Licence Appeal Tribunal File Number: 22-012713/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:
Tashi Wangchuk
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Nathan Prince
APPEARANCES:
For the Applicant:
Veronica D'Angelo, Paralegal
For the Respondent:
Theomarcus Giannou, Counsel
HEARD:
In Writing
OVERVIEW
1Tashi Wangchuk, the applicant, was involved in an automobile accident on December 24, 2022, 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, Belair Insurance Company Inc., 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?
ii. Is the applicant entitled to $2,900.00 for psychological services, proposed by Dr. Jeremy Frank in a treatment plan/OCF-18 (“plan”) dated April 13, 2021?
iii. Is the applicant entitled to $686.19 ($2,965.50 less $2,279.31 approved) for chiropractic services, proposed by Godrej Engineer in a treatment plan dated May 19, 2021?
iv. Is the applicant entitled to $4,146.63 for psychological services, proposed by Dr. Jeremy Frank in a treatment plan dated September 27, 2021?
v. Is the applicant entitled to $2,599.00 for a physiatry assessment, proposed by Medex Assessments in a treatment plan dated April 20, 2021?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated an injury or impairment that warrants removal from the MIG.
4The applicant is not entitled to the treatment plans in dispute.
5The applicant is not entitled to an award.
6No interest is payable.
ANALYSIS
The applicant has not demonstrated that he warrants removal from the MIG
7I find the applicant has not demonstrated, on a balance of probabilities, that he should be removed from the MIG.
8Section 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.”
9Under s. 18(2), an insured may be removed from the MIG if they can establish 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.
10The applicant submits that he should be removed from the MIG based on his ongoing pain and anxiety. In support of his position, the applicant relies on the clinical notes and records (“CNRs”) of his family doctors, Dr. Gutman and Dr. D’Souza, a section 25 psychological assessment completed by Dr. Frank, and several OCF-18s completed by various treatment providers.
11The respondent submits that the applicant does not suffer from chronic pain with a functional impairment as set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“AMA Guides”) or a psychological impairment that would warrant removal from the MIG. They rely on the section 44 reports of Dr. Saunders, psychologist, and Dr. Michael Hanna, general practitioner, in support of their position.
12For the reasons that follow, I find that the applicant’s accident-related impairments do not warrant removal from the MIG.
The applicant has failed to demonstrate that he suffers from chronic pain with a functional impairment as a result of the accident
13I find that the applicant has not established, on a balance of probabilities, that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG.
14The applicant submits that his consistent reporting of ongoing pain to treatment providers and IE assessors, in addition to consistently seeking medical attention, is sufficient to remove him from the MIG. The applicant has a history of pain associated with his accident-related injuries which include strain/sprain soft tissue injuries to his neck, right shoulder, back, and left wrist. In the two years following the accident, there are multiple reports of ongoing pain in the CNRs of St. Joseph’s Hospital, Dr. Gutman, and Dr. D’Souza. While I am alive to the consistent reporting of ongoing pain in the medical record, this is not determinative of whether the applicant should be removed from the MIG. There must be a level of functional impairment associated with these symptoms to warrant removal from the MIG.
15As previously noted, chronic pain, by itself, is not sufficient to remove the applicant from the MIG. The chronic pain must be accompanied by functional impairment. The AMA Guides list six criteria for assessing chronic pain claims. I am not bound by the AMA Guides; however, the Tribunal has held that the AMA Guides can be a useful tool for the evaluation of chronic pain. To support a diagnosis of chronic pain under the AMA Guides, the applicant must meet at least three of the following six criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
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.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
16I find that the applicant has not met three of the criteria as outlined in the AMA Guides and therefore I am satisfied that the applicant has not established a functional impairment resulting from his accident-related pain.
17Turning to the criteria, the applicant was prescribed Acetaminophen-codeine, Naproxen, and Gabapentin at various times; however, there is no indication that these medications were taken beyond the recommended duration and there is no record of abuse of or dependence on prescription drugs or other substances. In the section 25 report completed by Dr. Frank on May 28, 2021, the applicant indicated that he was not taking any medications and as such I find that the applicant does not meet this criterion.
18The applicant is not excessively dependant on health care providers, spouse, or family. In an OCF-18 completed by Dr. Frank, the applicant reported having an inability to complete any household tasks and an overall inability to perform pre-accident daily activities. This is contrary to the information the applicant reported to Dr. Frank in his section 25 report and to the insurer’s section 44 assessor, Dr. Hanna. In Dr. Frank’s section 25 report, the applicant reported that he was independent with self-care and did everything at home that he did before the accident. This aligns with the section 44 report of Dr. Hanna where the applicant reported that he has maintained the same evening routine, remained independent with all of his pre-accident personal care and mobility tasks, and still completes many housekeeping and home maintenance tasks. Based on the self-reported description of functional abilities provided to both the section 25 and section 44 assessors, I find that the applicant is not excessively dependant on health care providers, spouse, or family.
19The applicant is not suffering from secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. The applicant’s OCF-18 completed by Dr. Frank notes the inability to complete any household tasks and overall inability to perform pre-accident daily activities because of pain or pain avoidance. However, as noted above, this is not supported by the section 25 and section 44 reports which indicate that the applicant has continued to complete many household activities and is still engaged in his pre-accident daily activities. As such, I find that the applicant is not suffering from secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
20The applicant has not withdrawn from social milieu, including work, recreation, or other social contracts. The submissions of the parties indicate that the applicant has returned to work on a full-time basis. In addition, the applicant reported to Dr. Frank, that he has many friends, the same as before the subject accident and that he sees or speaks to them just as frequently as pre-accident. He also reported that he gets along well with his family and feels as close with his wife and child as pre-accident. As such, I find that the applicant has not withdrawn from social milieu, including work, recreation, or other social contracts.
21The applicant has not demonstrated a 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. As previously noted, the applicant has returned to work, and continues to maintain the same relationships with friends and family. I was not pointed to any evidence which would suggest that the applicant does not have the physical capacity to pursue work, family, or recreational needs.
22The final criterion is whether there exists the development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours. The section 25 report of Dr. Frank makes a diagnosis of Somatic Symptom Disorder with Predominant Pain, Mild to Moderate in severity in addition to Specific Phobia (vehicle anxiety – winter weather). The respondent disputes the presence of psychosocial sequelae and notes numerous areas in Dr. Frank’s report where the applicant denied the existence of psychosocial symptoms including with respect to non-winter vehicle anxiety and general anxiety. I agree with the respondent and find that there is minimal support in Dr. Frank’s report to support the proposition that the applicant has developed psychosocial sequelae as a result of the accident. In any event, even if I were to be persuaded that the applicant has developed psychosocial sequelae sufficient to meet this criterion, I find the applicant's inability to meet the other five criteria of the AMA Guides weighs heavily against the position that he has sustained a functional impairment due to his accident-related pain.
23The applicant relies on the Tribunal decision in S.P. v. Intact Insurance Company, 2021 CanLII 28715 (ONLAT) (“S.P.”), wherein Adjudicator Hans removed the applicant from the MIG because he had consistently complained about his ongoing pain symptoms and functional limitations to his treatment providers and IE assessors, and consistently sought medical attention. S.P. is distinguishable from the case before me. Adjudicator Hans’ relied upon the applicant’s functional impairments included difficulty ambulating, daily use of multiple medications, a substantial inability to complete housekeeping tasks, cessation of academic endeavours, and requiring assistance with showering and dressing/underdressing to arrive at his decision. The functional impairments which led to Adjudicator Hans’ decision are not present here and therefore S.P. is not persuasive with regards to the matter before me.
24Based on the foregoing, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG.
The applicant has failed to demonstrate that he suffers from a psychological impairment as a result of the accident
25An injured person is not subject to the MIG if they can show that they have a psychological injury as a result of the accident. However, the psychological injury must be more than sequalae of the minor injury. If the symptoms are sequelae and do not rise to the level of impairment, they are captured in the minor injury definition.
26The applicant relies on the section 25 psychological assessment completed by Dr. Frank. As noted above, Dr. Frank diagnosed the applicant with Somatic Symptom Disorder with Predominant Pain, Mild to Moderate in severity and Specific Phobia (vehicle anxiety – winter weather); however, I was not pointed to any evidence in the report that would suggest that the symptoms experienced by the applicant are anything more than mere sequelae, and specifically, was not pointed to any evidence that would suggest that the applicant is experiencing any impairment.
27With respect to anxiety, the report indicates that the applicant’s current anxiety as a driver or passenger is at a 0/10, and he denied that he experiences intense fear or anxiety when he thinks about, encounters or is exposed to cars. He did report anxiety as a 4-5/10 with respect to snowy weather; however, the report also notes that he has not experienced these conditions yet. He further reported that “I don’t worry at all really, maybe 5-10% of the day” and that his anxiety “causes me some distress, just a little”, and denied that it causes him impairment. He denied that he has ever experienced a panic attack.
28With respect to depression, the applicant indicated that his mood has been “good” in the last few weeks and denied that he has any days where he is sad. He indicated that he never feels guilty or worthless and denied any past or present suicidal ideation or intent. He did indicate that he had trouble with sleep onset and that he moves slower; however, he denied that he had any distress or impairment as a result of these symptoms.
29The respondent submits that the applicant has failed to meet his burden of establishing that he has suffered a psychological impairment sufficient to warrant his removal from the MIG. They note that the applicant has not received any psychological treatment nor been prescribed any medication pertaining to a psychological condition. They further point to the family physician clinical notes and records which do not refer to any psychological complaints and, in fact, explicitly deny the existence of anxiety and depression in a note dated April 7, 2022.
30The respondent further relies on the section 44 report of Dr. Saunders wherein he concluded that there was evidence of a minimal elevation in psychological symptoms that do not meet the clinical criteria for impairment. The applicant made several submissions regarding the weight that should be assigned to this report; however, I do not find it necessary to address what weight to assign to Dr. Saunders’ report as I find that the applicant has failed to meet his burden of establishing that he has suffered a psychological impairment, even in the absence of this report.
31I find that the applicant has not established that he suffers from a psychological impairment as a result of the accident. By his own reporting to both Dr. Frank and Dr. Saunders, the applicant indicated that he does not suffer from a psychological impairment as a result of any anxiety or depression he may be experiencing. He also indicated to his family doctor that he was not experiencing anxiety or depression. While I am alive to the fact that Dr. Frank opined that the applicant may be underreporting, I am nonetheless left with a lack of evidence to conclude that the applicant is suffering from an impairment caused by anxiety or depression. I therefore find that the applicant has not met his burden of establishing that he suffers from a psychological impairment as a result of the accident.
The applicant is not entitled to the treatment plans in dispute
32As I have found the applicant to remain within the MIG, and the respondent has approved medical benefits up to the statutory limit of $3,500.00, it is not necessary to assess the treatment plans in dispute to determine if they are reasonable and necessary.
The applicant is not entitled to interest
33As there are no payments owed, the applicant is not entitled to interest.
The applicant is not entitled to an award
34The 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.
35The applicant submitted that the respondent failed to disclose certain productions as outlined in the case conference report and order and suggests that this is prejudicial in addressing any special award claim. An analysis of how this non-disclosure may impact entitlement to an award is not necessary as I have found that no benefits are payable, and the applicant is therefore not entitled to an award in any event.
ORDER
36For the reasons above, I find that:
i. The applicant’s injuries fall within the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to an award;
iv. No interest is payable; and
v. The application is dismissed.
Released: November 14, 2024
Nathan Prince
Adjudicator