Citation: Pinkney v. Allstate Insurance, 2024 ONLAT 22-003563/AABS

Licence Appeal Tribunal File Number: 22-003563/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:

Scott Pinkney

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Natalia Poliakova, Paralegal

For the Respondent: Jessica Bacopulos, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Scott Pinkney, (the “applicant”), was involved in an automobile accident on December 1, 2022, 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”), Allstate 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 (“MIG”) limit?

ii. Is the applicant entitled to $3,247.20 for chiropractic treatment, massage, and physiotherapy, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated January 12, 2021?

iii. Is the applicant entitled to $1,189.55 for chiropractic treatment, massage, and physiotherapy, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated April 21, 2021?

iv. Is the applicant entitled to $884.05 for chiropractic treatment, massage, and physiotherapy, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated June 21, 2021?

v. Is the applicant entitled to $791.12 for chiropractic treatment, massage, and physiotherapy, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated July 16, 2021?

vi. Is the applicant entitled to $996.86 for chiropractic treatment, massage, and physiotherapy, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated May 26, 2021?

vii. Is the applicant entitled to the assessments proposed by Medex Assessments Inc, as follows:

i. $2,712.00 for an attendant care assessment, in a treatment plan dated January 8, 2021; and

ii. $2,767.37 for a chronic pain assessment, in a treatment plan dated March 23, 2022?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18’s.

4None of the disputed benefits are payable or overdue, and consequently interest is not payable.

PROCEDURAL ISSUES

The respondent argues that some of the applicant’s evidence should be excluded as he did not comply with the document exchange deadlines in the case conference report and order

5I find that the applicant may rely upon the disputed evidence.

6The respondent argued that the applicant did not disclose various records in accordance with the timelines set out in the Case Conference Report and Order dated January 17, 2023. Further, the respondent submits that this evidence was only produced in the document brief submitted by the applicant and that admitting this evidence would amount to allowing the applicant to participate in trial by ambush.

7The applicant did not provide any reply to the respondent’s submissions as part of their document brief. On review of the case conference report and order dated January 17, 2023, the respondent only had one request for document disclosure and that was for the CNRs of the applicant’s family doctor from one year pre-accident to the date of the case conference. In this case the respondent did not request the disclosure of the remaining disputed evidence, however the applicant did not disclose their intentions to present this evidence in accordance with LAT Rule 9 which states that the parties are required to exchange all documents, witness lists and anything else they intend to rely on as evidence at the hearing. The requirement for document exchange begins as soon as the application is filed. I have considered the respondents position and their lesser ability if any to respond to the documents in question which the applicant failed to produce to the respondent in accordance with LAT Rule 9 and I will assign lesser weight if any to this evidence so that the respondent is not prejudiced by their lack of ability to respond to this evidence.

ANALYSIS

The applicant has failed to demonstrate that he warrants removal from the MIG

8I find that the applicant has failed to demonstrate why he should be removed from the MIG.

9Section 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.”

10An 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.

11The applicant submits that his predominant injury because of the accident is chronic pain in his neck and shoulder and therefore should be removed from the MIG. The applicant relies on the report from Dr. Waseem (physiatrist) and a Disability Certificate OCF-3 dated January 8, 2021, prepared by Dr. Ian Kai listing the following injuries: severe left shoulder joint pain, acute cervical injury, lumbar injury, sleeping disturbances, and anxiety.

12The respondent argues that the proposed treatment plans are not reasonable or necessary and the medical evidence does not establish that the applicant suffers from injuries that would warrant removal from the MIG. They submit that the applicants’ injuries are soft tissue and are not consistent with a diagnosis of chronic pain with a functional impairment as set out in the American Medical Association’s Guides “AMA Guides”.

The applicant has failed to demonstrate that he suffers from chronic pain with a functional impairment because of the accident

13I find that the applicant has not established that he suffers from accident-related chronic pain.

14The applicant submits that because of the accident he is no longer able to ride his bike as he used to enjoy and relies on an understanding employer as his employment involves merchandising of chocolate in retail stores. He submits that he relies on store employees for assistance in completing his tasks and suggests that other employers would not be as sympathetic to his needs. He further submits that he has difficulties in completing heavier household chores and relies on the assistance of his spouse. He submits that he has been diagnosed with chronic myofascial and mechanical pain of the cervical spine with associated generalized deconditioning.

15The respondent argues that to diagnose chronic pain under the AMA Guides, at least three of the following criteria must be met: dependency on prescription drugs or other substances; excessive dependence on health care providers or family; secondary physical deconditioning due to disuse or fear avoidance; withdrawal from social milieu; failure to retore to pre-injury function; and development of psychosocial sequelae. Further the respondent submits that the applicant returned to full time hours at his workplace after the accident.

16On March 23, 2023, the applicant attended a s.25 medical examination performed by Dr. Waseem. Dr. Waseem reviewed the applicant’s X-ray of his cervical spine dated January 19, 2021, and noted there was no fracture, subluxation or destructive lesion and noted that the applicant’s cervical spine was normal. He also reviewed the applicant’s MRI of the cervical spine dated September 29, 2021, which noted no disc herniation or evidence of spinal cord or nerve impingement. In addition, on October 8, 2021, the applicant received another MRI on his left shoulder which found no acute abnormality and mild glenohumeral joint OA. The applicant denied any pre-accident ongoing medical concerns.

17Dr. Waseem noted that the applicant did not have any pain behaviors and did not appear to amplify or magnify his complaints. Specifically, he did not report pain to superficial palpation, axial loading did not elicit low back pain, distracted straight leg raise in a seated position was negative, non-anatomic sensory changes were absent. He noted that there was no give-way weakness and there was no overreaction to painful stimuli. Despite this Dr. Waseem in his closing diagnosed the applicant with chronic myofascial and mechanical pain of the cervical spine with associated generalized deconditioning. Dr. Waseem did not address the AMA Guides in his report specifically in relation to chronic pain syndrome or in the context of a functional impairment.

18I agree with the respondent as I fail to see how three criteria of the AMA Guides have been met or even applied by the applicant for a formal diagnosis of chronic pain syndrome. A diagnosis of myofascial chronic pain and mechanical pain of the cervical spine associated with generalized deconditioning is not a formal diagnosis of chronic pain syndrome.

19The applicant has returned to work after the accident and reports his employer to be an understanding employer allowing the applicant leeway for physiotherapy appointments during work hours. the applicant asserts that he requires assistance from store employees to complete some of his daily employment duties which include the lifting of heavy boxes of chocolate from his vehicle and transporting them inside of retail shops for the purpose of merchandising these products.

20Further, the applicant is independent in his self regulation, and the only evidence before me of his reliance on his spouse for heavier household chores is that he can no longer wash the floors. This does not indicate excessive dependence on family members. Dr. Waseem recommended the applicant continue with his current medications for pain management. The only evidence before me of ongoing medication use is on an as needed basis. The applicant’s evidence points me Naproxen being taken a couple of times a month, cyclobenzaprine, taken a couple of times per month, and diclofenac drops applied topically to the affected areas. It is noted that diclofenac is minimally helpful, however the frequency is not specified. This in my view is not excessive dependence on prescription drugs.

21The applicant submits that pre-accident he enjoyed riding his bike and engaging in social activities at the park with friends. Although unable to ride his bike due to his neck and shoulder pain, I am not pointed to any evidence that he has withdrawn from his social milieu. In fact, other then the applicant giving up cycling, the evidence shows that he has resumed his normal athletic and recreation activities. Further, I am not pointed to any evidence supporting that the applicant has developed psychosocial sequelae because of the accident. In contrast to the OCF-3 completed by Dr. Kai, chiropractor, the applicant at his visit with Dr. Waseem denied ongoing symptoms of mood disturbance or generalized anxiety and reported no significant sleep disruptions.

22In closing, I find that the applicant does not suffer from chronic pain syndrome in accordance with the AMA Guides and therefore is not removed from the MIG or entitled to the disputed treatment plans and assessments.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are outstanding, interest is not due.

ORDER

i. As the applicant has failed to demonstrate that he should be removed from the MIG because of chronic pain, none of the disputed treatment and assessment plans are payable. The applicant remains in the MIG, and no benefits are due, interest is also not due.