Citation: Khan v. Economical Insurance Company, 2023 ONLAT 21-014373/AABS

Licence Appeal Tribunal File Number: 21-014373/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:

Muhammad Mehdi Khan

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent:

Nivedita Misra, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Muhammad Mehdi Khan, (“the applicant”), was involved in an automobile accident on May 24, 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 Guideline (“MIG”) definition as outlined in section 3 of the Schedule and denied funding for the treatment plan 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:

1. 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?
2. Is the applicant entitled to medical and rehabilitation benefits in the amount of $2,791.68 for chiropractic services proposed by Activa Mississauga in a treatment plan/OCF-19 (“plan”) dated October 16, 2019?
3. 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 because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury, and the parties confirmed that the MIG limits have been exhausted.

BACKGROUND

6The applicant was a full -time engineering student in university at the time of the accident. He also worked full time at a window company as a co-op student, which was a physically demanding job. He lived with his wife, parents and siblings and had no dependents.

7The applicant was rear-ended while stopped in traffic waiting to merge onto a highway. EMS attended the scene but the applicant was not taken to hospital.

8The next day the applicant saw his family doctor, Dr. Hussain, about chronic sinusitis, and was referred to an ENT specialist. He also reported his involvement in the accident, and Dr. Hussain noted pain over the right shoulder. He demonstrated full ranges of motion of his shoulders and there was no tenderness noted in his spine. He was referred for x-rays of his chest and right shoulder, which revealed no fracture or dislocation. The applicant followed up for pain in his right shoulder a couple of days later, and in June 2019 he reported pain over his whole back. He was working at a window company, and it involved a lot of bending, squatting, and twisting. He was told to rest for a few days and attend physiotherapy. He followed up for his shoulder pain on one occasion each of in July and August 2019, and the physical exam was noted to be unremarkable. An MRI dated October 5, 2019 revealed no evidence of acute traumatic injury, very minimal degenerative changes of the lower thoracic spine with no spinal canal or neuroforaminal compromise. One visit to a walk-in clinic in July 2021 indicates that he complained of low back pain for 7 days, and was prescribed naproxen.

9No further medical records were provided since July 2021.

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 section 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.

12The applicant submits that a pre-existing condition, and psychological conditions, including moderate depressive episode and situational phobia, as well as chronic pain, place him outside of the MIG.

13For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

Pre-existing condition

14The applicant has not demonstrated that he suffered from a pre-existing condition which precludes his recovery if subject to the MIG.

15The applicant submits that he had pre-existing chronic back pain, and points to a disability certificate dated June 24, 2019. However, this report is unsubstantiated by the medical evidence. There is no documented pre-existing chronic back pain. He only reported pain in his right shoulder on one occasion, one month prior to the accident, and reportedly hurt his right ankle at a trampoline park in March 2017. The applicant explicitly denied having any pre-existing conditions during the insurer’s examination (“IE”) assessments.

16Further, the applicant also fails to establish how any purported pre-existing pain would prevent him from recovering within the MIG, as is required for removal from the MIG under s. 18(2).

Chronic Pain

17I find that the applicant has not demonstrated that he suffers from a chronic pain condition.

18Notably, the applicant has not been diagnosed with chronic pain by any assessor or treatment provider. Dr. Hussain’s clinical notes and records document sporadic visits, largely unremarkable examinations and minimal changes on the imaging.

19The applicant has not demonstrated a functional impairment as a result of his accident-related pain. The clinical notes from the applicant’s therapy sessions with the chiropractor indicate that by November 2019 he was feeling better, and his range of motion was within normal limits. The applicant participated in an IE assessment with Dr. D. Mula, general practitioner, on December 7, 2019. He described an overall improvement to his neck and back pain since the accident. He was not taking any medication, and specifically denied having any pre-existing pain or other medical problems. The applicant reported that he took a week and a half off of work after the accident, and then returned full time. He reported independence with his personal hygiene and continued to do housework albeit not as vigorously. Dr. Mula diagnosed soft tissue injuries to the neck, chest and back, and observed mild limitations in his spinal range of motion. Dr. Mula provided a further addendum report, dated April 29, 2020 after having reviewed the imaging reports, and concluded that his diagnosis and opinions were unchanged.

20The applicant also participated in a psychological assessment with Dr. J. Siegel, report dated September 21, 2020. The applicant reported that he resumed exercising after the accident but had to stop because of the COVID-19 pandemic. He continued to play soccer with friends once a week. He also reported having returned to his full-time job and full-time studies. He continued to drive on a near daily basis, he continued to enjoy playing videogames, was independent with his personal care. He continued to assist with sweeping and dusting but stopped mopping or vacuuming. He used to volunteer once or twice a month but stopped after the accident. He reported that he was in his final year of university, and there was a very challenging assignment due. The applicant estimated his level of physical and functional ability at 70% relative to his pre-accident status. The applicant’s scores on measures of depression and anxiety were below average, and revealed mild perceptions of disability associated with pain. Dr. Siegel concluded that the applicant had mild psychological adjustment difficulty associated with pain but did not meet the criteria for a psychological diagnosis.

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 prescription summary covering the period 2018 to 2022 contains only one entry, for an unrelated prescription, filled in August 2022. There is no evidence of excessive dependence on medical practitioners. 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, exercising, driving, and has returned to his pre-accident employment and university. There is no evidence of withdrawal from social milieu and does not have a psychological impairment per Dr. Siegel.

23I find that the applicant has not met his burden to demonstrate that he suffers from a chronic pain condition as a result of the accident.

Psychological Impairment

24I find no compelling evidence to conclude that the applicant sustained a psychological injury as a result of the accident.

25The applicant states in his submissions that he was diagnosed with psychological conditions, including “moderate depressive episode and situational phobia (automobile anxiety)”. However, the applicant fails to direct me to the evidence to support such a diagnosis. The only psychological assessment included with the submissions was that of Dr. Siegel, in which he concluded that the applicant’s impairments did not warrant a diagnosis. There is no such diagnosis on the disability certificate, or in the clinical notes and records provided.

26I 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.

27The 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 has exhausted the $3,500.00 funding limit.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue, therefore it follows that no interest is payable.

CONCLUSION AND ORDER

29The 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.

30The 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 has exhausted the $3,500.00 funding limit.

31The application is dismissed.