Licence Appeal Tribunal File Number: 22-013471/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:
Maria Azevedo
Applicant
and
Royal & Sun Alliance Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Joseph Sidiropoulos, Counsel
For the Respondent: Olivia Hajdas, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Maria Azevedo, the applicant, was involved in an automobile accident on January 31, 2021, 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, Royal and Sun Alliance Insurance Company of Canada, 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $1,423.76 for chiropractic services, proposed by Revive Health Centres Inc., in a treatment plan/OCF-18 (“plan”) submitted December 18, 2021 and denied January 14, 2022?
iii. Is the applicant entitled to $1,598.36 for chiropractic services, proposed by Revive Health Centres Inc., in a plan submitted July 12, 2021 and denied August 6, 2021?
iv. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Network Health Assessment & Rehabilitation Centre Inc., in a plan submitted May 5, 2021 and denied May 17, 2021?
v. Is the applicant entitled to $2,106.50 for psychological services, proposed by Network Health Assessment & Rehabilitation Centre Inc., in a plan submitted May 5, 2021 and denied December 08, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not proved that she has chronic pain with functional impairment. The applicant remains within the MIG and its $3,500.00 limit on treatment.
ii. As the MIG limits have been exhausted, the applicant is not entitled to the disputed treatment plans.
iii. As no benefits are payable, the applicant is not entitled to interest.
PROCEDURAL ISSUES
4The respondent acknowledges in its submissions that the expert reports of Dr. Day and Dr. Mula, both dated March 6, 2024, were provided to the applicant after the deadline set out in the Case Conference Report and Order dated July 26, 2023 (the “CCRO”). The respondent submits that it obtained these reports in response to the expert report of Dr. Getahun dated November 26, 2023, which was provided to the respondent on December 3, 2023. As the report of Dr. Getahun was also provided after the deadline set out in the CCRO, the respondent submits that the applicant’s late service of Dr. Getahun’s report caused the late service of the respondent’s reports.
5I find that all of the late reports are admissible as evidence for the purposes of this hearing. I find that any prejudice suffered by the respondent by the late service of Dr. Getahun’s report is cured by admitting the responding reports of Dr. Day and Dr. Mula.
6I note that the applicant’s submissions are dated March 10, 2024, a few days after the date on the reports of Dr. Day and Dr. Mula. However, the applicant confirmed on April 11, 2024 that she did not intend to file any reply submissions. The applicant therefore had the opportunity to make submissions respecting any prejudice she may have suffered as a result of the late service of these reports and chose not to do so. I therefore find that there is no prejudice in admitting these reports. The reports of Dr. Getahun, Dr. Day and Dr. Mula are admissible as evidence in this written hearing.
ANALYSIS
The applicant is subject to treatment within the MIG limit
7I find that the applicant is subject to treatment within the MIG as she has not demonstrated on a balance of probabilities that she suffered accident-related injuries that fell outside of the definition of “minor injury”.
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.”
9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The burden of proof lies with the applicant.
10The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. The respondent directed me to the case of 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ONLAT), in which the Tribunal discussed the threshold of proof required for removal from the MIG due to chronic pain. While I am not bound by other Tribunal decisions, I agree with the reasoning therein and agree that it is only when chronic pain causes functional impairment that it takes a person out of the MIG.
11The applicant submits that she suffers from chronic pain with functional impairment as a result of the accident and that this warrants her removal from the MIG. In support of her position, she relies on the November 26, 2023 report of Dr. Getahun, orthopaedic surgeon, in which the applicant was diagnosed with chronic pain syndrome. She also relies on the December 20, 2023 MRI report, the clinical notes and records of her family doctor, Dr. Hudson, and of the clinical notes and records of Revive Health Centre, where the applicant attended for treatment.
12The respondent submits that the applicant’s injuries fall within the MIG. The respondent relies on the musculoskeletal assessment of Dr. Bedaj dated May 20, 2020, the psychological assessments of Dr. Gooden, dated May 20, 2022, and Dr. Day, dated March 6, 2024, and the physician assessment of Dr. Mula, dated March 6, 2024. Only the report of Dr. Mula specifically assessed the applicant for chronic pain syndrome. Dr. Mula concluded that the applicant did not have chronic pain syndrome.
13I find that the applicant has not proved on a balance of probabilities that she has chronic pain with functional impairment for the following reasons.
14Both Dr. Getahun and Dr. Mula examined the applicant and analysed the criteria set out in the American Medical Association Guides (“AMA Guides”) for determining chronic pain syndrome. Their conclusions were contradictory. I prefer the report of Dr. Mula and place more weight on Dr. Mula’s conclusions than on those of Dr. Getahun for the following reasons:
(i) The applicant’s subjective reports of her impairments, as recorded in Dr. Getahun’s report, are vague and lacking in the detail necessary to corroborate them with other medical evidence. In contrast, where Dr. Mula considers the applicant’s subjective reports of her functional impairment, the recorded reports are more detailed. For example, Dr. Getahun finds that the applicant shows excessive dependence on healthcare providers, spouse or family due to her reported reliance on family and a cleaning lady in order to complete household chores. Dr. Getahun’s report does not explore the specific household activities that the applicant finds difficult or the level of pain that she experiences when she does those activities. In contrast, Dr. Mula’s report considers a more detailed description of the household chores with which the applicant requires assistance and examines the specific movements and positions that cause the applicant pain. Dr. Mula found that there was no medical basis for the applicant’s dependence on others.
(ii) While Dr. Getahun completed a physical examination of the applicant as part of his assessment, his findings with respect to chronic pain rely more on the applicant’s subjective reports of her functional impairment whereas Dr. Mula considers his physical examination results in conjunction with the applicant’s subjective reports. For example, with respect to the third criterion for determining chronic pain pursuant to the AMA Guides, Dr. Mula considers both whether there is a medical basis for the applicant to be dependent on others and the applicant’s reports that she is capable of engaging in the majority of the activities canvassed. In contrast, Dr. Getahun bases his conclusion under this criterion solely on the report of the applicant.
(iii) Certain conclusions and findings in Dr. Getahun’s report are unsupported or unexplained. For example, Dr. Getahun concludes that the applicant meets the first criterion for chronic pain set out by the AMA Guides, which is the use of prescription drugs beyond the recommended period, because the applicant continues to rely on Advil. Dr. Getahun does not explain the extent of the applicant’s reliance on Advil by indicating how often the applicant takes Advil, the strength of Advil she takes or the extent to which Advil relieves her pain. Nor does Dr. Getahun explain how the applicant’s use of Advil meets the first criterion.
(iv) As a second example of an unsupported conclusion, Dr. Getahun does not point to any objective test results or physical examination findings that support his conclusion that the applicant meets the third criterion for chronic pain set out by the AMA Guides. Rather, Dr. Getahun states that the applicant has “evidence of physical deconditioning affecting her cervical and lumbar spine” without connecting that finding to his examination of the applicant. In contrast, Dr. Mula refers to his physical examination of the applicant and concludes that her musculoskeletal impairments are consistent with her original injuries rather than secondary physical deconditioning.
15I further find that the applicant’s MRI report does not corroborate the applicant’s claims of chronic neck pain because the report is not accompanied by any explanation or interpretation from a healthcare provider. Without an explanation as to the likely effect of the reported findings of foraminal stenosis and canal stenosis, I can make no determination as to whether these conditions are likely to cause or contribute to the applicant’s pain. Without an explanation as to the possible cause of the reported findings, I can make no determination as to whether these conditions are likely connected to the accident. As a result, I give little weight to the applicant’s MRI report.
16I find that the clinical notes and records of the applicant’s family doctor provide some corroboration that she continued to experience pain for at least a year after the accident. However, I find that the notes provide little useful corroboration of the applicant’s claims that her pain resulted in functional impairment. Dr. Hudson’s notes of September 2, 2021 refer to the applicant having suffered “a big loss of function” as a result of the accident. However, I was directed to no additional details respecting the applicant’s functional impairment in Dr. Hudson’s notes. Without additional details, I cannot determine whether this evidence corresponds or conflicts with other medical evidence. I give little weight to the notes of Dr. Hudson as corroboration of the applicant’s claims of functional impairment caused by chronic pain.
17I find that the clinical notes and records of Revive Health Centre corroborate the applicant’s claim that she continued to experience pain in her back and neck and attended chiropractic treatment at the clinic between February 4, 2021 and at least September 29, 2023. While the records are extensive, much of them contain illegible handwritten notes. The legible portion of the records are limited to the location of the applicant’s pain and the treatments and exercises that were performed on specified dates. The legible portion of the records do not address any functional impairment caused by the applicant’s chronic pain. As a result, I give little weight to the records of Revive Healthcare on the issue of whether the applicant’s chronic pain resulted in functional impairment.
18For the above reasons, I find that the applicant has not proved on a balance of probabilities that she has chronic pain with functional impairment. The applicant remains subject to treatment within the MIG limit.
The applicant is not entitled to the treatment plans or interest
19It is not necessary to determined whether the treatment plans are reasonable and necessary because I have found that the applicant remains subject to treatment within the MIG limit.
20Pursuant to the Case Conference Report and Order dated July 26, 2023, the parties agreed that the MIG limit has been exhausted. Therefore, there is no overdue amount of any treatment plan and no interest due pursuant to s. 51 of the Schedule.
ORDER
21I find that:
i. The applicant has not proved that she has chronic pain with functional impairment. The applicant remains within the MIG and its $3,500.00 limit on treatment.
ii. As the MIG limit has been exhausted, the applicant is not entitled to the disputed treatment plans.
iii. As no benefits are payable, the applicant is not entitled to interest.
22The application is dismissed.
Released: November 18, 2024
Caley Howard
Adjudicator