Licence Appeal Tribunal File Number: 20-013565/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:
Mizan Kidane
Applicant
and
Certas Home and Auto
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Christopher Finlay, Counsel
For the Respondent: Carol Rambally, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Mizan Kidane, the applicant, was involved in an automobile accident on November 9, 2018, 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, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $169.22 (was $3,456.54) for chiropractic services recommended by Activa Clinics in a treatment plan (“OCF-18”) dated November 23, 2018?
iii. Is the applicant entitled to $2,949.08 for chiropractic services recommended by Activa Clinics in OCF-18 dated February 4, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, or interest is payable.
ANALYSIS
APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)
4On November 9, 2018, the applicant was rear-ended, she did not lose consciousness and she went to a walk-in clinic where Dr. Mehrdad Vakilha, physician, diagnosed the applicant with muscle strains, prescribed pain medication and recommended physiotherapy.
5The 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 s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
9The applicant submits that she should be removed from the MIG on the basis that she has sustained chronic pain with functional impairment.
Does the applicant have chronic pain that warrants removal from the MIG?
10I do not find that the applicant’s physical injuries have caused functional impairment or chronic pain and does not warrant removal from the MIG.
11For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide evidence that her accident-related injuries had a detrimental impact on her functionality.
12The applicant contends that she has developed chronic pain with functional impairment as a result of the accident, that warrants removal from the MIG.
13In support of her claim, the applicant relies on the clinical notes and records (“CNRs”) of Dr. Richard Shaul, family physician, and a letter he prepared dated September 1, 2020 to the applicant’s counsel. The CNRs provide that the applicant had complaints of headaches, pain in her low back, neck and right knee, she was diagnosed with soft tissue injuries. The applicant also relies on the letter prepared by Dr. Shaul that states she was initially diagnosed with soft tissue injuries, however given the presence of pain 22 months after the accident, it was Dr. Shaul’s opinion that she developed a chronic pain disorder.
14The respondent contends that the applicant suffered predominately soft tissue injuries and has not demonstrated that she suffers chronic pain. I agree with the respondent that ongoing pain is insufficient grounds to take the applicant out of the MIG as it must be accompanied by functional impairment. The respondent submits that there is no functional impairment given the applicant has returned to full-time work as personal support worker.
15The respondent submits that Dr. Shaul’s CNRs reveal the applicant suffered soft tissue injuries, the CNRs did not reveal referral to a specialist or further testing, did not describe how her pain affects her ability to function, nor mention chronic pain. Prior to his September 1, 2020, letter Dr. Shaul made no mention of chronic pain in the CNRs, and there are no other medical source corroborations. The respondent takes issue with Dr. Shaul’s letter, as a family doctor, has no expertise pertaining to diagnosing chronic pain.
16The respondent referenced the American Medical Association Guides (“AMA Guides”).1 The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six factors. I agree with the respondent, the applicant did not provide evidence to demonstrate: dependence on prescription medication for prolonged periods, excessive dependence on others, secondary physical conditioning, withdrawal from social milieu, failure to restore pre-injury function, or the development of psychosocial sequalae.
17I find that the CNRs of Dr. Shaul, do no provide specialist referrals, do not describe how pain affects her ability to function, and fail to mention “chronic pain”. I find that the applicant did not meet her onus of proving her injuries fall outside of the MIG and that her chronic pain is more than sequalae.
18I am not persuaded that the applicant demonstrated that her accident-related soft tissue injuries, confirmed by Dr. Shaul’s CNRs, had a detrimental impact on her functionality. Although, in September 2020 Dr. Shaul diagnosed the applicant with chronic pain, I find it to be unsupported by other medical evidence. Even if I did accept Dr. Shaul’s chronic pain diagnosis, I am persuaded by the respondent’s submissions that for chronic pain to be more than just sequelae from soft tissue injuries it must be such a severity that it causes suffering and distress accompanied by functional impairment or disability. There is a lack of evidence advanced by the applicant to suggest that her injuries were severe enough to cause distress accompanied by functional impairment or disability. I note that Dr. Shaul never referred the applicant to a specialist, did not advance further medical intervention steps, and the applicant returned to full-time work.
19I find that the applicant has not met her onus to prove she has chronic pain with functional impairment that would remove her from the MIG. In addition, I find that her ongoing physical pain has not caused functional limitations.
THE DISPUTED TREATMENT PLANS
20The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
INTEREST
21Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.
ORDER
22The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest.
Released: October 11, 2023
Monica Ciriello
Vice-Chair