Citation: Badhan v. Certas Direct Insurance Company, 2023 ONLAT 21-000856/AABS

Licence Appeal Tribunal File Number: 21-000856/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:

Rahul Badhan

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Andrea Reid

APPEARANCES:

For the Applicant:

Marc Golding, Paralegal

For the Respondent:

April Snow, Counsel

HEARD:

In Writing

OVERVIEW

1The applicant, Rahul Badhan, was involved in an automobile accident on November 1, 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, Certas Direct Insurance Company, 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 and the Minor Injury Guideline?

ii. Is the applicant entitled to $3,948.91 for chiropractic treatment, proposed by Inline Rehab in a treatment plan/OCF-18 dated May 27, 2019?

iii. Is the applicant entitled to $3,191.25 for chiropractic treatment, proposed by Inline Rehab in a treatment plan/OCF-18 dated December 18, 2019?

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

RESULT

3The applicant has not demonstrated that removal from the Minor Injury Guideline is warranted.

4Since the applicant’s injuries are considered minor, as defined by the Schedule, the proposed treatment plans outside the Minor Injury Guideline are not reasonable and necessary.

5Since no treatment plans are payable, no interest is payable.

ANALYSIS

The applicant has not demonstrated that removal from the Minor Injury Guideline is warranted

6The applicant bears the onus to establish his accident-related impairments require coverage beyond the $3,500.00 limit for minor injuries on a balance of probabilities. The applicant did not provide objective medical evidence that his impairments required treatment outside of the Minor Injury Guideline (MIG) to recover.

7Section 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 a minor injury. Section 3(1) defines a “minor injury” as “one of more of a spring, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinical associated sequelae to such an injury.”

8Any insured person may be removed from the MIG if they can establish their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant does not allege that he has a pre-existing condition that would prevent recovery within the MIG, or that he sustained a psychological impairment as a result of the accident. Rather, the applicant submits that he should be removed from the MIG on the grounds of chronic pain that developed as a result of the accident. The applicant points to the development and ongoing issue of wrist tendonitis post accident. To this end, the applicant relies on medical records from chiropractor, Dr. Joseph Csumrik, and Dr. Faris Mohammed of Etobicoke Walk-In & Family Physicians. These records indicate the wrist tendonitis, yet do not make a direct diagnosis for chronic pain.

10In response, Certas Direct points to medical evidence which states that the applicant’s impairments fall within the definition of a minor injury. Further, the respondent submits that the applicant has not established the presence of chronic pain nor grounds for the treatment plans he is seeking. The respondent relies on clinical notes and records from Dr. Tanious, Dr. Rashid and Dr. Mohammed. The clinical notes and records do not show any corroborating evidence or a referral to a pain specialist.

11The respondent further argues that for the Tribunal to accept a chronic pain claim in the absence of a diagnosis, it relies on the American Medical Association’s (AMA) Guidelines for evaluating chronic pain claims (see, for example, the analysis in 17-007825 v Aviva Insurance Canada, 2018 CanLII 83520 (ON LAT)). The AMA Guides states that at least three of the following six criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs of 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; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.

12The respondent submits that the applicant was only prescribed Vimovo once in December of 2018, which speaks to the first criterion of the AMA Guides only. As evidence that criteria ii. through vi. has not been provided by the applicant, the respondent submits that the applicant has not met the threshold for chronic pain.

13As a starting proposition, the AMA Guides criteria for chronic pain are not statutorily binding on this Tribunal as they are not incorporated into the Schedule; however, I agree that the criteria serve as a useful interpretive tool in assessing an applicant’s claim that they have chronic pain.

14I agree with Certas Direct that the applicant’s physical impairments fall within the definition of a minor injury under s. 3, as they are identified as soft tissue injuries in the medical records. The applicant did not suffer any fractures, full thickness tears or dislocations in the accident.

15The Tribunal has determined that chronic pain with functional impairment warrants removal from the MIG, as same is not captured by s. 3 of the Schedule. The medical records identify a diagnosis of left wrist tendinosis, a predominately minor injury which did not prevent the applicant from returning to work after the accident. Additionally, physical treatment was never recommended by a treating physician for this injury. Further, the applicant has not provided evidence which supports a functional impairment related to any physical symptoms. The applicant only sought medical attention three times after the accident, all of which occurred within the first two months after the accident.

16I find that the applicant failed to provide objective, corroborating medical evidence such as a specialist opinion or diagnosis, that would indicate the applicant suffered from a chronic pain condition (as described by the AMA Guides) as a result of the accident, that would prevent maximal medical recovery if treated within the MIG limits. While I accept that a formal diagnosis of chronic pain is not an absolute requirement, I find that the applicant has not met the burden of proof to demonstrate that he has functional impairment as a result of his pain, or that he meets three of the six criteria to support a chronic pain claim under the AMA Guides.

17For these reasons, I find on a balance of probabilities that the applicant’s accident-related injuries are within the MIG.

The applicant is not entitled to the funding for the proposed treatment plans.

18To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

19The applicant submitted two treatment and assessment (OCF-18) forms for chiropractic treatment proposed by Inline Rehabilitation Centre Inc.

20On each of the OCF-18s, the applicant indicated that his impairments are not minor and sought treatment outside the MIG.

21Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are overdue, no interest is payable.

ORDER

23I find:

i. The applicant has not demonstrated that his accident-related injuries cannot be treated within the limits set out by the Minor Injury Guideline.

ii. The proposed treatment plans are not payable since they propose treatment outside of the Minor Injury Guideline.

iii. The applicant is not entitled to interest as there is no overdue payment of benefits.

24The application is dismissed.