Citation: Boney v. Co-operators General Insurance Company, 2023 ONLAT 21-005468/AABS

Licence Appeal Tribunal File Number: 21-005468/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:

Nicholas Boney

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Maria Papadopoulos, Paralegal

For the Respondent:

Emily A. Schatzker, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1Nicholas Boney (the “applicant”) was involved in an automobile accident on March 11, 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 Co-operators General Insurance Company (the “respondent”) 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”)?

ii. Is the applicant entitled to medical benefits in the amount of $2,528.42 for chiropractic services recommended by Brampton Civic Care Centre Inc., in a treatment plan (“OCF-18”) submitted on October 29, 2019, and denied by the respondent on March 31, 2020?

iii. Is the applicant entitled to medical benefits in the amount of $2,189.27 for chiropractic services recommended by Brampton Civic Care Centre Inc., in an OCF-18 submitted on January 10, 2020, and denied by the respondent on March 31, 2020?

iv. Is the applicant entitled to a cost of examination expense in the amount of $1,995.33 for a psychological assessment recommended by Brampton Civic Care Centre Inc., in an OCF-18 submitted on January 13, 2020, and denied by the respondent on March 31, 2020?

v. Is the applicant entitled to medical benefits in the amount of $1,881.69 for chiropractic services recommended by Brampton Civic Care Centre Inc., in an OCF-18 submitted on February 24, 2020, and denied by the respondent on March 31, 2020?

vi. Is the applicant entitled to medical benefits in the amount of $1,707.11 for chiropractic services recommended by Brampton Civic Care Centre Inc., in an OCF-18 submitted on July 20, 2020, and denied by the respondent on July 28, 2020?

vii. Is the applicant entitled to a cost of examination expense in the amount of $2,200.00 for a chronic pain assessment recommended by Ontario Independent Assessment Centre in an OCF-18 submitted on July 2, 2020, and denied by the respondent on July 16, 2020?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

a. The applicant’s impairments are predominantly minor, and therefore subject to the treatment limits of the MIG;

b. I find that the MIG limit has not been exhausted and there is $4.48 remaining in the MIG limit. I further find that the applicant is not entitled to any of the disputed OCF-18s as they propose treatment outside of the MIG; and

c. 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 person 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 person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to section 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. The onus is on the applicant to establish that he has a psychological impairment rather than psychological symptoms that are sequelae of a minor injury. In all cases, the burden of proof lies with the applicant.

6The applicant submits that he should be removed from the MIG on the following grounds:

d. He was involved in a previous accident in 2014, which resulted in injuries to his back and left leg. Further, he submits that these injuries were ongoing at the time of this accident and have worsened. The applicant further appears to submit that his family physician, Dr. Voros concluded that he has ongoing pain that prevents him from achieving maximum medical recovery while subject to the MIG limits;

e. He has developed chronic and recurring lumbar radiculopathy; and

f. He has psychological impairments following the accident.

7The applicant’s submissions did not directly address whether he has chronic pain that would remove him outside of the MIG. However, his submissions do mention that he suffered from sprains and strains that did not resolve within the normal healing time as a result of the accident. Further, as the cost of a chronic pain assessment is in dispute, I have considered below whether the applicant has chronic pain that would remove him from the MIG.

8The respondent submits that the applicant has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. For the reasons that will follow below, I agree with the respondent.

Has the MIG funding limit of $3,500.00 been exhausted?

9I find both that the MIG limit has largely been exhausted as there is only $4.48 remaining and that the applicant is not entitled to any of the disputed OCF-18s as they propose treatment outside of the MIG.

10Both parties failed to address whether the MIG limit had been reached or exhausted in their initial submissions, and how much was remaining in the MIG . The Tribunal reached out to both parties on September 20, 2023, to inquire whether the MIG limit had been exhausted and if not, how much was remaining. The Tribunal further provided a deadline for a response by the parties by 1:00 PM on September 22, 2023. The respondent advised on September 20, 2023, that $4.48 was remaining in the MIG limit. The applicant did not respond.

11All the OCF-18s in dispute propose treatment outside of the MIG. All the OCF-18s have the “No” box at the bottom of page two of each form checked, denoting that the treatment recommended therein was for an impairment that was not predominantly a minor injury. Therefore, the applicant’s entitlement to the benefits in these plans is contingent on a finding that his injuries are not included within the minor injury definition in the Schedule. As I have determined below that the applicant’s injuries are within the MIG, I find that the applicant is not entitled to any of the proposed OCF-18s.

The applicant is not removed from the MIG on the Basis of Radiculopathy

12The applicant has failed to establish on a balance of probabilities that he suffers from radiculopathy as a result of the accident that would warrant removal from the MIG.

13To support his position, the applicant relies on a Disability Certificate (“OCF-3”) completed by Dr. Singh, chiropractor, dated March 19, 2019, Clinical note and record of Dr. Voros, dated May 19, 2021, and x-ray of the lumbar spine conducted on May 20, 2021.

14The respondent submits that the diagnosis of radiculopathy made by Dr. Singh is unpersuasive as there is no objective evidence to support this conclusion.

15I agree with the respondent that there is insufficient evidence (which will be discussed below) to demonstrate that the applicant sustained radiculopathy which would warrant removal outside of the MIG.

16I place little weight on the diagnoses of radiculopathy and radiculopathy of the lumbar region by Dr. Singh, in an OCF-3, as there is no objective evidence to support these diagnoses. The applicant has not produced any nerve conduction tests, Spurling’s test or any imaging that demonstrates any cord or nerve root compression. Further, Dr. Singh is a chiropractor, and it is outside of his scope of practice to diagnose or comment on nerve conditions, such as radiculopathy, and as such, I placed little weight on his diagnoses.

17Turning to the x-rays of the lumbar spine, thoracic spine, and cervical spine conducted on May 20, 2021, and July 15, 2021. On May 20, 2021, the x-ray of the thoracic and lumbar spine revealed minor degenerative changes in the mid thoracic spine and prominent facet arthropathy in the applicant’s lumbar spine and moderate to severe disc space narrowing. On July 15, 2021, the x-ray of the applicant’s cervical spine revealed mild osteoarthritic changes in the left C1-C2 interval, and mild degenerative disc disease at C4-C5 through to C6-C7 with associated anterior end plate osteophytosis. I find that the applicant has failed to provide any medical opinion that links these results to the accident. I further note that the radiologist for the x-ray of the lumbar spine and thoracic spine, dated May 20, 2021, noted that the applicant had a history of chronic low back pain and radiculopathy, however I place little weight on this as there is no objective testing to confirm this information. Further, it is unclear where the radiologist received this information from.

18I prefer the evidence of the respondent over the applicant. S.44 assessor, Dr. Saplys, orthopaedic surgeon, conducted objective testing on the applicant which revealed no neurological deficits in his lower and upper extremities, and Dr. Saplys noted that there were no nerve root tension signs. Further, there is also no objective evidence that supports the applicant’s self reporting evidence of shooting pain down his legs is due to radiculopathy. I acknowledge that the applicant advised Dr. Voros and s.44 assessor, Dr. Saplys, that he has shooting pain down his legs. However, Dr. Voros did not refer the applicant to any diagnostic imaging, like an MRI or nerve conduction tests. Further, Dr. Voros did not refer the applicant to a specialist to determine whether the applicant had radiculopathy and he did not diagnose the applicant with radiculopathy.

19I find that the applicant has failed to demonstrate that he should be removed from the MIG on the basis of radiculopathy.

The applicant does not suffer from psychological injuries which would remove him from the MIG

20The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.

21The applicant submits that he has developed psychological impairments following this accident. He relies on his self-reporting to Natalia Nosova, psychotherapist, and Anna Kozina, psychological associate, during a pre-screen interview on November 20, 2019. He further relies on his self reporting of frustration and irritability to s.44 assessor, Dr. Chan, who is a psychologist.

22The respondent submits that there is no reliable evidence that demonstrates that the applicant sustained a psychological impairment as a result of the accident. The applicant never reported any psychological concerns to Dr. Voros following this accident, and Dr. Chan concluded that the applicant had no psychological impairment.

23I agree with the respondent. The applicant has not adduced sufficient evidence that he has sustained a psychological impairment that would warrant removal from the MIG.

24The clinical notes and records of Dr. Voros do not demonstrate that the applicant reported any psychological symptoms in the period after the subject accident. On July 4, 2019, Dr. Voros noted that the applicant appeared to be asking for a form to be completed for a psychological assessment, but he was unsure if this was needed for the applicant. Further, Dr. Voros did not diagnose the applicant with a psychological impairment, nor did he refer him for psychological treatment.

25I place little weight on the provisional diagnosis of an adjustment disorder with anxiety and specific phobia, situational type (driving) as there is no objective evidence other than the applicant’s self-reporting that supports this conclusion. Further, no psychological testing was conducted by Natalia Nosova, psychotherapist, and Anna Kozina, psychological associate. Also, they did not review the clinical notes and records of Dr. Voros, which would have demonstrated to them that the applicant did not complain of any psychological impairments following the accident. Moreover, the applicant advised Dr. Chan that he had not undergone a prior psychological screening interview or assessment and was unaware that an OCF-18 for a psychological assessment had been submitted.

26I prefer the report of Dr. Chan, dated March 25, 2020. Dr. Chan conducted psychological testing to determine whether the applicant had a psychological impairment following this accident. The DASS-21 revealed that that the applicant scored in the normal range for depression, anxiety, and stress and the Geriatric Depression Scale revealed a normal range. As such, Dr. Chan concluded that the applicant did not have a psychological impairment from this accident. While I acknowledge that the applicant self-reported to Dr. Chan that sometimes he was irritable and frustrated, he has failed to establish that this is not a clinically associated sequelae to his physical injuries.

27As a result, I find that the applicant has failed to establish that he sustained a psychological impairment as a result of the accident.

The applicant has not established chronic pain warranting removal from the MIG

28The applicant has failed to demonstrate that he suffers from a chronic pain condition, that would warrant removal outside of the MIG.

29The applicant submits he suffered from sprains and strains that did not resolve within the normal healing time as a result of the accident, and as such he should be removed from the MIG.

30The respondent submits that there is no reliable evidence that the applicant has developed chronic pain syndrome to remove him from the MIG. The respondent further submits that the applicant has been diagnosed with whiplash and strain injuries by Dr. Voros, which are clearly minor injuries captured within the MIG. The respondent further submits that the applicant has failed to demonstrate that he meets any of the criteria for chronic pain outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “AMA Guides”).

31I agree with the respondent. None of the applicant’s doctors have diagnosed chronic pain. Further, the applicant has not demonstrated a functional impairment as a result of ongoing pain, nor does he meet the criteria for a chronic pain condition as outlined by the AMA Guides. As a result, I conclude that he does not suffer from accident-related chronic pain.

32I do not see that the medical evidence of the applicant’s family physician, Dr. Voros supports a finding of chronic pain. The applicant saw Dr. Voros sporadically following the accident for accident-related pain. On March 13, 2019, Dr. Voros diagnosed the applicant with whiplash which is an injury captured within the MIG. On July 4, 2019, the applicant presented to Dr. Voros with knee pain and back pain. On August 19, 2020, Dr. Voros completed a note for the applicant. Dr. Voros diagnosed the applicant with whiplash, back and knee soft tissue injuries following this accident. Dr. Voros further noted that the applicant’s back and left knee pain had worsened when he stopped physiotherapy. Dr. Voros further recommended ongoing therapy in order for the applicant to maintain his mobility and reduce his pain symptoms.

33On May 19, 2021, Dr. Voros noted that the applicant had back pain which had gotten worst as the applicant stopped treatment. Further, Dr. Voros noted that the applicant was unable to cut the grass and has difficulty with getting out of his chair due to severe back pain. However, Dr. Voros noted that the applicant’s range of motion was reasonable, and he was able to do squats. More importantly, Dr. Voros did not diagnose the applicant with chronic pain, he diagnosed him with a whiplash injury of the neck and back post-accident, which are injuries that are captured within the MIG. Further, Dr. Voros did not prescribe any pain medication, nor did he refer the applicant to a specialist for pain.

34The applicant advised Dr. Saplys on February 25, 2020, that he had resumed his pre-accident activities of: cycling, walking, and driving, but he no longer played basketball. Further the applicant advised that he had resumed his pre-accident housekeeping tasks but required assistance from his sons to complete these tasks. The applicant advised Dr. Chan on March 9, 2020, that he continued to complete the following daily activities: self-care activities, walking, reading, playing his guitar at church, going to Niagara Falls or the lakeshore with his wife, and attending church. The applicant further advised Dr. Chan that he did not resume participation in some of his recreational activities such as: outdoor home maintenance activities, cycling, or playing basketball. He further advised that he continued to drive following the accident, however long-distance driving caused increased pain due to prolonged sitting.

35The applicant has failed to demonstrate that he suffers from chronic pain or chronic pain syndrome. Dr. Voros did not diagnose the applicant with chronic pain or chronic pain syndrome. Nor did Dr. Voros refer the applicant to see a pain specialist. While a formal diagnosis of chronic pain or a report from a specialist is not mandatory in order to be removed from the MIG, I find that the evidence of chronic pain is lacking, especially given the sporadic pain complaints to Dr. Voros and that Dr. Voros noted that the applicant’s range of motion was reasonable, and he was able to complete squats.

36Further, while the applicant self-reports that he has difficulty with cutting the grass, long distance driving, housekeeping tasks, getting out of his chair, playing basketball, and riding his bicycle, he has failed to demonstrate that this is detrimental to his overall functionality, as he has returned to the vast majority of his pre-accident social and recreational activities. Further, the records of Dr. Voros do not support that the applicant has ongoing pain which would result in these functional limitations, as he only went to see Dr. Voros sporadically following the accident for pain related complaints.

37Lastly, I agree with the respondent that the applicant does not meet the criteria for a chronic pain condition, as outlined in the AMA Guides. The applicant’s submissions did not address the AMA Guides, even though he had an opportunity to submit a reply. While I accept that the AMA Guides criteria are not a mandatory standard required to be met to establish a chronic pain condition before this Tribunal, I find it is a helpful tool for assessing chronic pain claims. The applicant has not provided prescription summaries, nor any evidence that he is dependant on prescription drugs. He is not excessively dependant on healthcare providers and exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. The applicant has continued to complete the vast majority of his pre-accident recreational and social activities and there is no compelling evidence of a psychological injury.

38Accordingly, and for the reasons described above, I find that the applicant has not established that he suffers from chronic pain that would warrant removal from the MIG.

The applicant does not have pre-existing conditions that will prevent maximal recovery within the MIG

39The applicant is not removed from the MIG as a result of any pre-existing conditions, as he has failed to prove on a balance of probabilities that his pre-existing conditions would prevent maximal recovery within the MIG.

40The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. Pre-existing conditions will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the funding limit imposed by the MIG.

41In accordance with section 18(2) of the Schedule, the applicant must meet a three-part test. The applicant must meet all three of the following requirements in order to be removed from the MIG pursuant to this section:

a. Have 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 $3,500 limit under the MIG.

42The applicant submits that he was in a previous accident in 2014, and sustained injuries to his back and left leg which were still an issue at the time of this accident and got aggravated by this accident. The applicant appears to submit that Dr. Voros concluded that he has ongoing pain that prevents him from achieving maximum medical recovery while subject to the MIG limits.

43The respondent submits that the applicant has not provided any evidence, compelling or otherwise, that the injuries from his 2014 accident would preclude his recovery if subject to the MIG limits.

44I agree with the respondent for the reasons outlined below.

45Pursuant to section 18(2) of the Schedule, I find that the applicant meets the first two parts of the test, as he had pre-existing medical conditions prior to this accident, which were documented in Dr. Voros’s records. Dr. Voros’s records noted that the applicant was involved in an accident in 2014. The records further noted that the applicant had the following injuries prior to the 2019 accident: right hip pain, bilateral knee pain, left arm pain, left hand pain, left shoulder pain, elbow pain, headaches, left shoulder rotator cuff/deltoid sprain, moderate supraspinatus calcific tendinosis containing a small low grade partial thickness tear, moderate biceps tenosynovitis, and osteoarthritis.

46I find that the applicant does not meet the third part of the test pursuant to section 18(2) of the Schedule. This is based on the fact that there is no compelling medical evidence from Dr. Voros that the applicant cannot reach maximal recovery from the minor injuries caused by the subject accident within the MIG treatment limit as a result of these pre-existing medical conditions. Dr. Voros’s note of August 19, 2020, noted that the applicant’s funding had run out and that he would benefit from ongoing therapy, however there is no reference to the applicant’s pre-existing conditions, and whether they were aggravated by this accident. Further, as discussed previously in this decision, the applicant had sporadic pain complaints to his family physician following this accident, and he did not refer me to any records that demonstrate that he advised Dr. Voros that his pre-accident impairments were aggravated by this accident.

47Accordingly, I am unable to conclude that the applicant has a pre-existing condition that would preclude his recovery from his accident-related injuries if subject to the MIG and $3,500.00 funding limit.

48I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limit. Moreover, as all the disputed OCF-18s propose treatment outside of the MIG, and the applicant remains in the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

49Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

ORDER

50The applicant sustained predominantly minor injuries as a result of the accident. He remains subject to the MIG and its $3,500.00 limit. As the applicant remains within the MIG and its $3,500 limit, and all the disputed OCF-18s propose treatment outside of the MIG, he is not entitled to the plans in dispute, nor interest. Thus, the application is dismissed.