Licence Appeal Tribunal File Number: 22-005146/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:
Kofi Abankwah
Applicant
and
Pafco Insurance
Respondent
DECISION
ADJUDICATOR: Bernard Trottier
APPEARANCES:
For the Applicant: Bianca Pirrotta-Iaccino, Paralegal
For the Respondent: Nathan Fabiano, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Kofi Abankwah, the applicant, was involved in an automobile accident on October 13, 2020, 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, Pafco Insurance, 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 $3,058.75 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a treatment plan/OCF-18 (“plan”) submitted February 18, 2021 and denied February 23, 2021?
iii. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Alma Rehab Clinic Inc. in a plan submitted April 5, 2021 and denied April 6, 2021?
iv. Is the applicant entitled to $2,737.69 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a plan submitted April 21, 2021 and denied April 23, 2021?
v. Is the applicant entitled to $2,493.35 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a plan submitted June 16, 2021 and denied June 18, 2021?
vi. Is the applicant entitled to $2,161.33 for chiropractic services, proposed by Alma Rehab Clinic Inc. in a plan submitted December 14, 2021 and denied December 28, 2021?
vii. Is the applicant entitled to $1,800.00 for a cognitive assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan submitted September 2, 2021 and denied September 9, 2021?
viii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by the Ontario Independent Assessment Centre Inc. in a plan submitted September 2, 2021 and denied September 9, 2021?
ix. Is the applicant entitled to $1,388.62 for a driving assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan submitted December 29, 2021 and denied December 30, 2021?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant did not demonstrate that his injuries are not minor and could not be treated within the Minor Injury Guideline (“MIG”) limits.
4Since the applicant’s injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the MIG are not payable.
5Since no benefits are payable, no interest is payable.
ANALYSIS
The Minor Injury Guideline
6Section 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.”
7An insured 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.
8The applicant submits that, as a result of the accident, he should be removed from the MIG on the following grounds:
i. His musculoskeletal injuries are not “minor injuries” as defined under s. 3(1) of the Schedule;
ii. He suffers from a chronic pain condition with functional impairment that warrants removal from the MIG;
iii. He suffers from psychological impairments that warrant removal from the MIG.
The applicant’s musculoskeletal injuries do not place him outside of the MIG
9The applicant did not provide objective medical evidence that his musculoskeletal injuries are not “minor injuries” as defined by the Schedule.
10The applicant submits that, as a result of the accident, he suffered whiplash disorder (WAD2), muscle strain, sprain and strain of the cervical, thoracic and lumbar spine, sprain and strain of the shoulder and wrist, tension headaches, headache and lower back pain. He submits that his injuries fall outside of the MIG and that all of the disputed treatment plans for chiropractic services, namely issues (ii), (iv), (v) and (vi) above, should be approved.
11The applicant submits that he incurred the costs for each of the above chiropractic treatment plans in the amounts of $3,107.02, $2,736.04, $2,435.01 and $250.06, respectively.
12The applicant submits that he visited his family physician, Dr. Maher Atalla, general practitioner, on multiple occasions following the accident, from whom he received prescriptions for pain relief and recommendations for physiotherapy.
13The applicant submits the stated goals of the above treatment plans include muscle release, reducing muscle spasm, pain relief and promotion of tissue healing and recovery. Citing 16-000536 v Co-operators General Insurance Company (2016 CanLII 93133 ON LAT), the applicant argues that pain relief that improves function is a legitimate rehabilitative goal that warrants removal from the MIG.
14The respondent submits that the applicant did not seek any immediate medical assistance until three months after the accident, and that he has achieved maximal medical recovery with the treatment he has received within the MIG.
15The respondent submits that the clinical notes and records (“CNRs”) of Dr. Atalla from the applicant’s visit of January 15, 2021, do not mention the accident and only mention some complaints of pain. The respondent submits that although the applicant saw Dr. Attala on March 11, April 22 and April 23 of 2021, he did not mention the accident at these visits, and that the CNRs of Dr. Atalla mention the accident for the first time on June 30, 2021, eight months post-accident.
16The respondent requested an insurer’s examination (“IE”) by Dr. Ato Sekyi-Otu, orthopaedic surgeon, to determine whether the applicant was entitled to treatment outside of the MIG and whether the first two chiropractic treatment plans were reasonable and necessary. In his report dated June 21, 2021, Dr. Sekyi-Otu opined that the applicant’s injuries were consistent with uncomplicated myofascial strains and that he observed no objective signs of ongoing impairment. He opined, as a result, that the applicant’s injuries fall within the MIG.
17I find the IE report of Dr. Sekyi-Otu persuasive in that I find it consistent with the medical records of the applicant. I agree with the respondent that the accident is mentioned in the CNRs of Dr. Atalla sparsely, with only two mentions over the 2.5 years post-accident, despite having 11 visits over that time period.
18I find that the applicant failed to provide objective, corroborating medical evidence that the applicant’s musculoskeletal injuries are not minor as defined by the Schedule.
19For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related musculoskeletal injuries that are not “minor injuries” as defined by the Schedule.
The applicant has not established chronic pain with functional impairment
20The applicant submits that he suffered from a chronic pain condition as evidenced by his numerous complaints of severe neck and back pain to Dr. Atalla. The applicant submits that these complaints persisted as late as June 14, 2022, more than 1.5 years post-accident and that his pain has become chronic in nature.
21The applicant submits that to treat his accident-related pain condition, he required ongoing chiropractic treatment and physiotherapy, together with prescriptions for multiple pain medications including Mobicox, Baclofen and Meloxicam.
22The applicant submits that a formal diagnosis of chronic pain is not an absolute requirement, citing C.G. v. The Guarantee Company of North America (2020 CanLII 63599 ON LAT), where the Tribunal found that “chronic pain is a condition that persists for three to six months and a formal diagnosis of chronic pain is not required to remove the applicant from the MIG.”
23The respondent submits that the CNRs of Dr. Atalla, from the applicant’s visit of June 14, 2022, about 20 months post-accident, indicate that the applicant’s pain is musculoskeletal with no radiation symptoms.
24The respondent submits that chronicity of pain complaints alone is not enough to be removed from the MIG. The respondent submits that to be removed from the MIG, the chronic pain must be severe enough to be functionally disabling, citing Nguyen v. Wawanesa Mutual Insurance Company (2021 CanLII 96836 ON LAT)
25The respondent submits that the pain complaints in Dr. Atalla’s CNRs are based entirely on the applicant’s self-reports. In his report dated June 21, 2021, Dr. Sekyi-Otu opines that the applicant’s complaints of low back pain on toe walking appeared to be non-organic and that there were discrepancies between the initial testing and distraction-based techniques, putting into question the validity of the pain complaints.
26Moreover, the respondent submits that the applicant does not have functional limitations that are consistent with an informal diagnosis of chronic pain. The respondent submits that the applicant continued to work 40-hour shifts, often with overtime, in a physically demanding job as a distributor in a distribution centre, undertaking as much as 10,000 steps per day and lifting 20 to 30 pounds at a time. The respondent submits further that, post-accident, the applicant is engaged in sports activities including cycling and going to the gym.
27I find that the applicant failed to provide objective, corroborating medical evidence that would indicate that the applicant suffered from a chronic pain condition that would prevent maximal medical recovery if treated within the MIG limits, as required by s. 18(2).
28I find that the applicant has failed to provide objective evidence that he suffers from functional disablement that would indicate he suffers from what the Tribunal would consider a chronic pain condition, requiring treatment outside of the MIG. While I accept that a formal diagnosis of chronic pain is not an absolute requirement, per C.G. v. The Guarantee Company of North America cited above, I find that the applicant has not met the burden of proof to show functional impairment in addition to chronic pain.
29For these reasons, I find on a balance of probabilities that the applicant did not suffer from a chronic pain condition that would warrant removal from the MIG.
The applicant’s psychological impairments do not place him outside of the MIG
30As indicated previously, the Tribunal has determined that a psychological condition may warrant removal from the MIG. The burden of proof lies with the applicant.
31The applicant submits that, because of the accident, he sustained an adjustment disorder with mixed anxiety and depressed mood, based on a provisional diagnosis of Dr. Konstantinos Papazoglou, psychologist, at a pre-screening interview on March 8, 2021. Dr. Papazoglou submitted the disputed OCF-18 on April 5, 2021. The applicant argues that this provisional diagnosis is affirmed by Dr. Atalla who recommended the disputed psychological assessment on July 12, 2021.
32The applicant submits that Dr. Papazoglou indicates, in his OCF-18, that the applicant is at risk for a range of psychological issues if no intervention occurs.
33The respondent submits that the applicant did not sustain a psychological impairment as a result of the accident. The respondent requested an IE with Dr. Cheryl Bradbury, neuropsychologist, who examined the applicant on May 26, 2021, about 7.5 months post-accident. In her report dated June 21, 2021, Dr. Bradbury opines that the applicant did not meet any Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) diagnostic criteria and that his complaints of anxiety and roadway mistrust were subclinical in nature.
34The respondent argues that the CNRs of Dr. Atalla, other than the single recommendation for a psychological assessment on July 12, 2021, do not indicate any psychological complaints.
35The respondent argues further that the applicant continued to drive independently post-accident, including driving to his IE with Dr. Sekyi-Otu.
36I find that the applicant has not met the burden of proving that he suffered psychological impairment as a result of the accident that would warrant removal from the MIG. I am persuaded by the respondent’s argument regarding the lack of mention of psychological complaints in the CNRs of Dr. Atalla. I find that the OCF-18 of Dr. Papazoglou, recommending an assessment by his clinic, does not meet the burden of compelling medical evidence as required by the Schedule.
37For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related psychological injuries that would warrant removal from the MIG.
Interest
38Interest 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
39The applicant has not demonstrated that his injuries warrant removal from the Minor Injury Guideline.
40The proposed treatment plans are not payable since they propose treatment outside of the Minor Injury Guideline.
41Since no treatment plans are payable, no interest is payable.
Released: June 20, 2024
Bernard Trottier
Adjudicator