Ramirez v. Certas Home and Auto Insurance, 2023 CanLII 91446

Citation: Ramirez v. Certas Home and Auto Insurance, 2023 ONLAT 21-006654/AABS

Licence Appeal Tribunal File Number: 21-006654/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:

Brayan Ramirez Applicant

and

Certas Home and Auto Insurance Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: Brayan Ramirez, Applicant Ivy So, Paralegal

For the Respondent: Yann-Grand-Clement, Counsel

HEARD: In Writing September 6, 2023

OVERVIEW

1Brayan Ramirez, the applicant, was involved in an automobile accident on April 15, 2019, 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

[2] The issue(s) in dispute is/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 $ 1,299.96 for physiotherapy services, recommended by Newmarket Health and Wellness Centre, in a treatment plan dated October 1, 2019? iii. Is the applicant entitled to $2,486.00 for a Chronic Pain Assessment, proposed by Imperial Medical Assessments Inc. in a treatment plan dated November 19, 2020? iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries do not warrant removal from the Minor Injury Guideline (“MIG”).

4The applicant is not entitled to the treatment plans in dispute.

5The applicant is not entitled to interest.

ANALYSIS

Removal from the Minor Injury Guideline (“MIG”)

6The appellant claims that he sustained chronic pain injuries in his back, neck and shoulders which impact his activities of daily living (“ADLs”) as well as his ability to return to full duties at his employment.

7The respondent submits that the applicant has not met his burden, as he sustained minor injuries as a result of the accident. He submits that while the applicant may have symptomology of injuries which fall withing the MIG, he has not withdrawn from social activities, work or recreation and has not altered his activities of daily living or function. The respondent submits that, according to the applicant’s family physician, he has never stopped working as a drywaller.

8The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

9An insured person 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 pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG.

10The Tribunal has also determined that an applicant may be removed from the MIG if they sustained chronic pain with functional impairments. They can also be removed if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under section 3(1).

Chronic Pain Injuries

11The applicant has not demonstrated on the balance of probabilities that his pain causes functional impairment necessitating removal from the MIG.

12To substantiate this physical accident-related impairment, the applicant submitted an Application for Accident Benefits (“OCF-1”) dated July 13, 2019, which did not present any medical evidence, but did advise that the applicant’s injuries did not prevent him from working, and that he returned to work on April 22, 2019.

13The applicant also submitted clinical notes and records from the Barrie and Community Family Clinic (“Barrie Clinic”), dated September 18, 2019, in which he advised of the motor vehicle accident of April 15th. The applicant complained of ongoing right upper back and neck pain. The applicant was diagnosed with right upper trap levator myofascial pain and was recommended physiotherapy. At the visit, the applicant also advised that the pain decreased with stretching and advil.

14The applicant attended the Westend FamilyCare Clinic in Ottawa, Ontario (“Ottawa Clinic”), dated April 25, 2021 in which time he complained of dizzy spells. The applicant re-visited the same clinic on September 25, 2021, at which time he complained of experiencing right shoulder pain “for 2 weeks”. Regarding the shoulder pain the applicant advised, “no trigger that he can recall”.

15The applicant further submitted the Independent Chronic Pain Assessment, authored by orthopaedic surgeon Dr. Trajedin Getahun, dated December 18, 2020, in which Dr. Getahun notes complaints of upper and lower back pain with radiation to both legs; constant pain and stiffness in his cervical spine with radiation to the fifth digits bilaterally with numbness; and bilateral knee pain.

[16] In his report Dr. Getahun diagnosed the applicant with the following:

• Chronic myofascial strain of the cervical spine
• Chronic myfascial strain of the thoracic spine.
• Chronic myofascial strain of the lumbosacral spine.
• Bilateral patellofemoral syndrome chronic.
• Chronic pain syndrome.

17Dr. Getahun reported that the applicant satisfied the duration and dysfunction criteria with respect to the AMA Guides diagnostic criterial for chronic pain syndrome. However, Dr. Getahun did not expand on how the applicant met those criteria.

18Dr. Getahun opined that the applicant’s injuries “do not fall within the minor injury guidelines.”

19I do note that, prior to the assessment by Dr. Getahun, the applicant had only reported his symptoms once to a medical professional, that to the Barrie Clinic 5 months post motor vehicle accident, in which he advised that stretching and Advil helped relieve his pain. I also note that the only subsequent complaint of pain was to the Ottawa Clinic, over 2 years post accident, reporting pain which was not accident related.

20The respondent submitted a Physiatry Examination, conducted by physiatrist, Dr. Mohammed Abdul Wahab Khan, in which Dr. Khan diagnosed the applicant with cervical spine sprain/strain and bilateral trapezius/rhomboid sprain/strain. Dr. Khan opined that, from a physical perspective the applicant’s accident-related symptoms “are consistent with sprain/strain injuries that would be considered ‘minor’ in nature as defined by the Minor Injury Guideline.”

21While I do not find either report of Dr. Getahun or Dr. Khan overly convincing, I do conclude that Dr. Khan’s is more consistent with the medical records (or lack thereof) from the applicant’s treating physicians. The applicant’s report to the Barrie clinic of pain from the accident is five months post-accident, with the inclusion that the pain is assisted by stretching and advil. The records from the Ottawa Clinic (over 2 years after the Barrie Clinic visit) indicated that the applicant experienced right shoulder pain for 2 weeks, and not relating that to the motor vehicle accident.

22Based on the above, I conclude that the applicant has failed to prove, on a balance of probabilities, that he suffers from chronic pain, or from functional limitations that any chronic pain may have initiated, had I found that he did suffer from that diagnosis.

Conclusion re: MIG

23Absent any other medical evidence necessary for the removal from the MIG, such as a pre-existing diagnosis which would impede his recovery if kept in the MIG, or an accident related psychological injury, I find that the applicant’s injuries do not warrant removal from the Minor Injury Guideline (“MIG”).

The Treatment Plans

24As the applicant remains within the MIG, he is not entitled to the treatment plans in dispute, or interest.

ORDER

25The applicant remains within the MIG and its $3,500.00 limit on treatment.

26The applicant is not entitled to the treatment plans in dispute.

27The applicant is not entitled to interest.