Licence Appeal Tribunal File Number: 21-015008/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:
Sanyamdeep Singh
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Nishant Nayak
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Maryam Younes, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
BACKGROUND
1Sanyamdeep Singh (“the applicant”) was involved in an automobile accident on October 17, 2020 and sought benefits from BelairDirect (“the respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the applicant’s claims, because it determined that all of the applicant’s injuries fit the definition of a “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, are subject to the Minor Injury Guideline (“MIG”). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3The following issues are to be decided:
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 of the MIG? (Note: The parties agree the MIG has been all but exhausted, as there remains only $41.00 within the limit.)
Is the applicant entitled to $2,350.00 for a neurological assessment, proposed by Ontario Independent Assessment Centre Inc., in a treatment plan/OCF-18 dated August 6, 2021?
Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Ontario Independent Assessment Centre Inc., in a treatment plan/OCF-18 dated June 23, 2021?
Is the applicant entitled to $2,441.07 for physiotherapy services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 dated August 4, 2021?
Is the applicant entitled to $2,773.69 for physiotherapy services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 dated May 5, 2021?
Is the applicant entitled to $1,995.33 for psychological services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 dated March 29, 2021?
Is the applicant entitled to $3,058.75 for physiotherapy services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 dated March 3, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is also not entitled to interest and the application is dismissed.
ANALYSIS
The Minor Injury Guideline (MIG)
5The 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.”
6Section 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.
7An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Removal from the MIG can also be warranted if there is documentation of a pre-existing condition combined with compelling medical evidence stating that this condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
8The burden is on the applicant to show, on a balance of probabilities, that his injuries are outside of the MIG. In this instance, the applicant submits that he has developed chronic pain with functional limitation, neurological symptoms, and psychological symptoms as a direct result of the accident that warrant his removal from the MIG.
9The respondent counters that the applicant has failed to discharge his burden of burden of proving that his accident-related injuries fall outside of the MIG.
The applicant remains within the MIG
10I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from physical injuries that are not predominantly minor in nature as defined in the Schedule. He has also failed to substantiate claims that he suffers from chronic pain that affects his functionality, a psychological impairment, or a neurological symptom that. Accordingly, he remains within the MIG and is subject to its $3,500.00 limit on treatment.
Psychological impairment and concussion
11The applicant claims he suffers from psychological symptoms and a concussion, both of which would warrant his removal from the MIG. For the reasons below, I do not accept that the applicant suffers from these impairments.
12The applicant relies on an OCF-18 prepared by Dr. Konstantinos Papazoglou, psychologist, dated March 29, 2021, and a Disability Certificate/OCF-3 prepared by Dr. Mandeep Braich, chiropractor, dated October 28, 2020.
13With regard to his claims of psychological impairment, the applicant relies largely on the OCF-18. In the OCF-18, Dr. Papazoglou states that the applicant reported symptoms such as disrupted sleep, feeling exhausted, tired, and fatigued during the day, anxiety, reduced energy, pain to his neck and right shoulder, and headache. However, it is well established that an OCF-18 is not medical evidence. These self reported symptoms are not supported by objective testing or evidence. Furthermore, MCI The Doctor’s Office where the applicant was seen post accident has never diagnosed him with any psychological conditions or made any referrals to a psychologist or a psychological assessment following the accident. The clinical notes and records (“CNRs”) from MCI The Doctor’s Office do not reflect a single conversation about psychological impairment or difficulties.
14There is also minimal support for the applicant’s claims of psychological impairment in the OCF-3. In this document, Dr. Braich diagnosed the applicant with whiplash/ WAD 2 and problems related to other psychological circumstance and recommended a psychological assessment. However, the diagnosis of psychological injuries here holds no weight because such injuries fall outside the scope of a chiropractor’s practice to diagnose.
15Aside from the OCF-18 and OCF-3, the applicant has not provided any evidence that he suffers from a psychological condition as a result of the subject accident.
16I am also not persuaded by the applicant’s argument that he may have sustained a concussion and developed post-concussion syndrome as a result of the accident. The applicant did not attend the hospital on the day of the accident. The applicant visited MCI The Doctor’s Office three days after the accident and the medical note for that day reveals neck strain and musculoskeletal low back pain, but there was no mention of concussion. The CNRs of the MCI The Doctor’s Office do not include any reference to a concussion as a result of the accident, nor any potential reference to post-concussion syndrome. Lastly, the applicant has not provided any diagnostic imaging to support his claim that he suffered a concussion.
17Accordingly, I find that the applicant has failed to prove on a balance of probabilities that he sustained a psychological impairment or a concussion that would warrant his removal from the MIG.
Chronic Pain
18I find that the applicant’s claims to suffer from chronic pain as a result of the accident have not been supported by medical evidence. A predominance of the objective medical evidence demonstrates that the applicant suffered minor injuries as a result of the accident, without sufficient indication that these injuries progressed to chronic pain with a functional impairment.
19The applicant submits that he has sustained accident-related chronic pain in his neck, right shoulder, and lower back. However, I find that the applicant’s lingering pains are sequalae of his soft-tissue injuries. Further, while the applicant reports lingering neck, right shoulder and lower back pain, these symptoms are not evidence of a chronic pain condition. Following the accident, the applicant returned to work the day following the accident at Mac-Tec Woodworking, a physically demanding job and has continued to work there full-time doing wood working Monday to Friday and sometimes Saturdays from 7:30 a.m. to 5:00 p.m. without modified duties. The CNRs of MCI The Doctor’s Office do not advise that the applicant is experiencing physical limitations, difficulties with work, or medical notes necessitating time off due to accident-related injuries such functionality contradicts the applicant’s claims of a chronic pain condition. Likewise, there is no evidence to show that the lingering pain causes the applicant to experience any functional impairment.
20Clinical notes and records and medical diagnostic imaging also do not support the applicant’s claims of experiencing chronic pain with a functional impairment. In the OCF-3, Dr. Braich noted the applicant’s recovery to be 9-12 weeks in duration. The CNRs of MCI The Doctor’s Office do not establish that the applicant suffered a functional impairment due to pain, nor do they include a diagnosis of chronic pain. Diagnostic imaging tests were all normal, including a right shoulder ultrasound on February 9, 2021; a right shoulder x-ray, right humerus x-ray, left hand x-ray, and right elbow x-ray on February 9, 2021; and x-ray of the cervical and thoracic spine and bilateral shoulders on July 9, 2021.
21The applicant further submitted that he has met at least three criteria of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
(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.
22I include the applicant’s position on the application of the AMA Guides criteria verbatim from the applicant’s submissions:
The applicant submits Use of prescription drugs beyond the recommended duration (i), Excessive dependence on health care providers (ii), Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain (iii), In addition, he has not been physically restored to pre-accident condition (v) and there are clear indication that that he has developed psychosocial sequelae after the initial incident (vi). Therefore, the applicant’s injuries and limitations satisfy the AMA’s guidelines for Chronic Pain Injuries.
23As written submissions are not evidence, I cannot give any weight to these submissions in my decision. The applicant has simply stated that the criteria apply but has provided no evidentiary or documentary support for these statements. He has not directed me to evidence in the CNRs or elsewhere in the medical evidence that support his claim to meeting three of the six AMA Guides criteria.
24I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain.
25As I result of the accident, I find that the applicant’s injuries are within the definition of the MIG.
Are the treatment and assessment plans reasonable and necessary?
26As I have found that the applicant sustained a predominantly minor injury as a result of the accident, he is subject to the MIG and its $3,500.00 funding limit on treatment. As the MIG has been functionally exhausted, an analysis on whether the treatment and assessment plans in dispute are reasonable and necessary is unnecessary.
Interest
27As there are no benefits owing, no interest is payable.
ORDER
28The applicant sustained a predominantly minor injury as a result of the subject accident and remains within the MIG.
29The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside the MIG and beyond the funding limit.
30No interest is payable.
31The application is dismissed.
Released: January 23, 2024
Nishant Nayak
Adjudicator