Licence Appeal Tribunal File Number: 22-001608/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:
Andrew Crooks
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Arthur Semko, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD: In Writing
OVERVIEW
1Andrew Crooks, the applicant, was involved in an automobile accident on August 2, 2019, 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, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
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 $2,200.00 for a psychological assessment, proposed by Knead Wellness in a treatment plan dated November 15, 2019?
iii Is the applicant entitled to $1,782.00 for a functional abilities evaluation, proposed by Knead Wellness in a treatment plan dated February 8, 2020?
iv Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
1The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
2Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
3An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
4It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
5The applicant submits that he sustained psychological injuries and chronic pain as a result of the accident.
The applicant did not suffer psychological injuries that warrant removal from the MIG
6I find that the applicant has not provided sufficient evidence to demonstrate that his psychological impairments justify treatment beyond the MIG.
7An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
8In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
9The applicant relies on the OCF-18 psychological pre-screening, of Dr. Mandeep Singh, psychologist, dated November 15, 2019. The applicant submits that he reported to Dr. Singh that he experiences driver and passenger anxiety, as well as feelings of sadness, depression, and low mood. Dr. Singh rendered a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The applicant submits no additional medical evidence, beyond the OCF-18 and I find these submissions to be unsubstantiated by the evidence.
10The respondent relies on the section 44 insurer examination report of Dr. Amena Syed, psychologist, dated January 31, 2020. Dr. Syed opined that the applicant was not suffering from any psychological impairment that would warrant a diagnosis under DSM-5. The respondent also relies on the further assessment of dated February 10, 2022, where Dr. Syed opined that the applicant continued to not meet diagnostic criteria for a psychological impairment, and that there is nothing that will prevent the applicant from achieving maximum recovery if subject to the MIG. Furthermore, during this assessment the applicant self-reported that he felt 0% disabled from a psychological perspective.
11After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG. I was not presented with any medical evidence that the applicant has been referred for a therapy or medication, but rather the applicant confirmed to Dr. Syed that he was ok from a psychological perspective. I am persuaded by the evidence of Dr. Syed over Dr. Singh, as the section 44 assessment was conducted in person, it was not based on the applicant’s self-reporting, and there was a further assessment two years later with the same medical conclusion.
12As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.
The applicant has not established chronic pain warranting removal from the MIG
13I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.
14In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with 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. The pain must be continuous (in that the initial minor injury never fully healed) and 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 from his soft tissue injuries.
15The applicant submits that he should be removed from the MIG as his pain has persisted for months since the accident, and as such demonstrates a reasonable possibility that he suffers from chronic pain syndrome. In support of his chronic and persistent injury claim, the applicant relies on his self-reporting during the section 44 orthopedic surgery examination of Dr. Oleg Safir, orthopedic surgeon, dated March 17, 2020 and further assessment dated February 10, 2022. During the examinations the applicant self-reported 7/10 pain in his left shoulder and leg, sitting and standing tolerance limitations and the inability to perform housekeeping tasks including, cleaning, lawn care, snow removal, or regular sports and fitness activities. I note that the applicant relied on the content he reported but omitted Dr. Safir’s diagnosis.
16The applicant also references the American Medical Association Guides (“AMA Guides”). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six factors. The applicant submitted, but did not provide evidence to demonstrate, that he meets the following five of the six AMA Guides: excessive dependence on others, secondary physical conditioning, withdrawal from social milieu, failure to restore pre-injury function, or the development of psychosocial sequalae.
17The respondent submits that the applicant does not rely on any objective medical evidence to establish chronic pain warranting removal from the MIG. The respondent also relies on the March 17, 2020, and February 10, 2022 examination highlighting that Dr. Safir diagnosis of the applicant was sprains and strains, there was no evidence of any musculoskeletal impairments as a result of the accident. Furthermore, that the applicant confirmed he continued to work 40 hours per week as a driver, with no significant concerns in fulfilling his responsibilities at work, and at the re-assessment the applicant confirmed to feel 0% disabled from a physical perspective. The respondent did not make submissions on the AMA Guides.
18I am persuaded by the submissions of the respondent. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that he suffers from functionally disabling pain. I find that not only has the applicant not been diagnosed with chronic pain syndrome as a result of the accident, but the applicant has also not provided sufficient evidence from medical health care providers, no referrals to specialists, no prescriptions. Furthermore, there is insufficient evidence presented by the applicant of severity, functionality or impairment. Lastly, I am persuaded by the only medical diagnosis submitted, and accept the opinion of Dr. Safir that there is nothing that will prevent the applicant from achieving maximum recovery if subject to the MIG.
19As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident.
20The applicant is not entitled to the disputed treatment plan because I have found the applicant is subject to the MIG and the plan proposes treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
Interest
21Given that there are no overdue payments of benefits, the applicant is not entitled to interest.
ORDER
22The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan in dispute; and
iii. The applicant is not entitled to interest.
Released: March 8, 2024
__________________________
Monica Ciriello
Vice-Chair