Licence Appeal Tribunal File Number: 21-014948/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:
Dragan Jankovic
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Zoran Samac, Counsel
For the Respondent:
Joshua Edmunds, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dragan Jankovic, the applicant, was involved in an automobile accident on August 23, 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, TD General 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 (“MIG”)?
ii. Is the applicant entitled to $2,933.06 for chiropractic services, proposed by Surla Chiropractic and Rehab in a treatment plan (“OCF-18”) submitted August 13, 2020?
iii. Is the applicant entitled to $2,707.44 for chiropractic services, proposed by Dr. Surla in an OCF-18 submitted April 5, 2022?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 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:
i. The applicant has not established that his accident-related impairments warrant removal from the MIG.
ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, once incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
iii. The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
5An 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 from any accident-related minor injury 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.
6The applicant submits that he should be removed from the MIG on the grounds of pre-existing injury and chronic pain.
The applicant has not established pre-existing impairments that warrant removal from the MIG
7The applicant submits that as a result of the accident, he sustained injuries to his neck, shoulders (particularly the left), left elbow, low back and right knee. He further argues that the accident aggravated pre-existing pain and stiffness in his left shoulder, lower back and neck. Specifically, the applicant submits that he suffered from a pre-accident neck impairment, citing a May 7, 2016 MRI which found mild degenerative changes in the cervical spine at C5-C6. He argues that the accident has aggravated this injury causing radiating pain from his neck, down the left side of his arm.
8The applicant relies on a March 13, 2023 report from his treating chiropractor Dr. Surla. Dr. Surla reported that more that three and a half years post-accident, the applicant continued to suffer marked restrictions in his ranges of motion (“ROM”) in his neck, shoulders, back, left elbow and left knee. Dr. Surla further found that the applicant’s pre-existing issues with his neck and shoulder rendered him “particularly vulnerable” to the effects of the subject accident.
9The respondent disputes that the applicant suffered from a pre-existing injury that would limit his ability to achieve maximal recovery within the MIG. It argues that while he had been diagnosed with myofascial neck pain with secondary paravertebral sprain/strain in April 2018, he was asymptomatic at the time of the accident. It relies on two physiatry insurer’s examination (“IE”) reports dated February 17, 2021 and July 6, 2022 to argue that the applicant’s injuries remain within the MIG.
10The respondent further submits that the applicant has failed to provide medical evidence in support of his claim and that it is well established that submissions do not themselves constitute evidence, relying on 16-003519/AABS v State Farm Mutual Automobile Insurance, 2018 CanLII 2307 (ON LAT).
11I find that the applicant has not established that his pre-existing impairments warrant removal from the MIG. The applicant has satisfied me that he suffered from a pre-existing condition documented by a health practitioner prior to the accident. In April 2018 the applicant had been diagnosed with myofascial neck pain with secondary paravertebral sprain/strain and diagnostic imaging of the cervical spine showed mild degenerative changes at C5-6 where a disc protrusion resulted in mild stenosis.
12However, the applicant has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that these pre-existing injuries impacted on his ability to achieve maximum medical recovery under the MIG.
13On this point the applicant relies almost exclusively on the March 13, 2023 report from Dr. Surla. However, the report simply states that the applicant’s pre-accident neck and shoulder impairments left him “particularly vulnerable” to the effects of the accident. The applicant further references the clinical notes and records (“CNRs”) of Dr. Surla’s chiropractic clinic. However, these CNRs do not contain any detail as to the applicant’s specific impairments, reported symptoms or progress.
14No additional medical evidence or opinion has been provided by the applicant to support his position that he is precluded from recovering within the MIG. I agree with the respondent that the hospital records do not indicate that the applicant went to the hospital or reported any injuries at the time of the accident. Further the CNRs of his family physicians Dr. Cusimano and Dr. Timarac do not show that the applicant was at any point assessed by his doctors for accident-related impairments nor did he report ongoing symptoms as a result of the accident. The applicant does not direct me to any CNR entries where the accident was discussed with his physicians. While the applicant has included post-accident diagnostic imaging, there is no corresponding CNR entry where the reason for the referral was provided or where his family physician discusses the results.
15I note that the applicant reported to the respondent’s IE assessors that he had gone to his family physician’s office the day of the accident and that he continued to follow-up with his doctor as needed. However, the applicant has not directed me to any corresponding CNR entry where the accident was discussed with his doctor. Further, the respondent’s physiatry IE assessor Dr. Berbrayer reviewed the pre-and post- accident diagnostic imaging and concluded in his July 6, 2022 report that the applicant did not suffer from a pre-existing medical condition that prevented him from achieving maximal recovery of his accident-related impairments if he was subject to the MIG. Rather, Dr. Berbrayer diagnosed the applicant with sprain and strain-type injuries.
16When comparing the IE report of Dr. Berbrayer to the treatment report of Dr. Surla, I prefer Dr. Berbrayer’s assessment. The respondent’s IE assessor reviewed pre and post accident diagnostic imaging when coming to his determination. In contrast, the applicant’s chiropractor did not specify if diagnostic imaging was reviewed and provided a singular general reference to “preexisting issues with his neck and shoulder”. I find that the applicant has not provided sufficient medical evidence to support his claim of pre-existing impairments warranting removal from the MIG.
The applicant has not established accident-related chronic pain
17The applicant further submits that he suffers from chronic pain as a result of the accident. He relies on Dr. Surla’s determination in his March 2023 report that he suffers from daily back and neck pain, left shoulder pain radiating down his arm and bilateral sciatica down both legs. Dr. Surla further found that the applicant’s “condition is chronic and permanent” and that as a result of his pain, the applicant had restricted his hours at work and was forced to lead a very sedentary lifestyle.
18I agree with the respondent that the applicant has not led sufficient medical evidence to establish accident-related chronic pain.
19The CNRs of his family physician and hospital records do not refer to any ongoing pain complaints or accident-related symptoms. The applicant has not led any evidence that he was prescribed pain medication as a result of the accident, or that he had been diagnosed with chronic pain by a medical practitioner. I agree with the respondent that in his report, Dr. Surla did not render a diagnosis of chronic pain and that such a diagnosis would be outside his scope of practice as a chiropractor.
20Although Dr. Surla noted the applicant’s reports of limited work hours and functional restrictions at home, I agree with the respondent that these were based only on the applicant’s self-reports. The applicant has not provided any employment evidence to substantiate reduced work hours. The CNRs of the applicant’s family physicians and hospital records further do not note any functional restrictions. Finally the applicant has not provided any submissions on whether he meets the criteria for assessing chronic pain outlined under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. As such, I find that the applicant has failed to establish accident-related chronic pain.
21As I have found the applicant to be within the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans in dispute.
22In its submissions, the respondent confirmed that the applicant has not exhausted the MIG limit of $3,500.00. Pursuant to s. 40(8) of the Schedule, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary once they are incurred. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
Award
23Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.
24The applicant has not provided any specific submissions as to why an award is warranted. Further, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. Accordingly, the applicant’s request for an award is denied.
ORDER
25I find that:
i. The applicant has failed to establish that his accident-related impairments warrant removal from the MIG.
ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, once they are incurred. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
iii. The applicant is not entitled to an award.
iv. The application is dismissed.
Released: May 23, 2024
Ulana Pahuta
Adjudicator