Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-002942/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:
Mohammad Nasim
Applicant
and
The Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Applicant: Mohammad Nasim, Applicant Arthur Semko, Counsel
For the Respondent: Jason L. Hepburn, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohammad Nasim, the applicant, was involved in an automobile accident on March 21, 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 respondent, The Dominion of Canada General Insurance Company (Travelers), 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 ("MIG") limit?
ii. Is the applicant entitled to $78.41 ($1,278.41 less $1,200.00 approved) for physiotherapy services, proposed by Stoney Creek Physiotherapy in a treatment plan/OCF-18 ("plan") submitted July 19, 2021, and denied July 21, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the totality of the evidence before me, and for the reasons that follow, I find that:
i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to the disputed treatment plan.
iii. The applicant is not entitled to interest.
PROCEDURAL ISSUE
4The respondent submits that the Tribunal has no jurisdiction to decide the applicability of the MIG as a standalone issue and that the treatment plan at issue in this application was partially approved up to the MIG limit. Therefore, the respondent submits that there is no other treatment plan at issue, making MIG the only issue in dispute.
5The applicant submits that based on the evidence, he does not fall within the MIG, and that MIG is not an issue in dispute but rather an affirmative defence available to the respondent. He submits that there is no jurisdictional issue and that he is entitled to remainder of the treatment plan being sought.
6The Tribunal does not have jurisdiction to deal with the issue of the MIG as a standalone issue unless a medical or rehabilitation benefit is tied to it pursuant to sections 15 or 16 of the Schedule.
7In this case, while the treatment plan at issue has been partially approved, there is still an amount that was denied which would take the applicant over the MIG and therefore MIG is not the only issue. I find that the Tribunal therefore has jurisdiction to address this application.
ANALYSIS
The applicant remains within the MIG
8The applicant was denied the balance of the treatment plan on the basis that he sustained predominantly minor injuries that are treatable within the MIG.
9The applicant submits that he suffers from non-minor injuries and chronic pain syndrome that warrants removal from the MIG.
10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 is the insured sustains impairment that are predominantly a minor injury. Section 3(1) defined a "minor injury" as "one of more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
11The applicant bears the onus of establishing, on a balance of probabilities, his entitlement to coverage beyond the $3,500.00 cap for minor injuries.
12The applicant submits that, as a result of the accident, he suffers from a chronic pain condition that warrants removal from the MIG. He relies on the following:
i. Clinical notes and records of Dr. Grewal, the applicant's family physician
ii. X-ray of pelvis and hips report dated July 7, 2021
iii. A referral to a pain management clinic, Neupath Centre for Pain & Spine
iv. A referral and correspondence from Dr. Grewal to Dr. Ghouse, neurologist
v. A chronic pain report from Dr. Sediq
vi. An affidavit from the applicant.
13The respondent relies on the following documents:
i. A s. 44 functional abilities report from Dr. John Ikonomakis, chiropractor
ii. A s. 44 physiatry assessment report
iii. A physiatry examination report from Dr. Shariff Dessouki, physiatrist and additional document review report
iv. A psychology report from Dr. James Murray.
The applicant's injuries are minor as defined under the Schedule
14I find that the applicant's injuries are within the definition of "minor injury" set out in s. 3(1) of the Schedule which would remove him from the MIG.
15The applicant submits that his pre-existing back, neck and knee injuries leading to his chronic pain were exacerbated by or, in the alternative, caused directly by the accident. He relies on the family doctor's clinical notes of Dr. Grewal that mention the applicant reporting that the discomfort in his left hip was "as if it was broken" and a referral to Neupath Centre for Pain & Spine where he described that the pain had existed since the accident.
16The respondent submits that the report of Dr. Dessouki concluded that the applicant suffered minor injuries as defined by the Schedule and that he had reached maximum medical recovery. Notes from Dr. Dessouki also indicate that the applicant was continuing to work, that he was independent with his personal routine and that his wife performed household duties as she did prior to the accident.
17I find that although the applicant has suffered from pain, I agree with the report from Dr. Dessouki that clearly outlines that the physical injuries fall within the MIG.
18The applicant submits that he fell on ice approximately one year after the motor vehicle accident because his knee "gave way" and that there is no evidence he had any knee problem beforehand. Notes from Dr. Ghouse, neurologist, describe that the applicant has had previous reconstructive surgeries on his shoulders, but that since the accident he had been complaining of shoulder, wrist, and thumb pain.
19The respondent submits that this fall was not reported to the applicant's family doctor for two months, that there is no evidence it is linked to the motor vehicle accident and that the applicant had not reported any complaints in regard to the accident for five months in that period. The respondent states that Dr. Ghouse's report did not mention the motor vehicle accident.
20I agree with the respondent and find that Dr. Ghouse only referred to the fall on the ice and not to the motor vehicle accident and I have no evidence to conclude there is a link between the two.
21The applicant relies on the notes of Dr. Aimal Sediq, pain specialist, who indicates that the applicant has a chronic history of neck and low back pain due to the accident and that pain is affecting his functioning and social life. The respondent argues that Dr. Sediq makes no mention of the fall on the ice but mentions that the applicant was capable of looking after his activities of daily living and that he is back at work. I am not convinced that these clinical notes, which are more focused on pain management than diagnosis, help me determine that the applicant's injuries fall outside of the MIG.
22I find that the applicant has not satisfied his onus and proven that his injuries warrant removal from the MIG, and that they are considered minor.
The applicant does not suffer from chronic pain syndrome that removes him from the MIG
23I find that the applicant has failed to satisfy his onus that he has chronic pain syndrome or that he suffers from chronic pain with functional impairment as a result of the accident and is therefore not removed from the MIG.
24The applicant does not have an official diagnosis from a medical professional concluding that he suffers from chronic pain.
25The applicant submits that he meets the criteria for chronic pain syndrome as he scores positive for all of the six criteria outlined in the American Medical Association's ("AMA") Guides to Evaluation of permanent Impairment, 6th Edition for chronic pain.
26The Tribunal has adopted the AMA Guides as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides states that at least three of the following six criteria must be present for a diagnosis of chronic pain to be established:
(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 need; and
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
27Regarding Criteria 1 and the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substance, the applicant submits that he uses several prescription drugs and therefore meets the criteria. The respondent submits that no medical opinion or advice supports this. I agree with the respondent and find there is no persuasive evidence provided to support that drugs were used in excess as per the criteria.
28Regarding Criteria 2 relating to excessive dependence of health care providers, spouse or family, the applicant submits that he attended physical rehabilitation treatment when it was available, and has followed up with his family doctor, his neurologist and his chronic pain specialist. He also relies on the physiatry assessment of Dr. Dessouki where it was noted that his wife has assumed most of the responsibilities in the house since the accident. The respondent submits that no evidence was provided to demonstrate that the applicant attended physical rehabilitation continuously, that there was still a portion of money within the MIG that was not incurred and that no additional OCF-18s were provided. I agree with the respondent that there was no persuasive evidence to support the conclusion that Criteria 2 has been met. There is no persuasive evidence to support that there was excessive dependence on health care providers, but on the other hand, there is evidence to show that the applicant's wife assumed most of the responsibilities in the house before and after the accident. I find that the applicant has not met the threshold of excessive dependence on his wife or health care providers.
29Criteria 3 relates to secondary physical conditioning due to disuse and/or fear avoidance of physical activity due to pain and the applicant states that since the accident he has significantly decreased his level of activity resulting in deconditioning and aggravation of his impairments. The respondent argues that no evidence has been provided to support this. I agree with the respondent that there is no persuasive medical evidence or report that Criteria 3 has been met and that self-reporting is not sufficient to prove it.
30The applicant argues that he has experienced a substantial and continuous inability to perform housekeeping tasks and recreational activities since the accident and therefore meeting Criteria 4 regarding withdrawal from social milieu, including work, or other social contexts as well as Criteria 5 relating to a 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. The respondent submits that there is no evidence to support this and to the contrary, the applicant continued his work as an Uber driver, and told Dr. Sediq that he was capable of looking after his activities of daily living. I agree with the respondent that no compelling evidence was provided to support that Criteria 4 and/or 5 were met.
31Criteria 6 relates to the development of psychosocial sequelae after the initial incident, including anxiety, fear, avoidance, depression, on nonorganic illness behaviours. The applicant relies on the chronic pain report of Dr. Sediq where he scored 45/52 on the pain catastrophizing scale, 15/21 for anxiety, and 13/21 for depression to submit he meets this criteria. The respondent submits that Dr. Sediq noted the applicant's mood as stable with no depression nor anxiety except when his pain was intense. The respondent also relies on the psychological assessment by Dr. Murray who concluded that there was no evidence to suggest he met the DSM-5 diagnosis. I agree with the respondent that there is no persuasive medical evidence supporting Criteria 6 being met in terms of sequelae.
32I am not persuaded by the applicant's medical evidence or submissions that he meets three out of the six criteria for establishing chronic pain.
33I conclude that the applicant has not proven on a balance of possibilities that he suffers from chronic pain syndrome or chronic pain with functional impairment which would warrant removal from the MIG.
The applicant is not entitled to the balance remaining on the physiotherapy treatment plan
34Having determined that the applicant's injuries fall within the MIG, and that the MIG limit has been exhausted, the applicant is not entitled to the disputed treatment plan because it proposes treatment outside of the $3,500.00 funding limit for a minor injury.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
36For the reasons outlined above, I find that:
i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to the disputed treatment plan.
iii. The applicant is not entitled to interest.
37The application is dismissed.
Released: May 10, 2024
Geneviève Painchaud
Vice-Chair