Licence Appeal Tribunal File Number: 22-004904/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:
Odion Okoyomon
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Michael Adamek, Counsel
For the Respondent:
Lauren Kolarek, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Odion Okoyomon, the applicant, was involved in an automobile accident on September 26, 2002, 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, Certas Home and Auto 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 $2,295.33 for psychological services proposed by Humber Civic Care Centre in a treatment plan submitted on March 17, 22?
iii. Is the applicant entitled to $3,024.62 for chiropractic services proposed by Humber Civic Care Centre in a treatment plan submitted on April 21, 2022?
iv. Is the applicant entitled to $2,629.85 for chiropractic services proposed by Humber Civic Care Centre in a treatment plan submitted on December 20, 2022?
v. Is the applicant entitled to Interest?
RESULT
3I find that:
i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG. As such, it is unnecessary to determine whether the disputed treatment plans are reasonable and necessary. As no benefits are owing, no interest is payable. The application is dismissed.
ANALYSIS
The Minor Injury Guideline (“MIG”)
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 minor injuries. 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 it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
6The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from the MIG due to a pre-existing injury stemming from a previous motor vehicle accident on February 17, 2018, chronic pain and psychological impairments.
7The respondent argues that the applicant should not be removed from the MIG, as he has not substantiated that any pre-existing medical injury is in evidence, nor that he suffers from chronic pain or a psychological condition not defined as a minor injury in the Schedule. The respondent further submits that the applicant does not meet the criteria established in the AMA Guides regarding chronic pain.
The applicant remains within the MIG
8I find that the applicant has not met his onus of demonstrating that his accident-related impairments warrant removal from the MIG.
The applicant does not suffer from a pre-existing injury or condition that precludes his recovery within the MIG
9The applicant submits that the accident exacerbated a pre-existing injury from a previous motor vehicle accident on February 17, 2018. The medical evidence does not establish unresolved injuries from the previous indicating that injuries from the previous accident were not resolved. In fact, the evidence submitted indicates that injuries suffered in the previous accident did resolve to maximum recovery. In the Insurer Examination completed on July 30, 2018, Dr. Andro Deni Kanalec diagnoses injuries that are in line with MIG defined injuries of strains, and his prognosis was that of a full recovery. This prognosis is confirmed in the psychological screening completed on March 14, 2022 in which the applicant reports that “he mentioned making a full recovery” from the prior motor vehicle accident.
10Moreover, the appellant has presented no evidence that any pre-existing condition would preclude recovery from his accident-related impairments if he is subject to the MIG.
11Accordingly, the evidence does not substantiate a pre-existing injury would preclude his recovery within the MIG.
The applicant does not suffer from chronic pain and psychological sequelae.
12The medical evidence does not support his claim of experiencing chronic pain with a functional impairment that would warrant his removal from the MIG.
13The applicant bases his chronic pain argument largely on the American Medical Association Guides. While the criteria in the AMA Guides are not binding, this Tribunal has long held that it provides a helpful tool for the evaluation of chronic pain. A person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
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 contracts.
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 needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
14The applicant argues that he meets four of the six criteria.
i. A dependence on health practitioners as seen in repeated medical appointments and assessments the applicant attended;
ii. Physical deconditioning exemplified in his objectively observed and documented limitations and reduced physical tolerances as reported by the applicant’s chiropractor;
iii. A failure to restore pre-injury function depicted by the applicant’s loss of physical abilities, and reduced ability to engage in prior housekeeping and homecare activities; and
iv. A development of anxiety, fear-avoidance, and nonorganic illness behaviours related to the subject accident.
15The applicant also relies on P.M. v. Aviva General Insurance, 2020 ONLAT 19-002717/AABS in which the Tribunal that the three criteria submitted in that case to substantiate chronic pain could be harmonized with the AMA Guide for establishing chronic pain.
16The applicant submits that the three criteria he suffers from to substantiate chronic pain are:
i. The applicant’s pain is constant, not merely recurrent and intermittent, as he consistently reported ongoing pain that interferes with his activities of daily living to various medical professionals;
ii. The applicant’s pain persists beyond normal healing times as over three years have elapsed since the subject collision but the applicant continues to struggle with the same symptoms and impairments; and
iii. The pain causes functional impairments in respect of his ability to engage in housekeeping and home maintenance tasks.
17However, I have not been directed to contemporaneous evidence supporting any of these claims and their correlation to the accident.
18No evidence has been submitted from a doctor the establishes that the applicant suffers from chronic pain. The clinical notes and records of the family doctor do not indicate that the applicant discussed the accident, nor ongoing issues with pain.
19The first time the applicant sought any medical help in relation to the accident was over a year after the accident happened. There is no evidence submitted that helps correlate the findings in the OCF-18s submitted directly to the accident.
20The OCF-18 completed by Dario Mirian, chiropractor, completed on April 21, 2022, recommends co-management of the applicant’s condition with the applicant’s family physician. I see no evidence that this co-management ever occurred. In addition, the recommendation of a psychological consultation is outside the area of expertise for a chiropractor. Lastly, the list of injuries outlined conform with MIG injury definitions of sprains and strains.
21To summarize, the applicant has not demonstrated that he suffers from chronic pain with a functional impairment.
The insurer properly denied benefits.
22The applicant contends that the subject OCF-18s were denied using boilerplate language and did not contain meaningful reasons. The applicant relies of Montablan v Pembridge Insurance Company 2023 22-0013717/AABS [Montablan] as well as Applicant v. Aviva Insurance Canada, 2018 CanLII 11095 (ON LAT) [Applicant] to assert his claim.
23I do not find the respondent's denials to be improper or contrary to s. 38(8) of the Schedule for the following reasons.
24The applicant submits that the respondent did not arrange for an insurer's examination ("IE") when denying the treatment plans and that the denials did not provide any medical reasons for the denials.
25The respondent submits that it reviewed the treatment plans. From that review, the denial was based on the medical information provided, and the list of injuries and no pre-existing conditions described. The respondent also contends that they advised the applicant that the applicant’s injuries met the MIG criteria. The respondent advised the applicant that if he had additional medical information about his injuries that may change his injury category to contact them.
26I agree with the respondent that the cited cases of Montablan and Applicant are factually different than the present case and do not assist the applicant. In contrast to Montablan, Certas provided detail of which plans were being denied.
27I do not find the denials to be lacking medical reasons. The applicant was provided with details about his condition. It is clear based on a review of the denial notices that the treatment plan lists soft-tissue injuries that would appear to be within the definition of the MIG. The respondent has noted this information in the denial notices, requested further medical documentation, and indicated that it would be in a position to determine whether an IE is required after receipt of the requested information.
Conclusion
28For the reasons noted above, the applicant remains within the MIG and is subject to the $3,500.00 limit on treatment.
The Treatment Plans
29As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
ORDER
30I find that:
i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
ii. It is therefore unnecessary to consider whether the disputed treatment plans are reasonable and necessary as a result of the accident. As no benefits are owing, no interest is payable.
iii. The application is dismissed.
Released: July 8, 2024
Robert Rock
Adjudicator