Licence Appeal Tribunal File Number: 21-011288/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:
Harwinder Dhaliwal
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Zachary Berg, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Harwinder Dhaliwal, the applicant, was involved in an automobile accident on November 20, 2020, 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, Belair Insurance Company Inc., 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 in the Minor Injury Guideline?
ii. Is the applicant entitled to $2,787.79 for physiotherapy services, proposed by Integral Health Group in a treatment plan (“OCF-18”) dated May 9, 2021?
iii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by All Health Medical Centre in an OCF-18 dated October 2, 2021?
iv. Is the applicant entitled to $2,680.00 for a chronic pain assessment, proposed by Complete Rehab Centre, in an OCF-18 dated March 3, 2022?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The respondent is not liable to pay an award; and
iv. As no benefits are owing, no interest is payable.
ANALYSIS
Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.”
5An insured may be removed from the MIG if they can establish that 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.
6The applicant has not specified on which ground he claims removal from the MIG, although from his submissions, it appears to be on the basis of chronic pain.
The applicant has not established physical impairments that warrant removal from the MIG
7Although the applicant did not expressly state that that he should be removed from the MIG on the basis of physical impairments, in his submissions he references a back impairment. The applicant submits that an October 7, 2021 MRI found evidence of L4-5 degenerative disc disease. In a s.25 orthopaedic assessment dated November 11, 2021, Dr. Ogilvie-Harris noted that the MRI revealed a disc protrusion superimposed upon degenerative changes which may have been caused or aggravated by the accident. He further noted that in either situation, it is a significant cause of pain.
8The respondent disputes that the applicant’s lumbar impairment warrants removal from the MIG. It points to the fact that the applicant’s own assessor Dr. Ogilvie-Harris conceded that it is not possible to determine the age of the disc protrusion and whether it was caused by the accident. The respondent further relies on the s. 44 assessments of Dr. Chaudhry, who opined that the MRI lumbar findings were physiological changes which were not traumatic in nature. Dr. Chaudhry further conducted a physical examination and found that the applicant did not suffer from any physical impairment or physical disability attributable to the subject accident which would substantiate orthopedic involvement.
9I agree with the respondent that the applicant has not led sufficient evidence to establish that he has sustained non-minor physical injuries. Although Dr. Ogilvie-Harris opined that the lumbar impairment was non-minor in nature, I note the respondent’s submissions that Dr. Ogilvie-Harris did not conduct an in-person physical assessment. In contrast, the respondent’s assessor Dr. Chaudhry had conducted a physical examination, and found that the applicant had normal range of motion and strength testing across all joints. Dr. Chaudhry concluded that the applicant had sustained only accident related sprains and strains of the cervical and lumbar spine. I note that such soft-tissue injuries fall squarely within the definition of a minor injury.
10I further note that the applicant’s family physician, Dr. Sabha Cheema, ordered the October 7, 2021 MRI. However, despite the lumbar MRI results, Dr. Cheema expressly declined to order an orthopaedic assessment, when requested by the applicant. Nor did Dr. Cheema address the MRI findings as an indicator of a serious impairment, in subsequent visits. The applicant’s chronic pain specialist Dr. Oubada Hawass also referenced the MRI results in a January 8, 2022 reporting letter. Dr. Hawass noted that the MRI showed “minimal changes” and in a CNR entry, stated that “MRI OK”.
11As such, I find that the applicant has not established that he has sustained a non-minor physical impairment.
The applicant has not established chronic pain warranting removal from the MIG
12The applicant submits that he has developed chronic neck and lower back pain as a result of the subject accident. He relies on the CNRs of his family physician Dr. Cheema, which detail his ongoing pain complaints post-accident. The applicant further argues that as a result of his ongoing pain, Dr. Cheema referred him to a chronic pain specialist, Dr. Hawass, who recommended ongoing physical treatment, medication, Botox and nerve blocks.
13Finally, the applicant relies on the orthopaedic assessment of Dr. Ogilvie-Harris, who diagnosed the applicant with chronic low back pain and found that the applicant met five out of the six criteria specified by the American Medical Association (“AMA”) Guides to the Evaluation of Permanent Impairment, 6th edition.
14The respondent disputes that the applicant has developed chronic pain as a result of the accident. It questions Dr. Ogilvie-Harris’ diagnosis of non-minor injuries and chronic pain, on the basis that Dr. Ogilvie-Harris did not conduct an in-person assessment and as such, would be unable to properly assess the applicant’s functionality and physical limitations. The respondent argues that Dr. Ogilvie-Harris based his diagnosis solely on the applicant’s self-reports without validity testing or actual examination of the applicant. Finally, the respondent contends that the applicant did not meet any of the AMA Guides criteria.
15I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.
16Although the CNRs of the applicant’s family physician Dr. Cheema indicate that the applicant complained of neck and lower back pain from January 2021 to January 2022, the reports of pain do not appear to be consistent or at times severe. In some CNR entries the applicant reported that his neck pain was “much better” or only if he looked all the way up. With respect to his low back pain, at some visits the applicant reported that he only felt pain “slightly” or when he turned while sleeping. In an October 9, 2021 CNR entry, Dr. Cheema assessed the applicant’s lower back pain and noted that he mostly feels this pain when he turns while sleeping, that he does not have to take any medication for it, that on hyper-extension he is only “uncomfortable” on the lower back and that lower back spasm is “very rare”.
17Dr. Cheema referred the applicant to Dr. Hawass at CPM Centres for Pain Management. I agree with the respondent that Dr. Hawass did not diagnose the applicant with chronic pain. In his reporting letter and CNR entry dated January 8, 2022, Dr. Hawass noted only “mild” lower back pain and that there was no pain while at rest. He noted that the applicant was still able to work, had been taking Tylenol and had exhibited minimal lumbar tenderness. Dr. Hawass only prescribed Tylenol Extra-Strength at the time, but recommended nerve block treatment or pharmacology if the pain was persistent and severe and recommended that the applicant return to his family physician to discuss pain medication. It was noted that the applicant would wait 3-6 months and if the symptoms persisted, he would return to the pain clinic.
18The applicant does not direct me to any evidence indicating that he sought follow-up treatment after Dr. Hawass’ January 8, 2022 recommendations. Although Dr. Hawass recommended that the applicant return to Dr. Cheema to discuss pain medications, no CNR entries for follow-up visits were provided. Further, the OHIP summary, current to September 2022, did not detail any medical visits after the January 8, 2022 consultation. The applicant did not provide any explanation as to why the recommendations of Dr. Hawass were not pursued.
19Although the applicant relies in large part on Dr. Ogilvie-Harris’ diagnosis of chronic low back pain, I agree with the respondent’s submissions that Dr. Ogilvie-Harris’ assessment is limited by the fact that he did not conduct any physical examinations. Further, when finding that the applicant met five out of the six AMA Guides criteria, no explanation or analysis is provided. For example, Dr. Ogilvie-Harris’ findings that the applicant developed psycho-social sequalae appears to be based solely on the applicant’s self-reports, and is not consistent with the medical record.
20Rather, I agree with the respondent that the applicant has not led sufficient evidence that he meets three out of the six stipulated criteria. The medical record does not indicate any dependence on prescription drugs or excessive dependence on health care providers. The applicant has not led evidence of secondary physical conditioning due to pain, or failure to restore pre-injury function. I note that Dr. Chaudhry, after conducting a physical examination, found that the applicant had normal range of motion and strength testing across all joints. Finally, the medical record does not indicate the development of psycho-social sequalae or a psychological diagnosis.
21Given the foregoing, I find that the applicant has not established that he has developed accident-related chronic pain.
22The parties have confirmed that only a nominal amount remains under the MIG limit of $3,500.00 for medical and rehabilitation benefits. As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Award
23Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.
24In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.
Interest
25Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
26As no benefits are overdue, no interest is payable under s.51.
ORDER
27For the reasons set out above, I find that:
(i) The applicant’s injuries fall within the MIG;
(ii) The applicant is not entitled the disputed treatment plans;
(iii) The respondent is not liable to pay an award under Regulation 664; and
(iv) The applicant is not entitled to interest.
28The application is dismissed.
Released: September 26, 2023
Ulana Pahuta
Adjudicator