Licence Appeal Tribunal File Number: 21-012022/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:
Nhuan Co Luu
Applicant
and
Coseco Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Bambi Santiago, Paralegal
For the Respondent: Kathleen O'Hara, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Nhuan Co Luu (the “applicant”), was involved in an automobile accident on October 18, 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 Coseco 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $1,250.28 for physiotherapy services, proposed by Pain Rehab Clinic in a treatment plan (“OCF-18”) denied on May 25, 2020?
iii. Is the applicant entitled to $1,200.56 for physiotherapy services, proposed by Pain Rehab Clinic in an OCF-18 denied on May 11, 2020?
iv. Is the applicant entitled to $3,201.60 for physiotherapy services, proposed by Pain Rehab Clinic in an OCF-18 denied on August 7, 2020?
v. Is the applicant entitled to $3,201.60 for physiotherapy services, proposed by Pain Rehab Clinic in an OCF-18 denied on January 22, 2021?
vi. Is the applicant entitled to $3,201.60 for physiotherapy services, proposed by Pain Rehab Clinic in an OCF-18 denied on July 2, 2021?
vii. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by Pain Rehab Clinic in an OCF-18 denied on September 9, 2020?
viii. Is the applicant entitled to $2,200.00 for a GP assessment, proposed by Pain Rehab Clinic in an OCF-18 denied on January 22, 2021?
ix. Is the applicant entitled to $2,400.00 for a psychological assessment, proposed by Disability Medical Specialist in an OCF-18 denied on September 28, 2020?
x. Is the applicant entitled to a fee of $200.00 for completion of a Disability Certificate (“OCF-3”) by Pain Rehab Clinic, denied on November 30, 2020?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a predominantly minor injury as a result of the accident. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. The applicant is also not entitled to the costs pertaining to an OCF-3. Further, the applicant is not entitled to interest.
ANALYSIS
The Minor Injury Guideline
4The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
5Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
6The applicant submits that he should be removed from the MIG on the following grounds:
(i) The applicant has pre-existing lower back pain and compression fractures in his lumbar spine, at L3 and T12, which will prevent maximal recovery if he is subject to the MIG limits;
(ii) The applicant has chronic pain; and
(iii) The applicant has psychological impairments.
7The respondent submits that the applicant sustained predominately minor injuries as a result of the accident, and these injuries are subject to the limits of the MIG.
The applicant does not have pre-existing conditions that will prevent maximal recovery within the MIG
8I find that the applicant has not established on a balance of probabilities that he should be removed from the MIG on the basis of any pre-existing conditions.
9The applicant submits that he suffered a sprain and strain of his lower back as a result of a previous workplace injury and that he also had compression fractures of his lumbar spine at L3 and T12. As such, the applicant submits that he has pre-existing back pain and compression fractures, which will prevent maximal recovery if he is confined to the MIG limits. The applicant further submits that his pre-existing conditions were aggravated by the subject accident. As such, it is the applicant’s position that he meets the requirements pursuant to section 18(2) of the Schedule.
10The respondent submits that the applicant must adduce evidence of the pre-existing condition, and evidence that it will prevent recovery within the MIG, in order to be removed from the MIG on this basis. It is the respondent’s position that the applicant has failed to do so.
11The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition 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.
12In accordance with s.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.
13The applicant had a workplace injury on May 13, 2019, where he sustained a 1 cm laceration into his left lower back. The applicant submits that this injury turned into persistent sprain and strain of his lumbar spine shortly after the workplace injury. The respondent disagrees and submits that the Workplace Safety and Insurance Board (“WSIB”) file demonstrates that the applicant had a laceration and was cleared to work without restriction prior to this car accident. The applicant further submits that his pain continues to date and that the subject accident was the necessary cause of his back pain.
14Prior to this accident, on June 21, 2019, an x-ray of the applicant’s lumbar spine revealed: mild wedge compression configurations at L3 as well as at T12, which appear to be relatively old and if were to represent true fractures, would not meet the radiographic criteria for fragility fractures, although possibly could be associated with pain syndromes. The x-ray of the lumbar spine also revealed mild to moderate generalized spurring throughout the lumbar spine, and facet degenerative changes at: L4-L5 and L5-S1.
15In my view, there is no persuasive compelling evidence that the applicant’s pre-existing conditions have worsened post accident, and as such, would prevent maximal recovery if subject to the MIG limits. I am not persuaded by the medical opinions of Dr. Bui, chiropractor, and Dr. Castro, general practitioner (“GP”) that the applicant’s pre-existing conditions have been aggravated by this accident, and as such he cannot recover within the MIG limits.
16Dr. Bui and Dr. Castro’s opinions are not consistent with the clinical notes and records of Dr. Ho, the applicant’s family physician. The applicant did not once complain about this accident to his family physician, nor did he mention to Dr. Ho that his pre-existing conditions were exacerbated by the accident. While I acknowledge that Dr. Bui was the applicant’s treating chiropractor prior to this accident, I am not persuaded that the applicant’s pre-existing conditions were exacerbated by this accident, and as such he cannot recover within the MIG. This conclusion is not supported by the records of the Pain Rehabilitation Clinic (“Pain Rehab”). The first time the applicant advised his treating practitioners at the Pain Clinic of the accident was not until February 5, 2020, almost 4 months following the accident.
17The applicant has not once complained about this accident to his family physician, nor is there any objective evidence that his pre-existing conditions were exacerbated by this accident. On February 7, 2020, an x-ray of the lumbar spine revealed: stable mild wedge compression deformity at L3 and minimal wedge deformity without significant change compared to the June 21, 2019 results. While the x-ray also noted mild right convex lumbar curvature, the applicant has failed to establish on a balance of probabilities, that this condition will prevent maximal recovery if he is subject to the MIG. Neither Dr. Castro or Dr. Bui provided any medical opinion of whether the applicant’s mild right convex lumbar curvature was caused by the accident, and or whether it would prevent maximal recovery if the applicant was subject to the MIG, as required for removal from the MIG by s. 18(2).
18I prefer the evidence of the respondent over the applicant. Section 44 assessor, Dr. Zabieliauskas, physician, in his report dated July 22, 2020, concluded that the applicant’s pre-existing conditions would not impact his recovery if he was subject to the MIG. Dr. Zabieliauskas further noted that the applicant returned to work following this accident until December 3, 2019. Dr. Zabieliauskas’s opinion is also consistent with the clinical notes and records of the applicant’s family physician, Dr. Ho. The applicant did not advise Dr. Ho of the car accident on his first visit to see him following the accident. On December 7, 2019, there is no reference to the accident and the applicant advised Dr. Ho that he has no joint and muscle problems. At the applicant’s subsequent visits to Dr. Ho, he does not mention the accident, nor does he mention that he is having any ongoing back pain. Dr. Zabieliauskas further concluded that the applicant had mild lower mechanical back pain due to the fact that he has a protuberant abdomen and is approximately 30 pounds overweight. Dr. Zabieliaukas opined that this pain was not related to the accident or any injury of any kind.
19The applicant has failed to establish that he was dismissed from his position as a result of the accident. The Employment Insurance File (“E.I.”) demonstrates that the applicant was dismissed as he was not suitable for his position.
20Accordingly, I am unable to conclude that the applicant has pre-existing conditions that would preclude his recovery from his accident-related injuries if subject to the MIG and $3,500.00 funding limit.
The applicant has failed to establish that he should be removed from the MIG on the basis of chronic pain
21I find that the applicant has not met his burden of proof that he suffers from a chronic pain condition.
22The applicant submits that the accident aggravated his condition, and he has consistently reported ongoing back pain, headaches, and neck pain to multiple healthcare providers including the s.44 assessor. In order to support his position, the applicant relies on the clinical notes and records of the Pain Clinic and the two s.25 reports.
23The respondent submits that pain alone, however frequent, or lengthy in duration, does not constitute a non-minor injury. Moreover, the respondent submits that the applicant has not submitted any independent evidence of any functional impairment or disability.
24I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.
25I do not see how the medical evidence of the applicant’s treating practitioners, Dr. Ho and the Pain Clinic, supports a finding of chronic pain. The applicant never reported the accident or complained of his symptoms to Dr. Ho. At the first visit following the accident, on December 7, 2019, the applicant did not mention the accident. Moreover, Dr. Ho noted that the applicant had no joint and muscle problems. On January 18, 2020, once again the applicant did not advise Dr. Ho of the accident, nor did he complain of injuries or pain. The remaining clinical notes and records from Dr. Ho indicate that the applicant only attended four more times between January 2020 and March 2022, and he did not complain of pain from the accident. The records of the Pain Clinic indicate that on January 29, 2020, it submitted a Functional Abilities Form (“FAF”) which indicated that the applicant was physically unable to work due to sequalae from the workplace injury. There is no reference to the accident in the FAF.
26The applicant’s chronic pain argument largely rests on two s.25 reports. The first one, completed by Dr. Castro, dated January 27, 2021, is largely based on the self-reporting of the applicant. Dr. Castro diagnosed him with: chronic cervicalgia, chronic cervicogenic headaches, chronic shoulder sprain/strain, chronic lumbago with radiculopathy, chronic lumbar thoracic compression fractures and mood disorder anxiety and depression with features of insomnia, lack of concentration, memory, and motivation. I am not persuaded by this report as the applicant has not advised Dr. Ho of this accident and he did not advise his treating practitioners at the Pain Clinic of this accident until February 2020. Additionally, the applicant advised that he had resumed his full-time employment following the accident and was independent with his daily living tasks. Lastly, while I acknowledge the results of the Pain Disability Index, which revealed a total score of 44 out of a possible 70, for a total index of 63%. I am not persuaded by this, as this is not consistent with Dr. Ho’s records, where the applicant has not once complained about this accident.
27The second s.25 report was a Social Work Assessment Report, completed by Mr. Joy, registered social worker, which is also not persuasive. This report is also based largely on the self-reporting of the applicant that he has lost all enjoyment in his life, including activities like socializing with friends, close relationships with family, and partaking in leisure activities. It is unclear why the applicant did not seek any medical attention from Dr. Ho with respect to this accident if it had such a drastic impact on his life.
28I am not persuaded by the s.25 reports that the applicant has chronic pain with functional impairments, such as at work, as there is no objective evidence to demonstrate this. The E.I. file provided by the applicant makes no reference to the subject accident and it is clear that he was dismissed from his occupation, as a result of being unsuitable, and not as a result of any injuries from this accident. Despite the applicant’s submission that he held his occupation for four years prior to the accident without any issues, he has failed to produce any objective evidence, like an employment file, to demonstrate this. Nor is there any objective evidence to demonstrate the applicant’s social life and leisure activities have been affected as a result of this accident.
29Accordingly, and for the reasons described above, I find that the applicant has not established that he suffers from a chronic pain condition with functional impairment warranting removal from the MIG.
The applicant has failed to establish that he should be removed from the MIG as a result of any psychological impairments
30The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.
31The applicant submits that he has consistently reported his psycho-social issues to multiple healthcare providers. To support his position, the applicant relies on the two s.25 reports and a psychological pre-screen report, dated August 7, 2020.
32The respondent submits that the applicant has submitted almost no evidence to suggest that he sustained a psychological impairment.
33It is well settled that in order to be removed from the MIG on this basis, the applicant must show on a balance of probabilities that his psychological complains are not merely psychological or psychosocial symptoms, but that he has a psychological impairment as a result of the accident. For the reasons that follow, I find that the applicant has failed to establish this.
34I am not persuaded by the psychological pre-screen report, dated August 7, 2020, as Mr. Burdo, registered psychotherapist, and Dr. Belyakova, psychologist, did not conduct any psychological testing. As such, it is unclear how they concluded that the applicant had a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational.
35I am also not persuaded by the s.25 social work assessment report by Mr. Joy, dated March 3, 2021, for the following reasons. Firstly, Mr. Joy did not diagnose the applicant with any psychological impairments as a result of the accident. While I note he concluded that the applicant had numerous psychological concerns as a direct result of the accident which require psychological intervention, this was based entirely on the self-reporting by the applicant. More importantly, the applicant only saw Dr. Ho once for depression, on December 7, 2019. However, this entry has no reference to the accident, and Dr. Ho did not refer him to a mental health specialist, nor did he prescribe medication. The records of Dr. Ho do not demonstrate that the applicant has any psychological impairments as a result of the accident. Lastly, the applicant has not referred me to a single entry where he complained of psychological issues to Dr. Bui following this accident.
36While Dr. Castro, in his report dated January 27, 2021, clearly advised that the applicant should be evaluated by a mental health professional with respect to his depressive symptoms. Dr. Castro did not diagnose the applicant with a psychological impairment as a result of the accident. The applicant has not referred me to any evidence which demonstrates that he has been diagnosed with an accident-related psychological impairment, nor has he established that his psychosocial symptoms have developed into a psychological impairment as a result of the accident.
37Accordingly, the applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment as a result of the accident that would warrant removal from the MIG.
OCF-18s, OCF-3, and Interest
38Due to my finding that the applicant is not entitled to treatment beyond the MIG, an analysis into the reasonableness and necessity of the treatment plans and the OCF-3s is not required. Further, there is no obligation on the respondent to pay for a second OCF-3 that it did not request.
39Likewise, interest is only payable on overdue payment of benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to the disputed OCF-18s, no payments are overdue, and thus no interest is payable.
ORDER
40The applicant sustained a predominantly minor injury as a result of the accident that is subject to the MIG limits. As the limits have been fully exhausted, he is not entitled to payment for the OCF-18s in dispute, the OCF-3, or interest. Thus, the application is dismissed.
Released: October 26, 2023
__________________________
Tanjoyt Deol
Adjudicator