Citation: Persaud-Orotal v. Economical Mutual Insurance Company, 2024 ONLAT 22-004010/AABS

Licence Appeal Tribunal File Number: 22-004010/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:

Michael Persaud-Orotal

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Michael Adamek, Counsel

For the Respondent:

Daniel Smith, Counsel

HEARD:

In Writing

1Michael Persaud-Orotal, the applicant, was involved in an automobile accident on June 24, 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, Economical Mutual Insurance Company, 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? Note that the parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $550.00 for chiropractic services proposed by Dr. Ron Hill in a treatment plan/OCF-18 (“Plan”) dated June 29, 2021?

iii. Is the applicant entitled to $3,830.00 for chiropractic services, proposed by Dr. Ron Hill in a plan dated February 22, 2021?

iv. Is the respondent liable to pay an award under s.10 of O. Reg.664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3For the reasons that follow I find:

i. The applicant sustained injuries that are predominantly minor, as a result of the June 24, 2019, accident. He remains within the MIG and is subject to its $3,500.00 treatment limit.

ii. The MIG limit has been exhausted, the applicant is not entitled to the disputed treatment plans.

iii. The denial of the February 22, 2021, Dr. Hill treatment plan was insufficient; however, the applicant incurred the entirety of the plan prior to its submission to the respondent and therefore the respondent is not liable to pay the expense.

iv. The respondent is not liable to pay an award as there have not been any unreasonably withheld or delayed payments.

v. As there are no overdue payments for benefits the applicant is not entitled to interest.

ANALYSIS

Is the applicant subject to the MIG limits?

4I find that the applicant sustained predominantly minor injuries as a result of the subject accident. He remains within the MIG and is subject to it’s $3,500.00 treatment limit.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”

6An insured 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 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.

7The applicant submits that he should not be held within the MIG due to chronic pain with functional limitations and argues that he suffers from a pre-existing degenerative disc disease which would preclude him from achieving maximal medical recovery if subject to the limit of the MIG pursuant to s. 18(2) of the Schedule.

8The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s.3(1) of the Schedule, and therefore, fall within the MIG.

Does the applicant suffer from chronic pain syndrome as a result of the accident?

9For the reasons that follow, I find that the applicant is not suffering from chronic pain syndrome with functional limitations as a result of the subject accident.

10The Tribunal has established that a diagnosis of chronic pain syndrome removes an injured person from the MIG because it is not a minor injury. A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury.

11The applicant submits that he has chronic pain and relies on the clinical notes and records (“CNRs”) of Dr. Waraich, and Dr. Hill, as well as the progress report of Dr. Hill.

12The respondent denies the applicant’s claims of chronic pain and relies on the s. 44 report of Dr. Stewart. The respondent also challenges the accuracy and interpretation of the applicant’s treating professionals’ CNRs.

13Dr. Waraich first saw the applicant in October of 2020, more than a year post subject accident. The CNRs indicate that the applicant had a significant medical history that predates the subject accident. The CNRs dated May 20, 2021, indicate the applicant complained of left shoulder, left upper arm, left flank, and left thigh pain. Of note, the applicant had seen the doctor 3 times post accident and prior to May 20, 2021, and there is no mention of the accident or pain in the areas identified on May 20, 2021. The CNRs of Dr. Waraich are not persuasive as evidence of chronic pain, because he did not specifically diagnose the applicant with chronic pain syndrome, did not describe the basis upon which he determined that the diagnosis of chronic pain was made, and did not describe the functional limitations that were caused by the chronic pain condition. They are, however, evidence of the applicant’s ongoing complaints of pain. Even if on it’s face, the pain experienced by the applicant could meet the threshold for MIG removal, it’s not possible to say whether it’s as a result of the accident. I am also not persuaded that the patient suffers from chronic pain and yet failed to mention this pain to the doctor on the three previous visits.

14Dr. Hill began seeing the applicant in the months prior to the subject accident. Ultimately Dr. Hill diagnosed the applicant, post-accident, with acute chronic cervico-thoracic and lumbosacral strain and pain, along with recurring left shoulder and left foot pain. The CNRs and progress report of Dr. Hill are not persuasive as there is no medical file review and the connection to the subject accident is cursory with stress from work and underlying chronic conditions also noted as the causes of identified pain and limitations. In my opinion, the reliance solely on the applicant’s self-reports by Dr. Hill deprives the treating practitioner of a balanced view of the applicant.

15The applicant makes submissions based on the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”). The AMA Guides are not binding on the Tribunal. 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 syndrome when three or more of the six criteria are satisfied. The applicant submits that medical records are evidence of at least three of the six criteria for a chronic pain syndrome diagnosis. The evidence submitted is not persuasive. Looking at the s. 44 insurer examination report by Dr. Stewart on May 5, 2021, the applicant reports taking what appears to be a limited list of prescription medication that correlate to reported health conditions, no recreational drugs and approximately 6 tablets of Tylenol. The only medication that appears excessive is Tylenol, however, this is within the daily dosage limits and has not been identified as problematic by any evidence before me. The applicant submits that he has a reliance on family, there is insufficient evidence to make a finding of reliance on family and Dr. Waraich recommends more time with family on Jul 22, 2021. There is a submission that the applicant has become withdrawn from pre-accident hobbies, however, there is no substantive evidence regarding this submission.

16The medical documentation and ODSP applications are replete with mention of the applicant having pain in the low back and across the left side of the body. This is often referred to as chronic pain in the CNRs. These notes pre-date the accident by more than a decade. Importantly the doctors who provided earlier diagnosis of low back and left side pain are not visited post accident.

17I am not persuaded by the submissions of the applicant that he suffers from chronic pain. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that he suffers from functionally disabling pain. I find that not only has the applicant not been diagnosed with chronic pain syndrome by a physician as a result of the accident, but the applicant has also not provided evidence from health care providers, referrals to specialists, or prescriptions sufficient to meet his burden. The applicant has not met their burden that their chronic pain resulted from the accident.

Does the applicant have a pre-existing injury that will prevent maximal medical recovery?

18I find that the applicant has not met their burden to demonstrate on a balance of probabilities that they have a pre-existing condition that would preclude them from achieving maximal medical recovery.

19The test under s.18(2) for an insured to be removed from the MIG due to a pre-existing condition has two parts. The first is a diagnosis of a pre-existing condition by a medical professional, prior to the subject accident. Secondly, evidence from a medical professional that the pre-existing condition would preclude the applicant from achieving maximal medical recovery, if confined to the MIG.

20The applicant submits that he has pre-existing degenerative disc disease that will preclude him from achieving maximal medical recovery and relies on the CNRs of Dr. Wariach, ODSP applications and the CNRs and report by Dr. Hill.

21The respondent denies the applicant has a pre-existing condition that will preclude him from achieving maximal medical recovery and challenges the applicant’s hypothesis and relies on the report by Dr. Stewart.

22In July of 2021 the applicant is diagnosed with degenerative disc disease following imaging reports requisitioned by Dr. Waraich. This diagnosis is more than 2 years following the subject accident. The applicant does not meet their burden of the first factor to consider.

23The applicant has not presented any medical evidence that the pre-existing degenerative disc disease will preclude maximum medical recovery if the applicant remains within the MIG limits.

24The May 5, 2021, report by Dr. Stewart is persuasive because he did a full medical file review, physical, neurological and systems exam. Dr. Stewart concludes that the applicant’s well documented history of chronic upper and lower back pain and cardiac surgery prior to the accident had no affect on the applicant’s recovery from this minor accident. The doctor was unable to correlate the current complaints and presentation to the subject accident. The doctor was also clear that the minor injuries from the subject accident had resolved, and the current presentation is not related to the subject accident.

25As the applicant has been found to be within the MIG and the MIG limits have been exhausted there is no reason to determine whether the treatment plans in dispute are reasonable or necessary as they propose treatment outside of the MIG.

Procedurally defective denial

26I find that the treatment plan of February 22, 2021, by Dr. Hill was fully incurred by the applicant between February 22 and March 25, 2021; therefore, the respondent is not liable to pay the expense pursuant to s. 38(2).

27Section 38(2) of the Schedule outlines that an insurer is not liable to pay an expense in respect of medical benefit that was incurred before the insured person submits a treatment and assessment plan.

28Section 38(8) of the Schedule establishes that within 10 business days after an insurer receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services… that the insurer does not agree to pay for and reasons why the insurer considers any goods, services, or the proposed costs of them, not to be reasonable and necessary.

29Section 38(11) of the Schedule establishes that should an insurer fail to provide appropriate notice that it may not rely on the MIG to deny a plan and requires the insurer to pay for all goods and services incurred before the defective notice is cured.

30The applicant submits that the denial of the February 22, 2021, OCF-18 by Dr. Hill, for chiropractic services in the amount of $3,830.00, is procedurally defective. The applicant outlines that an insurer examination letter of April 6 and the ultimate denial of the plan on May 18 are outside the 10-day maximum required under s.38(8) of the Schedule and therefore the plan should be approved.

31The respondent argues that the subject expenses were incurred in their entirety prior to submission of the plan and are therefore not payable as per s. 38(2).

32The subject OCF-18 by Dr. Hill was dated February 22, 2021, but was not submitted to the respondent until March 25, 2021. The respondent replied to the February 22, 2021, plan on April 1, 2021, with an explanation of benefits letter that agreed the plan was reasonable and necessary. On April 6, 2021, the respondent sends further correspondence that now says the February 22, 2021, OCF-18 is not reasonable and necessary and requests a s.44 insurer’s examination. The April 1 and April 6 letters are at odds with each other, which the respondent submits was an error. The error was cured with the explanation of benefits letter of May 18, 2021, as the compliant denial was issued more than 10-days following the submission of the treatment plan the respondent is barred from arguing that the applicant is subject to the MIG with respect to the February 22, 2021, plan.

33The February 22, 2021, OCF-18 by Dr. Hill identifies in part 12 that all services outlined had been consumed by the applicant between February 22, 2021, and April 6, 2021.

34In this situation the applicant incurred the entire plan prior to submitting the plan to the respondent. Section 38(2) is explicit that the respondent is not liable to pay for the treatment plan in this situation. While the respondent’s denial of the plan falls outside the time frame stipulated in s. 38(8) no costs associated with the plan were incurred after the erroneous April 1 approval nor the unclear April 6 denial, therefore I find s. 38(11) does not apply.

Interest

35As there are no delayed payments interest does not apply.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. There are no benefits payable and therefore no award is due.

ORDER

37For the reasons above I find: