Licence Appeal Tribunal File Number: 22-008711/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:
Monifa Dixon
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Bianca Pirrotta-Iaccino, Counsel
For the Respondent:
Sina Nastarani, Counsel
HEARD: In Writing
Heard by way of written submissions
OVERVIEW
1Ms. Monifa Dixon (the applicant), was involved in an automobile accident on November 30, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General 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. Is the Applicant entitled to the assessments proposed by Alma Rehabilitation Inc., as follows:
i. Chiropractor Assessment in the amount of $3,058.75 submitted on May 6, 2021, and denied on May 19, 2021
ii. Chiropractic Assessment in the amount of $2,825.37 submitted on July 8, 2021, and denied on July 19, 2021
iii. Chiropractic Assessment in the amount of $2,493.35 submitted on September 8, 2021, and denied on October 8, 2021
iv. Chiropractic Assessment in the amount of $2,161.33 submitted on November 30, 2021, and denied on December 29, 2021
3Functional Abilities Assessment in the amount of $2,115.91 submitted on December 24, 2021, and denied on January 4, 2022
[4] Is the Applicant entitled to interest on any overdue payments of benefits?
RESULT
5I find that:
ii. The applicant has failed to demonstrate that the physical treatments plans at issue are reasonable and necessary.
ANALYSIS
The Minor Injury Guideline (“MIG”)
6Section 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.”
7An 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.
8The 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 due to chronic pain.
9The respondent argues that the applicant has not met the burden of proof that her injuries from the motor vehicle accident have made her have chronic pain with a functional impairment.
The applicant remains within the MIG.
10I find that the applicant has not met her onus and demonstrated that she suffers from chronic pain with a functional impairment that warrants her removal from MIG for physical treatments.
Does the applicant suffer from chronic pain?
11I do not find that the applicant suffers from chronic pain.
12The applicant submits that she suffers from chronic pain with a functional impairment due to the motor vehicle accident.
13The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that she suffers from chronic pain with a functional impairment.
14The applicant relies on CNRs from Dr. Hassan, her family doctor, a chronic pain assessment from Dr. Gofeld, and a Functional Abilities Evaluation by Dr. Curcio.
15The respondent relies on Insurer’s Examinations including a physical medicine and rehabilitation specialist assessment by Dr. Ko and an occupational therapy in-home assessment by Ms. Slapinski.
16In the reviewed clinical notes and records of Dr. Hassan, the applicant’s family doctor, there are very few mentions of the motor vehicle accident. From my review, I see that it was mentioned twice, and in both instances, the diagnosis was sprain and strain related injuries. The notes do contain many visits in relation to ongoing pain, but the doctor does not relate them to the motor vehicle accident, he makes not diagnosis at the origin or ongoing cause of the complaints. All of the diagnostic testing done on the applicant, including X-Rays, MRI, CT scan, and cardiac testing did not uncover abnormalities other than a diagnosis of scoliosis from August 26, 2019.
17A chronic pain assessment was completed by Dr. Gofeld, MD, on February 1, 2022. The assessment was in person and was a combination of interview and testing. The physical examination showed no issues with range of motion or palpitations. The physical examination was unremarkable. Based on self reporting, the doctor’s diagnosis was multiple chronic pain syndromes. The doctor also notes that the applicant meets 5 of the 6 tests in the American Medical Association (AMA) Guideline 6^th^ Edition for chronic pain.
18The AMA Guides 6th Edition, stipulate a minimum of three of the following six criteria must be present for a diagnosis of chronic pain:
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 the 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 recreation needs;
vi. development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
19Based on the AMA Guides 6th Edition the doctor attributes these five as positive.
i. Criteria 1: Celebrex and muscle relaxants are being used beyond the recommended duration.
ii. Criteria 2: based on the interview, Ms. Dixon is excessively dependent on her spouse/family. The dependency is noted in the following aspects: extended activities of daily living, housekeeping, emotional insecurity and need in constant support.
iii. Criterion 3: N/A.
iv. Criterion 4: Ms. Dixon quit her pre-accident recreational activities such as playing basketball.
v. Criterion 5: based on the occupational assessment Ms. Dixon failed to restore her pre-injury function in both ADL and housekeeping.
vi. Criterion 6: based on direct observation, pre-assessment questionnaires and psychological assessment, Ms. Dixon suffers from psychological sequelae, including anxiety, depression, fear-avoidance and nonorganic illness behaviour.
20A functional abilities evaluation was completed by Dr. Curcio, DC on November 30, 2021. The evaluation was in person and was a combination of interview and testing. During the interview portion, the applicant reported on her activities of daily life and reported difficulty in completing many of them due to excruciating pain, lack of motivation and low energy. She reported relying fully on family and friends to complete many of her daily tasks beyond self-care. Range of motion testing was completed and showed mild impairments. Hand and pinch grip strength tests were low, as were lifting testing. The assessment notes that the applicant was not able to either crouch or kneel for 3 seconds under testing. The diagnosis included many dysfunctions, disorders, and sprain/strain with a fair to poor prognosis of recovery because of the chronic nature and multiple sites of injury.
21An Insurer’s Exam, physical medicine, and rehabilitation specialist assessment was completed by Dr. Ko on August 12, 2021. During the assessment, the doctor noted no issues, abnormalities, or pain during the exam and full ROM of the in flexion, extension, and rotation. The doctor noted in his findings that the examination was “quite unremarkable” and that the injuries suffered by the applicant in association with the motor vehicle accident were minor sprain/strain in nature.
22An Occupational Therapy In-Home Assessment was completed by Ms. Slapinski on February 16, 2022. The physical examination completed noted normal range of motion. The applicant stated during the assessment that she was 70% improved, and that she feels much better since the accident, although she has lingering pain symptoms. Ms. Slapinski administered a functional abilities evaluation for physical tolerances and a functional abilities evaluation for cognitive/psychosocial tolerances. The physical tolerance noted a few self reported issues with standing and walking over 20 minutes, and issues with stair climbing due to knee pain. Ms. Slapinski’s observations in regard to these issues noted the applicant walking with no issues for 10 minutes, ability to transition from squat to kneeling and able to carry a vacuum downstairs. In the cognitive/psychosocial, the applicant scored low on all tests. Ms. Slapinski was asked about the reasonableness and necessity of two treatment plans, one from Tony Wang, OT, she found only partially reasonable, and the second from Dr. Curicio, she also found partially reasonable. For the second, it was partial due to items in that treatment plan were out of her expertise to assess.
23Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries she suffered in the accident have led to chronic pain with a functional impairment.
24I was led to this conclusion by the lack of compelling medical evidence that chronic pain with a functional impairment is present in the applicant. The one consistent I found across all the reports was that on the majority, physical examinations of the applicant all seem to report them as being unremarkable, and that the applicant seems to have good ROM or at worst mild impairment with ROM. The CNRs of Dr. Hassan make only two mentions of the motor vehicle accident, and all his findings are that the injuries were minor. Similarly, all the diagnostic testing ordered by the doctor did not show any issues or abnormalities with the applicant.
25I gave little weight to the chronic pain assessment by Dr. Gofeld, as I was not directed to how he came to his conclusions as there seemed to be a mismatch between his examination and his diagnosis. In his assertion that the applicant met five of the six AMA Guides criteria, two around ADLs seemed to ignore the applicant’s self reported that she completes all the cleaning duties at her employment that she reports unable to do at home. Similarly, I can find no evidence of prescription drug use beyond recommended duration in review of the applicant’s prescription record. Similarly, when I compared the Functional Abilities testing of Dr. Curcio to the Occupational Assessment by Ms. Slapinski both found little to no ROM issues with the applicant. Where they differed greatly was on some of the physical testing. I preferred Ms. Slapinski’s assessment based on the method of testing and longer period of observation in the applicant’s normal environment.
26The applicant does not suffer from chronic pain with a functional impairment.
Conclusion
27For the reasons noted above, the applicant has not proven that she suffers from chronic pain with a functional impairment to warrant removal from MIG for physical treatments.
The Treatment Plans
28As I have found the applicant to remain within the MIG for physical treatments, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
ORDER
29I find that:
i. The applicant remains subject to the MIG for physical treatments.
ii. The applicant is not entitled to payment for any treatment plans.
iii. As nothing is owed, no interest is due.
iv. The application is dismissed.
Released: August 16, 2024
___________________
Robert Rock
Adjudicator