Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-011542/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:
Ishwor Thapa
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Sulakshana Genthirakumar, Counsel
For the Respondent: Veronica Gorrell, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ishwor Thapa, the applicant, was involved in an automobile accident on September 30, 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, Economical Insurance, 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 $1,297.25 for physiotherapy services, proposed by Quality Life Physiotherapy Inc. in a treatment plan/OCF-18 (“plan”) dated September 19, 2022?
iii. Is the applicant entitled to the assessments proposed by Complete Rehab Centre, as follows:
a) $2,460.00 for a psychological assessment, in a treatment plan dated June 24, 2022; and
b) $2,708.60 for a podiatry assessment, in a treatment plan dated June 24, 2022
iv. Is the respondent liable to pay an award under s. 10 of 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
3I find that the applicant has not met his onus of proving that his injuries are not predominantly minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit.
4As the applicant remains within the MIG, and there is no entitlement to the benefits at issue beyond the MIG limit.
5As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a s. 10 award.
6As there are no overdue benefits, no interest payable.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7I find that the applicant has not met his onus of proving on a balance of probabilities that his injuries are not predominantly minor as defined in s.3 of the Schedule and he is therefore subject to the $3,500.00 MIG limit.
8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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 person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s.18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
10The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. The applicant argues that his pre-existing condition and chronic pain with a functional impairment meet that burden to be removed from the MIG.
i. The applicant has not established that he has a pre-existing condition that precludes his recovery in the MIG.
11I find that the evidence submitted does not establish that the applicant has a pre-existing condition that prevents maximal recovery if the applicant remains within the MIG.
12The standard for removing a person from the MIG on the basis of a pre-existing condition is well defined in s. 18(2) of the Schedule. The onus is on the applicant to provide compelling medical evidence, documented by a health practitioner before the accident occurred, that being subject to the MIG would prevent the insured person from achieving maximal recovery. It is not enough to show there is a pre-existing injury; the evidence must be both compelling and also indicate that such pre-existing injury would preclude the applicant’s recovery from any accident-related minor injury.
13I have reviewed evidence submitted by the applicant, including the clinical notes and records of Dr. Farooq, the applicant’s family doctor, and a physiatry report from Dr. Wong, physiatrist.
14I find that the clinical notes and records (CNRs) of Dr. Farooq, the applicant’s family doctor, do not present compelling evidence that the applicant’s previous back injury would preclude his recovery in the MIG. In the CNRs, Dr. Farooq refers to the applicant’s back pain as “on/off” and that the pain “comes and goes”. The CNRs do not link previous 2019 motor vehicle accident to a condition that would preclude the applicant's recovery within the MIG.
15I place little weight on the physiatry report of Dr. Wong completed on December 1, 2022. Dr. Wong mentions the previous motor vehicle accident in 2019 and clearly states that this injury “can make him more vulnerable” but does not indicate that the injury did make him more vulnerable. Later in the report, Dr. Wong states that the pre-existing injury has made him more vulnerable but does not substantiate this assessment. This assessment by Dr. Wong is not supported by the CNRs of Dr. Farooq, the applicant’s family doctor, who makes no connection between the 2019 accident and the applicant’s ability to recover. As such, this report does not provide compelling medical evidence to support a finding that the applicant suffered from a pre-existing condition that would preclude his recovery in the MIG.
16I have also reviewed the evidence submitted by the respondent, which included a psychological assessment by Dr. Saunders, psychologist, and a psychological assessment by Dr. Naisi, psychologist. I find that in both of these reports that applicant self reports as not suffering from a pre-existing condition at the time of the accident. The applicant reports to Dr. Saunders that he “was fully recovered prior to the subject accident”, and to Dr. Naisi the applicant reports he was “fully functioning individual who was able to meet the demands of his life, without any limitations.”
17I find that the applicant has not established on a balance of probabilities that he has a pre-existing condition that precludes recovery within the MIG.
ii. The applicant does not suffer from chronic pain with a functional impairment.
18I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
19Ongoing pain does not automatically take a person out of the MIG. It is well established that to be removed from the MIG based on chronic pain, the pain must be of a continued severity resulting in functional impairment.
20The applicant relies on the CNRs of his Dr. Farooq, an assessment by Dr. Wong, as well as the American Medical Associations Guidelines 6th edition (AMA Guidelines) to establish his claim of chronic pain. These Guidelines do not provide a legally binding test, but the Tribunal has found them to be a helpful interpretive tool.
21I find that the CNRs Dr. Farooq, do not support the applicant’s claim of chronic pain. In the notes, Dr. Farooq refers to the applicant as reporting pain “on/off” and the CNRs do not point to any functional impairment suffered by the applicant as a result of the applicant’s pain reporting. Additionally, I find that Dr. Farooq attributes the pain reported by the applicant as possible sciatica, not related to the motor vehicle accident.
22I placed little weight on the physiatry report completed by Dr. Wong, physiatrist, on December 1, 2022. The conclusions of the report are not corroborated by any of the other medical evidence available, specifically the CNRs of Dr. Farooq, the applicant’s family doctor. Dr. Wong uses the AMA Guides to diagnose the applicant with chronic pain. Unfortunately, Dr. Wong does not provide insight into how the applicant meets any of the criteria beyond answering yes. Additionally, Dr. Wong does not outline any specific functional impairments currently suffered by the applicant. The applicant reported not being able to perform household tasked to Dr. Wong, this is contradicted with the applicant’s reporting to Dr. Saunders in his psychological report, that he did not perform household tasks before or after the accident. Additionally, the applicant reported that he was not a sport oriented individual, but enjoyed going out with friends and family, all of which the applicant reports still doing, just not as frequently.
23The respondent relies on an insurer’s medical examination by Dr. Lee, GP, a psychological report completed by Dr. Saunders.
24I find that the Insurer’s Medical Examination completed by Dr. Lee, GP and member of the Canada Society of Medical Evaluators, completed on December 20, 2022, does not support a diagnosis of chronic pain with a functional impairment. Dr. Lee notes in the report that the applicant suffered soft tissue injuries due to the motor vehicle accident that are minor injuries as defined by the Schedule. Dr. Lee found no valid indicators to support residual or ongoing musculoskeletal injury or impairment. Additionally, Dr. Lee was unable to identify any limitation or restrictions that are delaying or preventing the applicant from reaching a full recovery.
25I find that the psychological report completed by Dr. Saunders on November 22, 2022, does not support the applicant’s claim chronic pain with a functional impairment. The applicant’s self-reports to Dr. Saunders during the appointment do not outline any current functional impairments the applicant suffers. The applicant outlined that he was independent with his activities of daily living and that both before and after the accident, his wife performed household and housekeeping chores.
26The AMA Guides require that at least three of the following six criteria are met to qualify for a diagnosis of chronic pain syndrome:
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 or family:
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain:
iv. Withdrawal from social milieu:
v. Failure to restore pre-injury function:
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
27I find that the applicant does not meet at least three of the six criteria to qualify for a diagnosis of chronic pain. There is no record in the CNRs of Dr. Farooq to support use of prescription drugs beyond the recommended duration or abuse. The evidence presented does not show excessive dependence on health care providers or family. The applicant reported to Dr. Farooq that he was attending a gym, and the applicant is employed as a real estate agent, these do not support secondary physical deconditioning. The applicant reports that he still engages in all his same social activities, with does not support any withdrawal. The applicant has not provided evidence to support any functions that were being completed prior to the accident that he has failed to restore.
28I have given more weight to the respondent’s evidence and find that the applicant has failed to provide consistent or compelling evidence that warrants removal from MIG based on a diagnosis of chronic pain. There is no evidence of chronic pain that could be considered more than sequelae of his soft tissue injuries, and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal under this ground.
29As I have not found on balance of probabilities that the applicant should be removed from the MIG, he is not entitled to funding beyond the MIG limit.
Special Award
30The applicant sought an award under s. 10 of Reg. 664. Under s. 10. As no benefits were unreasonably withheld or delayed, there is no special award owing.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is owing.
ORDER
32I find that the applicant:
i. The applicant remains within the MIG and is subject to the $3,500.00 funding limit.
ii. The applicant payment for treatment plans beyond the MIG funding limit.
iii. As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a section 10.
iv. As no benefits are overdue, no interest is owing.
v. The application is dismissed.
Released: December 24, 2024
Robert Rock
Adjudicator