functional impairment or disability. Nor did he meet three of the six criteria required by the AMA Guides:

i. He was not using any prescription medication.

ii. There is no evidence of any excessive dependence on healthcare providers or family. He continued to assist his wife with housework as needed. He had not seen his family doctor after the initial visit, nor any other medical doctor.

iii. The Applicant did report being less active than before due to pain and stopped going to the gym.

iv. Withdrawal from social milieu: the Applicant returned to work after the accident and reported to Dr. Syed that he still enjoyed socializing.

v. Pre-injury function: again, I am not satisfied that the evidence supports a finding that his physical capacity was insufficient to work or pursue family or recreational needs. He had returned to work in a physically demanding job and continued to watch movies as a hobby.

vi. Psychological sequelae: based on the interview, objective psychometric testing, a review of the medical records, Dr. Syed opined that the Applicant was not suffering from any psychological impairment as a result of the subject accident.

20On a balance of probabilities, I find that the Applicant has failed to discharge his burden of proof to establish that he sustained anything more than a minor injury as a result of the accident.

21The Applicant sustained predominantly minor injuries, and the MIG funding limit have been exhausted. Therefore, an analysis of the reasonableness and necessity of the treatment plans is not necessary. Given that there are no benefits owing or payments outstanding, the Applicant is not entitled to interest.

CONCLUSION

22The Applicant sustained a minor injury as a result of the accident.

23The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury has been exhausted.

24Given there are no benefits owed, no interest is payable.