Licence Appeal Tribunal File Number: 21-004855/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:
Romel Antonio
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Alexandra Patruno, Paralegal
For the Respondent:
Ryland MacDonald, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Romel Antonio (the “applicant”) was involved in an automobile accident on February 18, 2019 and sought benefits from Economical Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent characterized the applicant’s injuries as falling within the Minor Injury Guidelines (the “MIG”) as outlined in s. 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to the MIG and the $3,500.00 funding limit for minor injuries?
Is the applicant entitled to a medical benefit in the amount of $2,564.96 for chiropractic treatment proposed by Midland Wellness Centre in a treatment plan/OCF-18 dated January 29, 2020?
Is the applicant entitled to a medical benefit in the amount of $1,995.33 for a psychological assessment proposed by Midland Wellness Centre in a treatment plan/OCF-18 dated June 24, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,5000.00 funding limit for a minor injury.
5The applicant is not entitled to the treatment and assessment plans in dispute, nor interest, because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.
BackGROUND
6The applicant was the driver of an SUV that was rear-ended. No EMS attended the scene, and the applicant proceeded to a collision reporting centre. He attended a walk-in clinic later that day and reported tension/pain/stiffness in his neck, upper shoulders, and lower back. He was diagnosed with WAD I cervical strain (“whiplash”) and lumbar strain, and given ice, heat, stretching instructions, and advised to seek physiotherapy or massage.
7The applicant did not start facility-based treatment until October 29, 2019. The applicant did not return to the walk-in clinic until November 6, 2019, when he complained of headaches on and off for three months. On November 11, 2019 he reported having neck and back pain since the MVA.
8The applicant took a week off work but returned to full-time hours thereafter.
9The applicant claims that he developed a chronic pain condition and psychological injuries following the accident, which fall outside of the minor injury definition in s. 3 of the Schedule. He submits that the treatment plans are reasonable and necessary to aid in his recovery and return to his pre-accident level of health and function. The respondent submits that the applicant sustained a minor injury.
ANALYSIS
Minor Injury Guideline (“MIG”)
10The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under s. 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
11The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
12For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.
The applicant does not suffer from an accident-related chronic pain condition
13I find that the applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.
14The applicant submits that he suffers from chronic pain because the clinical notes and records and the insurer’s examination (“IE”) report by Dr. A. Belfon, general practitioner, dated March 16, 2020 indicate that his injuries and pain complaints persist, and therefore cannot be considered minor injuries.
15The applicant also relies on the Disability Certificate/OCF-3 completed by Dr. McCutcheon dated October 29, 2019, in which he diagnoses WAD II and low back pain and notes “number of weeks since the MVA with unresolved injuries…now very chronic”.
16The applicant argues that he suffers from chronic pain solely because he has ongoing pain symptoms. It has been well established by this Tribunal that chronic pain cannot be inferred solely based on the length of time elapsed since the injury.
17Most notably, the applicant has not been diagnosed with chronic pain, or chronic pain syndrome, by any practitioner. Medical evidence indicates that the applicant suffered from predominately soft-tissue injuries as a result of the accident.
18Further, the applicant has not demonstrated functional impairment as a result of accident-related pain that would warrant removal from the MIG. The clinical notes and records make references to limitations with respect to prolonged sitting and avoiding heavy lifting due to fear of exacerbation of pain. However, full range of motion was noted. In November 2021, the applicant reported that he was still doing his activities of daily living, but no heavy lifting.
19A letter from Dr. Perinpanathan dated November 2, 2021 states that the applicant’s pain did not affect his activities of daily living, but that he was prevented from activities that require constant pushing, pulling and lifting, and was no longer able to take part in bodybuilding. I find a May 5, 2022 letter from Dr. Perinpanathan which states that the applicant was struggling with his physically demanding work inconsistent with the applicant’s report that his job was a sedentary desk job. I find these minimal reports of impairment are inconsistent with a diagnosis of functional impairment that would warrant removal from the MIG.
20I place weight on Dr. Belfon’s report. The applicant reported that he was an avid gym attendee and had been a weightlifter for many years prior to the accident. Since the MVA he continued to go to the gym but changed to light weights and cardio exercise. He continued to live alone in an apartment and was independent with respect to his pre-accident personal care and housekeeping. He was employed full-time as a buyer for a telecom company, a position that consisted of mostly office work. The applicant reported taking a week off and then returning to full-time hours. He continued to drive but reported that his back would be sore after his 45-minute commute to work. He took breaks to stand and stretch after sitting at his desk. Dr. Belfon acknowledged that the applicant’s reports of myofascial pain in his neck and back persist, but his sprain/strain injuries were classified as minor.
21The applicant has also not demonstrated that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). 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.
22I find that the applicant does not meet any of these criteria. The applicant provided no prescription summary to demonstrate that he is dependent on prescription medication or other substances. He reported to Dr. Belfon he takes Advil a couple times a week. Since February 2019, the applicant visited a walk-in clinic six times with respect to his pain symptoms. Notably, there was a gap in visits from March to November 2019, and between June 2020 to October 2021 without any accident-related pain symptoms. He pointed to no evidence of excessive dependence on family members or healthcare providers, or secondary deconditioning due to disuse. The applicant returned to his pre-accident functioning. He is independent with his activities of daily living, going to the gym, and has returned to his pre-accident work duties. While Ms. Popova’s psychological pre-screen report suggests that he had withdrawal of social milieu, for reasons discussed further below, I find her report unpersuasive and inconsistent with the bulk of the evidence.
23I find that the applicant has not met his burden to demonstrate that he sustained an injury that is not included in the minor injury definition in s. 3 of the Schedule. As a result, he remains within the MIG.
The applicant does not suffer from an accident-related psychological impairment
24I find no compelling evidence to conclude that the applicant sustained a psychological injury as a result of the accident that would warrant removal from the MIG.
25The applicant made no psychological complaints to a family physician, at the walk-in clinic, or during physical treatment at Midland Wellness Centre.
26While the disability certificate dated October 29, 2019 lists “malaise and fatigue, dizziness and giddiness, non-organic sleep disorders, nervousness, and other symptoms involving cognitive functions”, this document was completed by Dr. McCutcheon, a chiropractor who is not qualified to diagnose such psychological issues. No records from the corresponding assessment were provided to support how Dr. McCutcheon concluded that the applicant sustained the emotional impairments identified in the document. As a result, the psychological symptoms noted in the disability certificate hold no weight.
27The applicant relies on a psychological pre-screen completed by Mila Popova on June 11, 2020, which I also assign no weight. It is unclear why this pre-screen was recommended in the absence of any reports of psychological injuries that would prompt further investigation, such as complaints to a treating physician. Ms. Popova’s qualifications are unknown. The report only indicates that she works under the supervision of Dr. Belyakova, psychologist. It indicates a provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational type (driver related). However, without knowing the assessor’s qualifications it is unclear if she was qualified to make such a diagnosis.
28In addition, other medical documentation does not indicate that the applicant sustained a psychological impairment. Dr. Perinpanathan, in a walk-in clinic note dated June 18, 2020, does not identify any psychological complaints, and specifically notes no issues with memory or concentration. No psychological complaints are noted during follow-up visits in October and November 2021. Despite the lack of documented complaints, Dr. Perinpananthan provided a letter dated November 2, 2021 indicating that she believed that the applicant would benefit from continued physiotherapy and “perhaps psychotherapy.”
29A note dated May 5, 2022 indicates that the applicant was struggling to meet demands due to his pain, was mentally distressed due to lack of ability to perform at his baseline, and that he would benefit from continued physiotherapy and psychotherapy. However, I find that the minimal symptoms documented by Dr. Perinpanathan are inconsistent with the bulk of the medical evidence, and insufficient to establish a psychological impairment that would warrant removal from the MIG.
30For the above reasons, I find that the applicant did not sustain a psychological injury as a result of the accident.
The Treatment and Assessment Plans
31The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
ORDER
33The applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.
34The applicant is not entitled to the treatment and assessment plans in dispute, nor interest.
35The application is dismissed.
Released: September 21, 2023
Kate Grieves
Adjudicator