Licence Appeal Tribunal File Number: 22-002991/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:
Saeid Sepehra
Applicant
and
Certas Direct
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Arthur Semko, Paralegal
For the Respondent:
Shikha B Blessing, Counsel
HEARD:
In Writing
OVERVIEW
1Saeid Sepehra, the applicant, was involved in an automobile accident on March 9, 2018, 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 Direct, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Pursuant to s. 20(1)(a), the respondent is not liable for medical/rehabilitation expenses incurred after March 9, 2023.
ISSUES
3The 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?
Note: The respondent advised in submissions that $527.01 remained in the MIG as of January 23, 2019.
ii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Imperial Medical Assessment in a treatment plan dated June 21, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Minor Injury Guideline applies.
5The treatment plan for a chronic pain assessment is not reasonable and necessary.
6No interest is owed.
PROCEDURAL ISSUE
7The respondent advised that the applicant did not comply with the Tribunal’s orders regarding the production of updated records as outlined in the case conference report and order of February 23, 2023. As the respondent also confirmed that the applicant did not rely on any such records in submissions, my decision can be made on the basis of the documentation submitted by both parties.
ANALYSIS
Does the Minor Injury Guideline (“MIG”) apply?
8I find that the MIG applies. The applicant is subject to the $3,500.00 treatment limit.
9Section 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 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 person 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 before the accident, they had a documented pre-existing injury or condition. There must also be compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
11The applicant submits that his injuries from the subject accident do not fit the definition of minor injury found in s. 3 of the Schedule. He characterizes his pain as chronic with resulting functional limitations that impact his daily living. He judges there is a reasonable possibility he has developed chronic pain syndrome, and as a result, claims entitlement to a chronic pain assessment. The applicant relies on a disability certificate (“OCF-3”) dated March 16, 2018, some clinical notes and records (“CNRs”) of his general physicians Drs. Moussa and Aslahi for the period 2019 through 2022, and a functional assessment report by chiropractor Dr. Nathanson dated September 30, 2020.
12The respondent submits that the applicant has not provided evidence of any injury that is not minor. It points to the applicant’s sporadic attendance at medical appointments, intervening injuries, unrelated health conditions, and the limited evidence about the impact on his activities of daily living, other than self-reports. It relies on the same sources for evidence as the applicant, outlined above.
Physical injuries
13The applicant did not attend the hospital following the accident. Instead, he was assessed several days later at Physio-Can Health-Green Lane clinic. The clinic’s OCF-3 identified his injuries as whiplash disorder, headache, sprains, and strains – all minor injuries under the Schedule.
14There are no contemporaneous CNRs from the applicant’s general physicians (“GPs”) for the first weeks and months following the accident. The first note cited by the applicant is more than a year and a half later, dated September 18, 2019. In it, his GP records upper back pain, numbness in hand, pain on paraspinal muscle palpitation, and neck pain. The pain is attributed to the subject accident in the doctor’s notes. Dr. Moussa recommended physiotherapy and advised the applicant to return in two weeks if there was no improvement. The respondent points out that the applicant returned about a month later on October 11, 2019, for what appears to be a regular checkup, but did not mention the subject accident or physiotherapy at all at the appointment.
15Further, the respondent highlights that sometimes the applicant raised the issue of pain from the accident, but not always. Notably, the respondent highlights that there was an earlier CNR for an appointment on October 29, 2018, about six months after the accident – however, the applicant did not raise the subject of injuries or pain from the accident at all.
16With regard to the s. 25 report, Dr. Nathanson did not review any CNRs other than the OCF-3 and a physiotherapy referral. Also, as it was completed over two and a half years after the accident, it offers little of value for assessing the applicant’s injuries sustained on the day of the accident.
17Thus, in my view, based on the OCF-3 and various CNRs, the applicant’s post-accident injury profile was within the scope of a minor injury as defined by the Schedule.
Chronic Pain
18The applicant submits that his injuries from the accident are beyond the MIG on account of chronic pain. He describes the pain as constant, unresolving, and radiating to his extremities. The applicant refers to several medical appointments to establish his ongoing reports of pain:
i. On July 30, 2020, he reported similar pain symptoms as the year prior. He also discussed with Dr. Moussa an unrelated injury to his elbow and was advised to attend a pain clinic. No further documentation about this referral is provided.
ii. On March 18, 2021, the applicant booked a telephone appointment and reported pain in his lower back that began one week earlier, while also citing chronic pain in the low back since the accident. The new pain was assessed as likely related to other health issues.
iii. On March 22, 2022, the applicant reported that he had pain every day since the subject accident, from the low back up to the shoulder and neck, made worse by working. The doctor assessed it as accident-related pain and again recommended physiotherapy with a follow-up if necessary. There is nothing in the evidence to indicate that the applicant ever booked a follow-up.
While I appreciate that the applicant reported pain at each of these appointments, the lengthy interruptions between appointments and presence of other injuries and conditions prevent a conclusion that the pain is accident-related.
19The applicant also relies on the functional assessment by Dr. Nathanson, chiropractor. While Dr. Nathanson identifies impairments and ongoing pain, the connection to the accident is presumed. The report is dated September 30, 2020, approximately two and a half years after the accident, and Dr. Nathanson does not account for other injuries and health issues, nor for the applicant’s physically demanding occupation as other possible inputs for consideration.
20In addition, Dr. Nathanson diagnosed post-concussion syndrome and post-concussion headaches, yet these diagnoses are not well-supported by evidence or explanation. Further, Dr. Nathanson did not review any CNRs or medical history, other than the OCF-3 and a physiotherapy referral, supported by the applicant’s self-reports. Overall, the report is unpersuasive for the reasons outlined above. It does not make a convincing case that the accident is the cause of the applicant’s pain and functional limitation.
21The applicant also raises the applicability of the criteria from the American Medical Association Guides, 6th edition (“the Guides”) for diagnosing functional impairment. The Tribunal has recognized these criteria as a useful framework for understanding an individual’s functional capacity, as follows:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other circumstances;
ii. Excessive dependence on health care providers spouse or family;
iii. Secondary physical deconditioning due to disease 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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviors.
The applicant submits that he meets these criteria with the exception of reliance on prescription drugs (i) and development of psychosocial sequelae (vi).
22I agree with the respondent that the applicant has not provided adequate evidence to support his claim that he meets the four criteria. He has not been dependent on healthcare professionals or family members in any significant way, he returned to work after the accident, and there is limited information provided about any diminished capacity for work, family and social activities.
23The applicant has not established that his injuries from the accident are outside the MIG due to chronic pain.
Conclusion
24While the applicant may have pain that has lasted beyond an expected duration, and has some resulting limitations, the evidence does not demonstrate that they are as a result of the accident. The gaps in the medical evidence, intervening injuries, other health conditions, and the impact of the applicant’s occupation in a physically demanding role, all leave me unpersuaded that the applicant’s pain and limitations are as a direct result of the subject accident.
25Accordingly, the applicant has not established that his injuries from the accident are a non-minor injury. His injuries are appropriately treated within the MIG.
Is the applicant entitled to the treatment plan/OCF-18 for a chronic pain assessment?
26I find that the applicant is not entitled to the treatment plan for a chronic pain assessment.
27To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
28The applicant submits that there is a reasonable possibility that he has the condition to be investigated by the assessment. He further submits that his ongoing pain has been attributed to the subject accident by both his GPs and Dr. Nathanson. Dr. Nathanson opined that the pain met the threshold for chronic pain due to its duration and impact on his functional abilities.
29I cannot agree that the assessment is reasonable and necessary as a result of the injuries from the accident. The applicant did not establish a clear connection between his pain and functional limitations and the subject accident.
30The applicant has not established entitlement to the treatment plan in dispute.
Interest
31No interest applies as there are no overdue benefits pursuant to s. 51 of the Schedule.
ORDER
32I order that:
i. The Minor Injury Guideline applies.
ii. The applicant is not entitled to the treatment plan in dispute for a chronic pain assessment.
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iv. The application is dismissed.
Released: August 20, 2024
Bonnie Oakes Charron
Adjudicator