Chulwoong Park v. Economical Insurance Company, 2024 CanLII 79222

Citation: Park v. Economical Insurance Company, 2024 ONLAT 22-008362/AABS

Licence Appeal Tribunal File Number: 22-008362/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:

Chulwoong Park

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of written hearing

OVERVIEW

1Chulwoong Park, the applicant, was involved in an automobile accident on June 10, 2021, 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, Economical 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 income replacement benefits in the amount of $400.00 per week from June 17, 2021 to June 13, 2023?

iii. Is the applicant entitled to $229.76 ($1,261.02 less $1,031.26 approved) for physiotherapy services submitted in a treatment plan on August 26, 2021 and denied September 9, 2021?

iv. Is the applicant entitled to $1,261.02 for physiotherapy services submitted in a treatment plan on December 9, 2021 and denied January 17, 2022?

v. Is the applicant entitled to $2,500.00 for the cost of a chronic pain assessment proposed by Direct Comfort Ltd. in a treatment plan submitted June 11, 2022 and denied June 24, 2022?

vi. Is the applicant entitled to $37.47 for the cost of prescriptions proposed in an OCF-6 submitted on March 29, 2022 and denied March 30, 2022?

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

RESULT

3The applicant has not demonstrated on a balance of probabilities that he is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline.

4The applicant is not entitled to any of the treatment plans or the OCF-6 in dispute.

5The applicant is entitled to an income replacement benefit from June 17, 2021 to June 8, 2023.

6The applicant is entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

Application of the Minor Injury Guideline

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.”

8An 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.

9The applicant submits that he does not belong in the MIG by virtue of the fact that he has chronic pain. The respondent disagrees.

10Chronic pain has been described by this Tribunal as “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well-being” (T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520). In addition, a chronic pain diagnosis or ongoing pain by itself does not remove an applicant from the MIG. It must be accompanied by some functional impairment. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury (Cao v The Co-operators, 2023 CanLII 15065).

11Both parties refer to the American Medical Association (“AMA”) Guides for the diagnosis of chronic pain. At least three of the following criteria must be met for a diagnosis:

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 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.

12While the AMA Guides are not binding on me, I find that they are a useful tool in determining how pain affects an individual’s functional capacity.

13The applicant relies on the report of Dr. Tajedin Getahun, orthopaedic surgeon, from July 21, 2022. He reported constant pain and stiffness in his lower back, with intermittent radiation and weakness in his legs, and intermittent neck pain and stiffness, with intermittent radiation to his left arm and hand with weakness at times. He also reported sleep disturbance due to pain, and more frequent headaches. The applicant advised Dr. Getahun that after the accident, he could not return to work as a delivery driver due to his neck and back pain, as he was unable to tolerate the standing, walking, lifting and carrying required of the position. In October 2021, he began working at a customer service job, and experienced low back pain with prolonged sitting. He reported that he stopped working in April of 2022 because the company dissolved.

14Dr. Getahun noted that the applicant was unable to participate in ping pong, cycling, or basketball. He indicated that the applicant’s ability to socialize with friends and drive was significantly curtailed. Performing self-care tasks aggravated his pain, and he no longer participated meaningfully in household chores, relying on his wife for this.

15Dr. Getahun diagnosed the applicant with: (1) chronic myofascial strain of the cervical spine with nonverifiable radicular symptomatology into the upper left extremity; (2) chronic myofascial strain of the lumbosacral spine and aggravation of pre-existing asymptomatic degenerative changes and nonverifiable radicular symptomatology; and (3) chronic pain syndrome. Dr. Getahun stated that the applicant’s presentation satisfies 5 out of 6 of the AMA Guides 6th Edition criteria for chronic pain syndrome.

16It was Dr. Getahun’s opinion that the applicant’s injuries did not fall within the MIG, and that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. He opined that the applicant would not be able to engage in prolonged standing, walking, bending, lifting, and carrying as a result of his accident-related spinal impairments.

17The respondent submits that Dr. Getahun’s report should be given less weight. It argues that Dr. Getahun did not measure strength, nor did he have the applicant perform any activities such as sitting or bending. He did not discuss the applicant’s level of pain, and there was no analysis as to why he could not do certain activities, or what he could do. He did not refer to the findings in the s. 44 reports available to him, and based his opinion entirely on the applicant’s self report. Further, the respondent submits that Dr. Getahun did not perform an analysis of the AMA Guides criteria, and simply listed them and stated “Mr. Park satisfies this criterion.” Dr. Getahun also stated that the prescription records he reviewed included Baclofen and Gabapentin, but there is no evidence that those prescriptions were ever filled.

18I note that the applicant opted not to make any reply submissions.

19I do not know what Dr. Getahun means when he says that the applicant “no longer participates in a meaningful fashion with household chores” (e.g. what stops him from participating in these tasks, or to what degree). Although Dr. Getahun noted that the applicant experienced low back pain at his desk job, he did not mention any functional limitations as a result. Dr. Getahun states that the applicant’s driving and socializing has been “significantly curtailed”, with no further detail. I do not know what this means either.

20The applicant was able to work on a full time basis from October 16, 2021 to April 14, 2022, when the company dissolved. Although the applicant advised Dr. Joo, his family physician, that he stopped working in April 2022 as a result of his injuries, that does not appear to be the case. He applied for Employment Insurance on May 6, 2022, and checked the “no” box where it asked whether he was unable to work for medical reasons in the prior 2 years. Although Dr. Getahun opined that the applicant was substantially unable to perform his pre-accident employment (as a delivery driver), he does not comment on the applicant’s ability to complete the desk job, which he had been able to do for at least six months.

21I agree with the respondent that Dr. Getahun’s report is not fulsome, especially as it relates to his analysis of the AMA Guides criteria, and is at times contradictory to the rest of the evidence before me. I accordingly do not find it persuasive.

22For the following reasons, the applicant has not provided sufficient evidence that he suffers from chronic pain in light of the AMA Guides criteria:

i. I do not know if the applicant’s use of Naproxen went beyond the recommended duration, as I have not been directed to any evidence of what that duration is. The respondent did rely on Naproxen for pain relief on an as-needed basis. However, the medication was refilled sporadically, and the last refill was from November 2022. Further, during a visit with Dr. Joo on November 23, 2022, the applicant reported taking Naproxen 2-3 times per week, and when his symptoms were better, he was just taking Tylenol.

ii. I find that there is insufficient evidence that the applicant excessively relied on his healthcare providers, spouse, or family. The applicant refers to the functional abilities evaluation of Jordan Duffy from September 17, 2021, which stated that the applicant required help from his wife with bathing and donning shirts at times. Although I accept that in the few months after the accident, the applicant may have required some assistance, he reported being independent in these tasks by the time of the assessment with Dr. Getahun. Past the initial few months after the accident, I have no information regarding the housekeeping tasks that the applicant reportedly relies on his wife for. With respect to a reliance on healthcare providers, the applicant only visited Dr. Joo a handful of times throughout 2022, and there are no further records before me past November 2022. The applicant stopped attending physiotherapy in December 2021.

iii. There is no evidence before me of secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.

iv. Despite Dr. Getahun’s brief comments, there is insufficient evidence before me with respect to the applicant’s withdrawal from social milieu, including work, recreation, or other social contacts.

v. As discussed further below, there is evidence that the applicant was unable to return to his pre-accident job as a delivery driver. I accept that his ability to work as a delivery driver was affected by his pain, even if he was subsequently able to obtain full-time employment at a desk job.

vi. There is no evidence that the applicant has developed psychosocial sequelae after the accident.

23I find that the applicant has not established that he meets the criteria for a diagnosis of chronic pain such that he should be removed from the MIG.

24The applicant provided correspondence from the respondent indicating that the MIG limits have been exhausted. As I have determined that the applicant has not demonstrated that removal from the MIG is warranted, an analysis of whether the treatment plans and OCF-6 in dispute are reasonable and necessary is not required.

Entitlement to Income Replacement Benefit

25I find that the applicant is entitled to an income replacement benefit from June 17, 2021 to June 8, 2023.

26To be entitled to income replacement benefits, the applicant has to prove on a balance of probabilities that as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. The test for entitlement changes after 104 weeks of disability.

27In the Tribunal’s case conference report and order, the disputed time period for this benefit is listed as June 17, 2021 and ongoing. However, the applicant requested the benefit in its submissions from June 17, 2021 to June 13, 2023. Neither party mentions the test for entitlement after 104 weeks, and there are only references in the parties’ submissions to the substantial inability test.

28The 104-week mark is June 8, 2023, and the applicant is seeking benefits for an additional five days past that. I have no way of knowing if this was inadvertent. However, as neither party made any submissions with respect to the post-104 week test, I am not prepared to make any determination with respect to the applicant’s eligibility past June 8, 2023.

29Prior to the accident, the applicant was employed at Yonge Service Company as a delivery driver. He was required to pick up packages and deliver them to local supermarkets. He typically performed 7-8 deliveries per day, lifting packages usually between 11-22 pounds, but sometimes greater than 44 pounds.

30The respondent submits that the question is whether the applicant was able to work during the relevant period, and not whether the applicant did or did not work. The respondent submits that the applicant did not return to work because the position was “no longer available”. It further submits that the applicant failed to provide the complete employment file of Yonge Service Company, and therefore the only evidence as to why he left is his self-report which has been inconsistent. It submits that the applicant was able to work within days after the accident, and as such he is not entitled to benefits.

31For the following reasons, I do not accept the respondent’s argument.

32On September 17, 2021, the applicant underwent a s. 44 functional abilities evaluation and job site assessment with Jordan Duffy, physiotherapist. He reported intermittent lumbar pain, left shoulder pain, and cervicothoracic pain, and rated these areas as between 0-7/10 on a pain scale. His wife assisted him with bathing and donning shirts, and he did not participate in housekeeping other than light tidying. Mr. Duffy opined that the applicant’s abilities were within the light category (11-22 pounds). The strength classification of his pre-accident job was in the medium category (22-44 pounds).

33The applicant also underwent a s. 44 assessment with Dr. Riaz Moolla, general practitioner, on October 20, 2021. The applicant described low back pain which was almost always there, except when lying down. His left shoulder pain was dull and intermittent, and often brief. He reported independence with personal care tasks, but had difficulties with lawn care and vacuuming. He had difficulty sitting or standing for more than 20 or 30 minutes due to low back pain. He had returned to driving since the accident, but only for short distances. Dr. Moolla diagnosed the applicant with lumbosacral myofascial strain and left shoulder sprain/strain. He opined that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

34The applicant advised Dr. Moolla that he was unable to return to work immediately following the accident because of his pain, and his employer told him that they could not wait for two days and he was let go. I find that there is, in fact, evidence that the applicant could no longer complete his job as a delivery driver. Mr. Duffy found that the applicant was only able to lift 11-22 pounds, but the job required the capacity to lift 22-44 pounds. This would make him ineligible for the position.

35The applicant was able to secure full-time employment with Innovative Vision Marketing Inc. on October 16, 2021. This was a customer service position, which allowed the applicant to work at a desk and avoid the heavy lifting required at his previous job. He worked at this job for approximately 6 months, and was let go when the company dissolved in April 2022.

36The test prior to 104 weeks is not whether the applicant can complete any job, it is whether he has a substantial inability to perform the essential tasks of his pre-accident employment. For the reasons above, the applicant has proven on a balance of probabilities that he has met the substantial inability test.

Quantum of Income Replacement Benefit

37Neither party adduced any evidence nor made submissions regarding the quantum of the benefit. I was not provided with pay stubs, income tax returns, or even an OCF-2 form. As such, I have no way of calculating the amount of the benefit. Further, neither party advised whether there was an agreement as to the quantum of the benefit.

38I am accordingly not prepared to make an order with respect to the quantum of the income replacement benefit.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on any overdue income replacement benefits, once the quantum is determined.

ORDER

40The applicant has not demonstrated on a balance of probabilities that he is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline.

41The applicant is not entitled to any of the treatment plans or the OCF-6 in dispute.

42The applicant is entitled to an income replacement benefit from June 17, 2021 to June 8, 2023.

43The applicant is entitled to interest pursuant to s. 51 of the Schedule.