Citation: Tecle v. Intact Insurance, 2024 ONLAT 22-005094/AABS

Licence Appeal Tribunal File Number: 22-005094/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:

Daniel Tecle

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Emily Wilson, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Daniel Tecle, the applicant, was involved in an automobile accident on December 19, 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, Intact Insurance Company, 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 an income replacement benefit in the amount of $400.00 per week from September 15, 2020 to September 20, 2021?

iii. Is the applicant entitled to $3,020.36 for chiropractic services, proposed by Life Point Medical in a treatment plan/OCF-18 (“plan”) submitted October 22, 2020 and denied October 23, 2020?

iv. Is the applicant entitled to $2,526.68 for a chronic pain assessment, proposed by Q Medical in a plan submitted January 8, 2021 and denied January 22, 2021?

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

RESULT

3The applicant failed to prove that his injuries are not minor and could not be treated within the Minor Injury Guideline (“MIG”) limits.

4The applicant has not proven that he satisfies the criteria for entitlement to any further income replacement benefit (“IRB”).

5Since the applicant’s injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the MIG are not reasonable and necessary.

6Since no benefits are payable, no interest is payable.

ANALYSIS

The applicant has not demonstrated that his pre-existing physical injuries require treatment outside of the MIG to recover

7The applicant did not provide objective medical evidence that his pre-existing musculoskeletal issues would preclude recovery if he were kept within the confines of the MIG.

8Section 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.”

9An 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 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.

10The applicant submits that he had pre-accident musculoskeletal injuries that were exacerbated by the accident. In support of this submission, the applicant points to the clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Lucas Tai, from July 29, 2019 where the applicant complained of back and neck pain and was prescribed anti-inflammatory medication.

11The applicant submits that exacerbation of his pre-existing back and neck injuries warrant removal from the confines of the MIG to obtain treatment requested in the disputed treatment plans.

12The applicant submits that within a week of the accident he sought medical attention at a walk-in clinic, where he was prescribed anti-inflammatory medication and was advised to commence rehabilitation therapy. The applicant submits that he initiated his therapy within a few weeks and attended weekly sessions until March of 2020.

13In support of the applicant’s submissions that his musculoskeletal injuries warrant his removal from the MIG, the applicant points to his consistent attendance to therapy and his ongoing pain complaints to assessors and to treating practitioners.

14The applicant also submits that the examination conducted by Dr. Marko Pavacic, chiropractor, on October 22, 2020 indicates that the applicant suffered from restrictions in spinal range of motion, joint dysfunction and tenderness in multiple muscle groups, almost one year post-accident. The applicant argues that Dr. Pavacic’s findings warrant removal from the confines of the MIG to obtain the requested treatment.

15The respondent submits that the applicant’s physical injuries were predominantly minor as defined by the Schedule. The respondent submits that the applicant returned to work and did not seek any medical attention until four months after the accident when he claimed to have back and neck pain. When he saw a general practitioner, Dr. Anthony Gobran, at a walk-in clinic on April 8, 2021, the respondent submits that no diagnostics were ordered, no medications were prescribed and no specialist referrals were made. The respondent argues that the applicant has provided no evidence that the applicant sought medical attention within a week of the accident, as claimed by the applicant.

16The respondent conducted an insurer’s examination (“IE”) by Dr. Seung-Jun Lee, general practitioner, on August 28, 2020. The purpose of the IE was to determine whether the applicant was entitled to further IRBs. The applicant submits that Dr. Lee did not see any indicators of ongoing accident-related musculoskeletal injury or impairment at the time of the IE. On November 16, 2020, Dr. Lee conducted a review of the applicant’s medical records to assess whether the applicant’s injuries would be considered predominantly minor as defined by the Schedule. Dr. Lee opined that the applicant’s injuries were minor and treatable within the MIG.

17The respondent requested an in-person IE by Dr. Eric Silver, general practitioner, on March 17, 2021, to assess specifically whether the applicant’s pre-existing conditions would affect his accident-related recovery, warranting removal from the MIG. In his report, Dr. Silver opined that although the applicant had pre-existing conditions, there was no evidence of an ongoing impairment that would affect the applicant’s post-accident recovery.

18The respondent argues that the applicant has provided insufficient evidence that his injuries warrant removal from the MIG. The respondent submits that the applicant has produced neither an OHIP Summary nor CNRs from the applicant’s treating physiotherapy clinic, both ordered in the Case Conference Report and Order dated February 25, 2023. The respondent argues that the applicant has consulted a physician only twice since the accident in 2019, indicating that the injuries are minor as defined by the Schedule.

19I find that the opinions of Dr. Lee and Dr. Silver are persuasive in that they are consistent with the medical records provided by the applicant. I note that the applicant has not provided an OHIP summary nor CNRs from the applicant’s treating physiotherapist to substantiate his claims that he sought medical attention immediately after the accident or that he attended his physiotherapy sessions.

20I find that the applicant has not met his burden of providing medical evidence that his condition precludes recovery if he is kept within the confines of the MIG. I find that the applicant has not provided corroborating medical evidence from his treating physicians or other practitioners that he requires treatment outside of the MIG limit.

21For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related physical injuries, nor exacerbation of pre-existing physical impairments, that could not be treated within the MIG.

The applicant’s complaints of chronic pain do not place him outside of the MIG

22The applicant did not provide objective medical evidence that he had a chronic pain condition with functional impairment that would warrant his removal from the MIG.

23As stated earlier, the Tribunal has 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.

24The applicant submits that he suffers from constant physical pain that intensified after the accident and made him unable to continue his physically demanding work as a plumber’s apprentice. The applicant argues that his consistent attendance to treatment and continuous complaints to assessors and health practitioners are compelling evidence of chronic pain. The applicant argues further that chronic pain impacts every facet of his life, and that a chronic pain assessment, denied by the respondent, would support the removal of the applicant from the MIG.

25The respondent argues that the applicant’s medical records, from his two post-accident visits to a walk-in clinic, make no mention of the term chronic pain and this claim should be dismissed. The respondent argues that the applicant’s claim of chronic pain is based solely on the applicant’s self-reports and are not supported by any medical evidence.

26I find that that the applicant has not provided corroborating medical evidence of the criteria normally associated with a chronic pain condition, including a long-term use of prescription drugs, excessive dependence on health care providers, physical deconditioning and/or withdrawal from work, recreational or other social contacts.

27I find that the applicant failed to provide objective, corroborating medical evidence that would indicate that the applicant suffered from a chronic pain condition with functional impairment, as required by s. 18(2). While I accept that a formal diagnosis of chronic pain is not an absolute requirement, I find that the applicant has not met the burden of proof.

28For these reasons, I find on a balance of probabilities that the applicant did not suffer a chronic pain condition that warrants removal from the MIG.

The applicant’s psychological injuries do not place him outside of the MIG

29The applicant was born on October 18, 1992, and was 27 years old at the time of the accident. The applicant submits that he had a history of neurological and psychological issues as early as September 2016, more than three years pre-accident. At that time, the applicant received six sessions of speech-language pathology services to treat his reported depression, low motivation, cognitive difficulties, stress and anxiety.

30On February 17, 2017 the applicant saw his family physician, Dr. Tai, with complaints of headaches. Dr. Tai referred the applicant for a neuropsychological assessment at the University Health Network Toronto Rehabilitation Institute (“UHN”). The applicant was assessed by UHN from September 5, 2017 to October 2, 2017. In the UHN’s report dated November 7, 2017, the applicant was diagnosed with a Mild Neurocognitive Disorder due to a traumatic brain injury.

31The applicant submits that the OCF-18 submitted by Dr. Pavacic, the applicant’s treating chiropractor, recommends holistic treatment of the applicant’s fear avoidance behaviours and psychological distress.

32The respondent submits that are no psychological treatment plans in dispute and that none of the applicant’s post-accident CNRs, from his two visits to the walk-in clinic, indicate any psychological condition or complaint.

33I find that the applicant failed to provide objective, corroborating medical evidence that would indicate that the applicant suffered psychological injuries that would prevent maximal medical recovery if treated within the MIG limits, as required by s. 18(2). I find that the applicant has not met the burden of proof.

34I find on a balance of probabilities that the applicant did not suffer a psychological injury that warrants removal from the MIG.

The applicant is not eligible for any further income replacement benefits

35The applicant did not meet the burden of proving that he is entitled to further IRBs beyond those already paid.

36To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

37The applicant was employed as a plumber’s apprentice by Total Plumbing & Mechanical Inc. from August 30, 2019 to December 27, 2019. The accident occurred while the applicant was a passenger in a van belonging to his employer. Following the accident on December 19, 2019, the applicant was paid IRBs totalling $13,886.63 from January 6, 2020 to September 13, 2020. In dispute is whether the applicant is entitled to further IRBs at a rate of $400.00 per week from September 15, 2020 to September 20, 2021.

38The applicant submits that the job of apprentice plumber is physically demanding, requiring that the applicant lift weights of 50 to 75 lbs, which could exacerbate his musculoskeletal symptoms. The applicant submits that he struggled to execute his job duties which led to his termination 3 to 4 days post-accident. The applicant argues that his termination from his employment forms a compelling basis for his claim for further IRBs.

39In support of his claim for further IRBs, the applicant submits that the results of the musculoskeletal IE conducted by Dr. Lee on August 28, 2020 were not consistent with the applicant’s subjective reports of neck and lower back pain. The applicant argues that the Dr. Lee’s findings should be disregarded.

40The applicant argues further that the physical demands analysis (“PDA”) conducted by Dr. David Hytman, general practitioner, in an IE on September 14, 2020, demonstrates a direct correlation between the accident and the applicant’s decreased job performance.

41Lastly, the applicant submits that the functional abilities evaluation (“FAE”), also conducted by Dr. Hytman on September 14, 2020, further revealed a range of functional restrictions and diminished strength.

42The respondent submits that the applicant was able, and did, perform the tasks of his employment post-accident without accommodation. Specifically, the respondent notes that a letter from Total Plumbing & Mechanical states that the applicant “continued to work up until the day he was terminated with no request of modified work and no visible signs of injury.” The respondent notes further that the letter indicates that the applicant was terminated on December 27, 2019 following a dispute with another employee, unrelated to the accident.

43The respondent argues that the applicant relies heavily on the IE reports in his claim for IRBs, yet the IEs consistently found no impairments or inability to work at the applicant’s pre-accident employment.

44I find that the applicant has not provided compelling medical evidence that he is unable to perform the tasks of his pre-accident employment. I find that the applicant’s subjective reports of neck and lower back pain are inconsistent with the applicant’s lack of visits to a doctor and the clinical notes and records of the post-accident visits to the walk-in clinic. I find that the applicant’s complaints are also inconsistent with the reports of multiple IE assessors (including the PDA and FAE). Lastly, I find that the applicant’s complaints are inconsistent with the behaviour observed by the applicant’s former employer.

45For the reasons above, I find on a balance of probabilities that the applicant has not met the burden of proving that he suffered a substantial inability to perform the essential tasks of his pre-accident employment and he is not entitled to any IRBs beyond those already paid.

The applicant is not entitled to the funding for the proposed treatment plans

46To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

47On each of the OCF-18s in dispute, the applicant indicated that his impairments are not minor and sought treatment outside of the MIG.

48Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary. I note that the MIG limits have not been exhausted. In its written submissions, the respondent indicated that there is $666.94 remaining for treatment within the $3,500.00 MIG limit. In light of my decision, the applicant may apply for treatment within the MIG limits.

49Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary.

Interest is not payable

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

ORDER

51The applicant remains in the MIG.

52The applicant is not entitled to further IRBs.

53The proposed treatment plans are not payable.

54Since no benefits are payable, no interest is payable.