Licence Appeal Tribunal File Number: 21-012954/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:
Habib Judge
Applicant
and
The Personal
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Doina Mariuescu, Paralegal
For the Respondent:
Sonya Katrycz, Counsel
HEARD:
In Writing
OVERVIEW
1Habib Judge, the applicant, was involved in an automobile accident on February 19, 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, The Personal, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2According to submissions, the applicant was involved in two other motor vehicle accidents apart from the subject accident. A second accident occurred on July 14, 2019, and a third on July 21, 2020.
ISSUES
3The 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 $3,805.76 for chiropractic services, proposed by Mediwise Health Care Centre in a treatment plan/OCF-18 (“plan”) dated June 4, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant’s injuries fall within the definition of “minor” as defined in the Schedule.
5The applicant is not entitled to the treatment plan or interest.
PROCEDURAL ISSUE
Referred questions from Motion hearing of May 4, 2023
6On April 11, 2023, the respondent filed a Notice of Motion requesting that the applicant be barred from relying on any documents that were not served by the production exchange deadline in accordance with the Case Conference Report and Order of September 16, 2022.
7At the Motion hearing, the respondent requested:
i. that the Tribunal make an order barring the applicant from relying on any documents that were not served by the production exchange deadline; and
ii. that the Tribunal draw a negative inference from the applicant’s failure to disclose relevant documents.
The respondent clarified that it did not oppose the inclusion of recently received clinical notes and records (“CNRs”) from the applicant’s family doctor, which were in the applicant’s initial submissions (for written hearing scheduled for May 19, 2023).
8The applicant disagreed with the respondent and submitted that there would be no additional documents.
9In the Motion Order, the adjudicator declined to exclude any evidence, referring both questions to the hearing adjudicator as follows:
to determine weight, should there be any additional records; and
to draw a negative inference, from the applicant’s failure to disclose relevant documents.
10Given that the applicant did not file any additional records, I dismiss this aspect of the respondent’s motion request as moot.
11With regard to the second question, I decline to draw a negative inference because there is too little information before me to make an informed decision. Neither party addressed the issue in written submissions for this written hearing. The Motion Order itself is brief and provides no background, and I have few details about what documents were or were not requested and exchanged, what specific records were accepted by the respondent, nor the applicant’s reasons for any non-compliance with the Tribunal’s document production order.
ANALYSIS
The applicant has not demonstrated that his removal from the MIG is warranted.
12I find that the applicant’s injuries from the accident meet the definition of “minor” under s. 3 of the Schedule.
13Section 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.”
14An 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 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. In all cases, the burden of proof lies with the applicant.
15The applicant submits that his injuries from the accident are not minor, and that he suffers from chronic pain and psychological symptoms that warrant removal from the funding limits of the MIG. He relies on records from Credit Valley Hospital the day of the accident and CNRs from his visits to Apple Tree Medical Centre to consult his general practitioner (“GP”). The applicant’s GP referred him to Mediwise Healthcare Centre where he received chiropractic, physiotherapy, and massage therapy treatments in the months following the accident.
16A chiropractor at Mediwise provided an OCF-3 for a short-term disability period, and progress notes from the facility indicate that he experienced some improvement from his treatment sessions. The Mediwise healthcare team recommended continued physical and psychological treatment to facilitate his recovery from the accident. The applicant submits that he attended sessions at Mediwise consistently, incurring the expense of the treatment.
17The respondent submits that the applicant has failed to provide compelling medical evidence that his injuries warrant removal from the MIG. It points to the hospital records and x-rays the day of the accident which found only muscle strain and no serious injuries. It points to the recommendations of the applicant’s doctor shortly after the accident which were consistent with soft tissue injuries – rest, ice, physiotherapy, and massage. The respondent funded a first round of treatment based on the doctor’s recommendation. However, a second treatment plan was denied as there was no recommendation from the applicant’s GP for further treatment.
18The respondent also challenges the findings of the OCF-24 (minor injury treatment discharge report) prepared by a chiropractor at Mediwise, noting that there are few details provided about the applicant’s condition that warrant removal from the MIG. Further, the OCF-24 contradicts the information on the OCF-3 prepared by a different chiropractor at the facility, about whether the applicant was working or not at the time of the accident. There is no explanation or other evidence provided by the applicant to account for the discrepancy. Due to the lack of detail as well as contradictory statements, I give these documents less weight.
19I agree with the respondent. The applicant’s documented injuries are muscle strain and soft tissue injuries that fit within the definition of “minor”. The diagnosis from the initial hospital visit is “muscle strain”, and x-rays taken show no serious injuries. This diagnosis is consistent with the findings of the applicant’s GP who made recommendations appropriate for soft tissue injuries, including a referral for a short-term treatment plan at Mediwise. In addition, the OCF-24 prepared by a chiropractor at Mediwise is not persuasive. It discharged the applicant from the MIG but lacked detailed reasons for doing so. Moreover, the document included contradictory information about the applicant’s work status from the information recorded in an OCF-3 from the same facility.
20The applicant remains subject to the $3,500.00 MIG funding limit.
The applicant has not demonstrated that they developed chronic pain with functional impairment.
21I find that the applicant’s injuries from the accident do not rise to the level of chronic pain with functional impairment.
22The applicant submits that his ongoing symptoms included chronic back pain, headaches, joint pain, lack of sleep, decreased appetite and loss of energy. Despite this claim, the applicant stopped receiving physical treatment at Mediwise sometime in July 2019, and did not visit his doctor again until approximately one year after the third accident on July 21, 2020. There were no family doctor visits in 2021, nor 2022, except for one visit on an unrelated matter.
23The respondent submits that if the applicant experienced ongoing symptoms, they do not rise to the threshold for removal from the MIG. I agree with the respondent.
24The respondent cites 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT), where the Tribunal found that the six criteria for making a chronic pain diagnosis, found in the American Medical Association (AMA) Guides, can provide a useful framework for understanding an individual’s functional capacity. Those six criteria are as follows:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other circumstances;
ii. Excessive dependence on health care providers spouse or family;
iii. Secondary physical deconditioning due to disease 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 needs; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviors.
25The respondent points out, and I agree, that the applicant has not submitted any evidence that they meet any of the six criteria that could lead to a diagnosis of chronic pain. Further, the applicant had cited 18-008335 v Unifund Assurance Company, 2019 CanLII 101709 (ON LAT) on the point that not providing any medical evidence from a family physician does not diminish the severity of an applicant’s impairments. The respondent refutes this reference, because in that case, the applicant reported her ongoing pain to a second treatment provider, although not to her family doctor. In the current case, I note that there are no ongoing complaints to either the family doctor or another healthcare provider.
26Although the applicant submits that he has ongoing symptoms that include chronic pain, I find that he has not established that these symptoms rise to the level of chronic pain with a functional impairment. There are no ongoing or consistent reports of pain to more than one treatment provider/facility, there is no referral by his family doctor to a chronic pain specialist, and no diagnosis of chronic pain syndrome by any healthcare professional.
27The applicant remains in the MIG.
The applicant has not demonstrated that they suffer from a psychological impairment.
28I find that the applicant’s psychological symptoms following the accident do not rise to the level of a psychological impairment as a result of the accident.
29The applicant submits that while attending Mediwise Healthcare Centre between February 26 and July 16, 2019, he was referred for a psychological assessment and treatment due to symptoms of anxiety, irritability, low mood, sleep problems, and fear of another accident. An evaluation was completed on March 12, 2019, with a provisional diagnosis of ‘Adjustment Disorder with mixed anxiety and depression’.
30The respondent submits that the applicant was not diagnosed with any psychological symptoms by his family doctor and the diagnosis at Mediwise was only ‘provisional’. Further, the respondent notes that the applicant has failed to provide any substantive evidence that his psychological symptoms have resulted in a functional impairment. Notably, while a full psychological assessment and treatment was recommended, there is no OCF-18 submitted for psychological treatment and no evidence that the applicant incurred any associated costs.
31The respondent points to Y.W.C. vs. Allstate Canada, 2020 CanLII 27386, where the Tribunal found that merely suffering from psychological symptoms does not alone take an applicant out of the MIG, but instead there must be evidence of ongoing and significant psychological distress. This decision is a persuasive one although I am not bound by it.
32Although the applicant obtained a provisional diagnosis of “Adjustment Disorder” by the professionals at Mediwise, I find that he has not provided sufficient evidence to establish that he suffered a psychological impairment because of the accident. The applicant’s GP did not record any ongoing or significant psychological symptoms, diagnose any psychological issues, or refer the applicant for any psychological treatment. Further, Mediwise provided a provisional diagnosis, but there was no subsequent OCF-18 submitted with a proposed treatment plan.
33The applicant remains in the MIG.
The applicant is not entitled to the treatment plan.
34The applicant is not entitled to the treatment plan because it proposes treatment outside of the MIG and I have determined that his injuries are properly treated within the MIG.
The applicant is not entitled to interest.
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
36Given that the applicant is not entitled to the treatment plan, it follows that he is not entitled to interest.
ORDER
37The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule. He remains in the MIG and is therefore subject to the $3,500.00 funding limit on treatment.
38The applicant is not entitled to the treatment plan because it proposes treatment above the MIG funding limit.
39The applicant is not entitled to interest.
40The application is dismissed.
Released: October 17, 2023
Bonnie Oakes Charron
Adjudicator