Hernandez v. Certas Home and Auto, 2023 CanLII 77310

Hernandez v. Certas Home and Auto, 2023 ONLAT 21-011132/AABS

Citation: Hernandez v. Certas Home and Auto, 2023 ONLAT 21-011132/AABS

Licence Appeal Tribunal File Number: 21-011132/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Nelson Hernandez

Applicant

and

Certas Home and Auto

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Ivy So, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

HEARD:

In Writing

OVERVIEW

1Nelson Hernandez, the applicant, was involved in an automobile accident on April 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ (the "Schedule"). The applicant was denied benefits by the respondent, Certas Home and Auto, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY MATTER

2The applicant's submission indicates he withdrew issue no. 3 as listed in the application, which concerns a psychological assessment in the amount of $2,486.00, proposed by Imperial Medical Assessments Inc. in a treatment plan submitted on March 18, 2020, and denied March 21, 2020. I therefore decline to adjudicate this issue.

ISSUES

3The 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 (the "MIG")?

ii. Is the applicant entitled to physiotherapy services in the amount of $1,299.96, proposed by Newmarket Health & Wellness Centre in a treatment plan submitted on October 1, 2019, and denied October 11, 2019?

iii. Is the applicant entitled to a chronic pain assessment in the amount of $2,768.50, proposed by Imperial Medical Assessments Inc. in a treatment plan submitted on November 19, 2020, and denied on November 24, 2020?

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

RESULT

4The applicant remains in the MIG.

5The applicant is not entitled to any of the disputed treatment plans or interest.

ANALYSIS

MIG

6The applicant bears the onus to prove, on a balance of probabilities, that he should be removed from the MIG². The applicant contends his chronic pain justifies treatment outside the MIG. His claim relies on medical evidence in an independent chronic pain assessment by Dr. Tajedin Getahun (orthopaedic surgeon), dated December 18, 2020.

Chronic pain

7I find the applicant has not proven he suffers from chronic pain, and that his injuries are predominantly minor in nature, in that they are the type of soft-tissue injuries defined in Section 3 of the Schedule. In fact, Dr. Getahun's analysis of the applicant's injuries identify four "chronic strains": one to the applicant's cervical spine, a second to the lumbosacral spine, and the remaining two to his left shoulder and elbow. The use of the word "chronic" does nothing to change the underlying nature of the injuries—that is, strains of the upper and lower spine and left shoulder and elbow—and Dr. Getahun's impression of these accident-related injuries fall squarely within the definition of "minor injury" in Section 3 of the Schedule.

8The applicant relies on Dr. Getahun's impression of "chronic pain syndrome." In arriving at this conclusion, Dr. Getahun states the applicant's presentation:

"... satisfies the AMA (American Medical Association) Guides (the 'Guides') diagnostic criteria for chronic pain syndrome contained in the 4th Edition (1993). He satisfies the duration criteria. He satisfies the dysfunction criteria. The presence of two diagnostic criteria is considered to establish a diagnosis of chronic pain syndrome according to the (Guides) ...".

9However, there are prior Tribunal decisions that establish a preference for the chronic pain test set out in the more recent 6th Edition (2008) of the Guides. This is made out in Nguyen v. Allstate Canada, 2021 CanLII 30276 (ON LAT) as well as in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT). Both decisions detail the chronic pain criteria and measures adopted by the most recent Guide as follows:

"... Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain ... (The Guides) ... state that at least three of (the following criteria) must be met for a diagnosis:

(1) Use of prescription drugs beyond the recommended duration and/or abuse of, or dependence on, prescription drugs or other substances.

(2) Excessive dependence on health care providers, spouse, or family.

(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

(4) Withdrawal from social milieu, including work, recreation, or other social contracts.

(5) 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.

(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

10Although prior Tribunal decisions are not binding, I see no reason to adopt a different approach. Dr. Getahun indicates he diagnoses "chronic pain primarily based on the diagnostic criteria established in the 4th Edition of the (Guides)" without qualifying why he prefers it to the 6th Edition. To me, it makes reasonable sense to rely on the most recent edition of the Guides as opposed to a 20-year-old previous version with information that may be outdated. As such, I am not persuaded by Dr. Getahun's finding of chronic pain syndrome based on the applicant meeting two of the Guide's six criteria, because this measure falls short of the current approach adopted by the Tribunal that three criteria must be satisfied.

11Further, while I can reasonably interpret Dr. Getahun's mention of "duration criteria" as a reference to the first criteria listed above, I have no idea what Dr. Getahun means by "dysfunction criteria," as this descriptor does not appear in the above-noted criteria list, and the applicant did not provide a copy of the 1993 Guide in evidence to cross-reference. I also considered that Dr. Getahun's report provides no evidence to substantiate his findings on the first criteria. In fact, Dr. Getahun's report notes only that the applicant takes "Tylenol" for his pain, and that "prescriptions for naproxen were reviewed." There is no indication the applicant is abusing either drug, or that they were prescribed beyond the recommended duration.

12Applicants arguing removal from the MIG must also show medical evidence of functional impairment arising from their pain. Dr. Getahun reports the applicant continues to work—albeit with reduced hours and modified duties—and suffers limitations in housekeeping and home maintenance activities. However, these are observations shared by the applicant that are not substantiated by employer reports or witness evidence. Further, Dr. Getahun does not provide an objective analysis as to how his physical examination findings correlate with the applicant's self-reported limitations. Put differently, Dr. Getahun did not establish that the applicant's examination results are consistent with the limitations he claims, nor that the applicant's limitations are, in fact, a result of chronic pain. I therefore cannot conclude the applicant suffers functional limitations arising from chronic pain that results from the accident.

13In short, the applicant has failed to meet his burden of proof. I am not persuaded the applicant suffers from accident-related chronic pain that results in functional impairment. His submissions on chronic pain were not supported by the medical evidence put before me. I therefore do not find the applicant should be removed from the MIG due to chronic pain.

14The applicant's submission provides no argument on the reasonableness or necessity of the disputed treatment plans per Section 15(1) of the Schedule. The applicant notes only that the treatment plans for physiotherapy and a chronic pain assessment were "denied on the basis that the applicant's injuries were minor ... (and) that he is entitled to these benefits because he should be removed from the MIG due to his chronic pain ...". As I have decided the applicant remains in the MIG, and because the applicant has provided insufficient evidence to show the treatment plans are reasonable and necessary, I find the applicant is not entitled to these treatment plans.

Interest

15The applicant is not entitled to either of the disputed treatment plans. Therefore, no interest is owing.

ORDER

16The application is dismissed.

Footnotes

1. 1Effective September 1, 2010 (including amendments effective June 1, 2016).
2. 2Scarlett v. Belair, 2015 ONSC 3635