Licence Appeal Tribunal File Number: 21-011599/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:
Paul Abana
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Paul Abana, Applicant Andrea N Seecharan, Counsel
For the Respondent:
Intact Insurance Company
Erica Lewin, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Paul Abana, the applicant, was involved in an automobile accident on December 1, 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, Intact, 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 (MIG)? The MIG limits have been exhausted.
ii. Is the applicant entitled to $241.66 ($1,300.00 less $1,058.34 approved) for physiotherapy services, proposed by Wilson Massage and Physio in a treatment plan/ OCF-18 (“plan”) submitted on March 8, 2020?
iii. Is the applicant entitled to $4,523.10 for physiotherapy services, proposed by Wilson Massage and Physio in a treatment plan/ OCF-18 (“plan”) submitted on October 6, 2020?
iv. Is the applicant entitled to $4,784.30 for physiotherapy services proposed by Wilson Massage and Physio in a treatment plan /OCF-18 (“plan”) submitted on August 10, 2021?
v. Is the applicant entitled to $2,675.92 for an orthopaedic assessment proposed by Dr. Tajedin Getahun in a treatment plan /OCF-18 (“plan”) submitted on April 30, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met his burden of proof by demonstrating, on a balance of probabilities, entitlement to treatment for his injuries beyond the $3,500.00 MIG limit.
4The applicant is not entitled to the treatment plans in dispute.
5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
6The application is dismissed.
ANALYSIS
Pre-existing Injuries and Physical Accident-related Injuries
7I find that the applicant’s submission that his pre-existing conditions were aggravated by the accident is undermined by the applicant’s failure to disclose any clinical notes and records before the accident. I also find that medication described as taken for accident-related injuries, were prescribed to the applicant before the accident based on the prescription summary in evidence. The applicant submits that the orthopaedic assessment completed by Dr. T. Getahun on July 15, 2021, diagnosed chronic myofascial strain of the cervical spine/ thoracic spine, lumbosacral spine and bilateral should strain. The applicant submits that he suffers chronic pain as a result of the accident, which he contends is supported by the orthopaedic assessment of Dr. T. Getahun. The applicant submits that he takes Baclofen and Tramadol daily for the purpose of pain management of his accident-related injuries. However, as is evident from a pre-accident prescription summary, the applicant was taking both these medications before the accident for undisclosed reasons since no CNR’s before the accident are available. The applicant submits that he takes medication to help him sleep post-accident in addition to medication to address hypertension. The applicant submits that he experiences chest pain as a result of the accident.
8The applicant took prescription medication before the accident for medical conditions which are unknown as no pre-accident CNRs are available. As a result, I find that the applicant has failed to meet his burden to show that any pre-existing conditions were aggravated by the accident. Before the subject accident the applicant was prescribed Trandolapril; in addition, pre-accident the applicant took the medications Naproxen and Diclofenac, which are prescribed to alleviate pain and inflammation. The applicant was also prescribed Diclofenac and Baclofen, for undisclosed reasons since the applicant did not disclose any pre-accident CNRs. The applicant was prescribed a blood pressure monitor on July 15, 2019.
9As stated, the applicant has produced no CNR’s to establish the existence of any psychological impairments, before the accident or afterwards. The applicant has provided limited CNR’s addressing his accident-related injuries beyond approximately two months of CNR’s from his family physician Dr. Mostafa Hayat-Gheybi and some diagnostic test results pre and post-accident.
10The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule which includes sprains, strains, whiplash associated disorders, contusion, 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. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
11If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
12Section 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.”
13In 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.
Medical Evidence
14The respondent submits that the applicant has failed to meet his burden showing by means of medical evidence, pre-existing and post-accident musculoskeletal injuries which would prevent the applicant from reaching maximal recovery if he is subject to the Minor Injury Guideline (MIG). As submitted by the respondent, the applicant has provided limited clinical notes and records (CNR’s) from his family physician Dr. Mostafa Hayat-Gheybi. There are no CNR’s provided in the period from January 28, 2020, two months after the accident, until June 28, 2021, a period of 1.5 years of missing information regarding the applicant’s condition following the accident. Dr. Seung-Jun Lee, completed two section 44 IE assessments on December 3, 2021, and on August 22, 2022, which post-examination find that the applicant is treatable within the MIG. I place greater evidentiary weight on the two IE assessments prepared by Dr. Lee, as opposed to the unsupported submissions of the applicant.
15I find that the applicant has provided insufficient evidence to meet his burden of demonstrating that he has pre-existing or post-accident musculoskeletal injuries which would prevent the applicant from reaching maximal recovery if he is subject to the Minor Injury Guideline (MIG). Based on the lack of medical evidence to substantiate the applicant submissions that his injuries before and after the accident require funding outside the limits of the MIG, I place greater probative weight on the two section 44 IE assessments of Dr. Seung-Jun Lee, which opine that the applicant is treatable within the MIG.
16The applicant submits that he suffered pre-existing back pain from scoliosis which was exacerbated by a previous motor vehicle accident in 2018, however, no documentation has been provided respecting the 2018 accident. Instead, records support the applicant was involved in a 2017 accident with no significant injuries.
17In the Disability Certificate/ OCF-3 dated December 15, 2019, Kashvi Patel, Physiotherapist, described that the applicant’s injuries and sequela include injury to muscle and tendons at neck level, whiplash-associated disorder WAD II with complaint of neck pain with musculoskeletal signs, injury to muscle and tendon at Thorax level, sprain and strain of other unspecified parts of lumbar spine and pelvis, injury of muscle and tendon of shoulder and upper arm level, headache and post-traumatic stress disorder.
18In the Insurance Examination Musculoskeletal Assessment of Dr. Seung-Jun Lee, dated August 22, 2022, in the section of the report respecting the applicant’s past medical history, it is stated that the applicant has a history of hypertension. The applicant reported to Dr. Seung-Jun Lee, a rear-end collision six years before the accident on December 1, 2019. The applicant reported to Dr. Seung-Jun Lee, that he recovered completely from the accident six years earlier, following the completion of rehabilitation therapy for a few months.
19The applicant has failed to meet his burden by producing medical evidence showing his accident- related injuries will prevent him from reaching maximal recovery if his treatment is limited by the funding limits within the MIG. The respondent submits that clinical notes and records were requested from December 1, 2016, to the present, from the applicant’s family physician Dr. Mostafa Hayat-Gheybi, however, the only pre-accident records provided are prescription records. As stated, the prescription records show that the applicant had been prescribed pre-accident Diclofenac, Naproxen, Trandolapril and Baclofen in the year 2019. The diagnostic records provided by the applicant are for the most part post-accident. On December 23, 2019, the applicant underwent a chest x-ray as a result of chest pain. The outcome showed a normal result with no acute abnormality. The x-ray of the applicant’s thoracic spine taken on January 29, 2020, showed mild spondolytic changes, mild scoliosis, with no fractures noted and disc spaces and posterior elements appearing normal. X-rays of the applicant’s lumbar spine taken on July 3, 2019, showed no fractures identified with mild degenerative changes.
20The evidence shows that the applicant’s injuries were minor sequelae as defined in the minor injury guideline. Following the accident on December 1, 2019, the applicant was assessed in hospital where he was discharged the same day. The applicant went to his family doctor Dr. Mostafa Hayat-Gheybi, on December 3, 2019, describing the effects of the accident, causing musculoskeletal pain and requesting to be prescribed pain killers. Dr. Mostafa Hayat-Gheybi examined the applicant determining that he had a full range of motion in his neck and back and that he suffered post-accident muscle strain. Dr. Mostafa Hayat-Gheybi recommended the applicant take non-prescription Tylenol. Dr. Mostafa Hayat-Gheybi provided a referral for physiotherapy. The applicant started rehabilitation therapy, attending once or twice each week until October 2021, while receiving massage, manipulation, acupuncture and he participated in active stretching/exercise therapy. The CNR of Dr. Hayat-Gheybi dated December 3, 2019, offers support for the applicant’s injuries being minor sequelae treatable within the limits of the MIG. Dr. Hayat-Gheybi describes the applicant’s injuries as post-accident muscle strain.
21The applicant’s submission that his cardiopulmonary health was aggravated by the accident is not supported by the limited medical evidence produced and as stated no CNRs before the accident. On December 16, 2019, the applicant reported post-accident chest pain to Dr. Mostafa Hayat-Gheybi, who prescribed naproxen 500 mg., which had been prescribed before the accident earlier in the year 2019. The applicant has only provided prescription records for the year 2019 and afterwards. On January 28, 2020, the applicant met with Dr. Mostafa Hayat-Gheybi reporting pain in his lower Thoracic and upper Lumbar spine. Dr. Mostafa Hayat-Gheybi found on examination that the applicant had a full range of motion.
22Following examination of the applicant, the IE assessment by Dr. Seung-Jun Lee opines that the applicant is treatable within the MIG. Dr. Lee prepared a section 44 assessment in relation to the Minor Injury Guideline (MIG), dated December 3, 2021. Dr, Lee observed the applicant walk independently, without an antalgic gait; that he walked on heels to toes without weakness or expressed pain, and that the applicant moved from a sitting to standing position. Dr. Lee opined that the applicant was treatable within the MIG and that there were no accident-related impairments that would necessitate chiropractic or massage treatment based on his examination and review of medical records. Dr Lee concluded that there were no accident-related impairments that would necessitate an orthopaedic assessment.
23Dr. Lee prepared a second report respecting non-earner benefits, which benefits are no longer in dispute. Dr Lee did not identify any accident-related impairment that would cause a complete inability to resume normal life activities. Shoabana Kugathasan, Occupational Therapist, in her section 44 report, noted that the applicant resumed personal care, shopping, laundry, working and driving with modifications as reported by the applicant. Ms. Kugathasan opined that the applicant did not meet the test for a non-earner benefit. In Dr. Seung-Jun Lee’s assessment dated August 22, 2022, the applicant reported a fifty percent improvement in his accident-related symptoms.
24As stated, there are no CNR’s before December 3, 2019, and no medical evidence from the applicant’s family physician Dr. Mostafa Hayat-Gheybi, demonstrating the applicant’s pre-existing health conditions. There is one diagnostic test result dated July 3, 2019, before the accident, which is an x-ray of the applicant’s lumbar spine and s.i. joint requested as a result of right hip pain. The x-ray shows mild scoliosis, some disc space narrowing at L5 -S1, possible spina bifida. The most recent clinical notes provided from Dr. Hayat-Gheybi is dated May 27, 2022, and it does not disclose the reason for the consultation request on May 27, 2022.
25The respondent submits that the applicant has failed to meet his burden showing by means of medical evidence, pre-existing and post-accident musculoskeletal injuries which would prevent the applicant from reaching maximal recovery if he is subject to the Minor Injury Guideline (MIG). As submitted by the respondent, the applicant has provided limited clinical notes and records (CNR’s) from his family physician Dr. Mostafa Hayat-Gheybi. There are no CNR’s provided in the period from January 28, 2020, until June 28, 2021, a period of 1.5 years without evidence from the applicant’s family doctor respecting the applicant’s condition following the accident. Dr. Seung-Jun Lee, completed two section 44 IE assessments on December 3, 2021, and on August 22, 2022, which find that the applicant is treatable within the MIG. As stated, I place greater evidentiary weight on the two IE assessments prepared by Dr. Lee, as described, as opposed to the unsupported submissions of the applicant.
26I find that the applicant has provided insufficient evidence to meet his burden by demonstrating that he has a pre-existing condition or post-accident injuries which would prevent the applicant from reaching maximal recovery if he is subject to the Minor Injury Guideline (MIG). Based on the lack of medical evidence to substantiate the applicant submissions that his injuries before and after the accident require funding outside the limits of the MIG to reach maximum recovery, I find that the applicant’s injuries are treatable within the MIG.
Psychological Injuries
27The applicant submits that he suffered psychological impairment following the accident on December 1, 2019, including depression, anxiety, nightmares and a fear of driving. The applicant submits that the clinical notes and records (CNR’s) of his family physician Dr. Mostafa Hayat-Gheybi, report the psychological impairments post-accident, which is not the case. There are few CNR’s following the accident, and none reference any psychological or psychiatric disorders caused by the accident. In addition, there are no CNR’s pre-accident in evidence with the exception of a diagnostic x-ray result dated July 3, 2019.
28Psychological 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 has not provided evidence to meet his burden of demonstrating that he has a psychological diagnosis stemming from the December 1, 2019, accident, nor has he provided medical evidence which would take him outside of the definition of the MIG. The applicant is not diagnosed with any psychological or psychiatric disorders by his family physician Dr. Hayat-Gheybi, nor was he provided with a referral for any accident-related psychological impairment by his family physician.
29There is no evidence that the applicant takes medication for a psychological impairment. The applicant is prescribed zopiclone in June 2021, a year and a half after the accident but there is no medical evidence which associates the prescription with a psychological impairment caused by the accident.
30The 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.
Chronic Pain
31The applicant submits that the medical records in evidence support a chronic pain diagnosis. However, as the respondent submits, there is no documented diagnosis of chronic pain by a treating medical practitioner. Dr. T Getahun states in his assessment that the applicant’s injuries fall outside the Minor Injury Guideline on the basis of the duration of the symptoms of strain and sprain. This is not a basis for the Tribunal finding the applicant’s accident-related injuries, are not capable of being addressed within the limits of the Minor Injury Guideline (MIG). Dr. T. Getahun opines that the applicant experiences chronic myofascial strain of the cervical spine, thoracic spine, and lumbosacral spine, bilateral shoulder strains and non-verifiable radicular symptomatology. Dr. Tajedin Getahun describes that the applicant’s soft tissue injuries ought to have resolved by the time of his assessment.
32I find that the underlying nature of the injuries to the applicant, are strains of the upper and lower spine and Dr. T. Getahun’s diagnosis falls squarely within the definition of “minor injury” in section 3 of the Schedule. Dr. T. Getahun does not find that the applicant experiences a radiculopathy (Nguyen v. Allstate Canada, 2021 CanLII 30276 (ON LAT)). Dr. Getahun finds that the applicant experiences non-verifiable radicular symptomatology. As stated, Dr. Tajedin Getahun describes that the applicant’s soft tissue injuries ought to have resolved by the time of his assessment as the basis for opining that the applicant’s injuries are not treatable within the MIG.
33As described in Aruda and Western Assurance Company, (FSCO AI 3-003926), although I am not bound by FSCO decisions, I 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 the pain lasted, I do not accept based on the applicant’s reports that he has “chronic pain syndrome,”. 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.
34The respondent submits that the applicant has not met his burden to show that he experiences chronic pain syndrome with reference to the criteria in the American Medical Association Guide (AMA Guide).1 The Tribunal has adopted the American Medical Association Guide (AMA Guide) as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guide states 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.
35The respondent submits, and I agree, that the applicant has not provided compelling medical evidence of a chronic pain diagnosis with reference to the noted AMA Guide criteria. Considering the first criteria, the applicant has not used prescription medication beyond the recommended duration since the applicant was taking Diclofenac, Naproxen, and Baclofen, in the year leading up to the accident and perhaps before that time, however, we do not have prescription records from the applicant pre-dating the year 2019. The applicant has not provided documentation as to what caused the prescriptions after January 2020, in the form of CNR’s. As submitted by the respondent, it is quite possible that the prescriptions described were to address cardiac chest pain, reported to Dr. Lee in 2021, and that the medication is not accident-related. As submitted by the respondent, there is no indication that the applicant has continued to fill these prescriptions beyond September 2021.
36As submitted by the respondent, the applicant has presented no evidence establishing an excessive dependence on health care providers or family members. The applicant has provided no evidence that he continued to seek medical care from his family physician beyond two months post-accident or that he was referred to medical specialists. The applicant describes demonstrating physical deconditioning and avoidance of physical activity as a result of chronic pain and the accident, by the submission that he returned to work with modified duties. However, as submitted by the respondent, the applicant has not provided any employment or medical documentation to substantiate that he required modified duties and, significantly, the applicant has not explained why his T4 income markedly increased post-accident.
37The respondent relies on the section 44 IE assessments of Dr. Seung-Jun Lee, dated December 3, 2021, and August 22, 2022. Dr. Seung-Jun Lee found no muscle atrophy on examination and no valid indicators to support ongoing accident-related musculoskeletal injury or impairment. The respondent submits that the applicant has not established that he meets three of the six criteria of the AMA Guides, nor has the applicant established a functional impairment or disability. The respondent submits, and I agree that the applicant has not met his onus of proving that he experiences chronic pain caused by the accident. I find the applicant has not met his burden to show that his accident-related injuries are outside the Minor Injury Guideline because he experiences chronic pain syndrome as a result of the accident. I find that the applicant has not met his burden to show that he can not reach maximal recovery outside the limits of the MIG.
38Having 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.
39As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.
ORDER
40I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.
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 application is dismissed.
Released: October 6, 2023
Janet Rowsell
Adjudicator