Licence Appeal Tribunal File Number: 22-002147/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Corey Bow
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Michael Adamek, Counsel
For the Respondent:
Keisha De Coteau-Nedd, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Corey Bow, (the “applicant”), was involved in an automobile accident on January 28, 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 Economical 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:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”)?
ii. Is the applicant entitled to physiotherapy in the amount of $3,225.76, proposed by Apollo Physiotherapy Services in a treatment plan (the “OCF-18”) submitted on June 8, 2021, and denied on June 15, 2021?
RESULT
3The applicant remains in the MIG and is not entitled to the disputed OCF-18.
ANALYSIS
The applicant has not demonstrated he should be removed from the MIG
4I am not convinced the applicant has met his onus to show removal from the MIG is warranted.
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 he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has 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 he 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. In all cases, the burden of proof lies with the applicant.
6For this matter, the applicant says he should be removed from the MIG because of chronic pain. The Tribunal has consistently held that for chronic pain to be found to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.
Submissions of the parties
7The applicant submits he was diagnosed with chronic pain. The applicant points to three specialist referrals for his pain, and argues that he meets the three-part test—his pain is significant and constant, his pain persists beyond normal healing times, and his pain causes functional impairment—adopted by the Tribunal in P.M. V Aviva General Insurance, 2020 ONLAT 19-002717/AABS. The applicant relies on the clinical notes and records of Dr. Luc Lapointe (family physician) and Dr. Anthony Lentini (physiatrist), as well as the OCF-3 completed by Ms. Jagruti Asudani (physiotherapist ) and the treatment records of Apollo Physical Therapy Services (“Apollo”).
8The respondent submits the applicant sustained only minor injuries as a result of the accident, and that he stopped making any accident-related complaints to his family physician within 10 months of the accident. The respondent argues that Dr. Lapointe did not diagnose chronic pain syndrome. The respondent adds that the applicant returned to his job after the accident, and that his pain has not adversely affected his ability to carry out activities of daily living. The respondent relies on the Insurer’s Examinations (the “IEs”) of Dr. Michael Aiello (physician) and Mr. Eric Pot (kinesiologist).
9The submissions of both parties speak to the chronic pain criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). The applicant submits he meets the six criteria and the respondent argues that the applicant has provided no evidence to show he satisfies any of the criteria. While not binding on the Tribunal, I find the Guides have been adopted as a useful interpretive tool for assessing chronic pain where a diagnosis of chronic pain syndrome has not been made, and that the most recent version of the Guides (i.e., 6th edition, 2008) require that three of the following six criteria must be met to qualify as chronic pain:
i. Use of prescription drugs beyond 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 or fear-avoidance