Citation: Francis v. TD General Insurance Company, 2024 ONLAT 22-009718/AABS

Licence Appeal Tribunal File Number: 22-009718/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:

Carloes Francis

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Neha Kohli, Paralegal

For the Respondent: Hodson Harding, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Carloes Francis, the Applicant, was involved in an automobile accident on August 28, 2020, 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, TD General 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 limit (“MIG”)?

ii. Is the Applicant entitled to the services proposed by Mackenzie Medical Rehabilitation Centre Inc., as follows:

(a) $3,696.00 for chiropractic services, in a treatment plan dated September 8, 2020;

(b) $2,026.55 for chiropractic and massage therapy services, in a treatment plan dated March 2, 2021;

(c) $1,417.70 for chiropractic and massage therapy services, in a treatment plan dated June 9, 2021; and

(d) $2,635.40 for chiropractic and massage therapy services, in a treatment plan dated October 12, 2021?

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

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant’s injuries are predominantly minor as defined by the Schedule. As the Applicant remains in the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. The Applicant remains eligible to receive benefits up to the MIG limit.

4As there are no overdue benefits, the Applicant is not entitled to interest or an award.

ANALYSIS

MIG

5I find that the Applicant has not met his onus to demonstrate that his accident-related impairments warrant removal from the MIG.

6Section 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.”

7An 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. The burden of proof lies with the applicant.

8The Applicant submits that his injuries are not restricted to mere soft tissue damage, he suffers from a pre-existing condition, there are potential psychological barriers to his recovery, and his functional limitations, prolonged pain and discomfort present a more complex injury profile that needs comprehensive care. Moreover, the Applicant argues that his diagnoses, consistent attendance to treatment, and continuous complaints to the various assessors and practitioners, provide compelling evidence that the Applicant sustained physical injuries beyond the MIG as a result of the accident.

9The Respondent submits the evidence shows, on a balance of probabilities, that the Applicant is suffering from predominantly minor injuries. The Applicant has not produced any assessments which diagnose him with anything more than soft tissue damage, or a psychological injury that falls outside of the scope of the MIG. Moreover, the Applicant has not provided any compelling evidence to show that he suffers from a pre-existing condition. The Respondent further states that, at the date of submissions, that the Applicant has not exhausted the $3,500.00 available to him for medical and rehabilitation benefits under the MIG.

The Applicant’s physical injuries are predominantly minor

10I find that the Applicant has not met his evidentiary onus to demonstrate that he suffers from physical injuries warranting removal from the confines of the MIG.

11As a result of the subject accident, the Applicant submits that he has suffered from right-sided neck and shoulder pain, cervical and thoracic spine strain/sprain, shoulder and acromioclavicular joint sprain/strain, wrist sprain/strain, and a concussion. The Applicant relies on clinical notes and records (“CNRs”) of family practitioner, Dr. Nidhi Pandey; s. 44 assessors, Dr. Pravesh Jugnundan and Dr. Robert Yufe; Disability Certificate, dated September 8, 2020, and the various treatment plans in dispute.

12Other than soft-tissue sprains and strains which fall within the definition of a “minor injury”, the only other accident-related physical impairment the Applicant has established is a shoulder injury. I have not been pointed to any evidence to support the Applicant has sustained a concussion. In fact, in the Applicant’s own submissions, it is noted that, “[h]e impacted the vehicle’s bumper with his right shoulder and then fell onto the ground, landing on his hands.” My emphasis added. Moreover, neurologist, Dr. Yufe, reported that the Applicant denied hitting his head, and opined that the Applicant’s injuries do not meet the definition of a concussion.

13With respect to the shoulder injury, I am not satisfied that the Applicant has established a non-minor injury. On August 31, 2020, the Applicant reported the subject accident to Dr. Pandey complaining of neck and shoulder pain. Ultrasound of the bilateral shoulders, dated February 3, 2021, revealed subscapularis and supraspinatus tendinosis, and left mild biceps tendinitis and findings suggestive of subscapularis tendinosis. X-ray of the bilateral shoulder and humeri, dated February 3, 2021, revealed early to mild AC joint OA, small right subacromial calcification, which can be associated with calcific tendinosis. Tendinosis and tendonitis fit within the definition of a “minor injury”.

14Furthermore, general practitioner, Dr. Jugnundan, diagnosed rotator cuff syndrome, a “minor injury” as defined by the Schedule. The Applicant has not pointed me to any other objective medical evidence or expert opinion opining non-minor physical injury.

15As such, I am not satisfied that the Applicant has sustained an accident-related physical injury that falls outside of the definition of a minor injury.

The Applicant has not sustained a psychological impairment warranting removal from the MIG

16The Applicant has not provided any compelling medical evidence to demonstrate, on a balance of probabilities, that he suffers from a psychological impairment that would warrant removal from the MIG.

17The Applicant relies on the various treatment plans in dispute, and a Disability Certificate, dated September 8, 2020, completed by Chiropractor, Dr. Samuel Johnson (the “OCF-3”), of which Dr. Johnson lists accident-related psychological impairments such as post-traumatic stress disorder and anxiety disorder.

18I give little weight to the OCF-3 completed by Dr. Johnson, with respect to the applicant’s alleged psychological impairments, as diagnosing psychological disorders is not within a chiropractor’s expertise. The Applicant has not pointed me to any other medical evidence or expert opinion that corroborate the complaints of post-traumatic stress disorder or anxiety disorder found within the OCF-3 and various treatment plans. There is also no explanation to support the inclusion of post-traumatic stress disorder or anxiety disorder within the OCF-3 and various treatment plans. Lastly, the Applicant did not make any psychological complaint to family practitioner, Dr. Pandey, and I am not pointed to any psychological referral or treatment.

19As such, I give significant weight to the s. 44 psychological assessment of Dr. Rubenstein. Dr. Rubenstein reported the Applicant’s mental status is clear and opined that he does not meet any criteria warranting a diagnosis of any psychological disorder.

20Given the foregoing, I am not satisfied that the Applicant has established, on a balance of probabilities, that he sustained a psychological impairment as a result of the subject accident.

The Applicant does not have a pre-existing condition that would warrant removal from the MIG

21The Applicant has not established that he is suffering from a pre-existing condition that would warrant removal from the MIG.

22The Applicant submits that prior to the subject accident, he had undergone an L3 herniated disc surgery, which might impact his treatment response for his incurred injuries. The Applicant also references a pre-accident complaint of right-shoulder pain, within the CNRs of Dr. Pandey, on August 10, 2017, and left knee pain on October 9, 2019.

23I do not accept that the Applicant’s L3 herniated disc surgery (the “surgery”) is a documented pre-existing condition warranting removal from the MIG, as there is limited medical evidence to support this claim. For example, there is no evidence within Dr. Pandey’s CNRs that reference the surgery or any pre-or post-accident surgery-related complaint. With respect to the right shoulder and left knee, the Applicant has not pointed me to any medical opinion, or objective evidence, that support an ongoing complaint of right shoulder pain, between August 10, 2017, and August 31, 2020, or left knee pain between October 9, 2019, and August 31, 2020. Moreover, Dr. Pandey does not make reference to the prior right shoulder complaint, left knee pain, or the surgery during the Applicant’s attendance for the subject accident.

24In any event, I have not been pointed to any compelling medical evidence opining that the right shoulder pain, left knee pain, or the surgery were pre-existing conditions that would prevent maximal medical recovery if the Applicant was subjected to the MIG limits. In fact, both Dr. Jugundan and Dr. Yufe, conclude that there are no pre-existing medical conditions that would prevent the Applicant from achieving maximal medical recovery within the MIG limits.

25Given the above, I find that the Applicant has not established, on a balance of probabilities, that he has a pre-existing condition that would warrant removal from the MIG.

The Applicant does not suffer from chronic pain that warrants removal from the MIG

26I am not satisfied that the Applicant suffers from chronic pain that warrants removal from the MIG.

27Although the Applicant didn’t specifically submit that he should be removed from the MIG due to chronic pain which limits his functionality, he argued that he suffers from ‘prolonged pain’ and functional limitations. Therefore, and keeping in mind the consumer protection mandate of the Schedule, I have considered whether the Applicant should be removed from the MIG due to chronic pain with functional limitations.

28The Applicant submits that his functional limitations, prolonged pain and discomfort present a more complex injury profile that needs comprehensive care. The Respondent argues that the Applicant has not produced any assessments which diagnose him with chronic pain or chronic pain syndrome.

29It is well established by this Tribunal that chronic pain cannot be inferred solely based on the length of time elapsed since the injury. A diagnosis of chronic pain or chronic pain syndrome is not strictly required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the Applicant must demonstrate, on a balance of probabilities, that he suffers from accident-related pain that causes functional impairment.

30Disability Certificate, dated October 12, 2021, completed by chiropractor, Dr. Samuel Johnson, endorses that the Applicant suffers a substantial inability to carry on a normal life and perform housekeeping and home maintenance. The anticipated duration of recovery is marked as more than 12 weeks due to the chronicity of a right shoulder injury. I find that this OCF-3, on its own, is not sufficient to establish chronic pain, or functional limitations. In my view, there needs to be corroborating evidence that would substantiate the alleged chronic pain and functional limitations.

31Dr. Pandey’s CNRs, as provided by the Applicant, cease on February 3, 2021. I am not pointed to any further compelling evidence from Dr. Pandey that would endorse chronic pain. Moreover, the CNRs provided of Dr. Pandey are silent with respect to post-accident functional impairments. The Applicant has not put forward into evidence any further compelling medical evidence that opines on or diagnoses chronic pain.

32I also find that the reports of Dr. Jugnundan, Dr. Rubenstein, and Dr. Yufe, somewhat contradict the Applicant’s argument with respect to functional limitations. Dr. Jugnundan reported the Applicant returned to work post-accident, and has returned to cycling and yoga, albeit not at his previous level. Dr. Rubenstein reported the Applicant did not take any time off work post-accident, and he performs all household tasks using ibuprofen when pain symptoms develop the following day. The Applicant reported that he engages in bike riding, going to the gym, hot yoga, and is socially active. Dr. Yufe reported that the applicant’s only complaint is his right shoulder, feeling irritation and weakness when doing push-ups or exerting pressure. The Applicant stated, “it is going in the right direction.” Neither assessor opined on, nor diagnosed chronic pain.

33The Applicant has the onus of evidencing chronic pain and in the present case, as there are no compelling expert reports or evidence that opines on chronic pain, the Applicant has not done so.

34Based on the foregoing, the Applicant is not removed from the MIG on the basis of his alleged prolonged pain.

Conclusion

35As a result of the aforementioned, the Applicant has not proven, on a balance of probabilities, that he is suffering from physical injuries, a psychological impairment, a pre-existing condition, or chronic pain that would warrant removal from the MIG.

36As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary. If there is funding left in the MIG, the Applicant is entitled to treatment up to the MIG limit.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the Applicant is not entitled to interest.

Award

38The 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. As no benefits have been unreasonably withheld, the Applicant is not entitled to an award.

ORDER

39For the reasons outlined above, I find that:

i. The Applicant’s injuries are predominantly minor, as defined by the Schedule.

ii. The Applicant is not entitled to the treatment plans proposed by Mackenzie Medical Rehabilitation Centre Inc.

iii.

iv. The Applicant is not entitled to interest.

v. The Respondent is not liable to pay an award.

vi. The application is dismissed.