Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-003180/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:
Aaron Vegh
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Anastasiya Chepak, Paralegal
For the Respondent: Nisaa Khan, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Aaron Vegh (“the applicant”) was involved in an automobile accident on February 21, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Unifund Assurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
- Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
- Is the applicant entitled to a medical benefit in the amount of $2,486.00 for a chronic pain assessment proposed by Imperial Medical Assessments in a treatment plan/OCF-18 dated February 26, 2022?
RESULT
3The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
4The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are not included in the MIG and above the funding limit. The MIG limits have been exhausted.
5No interest is payable.
6The application is dismissed.
ANALYSIS
Minor Injury Guideline (“MIG”)
7Section 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.”
8The applicant submits that he suffers from chronic pain syndrome as a result of the accident, and that he sustained a concussion and post-concussion syndrome. If established, these injuries are excluded from the definition of “minor injuries” and therefore would fall outside of the MIG.
9In support of his position, the applicant relies on hospital records, clinical notes and records of his treatment providers, his three family physicians, a physiatrist, Dr. Tugalev and a sports medicine specialist, Dr. Christidis.
Concussion or Post-Concussive Syndrome
10For the reasons that follow, I’m not persuaded that the applicant sustained a concussion or post-concussive syndrome as a result of the accident.
11The applicant relies on the hospital records from the date of loss in support of his submission that he sustained a concussion in the accident. The ambulance call report indicates the applicant was driving uphill at approximately 5km/hr when he stuck the vehicle in front of him at low speed, and was then struck from behind by another vehicle. No airbags deployed. The applicant reported that he struck the left side/back of his head, and a possible brief loss of consciousness. The EMS noted no signs of head trauma, no pain on palpation, no neurological deficits and that he was ambulatory on scene. He complained of dizziness and stiffness in his neck, shoulder, and upper back. The applicant’s score on the Glasgow Coma Scale (“GCS ”) was 15.
12The triage notes indicates that the airbags did not deploy, the applicant was unsure if he hit his head, but he reported feeling dizzy, had blurry vision, and occipital headache. The ER report indicates that the applicant reported that he hit his head on the seat on impact. The doctor noted: “questionable loss of consciousness”, and that the applicant stated that he was “out of it for a couple seconds”. He was noted to be ambulatory at the scene and was taking pictures of the accident. He complained of headache at the back and front of his head. All symptoms had improved. While there was some dizziness, there was neither discharge from his nose/ears nor vomiting. The doctor discussed two options with the applicant, either undergoing a CT of his head or “watch and wait approach”. The applicant reportedly preferred the latter approach as his symptoms were improving. He was advised to return to the emergency department if he experienced any vomiting, increased headaches, confusion, lethargy or concerns. The final diagnosis was minor head injury and he was discharged home.
13The applicant saw his family doctor, Dr. V. Liao, on February 23, 2015. His primary complaint was neck and back pain, and the applicant reported that he was diagnosed with a concussion at the ER, which is not entirely accurate. The doctor noted that the applicant looked well, the neurological exam was normal, normal gait, a negative Romberg test, and a negative pronator drift test. The secondary diagnosis was concussion with no neurological deficit, which appears to be primarily based on the applicant’s inaccurate self-report of a concussion diagnosis at the hospital.
14The applicant saw Dr. Liao on seven more occasions between February 2015 and September 2016, and did not raise any concussion-related complaints.
15I am not persuaded that the applicant sustained a concussion as a result of the accident. The ER doctor seemed to question the applicant’s reports-- the applicant reported limited symptomatology which had improved while he was at the hospital. The family doctor noted that the applicant’s self-report that he was diagnosed with a concussion at the ER, but that is not accurate. Further, Dr. Liao’s neurological examination of the applicant was normal, and the applicant never followed up with Dr. Liao for any concussion-related symptoms after that initial visit. The next complaint to a physician of headaches on occasion was not until three years later in 2018. The applicant never underwent any imaging and he was not referred to any specialist to address his purported concussion symptoms. I am not persuaded that the evidence supports that the applicant sustained a concussion or post-concussive syndrome as a result of the accident.
Chronic Pain Syndrome
16Notably, the applicant has never been diagnosed with chronic pain or chronic pain syndrome. The applicant submits that he sustained injuries to his neck, upper back, right shoulder and lower back which have become chronic and constitute chronic pain syndrome as defined by the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (“Guides”). The Guides set out set out that at least three of the following six criteria must be met in order to qualify for a diagnosis of chronic pain syndrome:
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 heath 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 contracts;
v. Failure to restore to pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs;
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.
17The applicant submits that he meets criterion (ii) as he is excessively dependent on his health care providers and family, that he continued to engage in treatment and consult doctors for his complaints, and that he was financially dependent on his family for support because he had to quit his job as a result of his injuries.
18The applicant submits that he meets criterion (iii) pointing to the treatment plans that indicated “increasing strength” and “restoring functional tolerance” as goals, suggesting deconditioning.
19Finally, the applicant submits that he meets criterion (iv), because he stopped working for a long period of time due to his pain which was exacerbated by excessive computer work.
20I am not persuaded that the applicant meets three of the six criteria. The applicant points to no medical opinion that indicates that he meets these criteria, but rather infers it from the evidence. I find that the evidence does not support that the applicant meets criterion (iv), withdrawal from social milieu. The evidence shows that in fact, the applicant had been unemployed for a year and a half at the time of the accident. He subsequently commenced working for the city in May 2015, first in social services and subsequently as a caseworker for Ontario Works until November 2016. He reportedly resigned due to a repetitive strain injury from working on the computer and applied for WSIB but was rejected. The applicant commenced a master’s degree in theology 2016, and then worked as a chaplain. He reported independence with his personal care, socialized and attended church regularly. The evidence shows that he was active socially, engaging in work, study, and social activities post-accident.
21I further find that the evidence does not support that the applicant meets criterion (ii), excessive dependence on health care providers or family. The applicant was unemployed and living at home with his parents at the time of the accident. He subsequently worked for 1.5 years until November 2016, he went back to school, and eventually went on social assistance until he found a new job. Any reliance on family for financial support does not appear to be related to the accident. The medical evidence does not support excessive reliance on health care providers as there were lengthy gaps between visits and often for unrelated conditions. For example, there were no accident-related complaints to the family doctors from September 15, 2016 to May 28, 2017 (eight months), June 11, 2019 to January 20, 2021 (1.5 years), and November 9, 2021 to the end of the records (almost two years).
22The applicant neither led evidence nor submissions addressing any of the other three criteria. Consequently and overall, I am not persuaded that the applicant met at least three of the six criteria required by the Guides to support chronic pain syndrome.
23I find that the applicant has not met his burden to demonstrate that he sustained an injury that is not included in the minor injury definition in s. 3 of the Schedule. He remains within the MIG.
24The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are not included in the MIG and the funding limit.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue, therefore it follows that no interest is payable.
ORDER
26The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,5000.00 funding limit for a minor injury.
27The MIG limits have been exhausted. The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are not included in the MIG and above the funding limit.
28No interest is payable.
29The application is dismissed.
Released: January 29, 2024
__________________________
Kate Grieves
Adjudicator