Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-006255/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:
Said Ismaili
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Said Ismaili, Applicant Paul Justin Mariani, Paralegal
For the Respondent: TD General Insurance Company Nathan Tischler, Counsel
HEARD: By way of written submissions
OVERVIEW
1Said Ismaili, the applicant, was thirty-four years of age at the time of an automobile accident that he was involved in on December 7, 2019. He 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.
2The applicant was a seat-belted driver when his vehicle was rear-ended while he was driving on Highway 407. Emergency services, consisting of police, paramedics and firefighters arrived following the event and the applicant was transported to the Markham Stouffville Hospital.
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 in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $1,825.00 for assistive devices, recommended by Premier Medical Health Centre in a treatment plan (OCF-18) dated April 7, 2020?
iii. Is the applicant entitled to $596.75 for physiotherapy services, recommended by Premier Medical Health Centre in a treatment plan (OCF-18) dated April 7, 2020?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Doctor’s Rehabilitation Centre in a treatment plan (OCF-18) dated April 7, 2020?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Novo Medical Services in a treatment plan (OCF-18) dated April 4, 2020?
vi. Is the applicant entitled to $4568.09 for chiropractic services, recommended by Novo Medical Services in a treatment plan (OCF-18) dated December 12, 2019?
vii. Is the applicant entitled to $2,200.00 for a chronic pain assessment recommended by Novo Medical Services in a treatment plan (OCF-18) dated January 19, 2021?
viii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I 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.
5The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
6Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
7The respondent is not liable to pay an award under Regulation 664.
8The application is dismissed.
ANALYSIS
Pre-existing Injuries and the Existence of Non-Minor Injuries
9The issue of whether the applicant sustained a minor injury as defined by section 3 of the Schedule must first be addressed before determining the reasonableness and necessity of the Treatment and Assessment Plans.
10In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.
11Section 18(1) of the Schedule states that the sum of benefits payable under medical and rehabilitation benefits is limited to $3,500 if the person sustains impairments that are predominantly a minor injury. Section 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.”
12In 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. He has a pre-existing medical condition;
b. The pre-existing medical condition was documented by a health practitioner before the accident; and
c. The person’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 $3500.00 limit under the MIG.
13The Tribunal has also 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.
14The applicant argues his injuries fall outside of the MIG because he has chronic pain syndrome and psychological injuries, neither of which are captured under the definition of minor injury under the Schedule. In addition, the applicant argues that he is taken out of the MIG because he has pre-existing injuries which would prevent maximal recovery if confined to the MIG.
Pre-existing Injuries
15The applicant has pre-existing medical conditions, including gout and a plantar spur on the left foot, which is described in the clinical notes and records (“CNRs”) and IE section 44 assessments, however, the applicant has not met his burden showing compelling medical evidence that his pre-existing medical conditions would prevent him from reaching maximal medical recovery within the confines of the MIG. The applicant described during his examination for the purpose of the IE section 44 assessment by Dr. Yong-Kyong Micheal Ko, Physiatrist, dated August 19, 2020, that he was involved in a previous accident in 2007, which the applicant described left no persisting injuries.
16On x-ray dated May 2, 2016, the applicant’s left ankle, as described in a consultation report issued by North York General Hospital, showed no acute fracture detectable and the alignment of the applicant’s ankle was within normal limits. The x-ray shows early signs of osteoarthritis changes which prefigure the accident on December 7, 2019. The applicant’s left ankle was x-rayed on a further occasion before the accident, on April 19, 2019, and the applicant’s left ankle condition was unchanged from the 2016 x-ray, however a plantar spur was also identified.
17The disability certificate (OCF-3) prepared by Physiotherapist Malik Hundani, states, beyond the psychological symptoms of anxiety, which a physiotherapist is not qualified to offer opinions in relation to, that the applicant’s physical injuries, are of the likely duration of nine to twelve weeks. Physiotherapist Malik Hundani characterizes the injuries as sprain, strain, whiplash associated disorders of the thoracic spine, lumbar spine and shoulder joints. The Physiotherapist Malik Hundani who prepared the OCF-3, characterized the applicant’s injuries as within the Minor Injury Guideline. The chiropractor Vyvyen Le, who completes a disability certificate (OCF-3) similarly describes the injuries as falling within the MIG as sprain, strain, whiplash associated disorders of the cervical spine, thoracic spine, lumbar spine and shoulder joint.
18The applicant’s pre-accident employment was determined by Physiotherapist Mr. Dennis Polygenis, who prepared an IE Functional Capacity Evaluation (dated June 29, 2020), to be a Heavy Physical Demand Characteristic position as a service technician at Water Logic Canada, where the applicant’s duties require him to carry and lift up to 100 pounds. The respondent provided a pre-104 week income replacement benefit to the applicant. Mr. Polygenis opined in his functional abilities evaluation that the applicant demonstrated an inconsistent effort through failed cross-reference validity tests and statistical measures during the examination. The test results were, therefore, not considered by Mr. Polygenis as a valid indication of the applicant’s functional abilities. The respondent submits, and I agree, that entitlement to an income replacement benefit is unrelated to the question of the applicant’s injuries being capable of treatment within the MIG. Income replacement benefits are subject to a statutory entitlement test unrelated to the Minor Injury Guideline.
19I note that Dr. Boozary did not comment in the CNRs on the applicant’s condition, as being incapable of maximal medical recovery within the limits of the MIG. The applicant applied for workplace safety and insurance benefits. A leave of absence of one week was medically recommended by the applicant’s family physician Dr. M. Boozary, on December 10, 2019, following the accident. A further functional abilities form applying for workplace safety and insurance benefits, was completed by Dr. M. Boozary recommending the applicant return to work with modified duties starting January 3, 2020, until the applicant’s next appointment date on February 4, 2020, to determine his potential return to his full-time, pre-accident duties. As described by the respondent, there is no additional medical information regarding the applicant’s ability to return to his full-time regular hours and pre-accident work in CNRs from the family physician Dr. M. Boozary after January 3, 2020
20As stated, records from the applicant’s family physician, Dr. Majid Boozary, have been produced only for the period until January 3, 2020.
21On July 27, 2020, the applicant was assessed by Dr. Yong-Kyong Micheal Ko, Physiatrist, pursuant to a section 44 insurance examination. Dr. Micheal Ko diagnosed the applicant with sprain and strain injuries of the cervical spine, bilateral trapezii and the thoracic spine. Dr. Ko opined that the physical examination showed evidence of gout which was not attributable to the accident, and which would not prevent the applicant’s maximal recovery within the Minor Injury Guideline (MIG). Dr. Ko found no other organic pathology. Dr. Ko found the applicant’s physical injuries met the criteria of a minor injury within the Minor Injury Guideline. The onus is on the applicant to demonstrate with compelling medical evidence that the pre-existing medical conditions will prevent maximal recovery within the MIG, however, I find that the applicant has not met his burden.
Chronic Pain Syndrome
22As submitted by the respondent, in relation to chronic pain syndrome, the applicant has not provided medical evidence that he has been diagnosed with chronic pain. The applicant did not provide medical evidence that he suffers constant pain or that he experiences pain caused by functional impairment or disability. The applicant did not provide evidence that he is dependent on prescription pain medication, healthcare providers, or family members.
23The applicant submits his receiving an income replacement benefit is evidence of the existence of Chronic Pain Syndrome. He submits that the medical opinion respecting in the section 44 insurance examination by Physiatrist, Dr. Yong-Kyong Micheal Ko, can not be relied on objectively in regard to the applicant’s complaints of chronic pain. The applicant submits this is by reason of Dr. Ko’s report not addressing the psychological components of chronic pain. I disagree, since the applicant relies on his surrounding circumstances as evidence for the existence of chronic pain syndrome, instead of relying on medical evidence. As stated, the applicant received an income replacement benefit for a period of time following the accident, however, that is not evidence, that the applicant suffers from Chronic Pain Syndrome. As already stated, entitlement to an income replacement benefit is unrelated to the question of the applicant’s injuries being capable of treatment within the MIG. Income replacement benefits are subject to a statutory entitlement test unrelated to the MIG.
24For chronic pain to be more than sequelae from the soft tissue injuries enumerated in section 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effects on the person’s function, or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that the chronic pain is more than mere sequelae.
25The Tribunal has adopted the American Medical Association (“AMA”) Guides1 as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The respondent refers in paragraph 13 of the respondent submissions to the six criteria described in the AMA Guides for the purpose of a chronic pain syndrome diagnosis. The AMA Guides state 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.
26The respondent submits that the applicant has not met his burden of providing medical evidence supportive of three of the six AMA Guides criteria pertaining to him or in anyway demonstrating a chronic pain syndrome diagnosis being attributable. On June 22, 2020, the applicant was assessed by Dr. Terra Seon, Psychologist, pursuant to section 44 psychological assessment. The applicant told Dr. T. Seon, that he remained independent in his activities of daily living. He described that he continued to own and operate a vehicle. The applicant denied symptoms of fear, anxiety, panic, or avoidance behaviour when travelling in his vehicle. The applicant denied experiencing memories or flashbacks of the accident (criteria 3 and 6 of AMA Guides therefore do not apply to the applicant).
27The CNRs although in sections are illegible, do not disclose the use of prescription drugs beyond the recommended duration or abuse or dependence on prescription drugs (criteria one of the AMA Guides does not apply to the applicant). Before the accident, the applicant took prescription medication to address his gout condition, however, these prescriptions address the gout condition, and Dr. Yong-Kyong Micheal Ko opined that a physical examination showed evidence of gout which was not attributable to the accident, and no other organic pathology. The applicant’s reliance on medication to address his gout condition did not change as a result of the accident.
28The applicant did not provide evidence demonstrating an excessive dependence on health care providers, his spouse or family after the accident (criteria two of AMA Guides does not apply to the applicant) nor of a withdrawal from social milieu, including work, recreation or other social contacts (criteria four of AMA Guides does not apply to the applicant). The one criterion, the applicant submits applies to him relates to the fifth AMA Guide criterion, such that the physical capacity of the applicant is insufficient to pursue work. At the time of the examination by Dr. Yong-Kyong Micheal Ko, the applicant stated that he was unable to return to work secondary to pain since the motor vehicle accident. The applicant’s pre-accident employment was determined by Physiotherapist Mr. Dennis Polygenis, in the IE Functional Capacity Evaluation, to be a Heavy Physical Demand Characteristic. As stated, the applicant demonstrated an inconsistent effort through failed cross-reference validity tests in the course of the functional abilities evaluation by Physiotherapist Mr. Dennis Polygenis. The test results were, therefore, not considered as a valid indication of the applicant’s functional abilities. I do not find that criterion five of the AMA Guides applies to the applicant since the applicant has failed to provide evidence that after the date for a re-evaluation by Dr. M. Boozary, February 4, 2020, that the applicant’s functionality was affected by accident-related injuries.
30I do not accept that pain that lasts for more than six months without discussion of the level of pain, medical evidence of the pain’s effect on the person’s function, or whether the pain is bearable without treatment, is more than mere sequelae. Without something more than the length of time pain lasted, I do not accept based on the applicant’s reports that he has “chronic pain syndrome,” as discussed in Aruda and Western Assurance Company, (FSCO AI 3-003926), although I am not bound by FSCO decisions. The applicant has not satisfied me, on a balance of probabilities, that his pain complaints are accident-related and that the chronic pain complained of is not merely sequelae of the soft tissue injuries nor has the applicant explained whether the pain gives rise to a functional limitation.
Psychological Injuries
31Psychological impairments may, if established, fall outside the MIG, because the definition of “minor injury” under the Schedule does not include psychological impairments. I find the applicant does not have a psychological diagnosis stemming from the December 2019 accident that would take him outside of the definition of the MIG for the following reasons.
32As submitted by the respondent, Shirin Jeyzari, Psychologist at Doctor’s Rehabilitation Centre, submitted a treatment plan for a psychological assessment following a provisional assessment conducted on March 10, 2020. Dr. Jeyzari did not conduct an in-depth clinical interview or any psychometric testing as part of the provisional assessment. The applicant submits that the clinical notes and records of Dr. Peter Miele, Chiropractor, reference complaints of stress, post traumatic stress disorder and insomnia. As a Chiropractor, I find that Mr. Miele is not qualified to opine relating to the applicant’s psychological impairments, therefore, I place no weight on his opinions relating to the applicant’s psychological impairments.
33Dr. Leon Steiner, a psychologist at Novo Medical Services, also submitted a treatment plan for a psychological assessment following a pre-screen conducted on May 4, 2020, by Hidayatullah Sherzad, who was not a qualified psychologist. Mr. Sherzad did not conduct psychometric testing. The applicant submits that he reported for the purpose of the treatment plan for a psychological assessment, experiencing significant effects on his emotional functioning since the accident. I find that the applicant’s self reports of anxiety in this case coupled with the absence of a diagnosis do not remove the applicant from the MIG. The Tribunal has found that an applicant was unable to meet the burden of proof of a psychological injury because of a failure to submit medical documentation to support the psychological diagnosis and a lack of further investigative tests.
34Dr Terra Seon, completed an Insurer’s Psychological Examination on August 19, 2019, with the applicant. The applicant denied any significant psychological impairment that would negatively interfere with his occupational functioning and overall functioning. The applicant described to Dr. Seon, mild emotional adjustment difficulties following the subject accident, which have continued to resolve with the passage of time and have not resulted in significant psychological impairment in his overall functioning. From a psychological perspective the applicant denied any significant symptoms of anxiety, depression or post-traumatic stress that would negatively interfere with his overall function. Dr. Seon opined that the applicant’s presentation was not of a magnitude to warrant a psychological diagnosis in direct relation to the injuries sustained in the motor vehicle accident. Dr. Seon opined that in the absence of a psychological diagnosis, the psychological injuries sustained in the accident, are “minor” and within the limits of the MIG.
35I prefer the respondent’s evidence as more comprehensive and the applicant has not presented evidence to discharge the burden of demonstrating that any psychological injuries sustained in the accident are not predominantly minor injuries capable of being treated within the limits of the MIG. I find that the applicant has sustained predominantly minor injuries and the MIG applies.
36I am not persuaded by the evidence submitted that the applicant is outside the MIG and requires additional medical benefits for the reasons stated. Once the $3,500.00 limit is exhausted from the MIG monetary limit, the only way to have access to the additional treatment limits is to provide evidence that the injuries are outside the MIG, and it is my finding that the applicant’s injuries are within the definition of the MIG.
37Having 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.
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
39The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As decided, no benefits are payable, it therefore follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.
ORDER
40I 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.
41The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.
42Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
43The respondent is not liable to pay an award under Regulation 664.
44The application is dismissed.
Released: September 11, 2023
Janet Rowsell
Adjudicator