Licence Appeal Tribunal

Citation: Muhayidin v. Aviva Insurance Canada, 2024 ONLAT 21-004326/AABS

Licence Appeal Tribunal File Number: 21-004326/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:

Halima Muhayidin

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Denise Junkin, Counsel

For the Respondent: Alicia Edwards, Paralegal

HEARD: In Writing

OVERVIEW

1Halima Muhayidin, the applicant, was involved in an automobile accident on November 19, 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 the respondent, Aviva Insurance Canada, 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 predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to the amount of $3,494.36 for chiropractic services, proposed by Thistledown Rehab in a treatment plan/OCF-18 (“plan”) submitted November 13, 2020 and denied on March 8, 2021?

iii. Is the applicant entitled to the amount of $2,486.00 for chronic pain assessment, proposed by Injury Management Assessments submitted on March 31. 2021 and denied on March 31, 2021?

iv. Is the respondent liable to pay an award under s. 10 of O. 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 demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, nor interest, nor an award is payable.

ANALYSIS

APPLICABILITY OF THE MIG

4I find that the applicant has failed to demonstrate that she should be removed from the MIG.

5Section 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.” The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery of her accident-related minor injuries if she is 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.

6It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. Both the applicant and respondent agree that the MIG limits have been exhausted.

7The applicant submits that her neck, shoulder and back injuries from the accident should be treated outside of the MIG as she suffers accident-related chronic pain with functional impairment. The respondent submits that a diagnosis of chronic pain is not an automatic removal from the MIG.

The applicant has not established chronic pain warranting removal from the MIG

8I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

9In 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 her 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.

10Both parties make submissions based on the American Medical Association Guides (AMA Guides), which state that at least three of the following criteria must be met for a diagnosis:

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 contacts;

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; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

11The AMA Guides’ six criteria for chronic pain were not incorporated into the Schedule; however, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes.

12In support of her claim, the applicant relies on the clinical notes and records (CNRs) of family physician, Dr. Ernest Yousef, who initially assessed the applicant 10 days after the motor vehicle accident. The applicant visited with post-accident complaints in the lower back and lower rib and was referred for x-rays that came back unremarkable.

13The applicant also relies on the chronic pain diagnosis of Dr. Imad Salim Dahmis, physician, dated November 3, 2020, from Releva Chronic Pain Centre, and Dr. Tajedin Getahun, orthopaedic surgeon, dated May 17, 2021.

14Dr. Getahun found that the applicant’s presentation satisfies the AMA Guides, specifically: the applicant continues to use medication two and half year’s post injury, the applicant relies on her daughter to complete household chores, the applicant restricts the range of motion of her left shoulder to avoid pain, the applicant has disengaged from work and socializing.

15The respondent submits, and I agree, that there is no evidence of chronic pain that could be considered more than mere sequelae of the 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.

16The respondent submits that the chronic pain diagnosis makes no reference to the motor vehicle accident, nor do the CNRs of 18 medical appointments between March 2020-September 2022 with Dr. Ayokunle Fagbemigun, walk-in clinic family physician. Dr. Fagbemigun referred the applicant to Dr. Donald McGonigal, orthopaedic specialist.

17Dr. McGonigal completed an orthopaedic surgery assessment dated June 19, 2020, during which the applicant revealed she had not had any difficulty with either shoulder until March 2020, then without accident or injury, both shoulders became uncomfortable. During the assessment the applicant reported no loss of motion, and that she was not taking any medication. Dr. McGonigal found the applicant has evidence of rotator cuff tendonitis in both shoulders, the left being more symptomatic than the right.

18Dr. Shariff Dessouki, physical medicine and rehabilitation physician, completed a section 44 multidisciplinary report dated March 1, 2021. Dr. Dessouki completed an in-person physical examination, file documentation and interview with the applicant. Dr. Dessouki opined that the applicant had soft tissue injuries and that the applicant’s self reported pain is incommensurate with the lack of objective fundings of musculoskeletal impairment.

19I find that chronic pain is more than the mere repetition of pain complaints, but rather chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain. Although the applicant was diagnosed with chronic pain by Dr. Dahmis and Dr. Getahun, I am persuaded by the respondent’s submissions that for chronic pain to be more than just sequelae from soft tissue injuries it must be of such a severity that it causes suffering and distress accompanied by functional impairment or disability. There is a lack of evidence advanced by the applicant to suggest that her injuries were severe enough to cause distress accompanied by functional impairment or disability.

20Specially for the AMA Guides, I note that the applicant did not provide evidence to show reliance on prescription drugs for pain, rather the applicant self-reported to Dr. McGonigal that she was not taking medication. Despite requested by the respondent, the applicant did not complete an in-home occupational therapy assessment or a Disability Certificate (OCF-3) to support her claim that she sustained an impairment that prevents her from engaging in activities of daily living. Furthermore, the CNRs provide no mention of functional limitations, and the applicant has reported being independent with self-care and daily living in the section 44 Multidisciplinary Report.

21I find that a chronic pain diagnosis by itself does not remove the applicant from the MIG. Removal from the MIG requires the applicant to prove that their chronic pain is not merely sequelae of soft tissue injuries, but rather that it is the applicant’s predominate injury that causes functional impairment. I accept that the applicant has tendonitis, but I am not persuaded it is related to the accident. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident.

TREATMENT PLANS

22The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit, which has been exhausted. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

AWARD AND INTEREST

23Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. To be liable for an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. There are no benefits payable, so the applicant is not entitled to an award.

24Similarly, there are no benefits payable, therefore no interest is owing pursuant to s. 51 of the Schedule.

ORDER

25The 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 treatment plans in dispute are not payable; and

iii. The applicant is not entitled to an award or interest.