Licence Appeal Tribunal File Number: 21-010649/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:
Jagdip S. Grewal
Applicant
and
Echelon General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Jade Borne, Paralegal
For the Respondent:
Sonya Reid, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Jagdip S. Grewal (the “applicant”) was involved in a motor vehicle accident on October 1, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Echelon General Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment, and denied six treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Neither party directly addresses the specific amount remaining within the $3,500.00 limit of the MIG in submissions. However, the applicant notes that physiotherapy services were denied by the respondent as of summer 2021 due to the MIG limit being reached, which seems reflected in the partial approval of the treatment plan listed below as issue #3. In addition, this treatment plan is the only one in dispute that proposes treatment inside of the MIG. The other five plans all propose treatment outside the MIG. In my view, this also supports the respondent’s notation regarding MIG limits being exhausted.
3As a result, I accept that the MIG has been exhausted. Entitlement to the six treatment plans in dispute is dependent on a finding that the applicant warrants treatment outside of the MIG.
ISSUES IN DISPUTE
4The following issues are in dispute:
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 of the MIG?
Is the applicant entitled to $3,795.50 for physiotherapy, proposed by Mackenzie Medical in a treatment plan/OCF-18 denied on August 25, 2021?
Is the applicant entitled to $215.48 ($1,300.00 less $1,084.52 approved) for physiotherapy, proposed by Mackenzie Medical in a treatment plan/ OCF-18 denied on August 25, 2021?
Is the applicant entitled to $2,026.55 for physiotherapy, proposed by Mackenzie Medical in a treatment plan/OCF-18 denied on August 25, 2021?
Is the applicant entitled to $1,417.70 for physiotherapy, proposed by Mackenzie Medical in a treatment plan/OCF-18 denied on July 13, 2021?
Is the applicant entitled to $1,995 for orthopaedic assessment, proposed by Unison in a treatment plan/OCF-18 denied on August 25, 2021?
Is the applicant entitled to $1,895.30 for an in-home assessment, proposed by Larysa Mikhailava in a treatment plan/OCF-18 denied on August 25, 2021?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
5I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, which has been exhausted, he is not entitled to the treatment plans in dispute, nor interest.
ANALYSIS
The Minor Injury Guideline (“MIG”)
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”
7An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Documentation of a pre-existing injury or condition, combined with compelling medical evidence stating that this issue precludes recovery if kept within the MIG, can also warrant removal from the MIG, pursuant to s. 18(2) of the Schedule. In addition, the Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
8The burden is on the applicant to show, on a balance of probabilities, that his injuries are outside of the MIG. In this instance, the applicant submits that he suffers from chronic pain and a psychological impairment as a direct result of the accident, and that pre-existing injuries from a 2019 accident precluded his full recovery within the MIG. Any of these issues, if substantiated, would result in the applicant’s removal from the MIG.
9The respondent counters that the applicant sustained soft-tissue sprain/strain injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. Further, the respondent holds that there is no evidence of chronic pain, a psychological impairment, or a pre-existing injury that would warrant the applicant’s removal from the MIG. For these reasons, the respondent contends that the applicant should be held within the MIG.
The applicant remains within the MIG
10I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from physical injuries that are not predominantly minor in nature as defined in the Schedule. He has also failed to substantiate claims that he suffers from chronic pain, a psychological impairment, or a pre-existing injury that preclude recovery if held within the MIG. Accordingly, he remains within the MIG and is subject to its $3,500.00 limit on treatment.
Chronic Pain
11I find that the applicant’s claims to suffer from chronic pain as a result of the accident have not been supported by medical evidence. A predominance of the objective medical evidence demonstrates that the applicant suffered minor injuries as a result of the accident, without sufficient indication that these injuries progressed to chronic pain with a functional impairment.
12Most notably, the applicant has never been diagnosed with chronic pain by a medical practitioner. Clinical notes and records (“CNRs”) from the applicant’s family physician, Dr. Bikramjit Singh Nanar, dated October 28, 2020 and December 9, 2020, detail that the applicant reported accident-related symptoms of neck and lower back pain. But on both occasions, Dr. Nanar diagnosed the applicant with lumbar strain and/or cervical strain, noted muscle tenderness, and recorded that there were no neurological complaints. The applicant also reported at these appointments that he was employed full time on normal work duties and that he was able to perform his regular daily activities. Dr. Nanar prescribed Naprosyn (also known as naproxen, an NSAID pain reliever) and recommended massage, heat, self-directed stretching exercises, and a firm mattress and comfortable pillow. He also recommended that the applicant attend a follow-up appointment within a week if symptoms did not improve. Based on the CNRs before me, the applicant did not do so. The records indicate that his next visit to Dr. Nanar took place on March 13, 2021 and was about an unrelated workplace injury. Everything here indicates that the applicant sustained minor injuries.
13In addition, a Disability Certificate/OCF-3 completed by Dr. Harjot Grewal, chiropractor, and dated October 30, 2020, further supports that the applicant suffered soft-tissue minor injuries. In this OCF-3, Dr. Grewal listed sprains and strains as the injuries and sequelae. All of these issues fall under the definition of minor injuries in the Schedule. Dr. Grewal also documented the presence of sleep disorder, sleep terrors, and dizziness and giddiness, although I assign these observations minimal weight, as he is a chiropractor without any claimed training or expertise in diagnosing psychological issues.
14There is minimal indication that these injuries progressed to chronic pain, as the applicant submits. Although the applicant had 16 appointments with Dr. Nanar between October 28, 2020 and June 2022, the accident is only specifically mentioned on three occasions—the two already noted above and then once more on April 6, 2021. The applicant complained of headaches, dizziness, and a vibration sensation in his head on multiple occasions, along with mentioning vibration in his left foot, shoulder pain, numbness, and a tingling sensation. However, the accident is noted in relation to these issues only on April 6, 2021. And, even then, Dr. Nanar wrote “headache associated hx of accident 1 yr ago?” and diagnosed “? tenmsion (sic) headachre (sic),” which is not a definitive finding that this issue was connected to the accident.
15Further, Dr. Nanar did not order any diagnostic imaging, refer the applicant to a neurologist, or otherwise investigate these concerns. This leads me to infer that the physician did not change his original diagnosis that the applicant suffered solely soft-tissue injuries in the accident. The CNRs of Dr. Nanar do not contain any notations that the applicant was experiencing chronic pain or functional limitations due to this pain. If anything, the CNRs indicate the opposite. The applicant told Dr. Nanar that he was fully functional and working in the fall of 2020 after the accident. This did not change in 2021 and 2022, with the applicant reporting to the doctor on multiple occasions that he was fit to work, doing okay, sleeping okay, and experiencing no difficulty walking. In short, the Dr. Nanar CNRs demonstrate that the applicant was functional post-accident.
16I prefer the s. 44 insurer’s examination (“IE”) orthopaedic assessment report of Dr. Louis Weisleder, orthopaedic surgeon, dated August 11, 2021, along with two paper review addendums, both dated February 10, 2022. I assign the opinions of Dr. Weisleder found therein significant weight, due to their thoroughness and his in-person assessment of the applicant. In his original report that resulted from this in-person examination on July 29, 2021, Dr. Weisleder diagnosed that the applicant suffered cervical strain, thoracic strain, lumbar strain, and left lower leg strain injuries as a direct result of the accident, all of which fell under the MIG. He confirmed these diagnoses and assessments in the two paper reviews.
17I do not concur with the applicant’s argument that Dr. Weisleder was not thorough in his assessment. The applicant submits that Dr. Weisleder did not fulsomely address the applicant’s self-reported chronic pain, did not provide a comprehensive analysis of functional impairments or psychological symptoms, and did not recommend further assessments to investigate the applicant’s overall condition. However, I find that Dr. Weisleder provided analysis on these factors in his report. Dr. Weisleder acknowledged the applicant’s self-reported complaints of “persistent pain” in his upper back, lower back, and left lower leg, and noted some tenderness in the spine along with some limited range of motion, but he qualified these observations by writing that that all of this correlated with his soft-tissue diagnosis and finding that the applicant fell within the MIG. There were no functional impairments to assess in relation to the subject accident. Dr. Weisleder also specifically noted that ongoing left shoulder pain connected to the previous accident in 2019 would not prevent recovery from injuries sustained in the subject accident on October 1, 2020. In my view, Dr. Weisleder was quite thorough overall.
18Further, I see no reason to fault Dr. Weisleder for not following up on the physical complaints listed above when the applicant did not raise these concerns in the same significant fashion as during his appointments with Dr. Nanar. I similarly cannot fault Dr. Weisleder for failing to recommend additional assessments when the applicant’s own family physician took the exact same approach and did not recommend additional medical investigation of the applicant’s symptoms. Lastly, Dr. Weisleder is an orthopaedic surgeon, not a psychologist. So, I also cannot take issue with him for not addressing issues outside of his area of expertise.
19At any rate, I find that the Dr. Weisleder report correlates with the diagnoses and observations contained in Dr. Nanar’s CNRs. Together, they support a finding that the applicant suffered soft-tissue injuries that fall within the MIG, not chronic pain with a functional impairment.
20I also find that the applicant has failed to demonstrate that he meets the test for chronic pain as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). Both parties raised this test in their submissions. While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
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, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
21While the applicant submitted in his initial and reply submissions that he met at least criteria #1, #2, #3, and #6 (or so I infer, as he did not connect these arguments to the specific numbered criteria listed in the Guides), I do not concur. To review each of the criteria:
i. There is no evidence that the applicant used or abused prescription drugs or other substances. As the Dr. Nanar CNRs show, prescription drugs were not prescribed in any significant amount. The applicant noted a prior issue with substance abuse, although he did not present evidence to indicate that substance abuse was exacerbated by the accident.
ii. Although the applicant claims in submissions that he relied unduly on his wife to shower and complete household tasks post-accident, the CNRs of Dr. Nanar indicate that the applicant was independent with daily living, that he was employed without workplace accommodations, and that he was not experiencing pain when walking. This does not demonstrate the excessive dependence on family and/or physicians required to meet this criterion.
iii. As with the above, evidence indicates that the applicant was fully independent and working post-accident. Correspondingly, he has not substantiated secondary physical deconditioning or avoidance of physical activity due to pain.
iv. Records of the applicant’s family physician demonstrate that he was not functionally impaired in any significant fashion and that he continued to work. Although little evidence was adduced regarding recreation or other social contracts, I assign significant weight to the applicant’s reports to Dr. Nanar that he was working and not functionally impaired post-accident.
v. The applicant cites the Dr. Weisleder report as proof that the applicant failed to restore his pre-injury function, although I cannot find evidence of this in the report itself. Although the applicant did inform Dr. Weisleder that he was experiencing regular neck, back, and leg pain, he also told the physician that he returned to work just one day after the accident. As a result, it does not seem as if his pre-injury function was impaired as a result of the accident, or that there was a period of disability, despite his complaints of ongoing pain.
vi. The applicant cites an anxiety observation and Ativan prescription provided by Dr. Nanar on March 16, 2021 as evidence of psychosocial sequelae. But this is the only note of this anxiety in the family doctor’s CNRs, and it is not connected to the accident by the physician. To me, this is not enough to demonstrate the psychosocial sequelae required to meet this criterion.
22In summary, I find that the applicant has failed to substantiate his claims to meeting any of the criteria in the chronic pain test as listed in the Guides.
23Lastly, I take note of the applicant’s citations of one prior FSCO decision and three prior Tribunal decisions in his submissions. He referenced these decisions in regard to the argument that chronic pain can be established when it is of a duration of three-to-six months or longer. Specifically, he noted Arruda v. Western Assurance Company, FSCO A13-003926, 2015, 17-000835 v. Aviva General Insurance, 2017 CanLII 59495 (ON LAT), 17-007300 v. The Guarantee Company of North America, 2019 CanLII 43888 (ON LAT), and Zeledon v. Aviva Insurance Company, 2022 CanLII 124642 (ON LAT).
24I do not agree with the applicant’s position that these decisions can be used to support a blanket finding that duration alone establishes chronic pain. There are distinguishing factors in each decision, as the respondent points out in submissions. For example, the adjudicator in Arruda v. Western removed the applicant from the MIG because of an orthopaedic report that diagnosed chronic pain. No similar expert reports have been presented here.
25Further, I agree with the respondent’s position that it has been long held by this Tribunal that the duration of pain alone does not establish the existence of chronic pain, and that chronic pain is distinct from ongoing or reoccurring pain. This is key to meeting the burden of substantiating a claim to chronic pain warranting removal from the MIG, and, in my opinion, it is a burden that the applicant has not met here.
26For the above reasons, I find that the applicant has not established that he suffers from chronic pain with a functional impairment warranting removal from the MIG.
Psychological Impairment
27I find that the applicant’s claims to suffer from a psychological impairment as a result of the accident have not been supported by sufficient evidence to warrant removal from the MIG.
28The basis for the applicant’s claim to a psychological condition requiring treatment outside of the MIG rests on the possible diagnosis of anxiety in the CNRs of Dr. Nanar recounting an appointment on March 16, 2021. As I have noted above, however, this alone does not demonstrate that the applicant actually suffered from anxiety, nor that any possible anxious feelings necessitating the prescription of Ativan were connected to the accident.
29Sleep issues were reported in the OCF-3 dated October 30, 2020, as well, and the applicant did mention dizziness and other possible psychological issues to Dr. Nanar. But the applicant was never referred to a psychiatrist or psychologist, nor was he prescribed any psychological medication aside from what appears to have been the one prescription for Ativan, nor was it ever recommended that he seek a psychological assessment.
30In accordance with the aforementioned reasons, the applicant has not demonstrated that he suffers from a psychological impairment that falls outside of the MIG.
Pre-Existing Injury
31I find that the applicant has not demonstrated that he suffers from a pre-existing injury or condition that precludes his recovery if held within the MIG.
32In submissions, the applicant provided a significant amount of information that he was seriously injured on or about September 16, 2019 when a dump truck that he was driving stalled and rolled backward down a hill at high speed into a wall. This resulted in fractured ribs, a fractured left shoulder, a head/neck laceration that required sutures, and soft-tissue injuries. The applicant developed two Baker’s cysts in his right knee shortly thereafter, and he complained of right-leg pain when walking or standing too long for several months post-accident. The applicant claims that these injuries resulted in pre-existing impairments that were not resolved by the time of the subject accident just over a year later.
33The respondent does not challenge that the applicant was injured in the September 2019 accident. However, the respondent submits that more is required than just evidence of a pre-existing condition to warrant removal from the MIG. It cites a number of Tribunal decisions in support of its position, most notably Landoy v. Wawanesa Mutual Insurance Company, 2022 CanLII 20143 (ON LAT), where Vice-Chair Lester wrote that evidence also needs to be provided that demonstrates how the pre-existing condition in question prevented the applicant from reaching maximal medical recovery under the MIG. The respondent argues that the applicant has not provided such evidence, and therefore does not meet this test and warrant removal from the MIG.
34I agree with the respondent, and with the reasoning of Vice-Chair Lester, which is well accepted by this Tribunal. Although I take no issue with the applicant’s claims of sustaining what seem to have been serious injuries in the September 2019 dump truck accident, he has not demonstrated that these injuries impacted on his treatment for injuries sustained in the October 1, 2020 subject accident.
35Dr. Nanar’s CNRs from 2019 and 2020 show that the applicant made some of the same complaints about the same general physical symptoms in the aftermath of both accidents. But neither Dr. Nanar nor any other medical professional opined on how or why the injuries from 2019 served to preclude his recovery from the 2020 injuries within the MIG. Further, as I have already addressed above, Dr. Weisleder in his IE report specifically explained that a shoulder injury resulting from the 2019 accident would not prevent the applicant’s recovery from injuries sustained in the 2020 subject accident. As no objective medical opinion has been submitted by the applicant to dispute this finding, I see no reason to doubt it.
36In summation, the applicant has not met his burden and substantiated that a pre-existing injury or condition precluded his recovery if held within the MIG.
Conclusion
37For the reasons detailed above, I find that the applicant suffered soft-tissue injuries in the accident. He has failed to demonstrate chronic pain with a functional impairment, a psychological condition, or the existence of a pre-existing injury or condition, any of which would warrant removal from the MIG.
38As a result, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.
The Treatment Plans
39As the applicant has been found to remain within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the plans in dispute, nor interest.
ORDER
40The application is dismissed and I find that:
i. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.
ii. As the applicant remains within the MIG and its $3,500.00 limit, which has been exhausted, he is not entitled to the plans in dispute, nor interest.
Released: September 6, 2023
Brett Todd
Vice-Chair