Dawkins v. BelairDirect Insurance Company, 2024 CanLII 81222

Citation: Dawkins v. BelairDirect Insurance Company, 2024 ONLAT 22-006469/AABS

Licence Appeal Tribunal File Number: 22-006469/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:

Rushano Dawkins

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Jeffrey Herman, Counsel

For the Respondent: Erica Lewin, Counsel

HEARD: In Writing

OVERVIEW

1Rushano Dawkins, the applicant, was involved in an automobile accident on July 3, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 limit?

ii. Is the applicant entitled to $87.19 ($1,299.59 less $1,212.40) for chiropractic services, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan that was partially approved on September 21, 2021?

iii. Is the applicant entitled to $2,746.94 for chiropractic services, proposed by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan submitted October 27, 2021?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to an award; and

iv. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits he suffers from chronic pain, psychological state and head injury, which are not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that his injuries are not predominately minor and that they can be treated within the confines of the MIG, which has already been exhausted. I agree with the respondent.

The applicant does not suffer chronic pain that warrant removal from the MIG

8I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

9In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. 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 from his soft tissue injuries.

10The applicant submits that he should be removed from the MIG as his pain has persisted since the accident, and therefore he suffers from chronic pain. The clinical notes and records (“CNRs”) of Mr. Joshua Charles, chiropractor, assessed that the applicant was suffering from chronic low back pain due to his lumbar strain injuries resulting from the accident. The applicant has not been diagnosed with chronic pain syndrome by a medical physician.

11The respondent submits that the applicant does not rely on any objective medical evidence to establish chronic pain warranting removal from the MIG. The respondent relies on the CNRs of Dr. Muhammad Hack, family physician, and Dr. Qurat Bakht, new family physician, which do not reference chronic pain, make a diagnosis or refer the applicant to a specialist. The CNRs diagnose the applicant with strain and sprain soft tissue injuries.

12The respondent also references the American Medical Association Guides (“AMA Guides”) criteria about chronic pain. Unlike for catastrophic impairment, the AMA Guides’ passages for chronic pain are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that a person can be diagnosed with chronic pain when they have three or more of the six factors. The respondent submits that the applicant has not provided evidence of prescription drug abuse, failed to demonstrate an over-reliance on healthcare providers or family with gaps in appointments with family physician, has failed to show a secondary deconditioning or fear-avoidance on physical activities, the applicant has returned to work, and although he has self-reported decreased social functioning, it is not reported to his family physician.

13I agree with the respondent and put little weight on the assessment of Mr. Charles as it is outside a chiropractor’s scope of practice to make medical diagnoses. There has been no formal diagnosis of chronic pain or chronic pain syndrome, and absent a diagnosis I am persuaded by the respondent’s evidence that the applicant does not meet three of the six criteria in the AMA Guides. I prefer the medical evidence of Dr. Hack and Dr. Bakht that the applicant sustained soft tissue injuries. As a result, I am not persuaded that the applicant’s pain symptoms are severe and functionally disabling.

14I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has chronic pain that would warrant removal from the MIG.

The applicant does not suffer psychological impairments that warrant removal from the MIG

15I find that the applicant has not provided sufficient evidence to demonstrate that his psychological impairments justify treatment beyond the MIG.

16An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

17In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

18The applicant relies on his self-report of sadness to Dr. Alisa Naiman, family medicine, during his income replacement benefits assessment dated October 18, 2021. Dr. Naiman did not make a psychological diagnosis. The CNRs of Mr. Charles also references that the applicant’s pain impacts his psychological state. The applicant submits no additional medical evidence.

19The respondent submits that that applicant does not provide any medical evidence to show an actual psychological impairment. The respondent notes that the applicant made no significant psychological complaints to treating physicians that were captured in CNR, and there has been no psychological diagnosis.

20After reviewing the minimal evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG. I was not presented with any medical evidence of a psychological diagnosis, that the applicant has been referred for therapy. I also note that the applicant is not seeking psychological treatment within the application.

21As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a psychological injury resulting from the accident that would warrant his removal from the MIG.

The applicant does not suffer a concussion that warrants removal from the MIG

22I find that the applicant has not provided sufficient evidence to demonstrate that he suffered a concussion as a result of the accident, which would justify treatment beyond the MIG.

23Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule and neither condition is in the definition. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, he suffered a concussion or post-concussive syndrome.

24The applicant did not provide medical evidence that demonstrates as a result of the accident, he suffered a concussion or post-concussive syndrome. There is no evidence of a diagnosis. The applicant submits that the CNRs of Dr. Hack dated July 15, 2021 that list “head injury” and the CNRs of Dr. Bakht dated January 24, 2022 that list “concussion” are sufficient evidence to prove that he sustained a concussion as a result of the accident. Lastly, the applicant relies on the CNRs of Mr. Charles that diagnosed a “possible concussion” and the OCF-23 of Mr. Charles that listed a likely concussion as a barrier to recovery.

25The respondent relies on the CT scan completed at Etobicoke General Hospital on July 3, 2021, the date of the accident, the results of the CT scan were normal. Neither Dr. Hack nor Dr. Bakht diagnosed the applicant with a concussion.

26I find that the applicant did not provide evidence to demonstrate that he was diagnosed with a concussion as a result of the accident. I find that neither family physician diagnosed the applicant with a concussion or a head injury as a result of the accident. The 2021 CNRs of Dr. Bakht’s did not diagnose the applicant with a concussion, but a diagnosis was referenced in a follow up appointment in 2022. I find it is unclear on what basis Dr. Bakht’s diagnosis was made, and I am not persuaded it was as a result of the accident. I put little weight on the diagnosis of Mr. Charles as it is outside a chiropractor’s scope of practice to make medical diagnoses. Lastly, I am persuaded by the CT scan completed on the date of the accident, which found no head injury abnormalities.

27As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a concussion resulting from the accident that would warrant his removal from the MIG.

28The applicant is not entitled to the disputed treatment plans because I have found the applicant is subject to the MIG and the proposed treatment is outside of the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

29Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

AWARD

30Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of O. Reg. 664. Thus, no award is payable.

ORDER

31The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to an award; and

iv. The applicant is not entitled to interest.