Citation: Mensah v. Intact Insurance Company, 2024ONLAT 22-014133/AABS

Licence Appeal Tribunal File Number: 22-014133/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:

Harry Mensah

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Christina Trotta, Counsel

For the Respondent:

Sabina Arulampalam, Counsel

HEARD: by way of written submissions

December 6, 2024

OVERVIEW

1Henry Mensah, the applicant, was involved in an automobile accident on November 24, 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, Insurer, 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 $2,217.00 for a chronic pain assessment, proposed by Polyclinic Rehabilitation Institute Inc., in a treatment plan/OCF-18 (“treatment plan”) submitted November 10, 2021?

iii. Is the applicant entitled to $3,560.24 for chiropractic services, proposed by Islington North Chiropractic, in a plan submitted October 7, 2021?

iv. Is the applicant entitled to $2,929.36 for chiropractic services, proposed by Islington North Chiropractic, in a plan submitted April 27, 2021?

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

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?

3The parties agree that the issue of whether the applicant is entitled to an income replacement benefit, as set out in the application and the August 10, 2023 Case Conference Report and Order (CCRO), has been resolved.

RESULT

4The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the disputed treatment plans, interest, or an award.

Procedural Issues

5In his reply submissions, the applicant requested that the respondent’s entire written hearing submissions be struck from the hearing record. In the alternative, the applicant requests that the 16th page of the respondent’s submissions not be considered. The applicant submits that he has suffered prejudice by the respondent’s breach of the CCRO as the maximum page limit for written hearing submissions was 15 pages.

6I deny the applicant’s request to strike the respondent’s written submissions, or in the alternative, disregard the 16th page of the respondent’s submissions. The applicant has not identified any specific prejudice arising from the consideration of the 16th page of the respondent’s submissions.

7Page 16 of the respondent’s submissions contains: (i) a summary of the respondent’s submissions; and (ii) the order sought by the respondent. Evidence not previously discussed in the preceding 15 pages is not introduced or described on page 16.

8It is clear that the respondent breached the maximum page limit as set out in the CCRO. However, the CCRO also states that the hearing adjudicator “may choose not to consider submissions which exceed the pages limits”. As the applicant has not proven that he would suffer any specific prejudice if I were to consider the summary and order sought by the respondent as set out on the 16th page of its written submissions, the entirety of the respondent’s written submissions will be considered in rendering this decision. The applicant’s request is denied.

ANALYSIS

The applicant is not removed from the MIG

9I find that the applicant has not proven on a balance of probabilities that he has sustained more than a minor injury and, therefore, his is not removed from the MIG.

10I find that the applicant has failed to establish that he has suffered more than a minor injury or that a pre-existing injury prevents maximal recovery, and he is therefore not entitled to treatment in excess of the MIG limit.

11Section 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.”

12An 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. In all cases, the burden of proof lies with the applicant.

13The applicant claims that he is entitled to be removed from the MIG on two grounds:

i. that he suffers from chronic pain as a result of the accident; and

ii. he has pre-existing medical conditions (i.e. neck and low back pain) that preclude maximal recovery within the MIG funding limit.

The applicant has not established that he should be removed from the MIG on the basis of chronic pain

14I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain and, therefore, is not entitled to be removed from MIG on this basis.

15The applicant submits that he meets the definition of chronic pain syndrome based on applying the American Medical Association Guides to Permanent Impairment American Medical Association, 6th Edition, 2008 (“AMA Guides”) because he meets three of six criteria set out in the AMA Guides. As an initial matter, the applicant has not provided the AMA Guides, or relevant excerpts from them, as evidence to his submissions. Nonetheless, I have considered the applicant’s submissions on their merits despite the lack of evidence regarding the AMA Guides themselves.

16The first criterion of the AMA Guides that the applicant relies on the use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescriptions drugs or other substances. The applicant asserts that following the accident he has been forced to rely on naproxen and several other medications that he did not use regularly prior to the accident, as demonstrated by the post-accident clinical notes and records of his family physician, Dr. Andan Siddiqui. The applicant also relies upon a statement in the physician assessment report, dated November 24, 2021, of the respondent’s expert, Dr. Charanjit Sandhu, occupational medicine physician, which states:

If the insured person has been prescribed medication as a result of the accident, within the scope of your practice, please comment if the drugs prescribed are reasonable and necessary? If no,

a. What medication changes do you recommend to assist the insured with recovering from these accident related injuries?

Mr. Mensah should aim to titrate down his use of naproxen.

17The applicant submits that this statement by Dr. Sandhu establishes that the applicant has used naproxen beyond its recommended duration or is abusing it.

18The respondent’s position is that because the applicant has not provided receipts for the purchase of prescription medication, there is no evidence that applicant has relied on prescription drugs.

19First, I note that the medical records appended to the applicant’s submissions establish that the applicant was repeatedly prescribed naproxen for back pain, as early as October 12, 2018, four years before the accident. This prescription was in the same dosage as during the post-accident period. I find this evidence establishes that naproxen was not necessarily prescribed as a result of the accident. Further, there is no evidence before me on the medically recommended duration of use of naproxen generally, or for the applicant specifically, to allow for a determination of whether naproxen has been used beyond its recommended duration.

20I am also not convinced that the single statement by Dr. Sandhu that the applicant should reduce his use of naproxen, establishes that the applicant has used naproxen beyond its recommended duration. It does not rise to the level of a medical opinion that the applicant is abusing naproxen. There are no statements in the clinical notes and records of applicant’s family doctor, Dr. Siddiqui, who has prescribed naproxen and managed the applicant’s health for years before and after the accident, indicating any concern with respect to abuse or overuse of naproxen.

21The next AMA Guide criterion raised by the applicant is excessive dependence on healthcare providers, spouse and family. The applicant relies on the medical file of his family doctor, Dr. Siddiqui, as establishing an excessive dependence in relation to appointments for his accident-related injuries. The applicant also submits that his spouse and family members assist him with house-keeping tasks.

22The respondent notes that the applicant has only provided the medical records of Dr. Siddiqui to September 2022 and that many of the applicant’s appointments with Dr. Siddiqui were for health issues unrelated to the accident.

23The respondent also notes that the applicant did not file any affidavit evidence supporting the applicant’s submissions that he has excessively relied on his spouse and family. This submission appears to be based on a Disability Certificate (“OCF-3”) prepared 2 days after the accident, and on the applicant’s assessments by the respondent’s assessor, Dr. Ijaz Chaudhry, physician, on February 14, 2022 and August 29, 2023, where the applicant reported to Dr. Chaudhry that his wife or children perform all housekeeping tasks.

24In reviewing Dr. Siddiqui’s records, I note there are 18 separate entries from the date of the accident to when these records end on October 18, 2022. Only five of these records refer to the motor vehicle accident. Based on this record, the applicant has not persuaded me that there has been excessive dependence on healthcare providers in relation to injuries suffered because of the accident.

25I also find that there is insufficient evidence before me to establish that the applicant excessively relies on his spouse and family members. I place very little weight on the OCF-3 itself for the following reasons:

(i) it was made just 2 days after the accident and indicated that the recovery period would be 9-12 weeks; and

(ii) it indicated that the applicant would be unable to return to work for 104-weeks after the accident, yet the applicant obtained clearance to return to work between March 21, 2021, just 17 weeks after the accident.

26Further, the applicant has not established through other evidence that he excessively relies on his spouse or other family members as a result of the accident. The applicant could have sought to file an affidavit, either at the case conference or later by way of motion, to provide evidence on this point since it is central to his argument that he suffers chronic pain.

27The final criterion of the AMA Guides that the applicant asserts is established by the evidence is 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. The medical evidence that the applicant relies on in support of this criterion is the clinical notes and records of Islington North Chiropractic. The applicant submits that these records show that Mr. Mensah is suffering from continuous and ongoing physical restrictions and limitations, including reduced range of motion.

28I find that the applicant has not established that he suffers a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue family or recreational needs. Based on the evidence, the physical restrictions noted by the applicant’s chiropractor are not such severity that the applicant lacks to physical capacity to travel and work. For example, as noted by the respondent, the applicant has returned to work full-time, has reported being able to complete personal care tasks and was able to travel to Ghana for three weeks in early 2022.

29Based on a review of the evidence and considering the parties’ submissions, I am not persuaded that the applicant has established that he meets three of the six criteria of the AMA Guides. As such, I find that the applicant has not established that he has chronic pain syndrome and is not subject to removal from the MIG on the basis of chronic pain.

The applicant is not removed from the MIG on the basis of a pre-existing condition

30I find that the applicant has not established that he is entitled to removal from the MIG because of a pre-existing condition pursuant to s. 18(2).

31The applicant submits that his pre-accident history of neck and low back pain, which is documented in the clinical notes and records of Dr. Siddiqui, is a pre-existing condition that will preclude his recovery if he is kept within the confines of the MIG. The applicant further submits that this back pain was exacerbated by the accident.

32The respondent does not dispute the fact that the applicant had pre-existing neck and low back pain prior to the accident. However, the respondent contends that the applicant has failed to provide medical evidence that the pre-existing condition would preclude his maximal recovery from any accident-related injuries. The respondent notes that the treatment plans in dispute do not attach medical documentation relating to the applicant’s recovery in relation to his asserted pre-existing condition or refer to the pre-existing condition itself. The respondent also notes that no medical professional has expressed an opinion on the applicant’s recovery in relation to the pre-existing condition.

33I find that the applicant has not provided compelling medical evidence that any pre-existing conditions would preclude his recovery from any accident-related minor injury. First, I note that the evidence does not establish that the applicant had pre-existing neck pain. The applicant does not cite any specific references of evidence of pre-accident neck pain. The pre-accident clinical notes and records of Dr. Siddiqui mention two instances of inflammation of the neck due to pharyngitis in October 2018 and a rash/allergy in April 2019. I find that these acute conditions do not constitute a pre-existing condition of neck pain. However, these clinical notes and records of the same date do confirm that the applicant had pre-existing low back pain. As described above in paragraph 20, Dr. Siddiqui prescribed naproxen for the applicant’s back pain as early as November 2019.

34However, I find that the applicant has not identified compelling medical evidence that applicant’s pre-existing back pain preclude maximal recovery within the confines of the MIG. The applicant has not identified any medical evidence that comments that his pre-existing medical condition (i.e. low back pain) precludes maximal recovery within the MIG funding limit.

The applicant is not entitled to the treatment plans in dispute

35As I have found that the applicant is not removed from the MIG, but neither party has confirmed whether the MIG limits have been exhausted, the applicant is entitled to treatment up to the MIG limits.

36As I have found that the applicant is not removed from the MIG, but neither party has confirmed whether the MIG limits have been exhausted, the applicant is entitled to treatment up to the MIG limits.

The applicant is not entitled to interest in respect of the treatment plans in dispute

37As I have found that the applicant is not entitled to any of the disputed treatment plans, he is not entitled to interest in respect of these treatment plans.

The applicant is not entitled to an award

38I find that the applicant has not established that he is entitled to a special award. The applicant is not entitled to an award.

39The 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.

40The applicant’s written submissions do not point to any specific facts or make any specific arguments as to why an award is warranted in this application. As a result, I find that the applicant has not established that he is entitled to an award.

ORDER

41I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, a determination of whether the treatment plans are reasonable and necessary is not required;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule; and

iv. The applicant is not entitled to an award under s. 10 of O. Reg 664.

v. The application is dismissed.