Asante v. The Co-Operators Insurance Company
Licence Appeal Tribunal File Number: 22-007251/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:
Kenneth Asante
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Bianca Pirrotta-Iaccino, Paralegal
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kenneth Asante, the applicant, was involved in an automobile accident on January 6, 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, Co-Operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute for this hearing 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 $2,818.80 for chiropractic services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“plan”) dated June 24, 2020?
iii. Is the applicant entitled to $2,407.07 for chiropractic services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“plan”) dated October 14, 2020?
iv. Is the applicant entitled to $1,995.33 for chiropractic services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“plan”) dated November 25, 2020?
v. Is the applicant entitled to $2,161.33 for chiropractic services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“plan”) dated January 27, 2021?
vi. Is the applicant entitled to $2,200.00 for a Neurological Assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated November 19, 2020?
vii. Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated December 11, 2020?
viii. Is the applicant entitled to $2,200.00 for a Orthopedic Assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated May 3, 2021?
ix. Is the applicant entitled to $2,200.00 for a Biopsychosocial Assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated June 10, 2021?
x. Is the applicant entitled to $2,208.33 for psychological services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“plan”) dated June 24, 2020?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains within the MIG.
4As MIG limits have been exhausted, the applicant is not entitled to further treatment or interest.
ANALYSIS
The applicant has not proven injuries outside the MIG
5An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.
The applicant’s physical injuries are minor by definition
6I find that the applicant’s partial thickness tears of the left subscapularis and supraspinatus tendons meet the definition of a minor injury under the MIG.
7The applicant submits that he should be removed from the MIG as he has a partial thickness tear of the left subscapularis and supraspinatus tendons as shown in an ultrasound on February 5, 2021 and diagnosed by Dr. J. Grenville, radiologist.
8The Superintendent’s Guideline No. 01/14 (“Guideline”) defines the term sprain to include a partial thickness tear to one or more tendons or ligaments.
9The Guideline clear. A diagnosed full thickness tear, as a result of the accident, is required to remove the applicant from the MIG. A partial thickness tear is expressly identified as an injury that keeps the applicant within the MIG.
10As the applicant was only diagnosed with a partial thickness tear, he remains subject to the MIG.
The applicant does not suffer from a psychological condition which would remove him from the MIG
11I find that the applicant has not proven an accident-related psychological impairment.
12The applicant submits a s. 25 psychological assessment completed by Dr. K Papazoglou on May 17, 2022. Dr. Papazoglou diagnosed the applicant with adjustment disorder (with mixed anxiety and depressed mood).
13The respondent submits that the mental health problems are unrelated to the accident. Specifically highlighting the clinical notes and records of Dr. H El-Madah, the applicant’s family physician.
14On May 18, 2021 Dr. El-Madah notes that he saw the applicant as a result of depression symptoms. These symptoms were linked to financial worries, gambling, his cousin being murdered and car accidents where the insurance did not compensate him. Dr. El-Madah referred the applicant to CAMH.
15The respondent further submits an assessment conducted by Dr. S. Ghate, psychiatrist, on November 22, 2021. This assessment was contained within the clinical notes and records of Dr. El-Madah and was the result of his referral to CAMH.
16Dr. Ghate found that there is no evidence of a major mood disorder, major anxiety disorder or a psychotic disorder.
17Dr. Ghate’s assessment was conducted almost two years post accident and six months prior to Dr. Papazoglou’s assessment. Given that the applicant was not exhibiting a diagnosable psychological condition almost two years post accident, if he developed one six months later, it brings into question causation.
18Both Dr. Ghate and Dr. El-Madah note that the applicant’s symptoms were linked to financial worries, gambling, the murder of his cousin and the dispute with the insurance company. The psychological symptoms were not tied to injuries sustained in the accident.
19If a psychological condition developed in the next six months, I cannot find, on the balance of probabilities, that it is an injury sustained as a result of the accident.
20Therefore, I give the most weight to Dr. Ghate’s findings. The applicant has not sustained a psychological impairment that would remove him from the MIG.
The applicant has not suffered chronic pain with a functional impairment.
21I find that the applicant has not demonstrated chronic pain with an associated functional impairment that would remove him from the MIG.
22The applicant submits, in paragraph 44 of his submissions, when referring to C.G. v. The Guarantee Company of North America, 2020 CanLII 40333 (ONLAT) (“C.G.”), that absent a chronic pain diagnosis, evidence of documented and persistent pain as a result of the accident is grounds for removal from the MIG.
23In response, the respondent submits that the applicant does not meet three of the six criteria in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) which the Tribunal has often relied on in cases without an express diagnosis of chronic pain. The respondent further submits that even if a diagnosis of chronic pain is assumed, it lacks an accompanying functional impairment, which is required for removal from the MIG.
24The Tribunal frequently uses the AMA Guides as a tool to assess functional impairment as a result of chronic pain. At least three of the following six criteria of the AMA Guides must be met to demonstrate chronic pain with a functional impairment:
i. Use of prescription drugs beyond the recommended duration and/or abuse 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 contacts;
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 behaviour.
25While the applicant does submit that they were prescribed pain medication on two separate occasions, there has been no evidence adduced or submissions made that the applicant has been using prescription drugs beyond their intended duration or to the point of abuse.
26Similarly, there is no evidence submitted or submissions made that would show excessive dependence on health care providers, the applicant’s spouse, or his family.
27In addition, there has been no evidence of withdrawal from social milieu as a result of the accident. For example, in her report, Dr. Ghate notes that the applicant feels isolated because he has not been vaccinated for COVID-19. This is unrelated to the accident.
28There is evidence of physical deconditioning, specifically by Dr. Papazoglu who notes in his report that the applicant has lost 15-20lbs since the accident.
29Yet, there have been no submissions made on the functional impairments exhibited by the applicant as a result of the accident or as a result of his physical deconditioning. The applicant submits that he returned to work after a brief leave following the accident and there are no indications that any accommodations or restricted duties were required.
30Finally, Dr. Ghate notes that the applicant has not developed a diagnosable psychological condition as result of the accident.
31Given this analysis, the applicant only meets, at most, one of the six criteria outlined in the AMA Guides to warrant a finding of chronic pain.
32For the reasons above, I find that the applicant has not demonstrated that he suffers from chronic pain with functional impairment that would warrant removal from the MIG.
The applicant is not entitled to the disputed treatment plans
33As the MIG limits have been exhausted, and given my finding on the MIG, no further benefits are payable so an analysis into the reasonableness and necessity of the treatment plans is not required.
Interest
34As there are no benefits owing, no interest is payable.
ORDER
35For the reasons above I find that:
i. The applicant’s injuries are subject to the Minor Injury Guideline;
ii. None of the disputed treatment plans or interest is payable; and
iii. This application is dismissed.
Released: August 6, 2024
Julian DiBattista
Vice-Chair