Landrove-Perez v. Cooperators General Insurance Company, 2024 CanLII 115424

Citation: Landrove-Perez v. Cooperators General Insurance Company, 2024 ONLAT 22-011830/AABS

Licence Appeal Tribunal File Number: 22-011830/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:

Jose Landrove-Perez

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nikisha Evans

APPEARANCES:

For the Applicant:

Nicole Corriero, Counsel

For the Respondent:

Emily Schatzker, Counsel

Amirali Golpira, Counsel

HEARD:

By Way of Written Submission

OVERVIEW

1The applicant, Jose Landrove-Perez was involved in an automobile accident on September 6, 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, Co-operators 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:

1. 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?

2. If the applicant’s injuries are not considered to be predominantly minor:

   i. Is the applicant entitled to $3,790.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated September 20, 2021?

   ii. Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated March 3, 2022?

   iii. Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated April 14, 2022?

   iv. Is the applicant entitled to $2,851.68 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated September 15, 2022?

   v. Is the applicant entitled to $2,144.93 for psychological assessment, proposed by Pilowsky Psychology Professionals in a treatment plan/OCF-18 (“plan”) dated April 17, 2023?

   vi. Is the applicant entitled to $2,540.00 for psychological assessment, proposed by All Health Medical Centre in a treatment plan/OCF-18 (“plan”) dated April 25, 2023?

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

RESULT

3I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, there is no need to conduct the reasonable and necessary analysis, as there is no funding left and no interest is payable.

The applicant has not demonstrated that his impairments are outside of the s.3 of the Schedule and therefore removal from the MIG is not justified.

4The applicant has not demonstrated that he suffers from chronic pain or a psychological impairment that warrants removal from the MIG.

5Pursuant to section 18(1) of the Schedule, medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a “minor injury” in accordance with the MIG. 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.”

6Further, section 18(2) allows for an insured to be removed from the MIG if his health practitioner determines with compelling medical evidence that the pre-existing medical condition will prevent the insured from achieving maximum recovery if he is allowed to remain within the MIG. The Tribunal has made decisions that chronic pain with functional impairment may remove the insured from the MIG. However, the burden of proof lies with the applicant on a balance of probabilities in all cases.

7To this end, the applicant relies on OCF-18 Treatment and Assessment Plan, completed by Dr. Judith Pilowsky, the psychologist dated April 17, 2023, and clinical notes and records (CNRs) from Dr. Osama Benmoftah, an orthopaedic surgeon.

8The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that he has developed a chronic pain condition or that he sustained an actual psychological impairment from the accident.

9After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers physical injuries that would remove him from the MIG. There are no notes from Dr. Kennedy the applicant’s family doctor nor found in the s.44 physiatry examination report by Raymond Zabieliauskas evidence that supports that the applicant suffers from a chronic pain condition or that he sustained an actual psychological impairment from the accident.

10Further, no compelling evidence has been presented by the applicant, regarding a pre-existing medical condition that will prevent the applicant from achieving maximum recovery if he is allowed to remain within the MIG.

The applicant does not have chronic pain as a result of the accident

11I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

12In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain or chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. In assessing the applicant’s claim of chronic pain, I have applied the following factors from paragraph 16 in A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT):

i. Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

ii. Whether the applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. Whether the pain is not a clinically associated sequela to minor injuries.

iv. Whether the applicant’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.

13I do not agree with the applicant’s position that he now suffers from chronic pain because of the accident. The applicant relies on the Orthopedic Chronic Pain assessment report by Dr. Osama Benmoftah, who diagnosed the applicant with Chronic Pain Disorder, sprain and strain of the lumbar spine, neck and bilateral shoulder pain. Dr. Osama Benmoftah, relied on the American AMA Guides 6th edition diagnosing the applicant with Chronic Pain Syndrome (CPS) which can be described “as pain that continues beyond the normal healing time for the patient’s diagnosis, and includes significant psychosocial dysfunction.” However, the neck and bilateral shoulder pain was documented to have been resolved.

14A review of the Orthopaedic Chronic Pain Addendum Report by Dr. Osama Benmoftah reiterated his medical opinion while responding to Dr. Zabieliauskas assessment of his report. I did not find any compelling evidence in his response to support the applicants claim that he suffers from chronic pain.

15I agree with the respondent, that a review of the evidence does not support a diagnosis of chronic pain. The respondent relies on s. 44 assessor, Dr. Raymond Zabieliauskas who noted in his report, the applicant had made full physical recovery and the lower back pain was not because of the accident. Further, the family physician, Dr. Kennedy noted on December 13, 2021, the applicant’s issue from the motor vehicle accident (MVA) was resolved. Dr. Kennedy also noted on July 5, 2023, the applicant reported the “pain comes and goes”; it depends on type of work he does. I am not convinced the applicant suffers from Chronic pain that will allow him to be removed from the MIG.

16I also find that the applicant has failed to demonstrate that he meets the test for chronic pain as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). Both parties raised this test in their submissions. While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

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.

17Given the above, I find the applicant has not established an accident-related pain condition causing functional impairment that requires treatment beyond the confines of the MIG. Accordingly, he remains within the MIG and is subject to tits $3,500.00 limit on treatment.

The applicant has not suffered a psychological impairment as a result of the accident

18The applicant relies on the OCF-18 Treatment and Assessment plan dated April 17, 2023, completed by Dr. Pilowsky, psychologist, to confirm that he is suffering from a psychological impairment as a result of the accident. I agree with the respondent that compelling evidence must be proven to remove the applicant from the MIG. In review of the bulk of the medical reports, I find the applicant has not provided medical evidence that he has sustained psychological impairment as a result of the accident.

19Further, Dr. Benmoftah, the orthopaedic surgeon, documented symptoms of depression and anxiety, insomnia and fatigue in his clinical note report but noted that these would need to be addressed by his family physician. However, a review of Dr. Kennedy, family physician clinical notes show no evidence of a referral for psychological assessment or mention by the applicant. It is also outside the scope of practice for an orthopedic to make a diagnosis of psychological symptoms reported by the applicant.

20The CNRs of the family physician are void psychological impairment reported by the applicant, even after being sent Dr. Pilowsky intake notes on OCF-18 recommending a psychological assessment. Second, the psychological reporting by an orthopedic was given little weight because it is out of scope for an orthopedic practice. Thirdly, the applicant did not provide evidence of a psychological assessment for the respondent to determine if he is outside the MIG.

21For these reasons, I find that the applicant has not demonstrated that his accident-related impairment warrants a removal from the MIG.

Are the treatment and assessment plans reasonable and necessary?

22I have determined that the applicant has not proven the removal of the MIG. As such, there is no need to conduct the reasonable and necessary analysis of the treatment plans.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is payable under s. 51.

ORDER

I find that:

i. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.

ii. As the applicant remains within the MIG and its $3,500.00 limit, which has been exhausted, he is not entitled to the plans in dispute, nor interest.

iii. The application is dismissed.