Licence Appeal Tribunal File Number: 20-015122/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:
Sennas Appiah
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Kevin Lundy
APPEARANCES:
For the Applicant:
Sennas Appiah, Applicant
Andrew Suboch, Counsel
For the Respondent:
Kevin So, Counsel
HEARD:
In Writing
OVERVIEW
1Sennas Appiah (the ‘applicant’) was involved in an automobile accident on January 16, 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 BelairDirect (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.
2The applicant’s 2008 Honda Civic was struck on the right rear side and sustained minor damage, as confirmed by submitted photographs. The applicant reported that the road conditions were wet and slippery due to snow. Although he stated that the impact caused his car to move forward and out of its lane, no airbags were deployed. He was able to drive to the Collision Reporting Centre to document the accident. Although he advised that he did not feel pain at the time of the accident, he experienced pain in his neck and back later that same day. He visited his family physician the following morning and was provided with unspecified painkillers and referred for physiotherapy, massage and chiropractic treatment to address his physical pain symptoms.
ISSUES
3The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (the ‘MIG’)?
Is the applicant entitled to a non-earner benefit (‘NEB’) of $185.00 per week from January 16, 2019 to date and ongoing?
Is the applicant entitled to $4,615.00 for physiotherapy services, proposed by Knead Wellness in a treatment plan/OCF-18 (‘plan’) submitted January 28, 2019?
Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for physiotherapy services, proposed by Knead Wellness in a plan submitted May 2, 2019?
Is the applicant entitled to $2,570.00 for physiotherapy services, proposed by Knead Wellness in a plan submitted May 29, 2019?
Is the applicant entitled to $2,550.00 for physiotherapy services, proposed by Knead Wellness in a plan submitted November 7, 2019?
Is the applicant entitled to $2,179.22 for a psychological assessment, proposed by Community Health & Counselling Services Inc. in a plan submitted November 21, 2020?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Community Health & Counselling Services Inc. in a plan submitted November 28, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
b. The applicant is not entitled to a non-earner benefit;
c. The applicant is not entitled to the balance of any of the disputed treatment plans listed above as he has not established that any of them are reasonable and necessary. It follows that there is no interest owing. The application is therefore dismissed.
PROCEDURAL ISSUE
5On June 15, 2021, the Tribunal issued a case conference order and report in relation to a case conference held on May 31, 2021, scheduling a three day videoconference hearing on the disputed issues listed above. On August 26, 2022, the applicant filed a notice of motion requesting to change the format of the hearing from videoconference to written format. The respondent consented to the motion.
6On October 5, 2022, the Tribunal granted the applicant’s motion and directed the applicant to provide written submissions and evidence no later than thirty calendar days prior to the hearing date. On October 11, 2022, the Tribunal issued a Notice of Written Hearing that scheduled the hearing for April 6, 2023. Read together, the motion order and the Notice of Written Hearing required the applicant to submit his written submissions no later than March 7, 2023.
7On March 23, 2023, almost three weeks after his submissions and evidence were due, the applicant filed a document brief without any written submissions in contravention of the October 5, 2022 motion order, without any motion to amend the order, without any request for leave for late filing and without any explanation for the breach. This document brief was also filed after the respondent’s submissions and evidence were due on March 23, 2023. The document brief submitted by the applicant contains no written submissions addressing any of the issues in dispute.
8Given that the onus is on the applicant to demonstrate entitlement, the respondent submitted that the Tribunal should dismiss the appeal in its entirety as the applicant has failed to justify or provide any reasons as to why he should be entitled to any of the benefits. In the alternative, the respondent also provided submissions that address entitlement to the benefits in dispute. As the respondent has provided thorough submissions on the substantive merits of the application, I have considered the available evidence and submissions below.
ANALYSIS
The Minor Injury Guideline
9Subsection 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.” Subsection 18(1) of the Schedule prescribes a limit of $3,500.00 on medical and rehabilitation benefits payable for any one accident. The applicant bears the burden of proving, on a balance of probabilities, that his injuries are not minor within the meaning of the Schedule.
10The applicant has made no submissions as to why his injuries should fall outside of the MIG. Between the evidence submitted by the applicant and the evidence and submissions filed by the respondent, I prefer the latter as more persuasive. As a result, I find that the applicant has failed to meet his evidentiary burden to demonstrate that his injuries justify removal from the MIG.
11The applicant also did not submit any clinical records to suggest that his injuries fall outside of the MIG. Similarly, he has not produced any clinical records from his family doctor, Dr. Abraham Cohen, or any doctor he may have seen covered under OHIP noting any mental health complaints since the accident. He also submitted no referrals from his family doctor for further investigation into any injuries allegedly suffered as a result of the accident.
12On April 19, 2019 and May 25, 2019, the applicant underwent sleep studies at the Centre for Sleep and Chronobiology Inc. to investigate possible sleep apnea. The resulting two reports include no mention of the accident let alone an indication of a causal relationship between his injuries and his observed sleep fragmentation issues.
13Mr. Balasingham Arasabalan, social worker, and Dr. Rick Lindal, psychologist, conducted a mental health assessment on the applicant on November 21, 2020. The applicant reported pain in his neck, back and right wrist with frequent headaches from the accident. He also reported significant difficulty falling asleep and remaining asleep due to pain and discomfort. The applicant also described difficulties with concentration and social functioning, but acknowledged that the COVID-19 lockdowns at the time had some effect on the latter. Although he reported increased anxiety and irritability since the accident, he denied any thoughts of suicide or self-harm. The applicant expressed an inability to relax and concerns over the effects of the accident on his financial situation.
14Psychometric testing revealed moderate levels of pain discomfort and moderate effects on his emotions and functioning levels, all of which appears to have been derived from the applicant’s own self-reporting. Mr. Arasabalan and Dr. Lindal did not however find evidence of a somatic symptom disorder or a mood disorder. They also found the applicant to be in the normal range for depression; in the mild range for anxiety and in the normal range for stress. They also noted that although the applicant did not feel comfortable driving after the accident, particularly on the highways, he reported minimal fear driving in less challenging settings such as on city streets as well as riding as a passenger. There was no indication in the report dated December 15, 2020 that Mr. Arasabalan and Dr. Lindal conducted any validity testing during the assessment.
15In their report, Mr. Arasabalan and Dr. Lindal stated that the applicant sustained significant pain symptoms throughout his body that impacted his personal, vocational and social life and recommended cognitive rehabilitation and a driving reintegration assessment. However, they did not state that the applicant could not reach maximal recovery within the limitations of the MIG or indicate a position on whether the applicant should be removed from the MIG. They also did not reference any medical documents reviewed in preparation for their own report despite the significant passage of time since the accident.
16On November 20, 2020, the applicant underwent a chronic pain assessment with Dr. Lenus Louis, a medical physician at Community Health and Counselling Services Inc. Significantly, although this assessment occurred almost two years after the accident, no documents were made available for Dr. Louis to review before or after his examination of the applicant.
17The applicant reported to Dr. Louis that although he was involved in a prior car accident in 2015 and sought treatment for approximately one year, his injuries from that accident had resolved by the date of the present collision. As a result, there is no evidence to suggest that the present accident has aggravated a pre-existing condition.
18Following a physical examination, Dr. Louis diagnosed the applicant with chronic pain. In his report dated December 30, 2020, Dr. Louis explained that the criteria for chronic pain include pain that lasts for at least a month beyond what would be expected from the injury; pain that recurs on and off for at least three months and pain that accompanies a long-standing condition. However, neither this report, nor the report from Mr. Arasabalan and Dr. Lindal suggested that the applicant’s mood disorder and heightened anxieties could not be treated within the MIG.
19By contrast, the respondent relies on the reports of Dr. Eric Silver and Dr. Sabrina Ming-Wai Tu, general practice physicians, who both directly addressed the issue of whether the applicant’s injuries fall outside the MIG from a musculoskeletal perspective. Dr. Silver assessed the applicant on March 10, 2019 and issued a report dated April 10, 2019. At page 7 of his report, Dr. Silver concluded:
From a musculoskeletal perspective and based on the currently available information, it is my opinion that Mr. Appiah sustained uncomplicated soft tissue injuries to his neck and back as a result of the subject accident. I did not find objective evidence of ongoing physical injury or impairment at today’s assessment. My physical examination was largely unremarkable indicating that his accident related physical injuries have resolved. It is my opinion that Mr. Appiah’s accident related injuries were minor in nature as defined by the SABS.
20Dr. Tu assessed the applicant on January 23, 2020 and issued a report dated February 4, 2020. At page 9 of the report, Dr. Tu wrote:
Yes, he has sustained minor injuries as defined by the SABS. He has sustained a cervical strain, lumbar strain, and an acute exacerbation of chronic pre-existing low back pain, all of which fall within the definition of a minor injury. He has also had a cervical spine x-ray dated January 17, 2019, which did not reveal any fractures; there[fore], he has sustained minor injuries.
21As a result, while Dr. Tu agreed with Dr. Louis’s later assessment that the applicant suffered from lower back pain, she concluded that this and his other injuries could be treated within the MIG.
22Significantly, both of the applicant’s section 25 assessments were conducted well after the respondent’s section 44 reports were drafted in 2019. However, neither referenced the earlier section reports let alone addressed the findings of Dr. Silver or Dr. Tu. Given that the earlier section 44 reports should have been available to the section 25 assessors by late 2020 and early 2021, their omission from the reports reviewed by Mr. Arasabalan and Dr. Louis suggest that the section 25 assessors were not made aware of them either when they offered their initial opinions or to provide an opportunity to consider whether the subsequent reports changed their opinions. This suggests that the applicant’s assessors may not have been aware of the section 44 reports and were therefore not provided with a complete picture of all of the available medical evidence. At the very least, Mr. Arasabalan and Dr. Louis did not contradict the findings of the section 44 assessors, both of whom directly addressed whether the applicant’s injuries fall within the MIG limits. As a result, I find that the reports by Mr. Arasabalan and Dr. Lindal and Dr. Louis must be accorded less evidentiary weight.
23While there is similarly no indication that either Dr. Silver or Dr. Tu subsequently reviewed the section 25 assessments to consider whether these reports changed their opinions, the applicant ultimately bears the evidentiary burden to establish that his injuries fall outside of the MIG.
24In light of all of the evidence, I find that the applicant has failed to meet his evidentiary burden to demonstrate on the balance of probabilities that his injuries fall outside of the MIG, or that he should be removed from the MIG pursuant to subsection 18(2) of the Schedule.
Entitlement to Non-Earner Benefits
25I do not find that the applicant has demonstrated on the balance of probabilities that he is entitled to a non-earner benefits
26Subsection 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. Subsection 3(7)(a) of the Schedule defines “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
27In Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (‘Heath’) at paragraph 50, the Ontario Court of Appeal set out the guiding principles relating a claimant’s entitlement to non-earner benefit:
The starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life involves a comparison between the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.
Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.
In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life.
It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his or her pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”
The phrase “engaging in” should be interpreted from a qualitative perspective to indicate more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity.
In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.
28The applicant bears the burden of proving his claim for a non-earner benefit on a balance of probabilities. He also must demonstrate both a causal link between the accident and his impairment and that his impairment results in a complete and continuous inability to carry on a normal life.
29The applicant reported to Mr. Arasabalan and Dr. Lindal that he was not employed at the time of the accident and was in his final year studying electrical engineering at Centennial College. Although he completed his education following the accident, he advised at the time of the mental health assessment that he was unemployed due to the trauma sustained from the collision. No other information was provided to Mr. Arasabalan and Dr. Lindal with respect to any employment or plans regarding employment following the accident.
30However, the applicant mentioned in the course of the psychological assessment conducted by Dr. Mohammad Nikkhou, psychologist, on July 10, 2019, that he worked on weekends as a moving helper in order to make cash. Whether this was still the situation when he met with Mr. Arasabalan and Dr. Lindal over a year later is unclear as he provided them with minimal information with respect to his employment. Strictly from a psychological perspective and with respect to the subclinical nature of the applicant’s psychological symptoms at the time of the assessment, Dr. Nikkou found that there was no psychological barrier for the applicant to perform his normal daily living activities or pre-accident weekend work as a moving helper. He acknowledged that any opinion regarding the applicant’s physical status and capabilities was beyond the scope of the clinical psychology practice.
31The applicant advised Mr. Arasabalan and Dr. Lindal that he experienced pain with prolonged bending down or carrying weight. He explained that he has severe difficulties completing usual household chores since the accident, an issue compounded by living alone without assistance. The report, issued on December 15, 2020 by Mr. Arasabalan and Dr. Lindal, included only a few general examples of tasks that the applicant could not continuously perform and did not clarify the maximum weight the applicant could lift or carry.
32Although Dr. Louis stated in his December 30, 2020 report that the applicant has suffered a complete inability which impacts his quality of life, he acknowledged that he lacked sufficient information with respect to which activities the applicant would have engaged prior to the accident. As well, his report does not clarify the degree to which the applicant’s functionality may be compromised with respect to specific activities.
33In Hormis v. Aviva General Insurance, 2022 CanLII 53760 (ON LAT), the Tribunal held that an applicant must provide evidence of the frequency and time commitments of his or her pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge his or her burden of proving that he or she is prevented from engaging in “substantially all” of the pre-accident activities in which he or she ordinarily engaged. Given that the analysis in Heath relies upon a detailed comparison of functionality for activities before and after the accident, I find this reasoning persuasive.
34To that end, the applicant has failed to produce any clinical records from his family doctor nor any OHIP specialists containing complaints of difficulties with any aspects of his daily life following the accident. The clinical records of his family doctor, Dr. Cohen, are very limited and lack entries of issues with respect to any difficulties or incapacity to perform activities of normal life. It is also significant that the two section 25 reports submitted by the applicant include no indication that the assessors ever observed the applicant perform functional tasks or movements despite the extensive complaints of difficulties noted in their reports. These reports also do not describe the frequency and time commitments of the applicant’s pre-accident activities, which would allow the Tribunal to make the necessary comparison. As a result, these reports provide only a superficial indication of the applicant’s functionality before and after the accident and must be accorded reduced evidentiary weight.
35By contrast, I assign greater weight to the observations and conclusions contained in the Occupational Therapy report by Sarah Maddix dated April 10, 2019, as Ms. Maddix engaged in a detailed comparison of the applicant’s routine before and after the accident.
36Significantly, the applicant reported to Ms. Maddix that his current daily routine was the same as prior to the accident, and reported independence with his personal care tasks including dressing, toileting, bathing and grooming and independence with his pre-accident housekeeping tasks. He indicated he has not resumed helping his sister’s children with their homework, watching movies and doing recreational reading due to his school commitments. The applicant further reported resuming driving and reported no issues with his mood, including issues with depression, anger, irritability or frustration.
37Ms. Maddix concluded that,
Based upon physical and functional testing, the applicant demonstrated functional cervical spine, lumbar spine, bilateral upper extremity, and bilateral lower extremity, active ROM, functional bilateral upper and lower extremity strength; functional bilateral grip strength; functional mobility and balance and sufficient tolerances for reaching, bending, kneeling, squatting, standing, walking, lifting and carrying to complete his pre-accident ADLs.
38In his section 44 report dated April 10, 2019, Dr. Silver noted that the applicant denied missing any time form his educational studies and was able to push himself to continue with school as he was close to completing the final semester of his program. He also reported being fully independent with personal care tasks, being able to do his own laundry and had resumed cooking for himself. The applicant denied any significant changes stating, “before the accident I just went to school and went home” and reported being physically inactive prior to the accident. Dr. Silver concluded that the applicant is capable of resuming normal life activities, and noted the applicant reported that he does not currently suffer from any functional limitations. The applicant’s reporting on this point accords with the findings from Dr. Silver’s physical assessment.
39On the issue of the applicant’s academic program, in his report dated July 23, 2019, psychologist Dr. Nikkhou, noted that the applicant had successfully completed his diploma in electrical engineering at Centennial College post-accident, and reported that he does not feel disabled. Following his psychological assessment, Dr. Nikkhou concluded that,
Strictly from a psychological perspective and with respect to the subclinical nature of Mr. Appiah’s current psychological symptoms, there is no psychological barrier for this gentleman to perform his normal daily living activities or pre-accident weekend work as a moving helper.
40On his own self-reported evidence to the section 44 assessors, the applicant has not established that he meets the test of disability for NEB. He has resumed most, if not all of his pre-accident activities, and his routine remained largely the same post-accident. The applicant continued with his education and completed his diploma on time. As a result, the applicant has not met his evidentiary onus as the evidence does not establish that he is unable to engage in “substantially all” of his activities.
Entitlement to Physiotherapy Services (Issues 3-6)
41The applicant has failed to produce medical records from his family doctor, his treatment practitioners, or any OHIP specialists to indicate that the treatment has been beneficial for him or provided him with any relief. As noted above, the clinical records of his family doctor are rather limited and do not include recommendations for facility based treatment beyond the first month following the accident.
42In his report, dated April 1, 2019, Dr. Silver directly addressed the OCF-18 dated January 24, 2019. Specifically, Dr. Silver noted that the applicant sustained only uncomplicated soft tissue injuries to his neck and back as a result of the accident. He found no objective evidence of ongoing physical injury or impairment. With respect to the OCF-18 itself, Dr. Silver concluded that the OCF-18 is not reasonable and necessary.
43In her report, dated February 4, 2020, Dr. Tu also addressed the OCF-18 dated January 14, 2019, stating that,
He has no objective musculoskeletal impairments on examination today and no lateralizing signs to suggest any musculoskeletal pathology. He also mentions that overall in the past 12 months despite having had regular therapy; he feels his neck and his back pain remain unchanged. There is also no evidence in the current literature for ongoing facility-based therapy 12 months after uncomplicated strains and uncomplicated soft tissue injuries have been sustained; therefore, at this stage, further facility-based therapy is not reasonable or necessary or essential.
44As the applicant has failed to provide sufficient medical documentation to challenge the findings of either Dr. Silver or Dr. Tu, I find that he has failed to meet his evidentiary burden to demonstrate that the treatment plans listed as issues 3 through 6 above are reasonable and necessary.
Entitlement for a Psychological Assessment (Issue 7)
45In his report dated July 23, 2019, Dr. Nikkhou specifically addressed the OCF-18 dated June 9, 2019 for a psychological assessment. Dr. Nikkhou noted that he did not find the OCF-18 to be reasonable and necessary. Moreover, when discussing the treatment plan directly with the applicant, the applicant advised Dr. Nikkhou that he is “not in need of psychological treatment,” suggesting that he does not believe that his mental health difficulties warrant psychological intervention.
46I find that the applicant has failed to establish that this treatment plan is reasonable and necessary. The applicant has not provided any medical documentation to substantiate any mental health impairments since and as a result of the accident. He has submitted no evidence of ongoing complaints noted in any clinical records or that he has taken or been prescribed mental health medication.
Entitlement for a Chronic Pain Assessment (Issue 8)
47I find that the applicant has failed to prove that the OCF-18 is reasonable and necessary. In the case of Melfi v. Aviva General Insurance, 2020 CanLII 87977 (ON LAT), the Tribunal considered whether an OCF-18 for a chronic pain assessment was reasonable and necessary. In finding that it was not, at para. 30, the adjudicator relied upon the absence of evidence that the applicant sought treatment for ongoing pain the year between the accident and the submission of the disputed treatment plan:
This proposed treatment plan is one year post-accident. In the year between the accident and proposed treatment plan, there is no evidence that the applicant sought treatment from a hospital, sought treatment from her family doctor or any other treating physician for on-going pain. There is no evidence that the applicant was referred by her family doctor to any specialist for pain. There are no physician’s records before me of medication being prescribed to the applicant for pain.
48Similarly, in the present case, this OCF-18 is dated well over a year after the accident and the applicant has submitted no evidence that he sought treatment from a hospital, his family doctor or any other treating physician for on-going pain. There is no evidence that his family doctor referred him to any specialist for pain. There were also no physician’s records before the Tribunal describing medication prescribed to the applicant for pain beyond the vague reference mentioned by Mr. Arasabalan and Dr. Lindal in their report.
49While the applicant relies upon Dr. Louis’s diagnosis of “chronic pain,” the respondent highlighted the lack of evidence that the applicant suffers from chronic pain syndrome, the former being the state of having constantly recurring pain in an area of the body and the latter as a debilitating condition. The American Medical Association in the 6th edition of “Guides to the Evaluation of Permanent Impairment” (the ‘AMA Guides’) standardized a definition of chronic pain syndrome. The AMA Guides state that three or more of its criteria are required for a diagnosis of chronic pain syndrome and, although not binding, has been accepted by the Tribunal as an interpretive tool to determine if an applicant suffers from chronic pain syndrome in the absence of a definitive or clear diagnosis.
50Although reference to these guidelines is not mandatory, in Borzush v. Aviva Insurance Canada, 2021 CanLII 30523 (ON LAT) at paragraph 17, the Tribunal held that the six criteria set out in the AMA Guides provide helpful guidance to determine if an individual’s pain adversely affects his or her wellbeing and functional capacity such that it would be reasonably possible that the individual suffers from chronic pain syndrome and therefore a chronic pain assessment is warranted. I agree and find this analysis persuasive. The six criteria are as follows:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
Excessive dependence on health care providers, spouse, or family;
Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
Withdrawal from social milieu, including work, recreation, or other social contacts;
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; and
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
51The applicant has not submitted sufficient evidence to indicate he satisfies any of the above criteria and the evidence as a whole indicates that he does not. There are also no medical records corroborating a finding of chronic pain, such as ongoing and consistent complaints of pain since the accident as would be expected if the applicant was indeed suffering from chronic pain syndrome. The applicant’s statements to Dr. Nikkou denying the need for psychological treatment also undermines the notion that the applicant suffers from chronic pain syndrome.
52At part 9 of the OCF-18, the service provider checked off “return to activities of normal living” as a goal the OCF-18 seeks to achieve. However, the applicant submitted no clinical records to indicate that he had not returned to activities of normal living as a result of the accident and his reporting to other assessors indicates that he had. Lastly, I find that the amount listed at part 12 for “Planning, service” is not payable as neither the applicant nor the service provider have explained the basis of this proposed charge or why it is reasonable and necessary. The OCF-18 itself does not indicate to what this amount relates or why it is reasonable and necessary.
Interest
53Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I find that the applicant is not entitled to the treatment plans, none of them are overdue and therefore no interest is payable by the respondent.
ORDER
54I find that:
a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
b. The applicant is not entitled to a non-earner benefit;
c. I find that the applicant is not entitled to any treatment plans in dispute.
d. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
e. The application is dismissed.
Released: August 17, 2023
Kevin Lundy
Adjudicator