Cadang v. Certas Home and Auto Insurance Company
Citation: Cadang v. Certas Home and Auto Insurance Company, 2023 ONLAT 20-015287/AABS Licence Appeal Tribunal File Number: 20-015287/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:
Michael Cadang Applicant
and
Certas Home and Auto Insurance Company Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Michael Cadang, Applicant Dayana Soto Santana, Paralegal
For the Respondent: Certas Home and Auto Insurance Company, Anthony M. Naples, Counsel
HEARD: By way of written submissions
OVERVIEW
1Michael Cadang, the applicant, was involved in an automobile accident on June 26, 2018, 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, Insurer, 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 in the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to a medical benefit in the amount of $1,912.81 for a gym membership, proposed by Promed Rehabilitation Clinic in a treatment plan /OCF-18 submitted on January 8, 2019.
iii. Is the applicant entitled to a cost of examination in the amount of $1,997.00 for an Attendant Care Assessment, proposed by Promed Rehabilitation Clinic in a treatment plan/ OCF-18, submitted on April 16, 2019?
iv. Is the applicant entitled to a cost of examination in the amount of $1,964.95 for a Chronic Pain Assessment, proposed by Promed Rehabilitation Clinic in a treatment plan/ OCF-18, submitted on July 4, 2019?
v. Is the applicant entitled to a medical benefit in the amount of $1,482.81 for assistive devices, proposed by Promed Rehabilitation Clinic in a treatment plan /OCF-18 submitted on July 4, 2019.
vi. Is the applicant entitled to a medical benefit in the amount of $1,400.00 for orthotics, proposed by Promed Rehabilitation Clinic in a treatment plan/ OCF-18, submitted on August 14, 2019?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG has been exhausted. Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
4The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
6The application is dismissed.
ANALYSIS
Minor Injury Guideline
7The Minor Injury Guideline (MIG) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule which includes sprains, strains, whiplash associated disorder, contusion, laceration or sublaxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
8If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
9Section 18(2) states that the $3,500 limit does not apply if the insured person provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.
10In the event that the applicant’s injuries fall within the definition of minor injuries, the applicant can be removed from the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:
a. The applicant has a pre-existing medical condition;
b. The pre-existing medical condition was documented by a health practitioner before the accident; and
c. The applicant’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.
11In addition, the Tribunal has determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that their injuries are not minor, or they have a pre-existing condition that would prevent maximal recovery within the MIG.
Medical Evidence & Pre-existing Injuries
12The applicant submits that he has pre-existing injuries which will prevent maximal recovery from accident-related injuries if the applicant is subject to the $3,500.00 limit under the Minor Injury Guideline (MIG). The applicant refers to the clinical notes and records of the family physician Dr. Marcus Gostelow (CNR’s), the CNR’s from Promed Rehabilitation Clinic, the OCF-3 Disability Certificate, and the treatment plans in support of his position and for the purpose of meeting his burden of proof. The applicant’s pre-existing medical issues described in the CNR’s of Dr. Gostelow relate to a previous motor vehicle accident in 2016, right ear pain, inflammation of the ear canal or otitis externa, back, shoulder, ankle and foot pain, cleft palate issues, and allergic conjunctivitis.
13The respondent submits that the applicant has not provided evidence to support that his pre-existing injuries would prevent him from maximal recovery from his accident-related injuries if he is subject to the MIG. The respondent submits that in the four years since the accident, the family physician Dr. Gostelow has not opined that the applicant’s pre-existing injuries would limit his ability to recover if subject to the MIG limit, nor has the applicant been prescribed medication as a result of the index accident.
14The respondent submits that the applicant attended approximately one year of physical therapy following the accident based on the records provided from Promed Rehabilitation Clinic. Although the records from Promed Rehabilitation Clinic are barely legible, the attendance records from Promed Rehabilitation Clinic show the applicant attending physical treatment from approximately July 2018 to September 2019, albeit sporadically from October 2018 to September 2019. In addition, the respondent submits in addressing the applicant’s injuries and functionality, that he returned to work immediately after the accident.
15The test to determine causation is the “but for” test, signifying that causation is a factual determination made on a balance of probabilities: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident, he would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.
16The respondent submits that there is insufficient evidence of a nexus or respecting causation, in relation to the applicant’s injuries as a result of the accident, and any issues with the applicant’s pre-existing medical conditions (hearing, ear health or otolaryngological concerns). The applicant submits that he was referred to an Otolaryngologist by his family physician by reason of accident-related injuries.
17On August 13, 2018, the applicant describes to Dr. D.J. Brown, an otolaryngologist, that he experienced head trauma at the time of the index accident, which he relates to medical issues with his right ear. The evidence in the CNR’s is not consistent with the applicant’s submissions regarding the cause of his referral to Dr. Brown. On May 2, 2018, a month and a half before the index accident, Dr. Gostelow referred the applicant, at his request, to Dr. Brown, for reasons explicitly stated by the applicant related to a cleft palate childhood condition. I find that the CNR’s of Dr. Gostelow do not demonstrate the applicant discussing head trauma following the accident as the basis for the referral. The applicant does not reference head trauma with Dr. Gostelow until two years after the June 2018 accident.
18In addition, the applicant’s issues with ear infections are treated with an antibiotic, by both Dr. Dr. Gostelow and by Dr. Brown, from 2016 onwards, which demonstrates that the applicant is prone to ear infections rather than the infections are in any way accident related. The surgery discussed in Dr. Brown’s report is for the purpose of improving the applicant’s voice resonance based on a hypo nasal condition caused by a childhood cleft palate condition. In addition, as stated, the applicant requested the referral to an otolaryngologist by reason of his previous cleft palate and ear infections, as opposed to the referral having any nexus to the accident.
19On September 21, 2016, the CNR’s of the applicant’s family physician, Dr. Marcus Gostelow, describe the applicant experiencing mechanical back pain with no radiculopathy. On September 21, 2016, the applicant meets with Dr. Gostelow describing a car accident taking place, three weeks beforehand (well prior to the subject accident on June 26, 2018). Dr. Marcus Gostelow recommended non-prescription Robaxacet for pain and suggests physiotherapy. Based on the applicant’s evidence offered to Dr. Gostelow that an accident occurred in approximately late August 2016, I will consider how the earlier accident acts as a pre-existing injury.
20The applicant underwent chest, lumbar spine and sacrum and coccyx x-rays on October 3, 3016, which evidenced degenerative disc disease and mild facet joint arthritis in the applicant’s lumbar spine, both spinal conditions being age-related as opposed to caused by a 2016 car accident. The radiologist described a normal exam result, with no acute abnormality detected in the report.
21At the applicant’s next appointment with Dr. Marcus Gostelow in September 2016, he did not mention any accident-related symptoms. The applicant does not mention any accident-related symptoms of pain until March 29, 2017, when he reported experiencing right shoulder pain secondary to the 2016 accident. On August 12, 2017, the applicant described chronic foot pain which he did not describe as being connected to the 2016 accident.
22Following the index accident in June 2018, the applicant completed an OCF-1, Application for Accident Benefits, where he described that he did not seek medical attention at a hospital following the accident. He also stated that his accident-related injuries did not prevent him from returning to work. In the OCF-24, Minor Injury Treatment Discharge, the applicant described returning to work post-accident and not requiring assistance with housekeeping.
23As submitted by the respondent, the applicant did not discuss the accident with his family physician Dr. Marcus Gostelow, until two years afterwards. On September 20, 2018, the applicant stated that he was doing well and did not mention the index motor vehicle accident to Dr Gostelow. By September 20, 2018, the applicant’s issues with his right ear and right otitis media had resolved as stated in the CNR’s. On July 30, 2019, the applicant described lower back pain which Dr. Marcus Gostelow commented on as having no radicular features, once again, the applicant does not reference the index accident on this occasion.
24A little over a year following the index accident, on August 14, 2019, the applicant met with his family doctor Dr. Gostelow, asking for a referral for the purpose of a psychological assessment based on what the applicant describes as visual flashbacks to the June 2018 accident, and for the first time since the accident, the applicant states that he experienced head trauma and post traumatic stress disorder.
25On August 1, 2019, the applicant underwent lumbar spine x-ray, which showed normal alignment, disc spaces maintained, vertebral heights as normal, however, the applicant was noted as having the degenerative disc disease apparent in the previous x-ray from October 3, 2016, taken before the subject accident. The results of the x-ray are unchanged from the October 3, 2016 outcome. The diagnostic report states that the clinical indication for the diagnostic report is low back pain in the previous three month period before August 1, 2019, as opposed to low back pain dating back to the time of the accident.
26Dr. Gostelow reviewed the results of the x-ray taken August 1, 2019, with the applicant, stating in the CNR’s that the changes in the applicant’s spine are “degenerative” and Dr. Gostelow described that, rather than the degenerative changes being caused by the accident, he opines that the changes are caused by “overuse injuries related to (the applicant’s) work.”
27I find that the applicant has provided insufficient evidence to meet his burden to show that his pre-existing medical conditions as documented by a health practitioner, offer compelling evidence that he is prevented from maximal recovery if he is subject to the $3,500.00 limit under the MIG. I do not agree based on the evidence, with the applicant’s submissions that the issues with his right ear have a nexus or were caused by the subject accident.
28I am not persuaded that the applicant’s injuries and reports of pain in his shoulders, neck and back are accident-related by the time he describes the event of the accident to his family physician on August 14, 2019. Dr. Gostelow explicitly states on August 14, 2019, that the back issues which the applicant is reporting are based on “overuse injuries related to (the applicant’s) work.” I also base my finding on the fact that the applicant attended physiotherapy sporadically after October 2018. As noted, the applicant did not report the accident or injuries as a result of the accident to his family doctor until two years after the event. As submitted by the respondent, the applicant was not prescribed any medication to address pain or accident-related injuries following the index accident. For all the noted reasons I also find that the applicant has provided insufficient evidence to meet his burden that his injuries which are a result of the accident, are not capable of treatment within the limits of the MIG.
Chronic Pain Syndrome & Psychological Impairment
29The respondent submits that the applicant does not have a chronic pain disorder nor a psychological impairment that would remove him from the Minor Injury Guideline.
30As noted in 16-000438 v. The Personal Insurance Company (2017 CanLII 59515), ongoing or chronic pain alone does not automatically remove the applicant from the MIG but rather, there must be a significant reduction in the applicant’s functionality. As noted, the applicant provided no compelling evidence of limited functionality. I find based on the totality of the evidence that the applicant did not suffer a chronic pain impairment to take him out of the MIG.
31The respondent submits that the applicant does not support the reasonableness of the treatment plan for a chronic pain assessment with reference to the criteria in the American Medical Association Guides (AMA Guides).1 The applicant submits that he meets almost all of the AMA Guides criteria. The Tribunal has adopted the American Medical Association Guides (AMA Guides) as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides states that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:
(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 contacts;
(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 need; and;
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32I agree with the respondent that in the four years since the accident, the applicant has not been prescribed medication as a result of the accident nor has he demonstrated a desire to use prescription medication (criterion one above from the AMA Guides). The applicant attended physical treatment for just over a year’s duration with no further treatment after September 2019 (criteria two of the AMA Guide). In terms of functionality, the applicant returned to work and employment immediately after the accident. There is no evidence of physical deconditioning, withdrawal from social milieu, or failure to restore the applicant’s pre-accident function (criteria three, four, and five of the AMA Guide).
33In terms of the existence of a psychological impairment caused by the accident, I am not persuaded the applicant developed any psychological impairment as a result of the accident, since he did not mention flashbacks to the accident and request a psychological assessment by reason of his claims of post-traumatic syndrome caused by the accident, until two years after the event. In addition, although he was provided with a referral to Dr. Bismonte, the applicant did not follow up with the referral. There is no psychological diagnosis offered in evidence, only the applicant’s reports to his physician made a year and a month afterwards (following the accident on June 26, 2018, in the CNR’s dated August 14, 2019).
34I agree with the respondent insurer’s submissions that the applicant has not met his burden of proof by providing compelling evidence of documented pre-existing medical conditions which will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.
35Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
36As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
ORDER
37I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG has been exhausted.
38The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
39Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
40The application is dismissed.
Released: September 8, 2023
Janet Rowsell Adjudicator