Licence Appeal Tribunal File Number: 21-000605/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:
Ricardo Orrett
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Agal Lankeswaran, Paralegal
For the Respondent:
Emily A. Schatzker, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ricardo Orrett (the “applicant”) was involved in an automobile accident on August 2, 2018, 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 Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 limit and in the Minor Injury Guideline (“MIG”)?
Is the applicant entitled to $1,678.00 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted on September 3, 2020?
Is the applicant entitled to $1,995.33 for other goods and services, proposed by Midland Wellness Centre in a plan submitted on January 17, 2019?
Is the applicant entitled to $2,119.22 for physiotherapy services, proposed by Midland Wellness Centre in a plan submitted on March 23, 2020?
Is the applicant entitled to $2,443.94 for physiotherapy services, proposed by Midland Wellness Centre in a plan submitted on July 25, 2019?
Is the applicant entitled to $2,739.40 for physiotherapy services, proposed by Midland Wellness Centre in a plan submitted on November 21, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.
The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits that have been incurred under the MIG are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
PROCEDURAL ISSUE
The clinical notes and records of Dr. Gloria Meneses and MCI the Doctor’s Office, will be considered for the purposes of this hearing
4I admit the clinical notes and records of Dr. Meneses, the applicant’s family physician, and the records of MCI the Doctor’s Office, as evidence for this hearing for the reasons outlined below.
5The Case Conference Report and Order (“CCRO”), dated January 24, 2023, was clear that the deadline for documents not previously disclosed but which the parties intended to rely upon for the hearing was due 60 calendar days after the case conference.
6Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.
7In its submissions, the respondent submits the applicant did not produce the records of Dr. Meneses and MCI the Doctor’s Office prior to the hearing.
8The applicant filed reply submissions but did not provide a response with respect to whether this evidence was produced in accordance with the CCRO.
9In any event, I find the records of Dr. Meneses and MCI the Doctor’s Office are relevant to the issues in dispute, and pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S. 22, documents relevant to the issues in dispute are admissible as evidence. The respondent made no submissions with respect to any prejudice that resulted, nor did it seek relief to exclude the evidence. Thus, I will admit these records into evidence.
ANALYSIS
The Minor Injury Guideline
10Section 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 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.”
11An insured person 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.
12In all cases, the burden of proof lies with the applicant.
13The applicant submits that he should be removed from the MIG on three grounds:
i. He had a prior car accident in 2016, and his pre-existing back pain was aggravated by this accident.
ii. He has chronic back, hip and shoulder pain.
iii. He has psychological injuries.
14In response, the respondent submits that the applicant’s injuries from the subject accident are confined to the MIG limits, and he should not be removed due to his psychological symptoms, chronic pain, or a pre-existing condition.
The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG
15I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing back condition.
16The applicant submits that he had a prior motor vehicle accident in 2016 in Jamaica, which resulted in a back injury. Furthermore, the applicant submits that following this subject accident, his pre-existing back injury was aggravated, which is shown in the records of Dr. Meneses.
17The respondent submits that the applicant does not meet the test pursuant to s. 18(2), as his pre-existing back injury was not documented by a health practitioner, and no health practitioner has provided evidence or explanation as to how his pre-existing back pain would prevent recovery if he was subject to the MIG.
18The records of Dr. Meneses demonstrate that the applicant had documented lower back pain, difficulty sleeping, and joint pain prior to the accident. I acknowledge the respondent’s position that the applicant did not advise Dr. Meneses of his pre-existing accident until August 8, 2018 (a few days after this accident). However, Dr. Meneses’s record, dated September 14, 2015, also noted that the applicant had difficulty sleeping, joint pain, and lower back pain. Thus, the applicant has established he has a documented pre-existing condition. However, this satisfies only half of the test. The second half of the test is that there must be compelling evidence that the pre-existing condition would preclude recovery from an accident-related minor injury if he was subject to the MIG.
19In this regard, the applicant has failed to meet the second part of the test pursuant to s. 18(2) of the Schedule, as he has not directed me to a medical opinion that his pre-existing lower back pain would prevent maximal medical recovery if he was kept within the MIG limits. While the applicant appears to argue that his pre-existing back pain was aggravated by this accident, which made it “nearly impossible” for him to fully recovered from his accident-related injuries, he has not referred me to a medical opinion that supports this position. It is well-settled that submissions do not constitute as evidence.
20In any event, aside from the applicant’s self-reporting, Dr. Meneses did not provide an opinion of whether the applicant’s pre-existing lower back issue was exacerbated by the accident, or more critically, whether this would prevent maximal medical recovery if he is kept within the MIG.
21For example, while on August 8, 2018, the applicant self-reported to Dr. Meneses that he had back pain from a car accident in 2016 and from his pre-accident employment, there was no discussion of whether this pre-existing lower back pain would impede the applicant’s recovery. Indeed, Dr. Meneses noted that the applicant had full range of motion in his back and shoulders and diagnosed him with “back/shoulder pain.”
22Subsequently, the applicant’s self-reported on October 3, 2018, to Dr. Meneses that his pre-existing back pain was “not as bad” pre-accident and was aggravated after this accident. However, once again, Dr. Meneses did not provide a medical opinion of whether this would impede his recovery. In fact, Dr. Meneses noted that the applicant had full range of motion in his back and diagnosed him with back strain. Thus, I am not persuaded that the applicant’s lower back pain would prevent maximal medical recovery from his accident-related injuries if he was kept within the MIG limits.
23In conclusion, the applicant has not established on a balance of probabilities that his pre-existing lower back pain would prevent maximal recovery from his accident-related injuries if he was kept in the MIG.
The applicant is not removed from the MIG on the basis of chronic pain
25I find that the applicant has not established that he suffers from a chronic pain condition with functional impairments that would warrant removal from the MIG.
26The applicant submits that he has chronic back, hip and shoulder pain, which he suffers from on a daily basis, as noted in the clinical notes and records of Dr. Meneses, and the records of MCI the Doctor’s Office. Moreover, the applicant submits that as a result of his back pain, it is difficult for him to sit and stand for long periods of time, and complete heavy lifting. As such, his position is that he was unable to return back to his pre-accident employment in construction, due to his accident-related injuries. To support this position, the applicant relies on the clinical notes and records of Dr. Meneses, MCI the Doctor’s Office, a walk-in clinic, and the records of Scarborough Health Network.
27The respondent submits that the applicant has reported neck, back, and shoulder pain; however, there was no diagnosis beyond a sprain/strain injury. The respondent further submits that there is no evidence that the applicant has developed chronic pain syndrome as a result of this accident. To this end, it relies upon the section 44 Physiatry Report of Dr. Abdul-Wahab Khan, physiatrist, dated June 10, 2019.
28I do not find that the applicant has met his onus to prove accident-related chronic pain.
29There are limited reports of ongoing pain to Dr. Meneses. I am alive to the applicant’s position that the records of Dr. Meneses demonstrate that he has chronic pain that he suffers from on a daily basis. However, in my view, the applicant only met with Dr. Meneses on six separate occasions in the last five-years, the last of which was on September 30, 2020, which weakens his claim that he has chronic pain from this accident. Moreover, Dr. Meneses on August 8, 2018, August 22, 2018, October 3, 2018, November 14, 2018, February 9, 2020, and September 30, 2020, diagnosed the applicant with sprain injuries to his back, neck and shoulder, and left hip pain, and noted full range of motion in his back, neck and shoulder. Thus, there is limited compelling evidence of a severe, chronic pain.
30While I am also alive to the applicant’s position that he felt his spine was broken and required a back brace, he has not referred me to a medical opinion that supports his self-reporting.
31For example, on February 9, 2020, while the applicant self-reported that he felt like his spine was broken, and he was using a back brace, Dr. Meneses did not diagnose the applicant with chronic pain and noted that the applicant had full range of motion in his back.
32Next, the applicant relies in large part on a chronic pain diagnosis by Dr. Jason Yue, an emergency physician at Scarborough Health Network and Dr. Michel De Billy, a physician at MCI the Doctor’s Office. However, upon review of the record, dated September 29, 2020, I note that Dr. Yue did not diagnose the applicant with chronic pain, instead he noted “chronic back pain/Left hip pain-?”. In my interpretation, Dr. Yue was noting the possibility of chronic pain and did not diagnose the applicant with chronic pain from this accident. Also, Dr. Yue noted that the applicant had active and passive range of motion, normal sensation, and strength in his left hip, left knee, left ankle, and left foot, and mild pain in his lower back.
33While on June 25, 2021, Dr. De Billy diagnosed the applicant with chronic back pain, there was no discussion on the level of pain, its effect on his function, or whether the pain was bearable without treatment, albeit the applicant self-reported that chiropractic treatment had been unhelpful in the past. Moreover, the applicant had been a patient of MCI the Doctor’s Office since at least March 29, 2020, yet this was his first accident-related visit.
34I also acknowledge that on June 26, 2021, Dr. De Billy sent a requisition to Dr. Mehrabian, a chronic pain specialist, however, the applicant did not tender the records of Dr. Mehrabian as evidence for this hearing.
35Further, a chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, N.J. v TD General Insurance Company, 2020 CanLII 57413 (ON LAT). For chronic pain to be more than sequelae from soft tissue injuries, it must be: (1) continuous, or chronic pain syndrome; and (2) it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a MIG injury. Therefore, contrary to the applicant’s submission, a diagnosis of chronic pain alone is insufficient to remove him from the MIG, he needs to demonstrate that he has an ongoing functional impairment or disability.
36Here, to establish a functional impairment, the applicant relies on his self-reporting to Dr. Meneses, that his pain makes it difficult to sit and stand for prolonged period of time, complete heavy lifting tasks, and that he has been unable to return to his pre-accident employment where he constructed swimming pools. Aside from his self-reporting, the applicant has not produced objective evidence, like an employment file, or a medical opinion that he was unable to work in his pre-accident employment because of his injuries.
37In fact, Dr. Meneses has not provided a medical opinion with respect to the applicant’s functionality because of his alleged pain and has on numerous occasions noted that the applicant has full range of motion. Moreover, Dr. Khan conducted a physical examination on the applicant which revealed a full range of motion in his lumbar spine, albeit with self-reported tightness, and pain, normal range of motion in the hips, knees, and ankles and normal strength, sensation, reflexes, tone, and coordination in the lower limbs.
38In any event, the applicant told Dr. Meneses on February 9, 2020, that he was working in “the West” and on September 29, 2020, he advised Dr. Yue that he was working as a tire technician. The applicant also self-reported to Dr. Khan, that he had returned to his pre-accident housekeeping and personal care tasks, albeit he no longer attended the gym or played basketball. However, once again, aside from his self-reporting, he has not referred me to a medical opinion that supports he is unable to attend the gym or play basketball because of his chronic pain. Thus, I am not satisfied that the applicant has an ongoing functional impairment or disability.
39For the sake of completeness, I note that the applicant summarized the entry of Dr. Yue, dated September 29, 2020, and that he was diagnosed with a pinched nerve. Upon review of the record, I note that Dr. Yue wrote “MSK/Pinched Nerve.” I place little weight on this diagnosis as Dr. Yue did not provide a rationale of how the applicant had a pinched nerve and where it was located. In fact, the x-ray of the lumbar spine was largely unremarkable, albeit there was very minor anterior wedging of the T12 and L1 vertebral bodies, and the x-ray of the left hip and pelvis was unremarkable.
40Considering the above, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
The applicant has not established that he sustained psychological impairments that warrant removal from the MIG
41I find that the applicant has not led sufficient evidence that he has a psychological impairment that would warrant removal from the MIG.
42Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
43The applicant submits that he has psychological injuries, such as anxiety and flashbacks from this accident which he advised Dr. Meneses on numerous occasions and relies on the records of Dr. Meneses to support his position.
44The respondent submits that the applicant has never reported psychological concerns to Dr. Meneses and that the applicant has not sustained a psychological impairment from the accident. To support its position, the respondent relies upon the section 44 psychological report of Dr. Terra Seon, psychologist, dated July 8, 2019.
45I find that the applicant has not met his onus to prove an accident-related psychological impairment warranting removal from the MIG.
46The medical record does not establish that the applicant reported ongoing psychological symptoms after the subject accident. Contrary to the applicant’s submission that he reported flashbacks following this accident to Dr. Meneses, this is inaccurate. In fact, on October 3, 2018, Dr. Meneses noted that the applicant reported no flashbacks from this accident.
47While I acknowledge that on September 30, 2020, Dr. Meneses noted that the applicant had anxiety, she did not diagnose the applicant with a psychological impairment, prescribe medication for this or refer him to a specialist. Moreover, the applicant did not direct me to evidence subsequent to this visit where he continued to report psychological symptoms.
48I further find that Dr. Seon’s findings are supported by the medical record. Her conclusion was that the applicant reported mild emotional difficulties, including symptoms of frustration and irritability, however these difficulties have not resulted in a psychological impairment in his overall functioning, and that his presentation was not of the magnitude to warrant a psychological diagnosis. This opinion is supported by the lack of ongoing psychological complaints to Dr. Meneses or MCI the Doctor’s Office.
49As such, I find that the applicant has not established accident-related psychological impairments that warrant removal from the MIG.
The Treatment Plans and Interest
50As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
51However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits that have been incurred under the MIG are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
ORDER
52For the reasons outlined above, I find that:
a. The applicant has not demonstrated that removal from the MIG is warranted. The applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG limit.
b. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits that have been incurred under the MIG are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
c. The application is dismissed.
Released: February 27, 2024
Tanjoyt Deol
Adjudicator