Licence Appeal Tribunal File Number: 22-005177/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:
Erdi Demir
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Margaret Sims
APPEARANCES:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: Ricky Shen, Counsel
HEARD: In Writing
OVERVIEW
1Erdi Demir, the applicant, was involved in an automobile accident on June 30, 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, TD Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
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 parties agree the MIG limits have been exhausted.
Is the applicant entitled to medical services proposed by Hydro Active Aquatherapy, as follows:
(i) $3,178.09 for chiropractic and massage services, in a treatment plan/OCF-18 (“plan”) submitted January 5, 2022 and denied March 1, 2022;
(ii) $3,162.92 for physiotherapy, chiropractic, and massage services, in a plan submitted March 30, 2022 and denied April 5, 2022; and
(iii) $2,460.00 for a chronic pain assessment, in a plan submitted March 23, 2022 and denied April 19, 2022?
- Is the applicant entitled to interest on any overdue payment of benefits?
3In its submissions, the respondent noted that the applicant has nearly exhausted the MIG limit of $3,500.00 and there is currently only $30.05 remaining of the MIG limit.
RESULT
4I find that the applicant is not subject to the MIG limit of $3,500.00 for medical and rehabilitation benefits.
5The applicant is entitled to the amounts claimed in respect of all the benefits in dispute plus interest.
ANALYSIS
Minor Injury
6I find that the applicant is not subject to the MIG limit of $3,500.00 for medical and rehabilitation benefits. The applicant has demonstrated on a balance of probabilities that his accident-related impairments fall outside of the MIG on the basis that he suffers from chronic pain with a functional impairment as a result of his accident-related injuries.
7Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to the MIG limit of $3,500.00 if the insured person sustains injuries that are predominantly minor as defined in s. 3 of the Schedule.
8Section 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.”
9The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG. To do so, the applicant will need to demonstrate that their accident-related injuries fall outside of the definition of “minor injury”. Chronic pain with a functional impairment may warrant MIG removal.
10A framework for consideration of whether an applicant suffers from chronic pain is the 6th edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 2008 (“AMA Guidelines”). While the test in the AMA Guidelines is not binding, it provides a helpful tool for the evaluation of chronic pain.
11The AMA Guidelines establishes that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
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 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 recreational needs.
vi. development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
12The applicant submits that, after the accident the applicant and, as set out in the OCF-3 dated September 14, 2021 submitted by Hydroactive Aquatherapy Clinic, he was diagnosed with sprain/strain of interphalangeal joint of fingers, other parts of hand, other parts of shoulder girdle, lumbar spine, joints and ligaments of other and unspecified parts of neck, and the thoracic spine. It was noted in the OCF-3 that his pain was aggravated with bending, lifting, carrying, overhead activities, pushing, pulling, gripping, and prolonged standing/sitting/walking.
13The applicant submits that he has not sustained a minor injury as a result of the accident based on his chronic pain.
14To support his submission that he should be removed from the MIG as a result of chronic pain, the applicant relies on the CNRs of Dr. Hoca of Oakdale Medical Center and of the Hydroactive Aquatherapy Clinic. In particular, the applicant relies on the following.
i. It has been nearly 2.5 years since the accident and the applicant continues to complain of physical pain from the accident and his medical practitioner diagnosed him with chronic pain and indicated that he requires chronic pain management;
ii. Dr. Hoca’s CNRs dated October 23, 2021 note that the applicant was involved in the accident and his complaints of ongoing lower back pain. It was noted that he was attending physiotherapy, and he was prescribed Naproxen and Baclofen;
iii. Dr. Hoca’s CNRs dated November 15, 2021 note that the applicant continued to complain of back pain. It was specifically indicated that this back pain commenced after the subject accident. It was also noted that he reported neck pain and left shoulder pain. It was indicated that his pain was aggravated with bending and lifting. He was assessed with mechanical lower back pain, neck pain, and shoulder pain. It was recommended that he obtain further physical therapy and options for chronic pain management were discussed. He was prescribed Cymbalta.
iv. The applicant then underwent an ultrasound of his left shoulder on November 29, 2021. Findings were suggestive of bursitis.
v. Dr. Hoca’s CNRs of December 22, 2021 note that the applicant was suffering from chronic back pain since the subject accident. He was prescribed further Cymbalta.
vi. The applicant was re-assessment at Hydroactive Aquatherapy Clinic on January 5, 2022. In CNRs it was noted that he complained of ongoing left shoulder pain, neck pain, and lower back pain. It was indicated that his pain was aggravated with lifting, home maintenance activities, carrying, and prolonged standing/sitting/walking.
vii. Dr. Hoca’s CNRs of January 6, 2022 note that the applicant complained of accident-related back pain, neck pain, and shoulder pain. It was also noted that he was struggling with insomnia due to his pain. He was once again diagnosed with chronic back pain. He was prescribed further Cymbalta.
viii. The Hydroactive Aquatherapy Clinic CNRs of May 14, 2022 assess that the applicant is suffering from ongoing back pain, shoulder pain, and headaches.
ix. The applicant submits that it was in or about his last attendance at Hydroactive Aquatherapy Clinic CNRs of May 14, 2022 that he was denied further treatment by the respondent, he could not afford further treatment and that any further appointments with his family doctor would be unproductive given he was not able to access further treatment.
15The respondent submits that the applicant has failed to demonstrate that he suffers from chronic pain warranting removal from the MIG. In this regard, the respondent submits that:
i. the applicant has not provided evidence to demonstrate that he has met any of the criterion in the AMA Guide to substantiate a chronic pain diagnosis;
ii. the applicant has not provided the respondent with a copy of his updated prescription summary or updated clinical notes beyond January of 2022;
iii. the applicant was never formally diagnosed with chronic pain by any healthcare provider;
iv. the applicant’s alleged chronic pain has not resulted in any functional impairment and disability which can be characterized as having significantly disrupted or disabled his activities of daily living.
16The respondent relies upon the physiatry insurance examination and paper review report of Dr. Ko and, while the applicant does not seek removal from the MIG based on a psychological condition, the respondent also includes the psychological assessment report of Dr. Syed in its evidence.
17The respondent submits that an adverse inference should be drawn because the applicant has not provided his prescription summary nor any documentation to substantiate that he suffers from ongoing pain complaints beyond January of 2022.
18I am not prepared to draw an adverse inference against the applicant as was suggested by the respondent. I do not find, as suggested by the respondent, that there is no documentation in the record to substantiate that the applicant suffers from ongoing pain complaints beyond January of 2022.
19I find that the applicant is not subject to the MIG limit of $3,500.00 for medical and rehabilitation benefits. The applicant has demonstrated on a balance of probabilities that his accident-related impairments fall outside of the MIG on the basis that he suffers from chronic pain with a functional impairment as a result of his accident-related injuries.
20I find that the applicant meets at least three of the AMA Guidelines criteria indicating chronic pain. These criteria which the applicant meets are:
i. withdrawal from social milieu, including work, recreation, or other social contracts;
ii. 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
iii. secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
21In making these findings, I am satisfied that the applicant suffers from chronic pain which has caused functional impairment and which has significantly disrupted his pre-accident activities of daily living.
22I find that Dr. Hoca assessed the applicant as having chronic back pain. The CNRs of Dr. Hoca of Oakdale Medical Center, which include:
i. CNRs of November 15, 2021 that the applicant came to the clinic complaining of back pain for the last 4 ½ months, the pain started after the accident, and the pain increases by bending and lifting and decreases by rest and pain meds. Dr. Hoca assessed “mechanical low back pain / neck pain / shoulder pain / motor vehicle accident”, advised the patient to avoid bending and lifting and discussed chronic pain management. Dr. Hoca prescribed that the applicant should continue with physiotherapy and prescribed pain medication.
ii. CNRs of December 22, 2021 that the applicant came in for a refill of his prescription. Dr. Hoca assessed back pain and refilled his pain medication prescription.
iii. CNRs of January 6, 2022 noting that the applicant complained of chronic back pain, neck pain and shoulder pain that started after motor vehicle accident, and he is he is taking his pain mediation once dally. At this examination, Dr. Hoca assessed the applicant as having chronic back pain and refilled his pain medication prescription.
23I note that the purpose of the MIG Determination IE assessment of Dr. Ko of February 24, 2022 was to assess whether the applicant had sustained a “minor injury” as defined in the Schedule as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.” Dr. Ko found that the applicant suffered from a sprain / strain injury of the left shoulder and lumbar spine which injury falls within the definition of a minor injury and found that there was no compelling evidence of a pre-existing condition that would prevent him from achieving maximum medical recovery if treated within the MIG. While Dr. Ko assesses the applicant’s physical condition and outlines information relevant to the assessment of chronic pain, he did not opine on the issue of chronic pain or on the criteria set out in the AMA Guidelines.
24I find that the applicant has been unable to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
i. As set out above, in Dr. Hoca’s CNR’s of November 15, 2021, Dr. Hoca’s assessment was mechanical low back pain, neck pain, shoulder pain arising from the accident and advised the applicant to avoid bending and lifting.
ii. In the Dr. Syed’s Report which was based on an assessment on February 11, 2022 (approximately 8 months after the accident), which report is dated February 24, 2022 (shortly before the plan denials at issue in this application), Dr. Syed noted the following.
a. Prior to the accident the applicant was running a restaurant but he stopped working as a result of pain in his left shoulder, lower back and neck.
b. The applicant’s explained that the barriers for his return to work are that his pain limits his ability to lift and carry which affects his vocational duties.
c. The applicant reported that he is currently taking a prescription painkiller.
d. In describing his typical day currently, he explained that he spends much of his time at home and occasionally goes on a short walk. His social life has become limited. “I’m not working so I don’t get to socialize and then money is a factor.” He remains independent in managing his personal hygiene and self-care. The housekeeping tasks have become more challenging due to his pain. His sleep has become disrupted.
e. The applicant reported pain in his neck, shoulder (left) and lower back.
f. The applicant described the pain as being intermittent and reported the intensity of his pain is largely dependent on the context of his day. He rated his physical pain at 6 out of 10, 10 being unbearable. He reported that his physical symptoms have been improving since his accident. He indicated the pain is located in his neck, left shoulder and lower back. Due to his pain, he explained, “I am unable to work because of pains. I cannot walk longer than 30 minutes. I cannot lift more than 11-20 kg.” He reported that his medication, rest and avoiding physically demanding tasks help to reduce his pain for a short period of time. He stated his life would go back to normal if there were no pain.
g. The applicant reported having difficulty falling and staying asleep due to his discomfort, racing thoughts and bad dreams. He stated that he does not feel rested when he wakes up in the morning. He communicated feeling tired throughout the day and attributed this to a lack of sleep.
h. At the time of the assessment, the applicant reported that he was receiving physiotherapy, massage therapy and indicated that they have been beneficial for him.
iii. In the assessment portion of Dr. Syed’s Report, Dr. Syed’s opinion includes:
[the Applicant] rated his physical pain at 6 out of 10, 10 being unbearable. He reported that his physical symptoms have been improving since his accident. He indicated the pain is located in his neck, left shoulder and lower back. Due to his pain, he explained, “I am unable to work because of pains. I cannot walk longer than 30 minutes. I cannot lift more than 11-20 kg.” He reported that his medication, rest and avoiding physically demanding tasks helps to reduce his pain for a short period of time. He stated his life would go back to normal if there were no pain.
. . . given his clinical presentation, it would appear that his physical issues are more of a concern at the present time than his psychological complaints. Overall, results of this evaluation indicate that Mr. Demir in general may experience some psychological concerns which are mostly situational in nature with pain being his primary limiting factor.
25I find that the applicant has withdrawn from his social milieu, including work and social contacts. In addition to the information set out in paragraph 24 above, I note that Dr. Ko’s report includes the self-reporting by the applicant that:
i. he is unable to socialize with his friends as long as he used to do before the pain;
ii. he went back to work within 7 to 10 days but worked at reduced hours per week (about 20 hours) until December 2021. He then stopped working due to increasing pain and reduced productivity.
26I find that the applicant is suffering from secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. In his report, Dr. Ko’s report does not include an assessment of chronic pain or the AMA Guideline criteria; however, Dr. Ko provides the following assessment in respect of the physical examination results:
i. active range of motion of the bilateral shoulders was limited to 90 degrees in abduction and forward flexion due to pain (normal is 180 degrees). Passive range of motion of the bilateral shoulders was limited to 90 degrees in abduction and forward flexion due to pain and full in external rotation, internal rotation and extension;
ii. active range of motion of the lumbar spine was reduced to 40 degrees in flexion due to pain (normal is 70 to 90 degrees), 10 degrees in extension due to pain (normal is 20 degrees) and full in lateral flexion bilaterally; and
iii. manual strength testing revealed diffuse weakness in all the muscle groups of the upper and lower extremities in a pattern that did not fit any specific nerve injuries.
27As set out above, I find that the applicant’s medical and rehabilitation benefits are not subject to the MIG limit of $3,500.00. The applicant has demonstrated on a balance of probabilities that his accident-related impairments fall outside of the MIG on the basis that he suffers from chronic pain with a functional impairment as a result of his accident-related injuries.
28I find that the three plans at issue are reasonable and necessary as a result of the accident.
29To be entitled to a treatment plan under sections 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.
30In considering whether the treatment is reasonable and necessary, I have considered whether (i) the treatment goals are reasonable, (ii) the goals are being met to a reasonable degree and (iii) the overall costs of achieving the goals is reasonable.
31The onus is on the applicant to prove that an assessment is reasonable and necessary and that there is a link between the assessment sought and an accident-related impairment. Section 25(1) of the Schedule provides that an insurer shall pay reasonable fees for the preparation of an assessment.
32The applicant relies on the information and assessments set out in the plans and the CNRs of Dr. Hoca of Oakdale Medical.
33The applicant submits that the plans at issue are reasonable and necessary, and, given the applicant’s complaints of ongoing back pain, shoulder pain, and neck pain, especially around the time that the plans were submitted, that the treatment is crucial to allow the applicant to properly address his chronic pain, which originated from this accident.
34The applicant submits that the chronic pain assessment is reasonable and necessary and, given his complaints of ongoing back pain, shoulder pain, and neck pain, a chronic pain assessment would be helpful to determine the exact nature of his pain and create a multidisciplinary pain management program which can assist in his recovery process.
35The respondent submits that the applicant has not satisfied his onus of proving the disputed plans are reasonable and necessary and that the applicant has not provided any evidence, aside from the plans themselves, which establishes the disputed plans are reasonable and necessary.
36Further, the respondent relies on Dr. Ko’s report which it submits Dr. Ko found that the disputed plans seeking massage therapy, chiropractic treatment, and chronic pain assessment are not reasonable and necessary as the applicant’s injuries were within the definition of “minor injury”.
37The respondent submits that, contrary to the applicant's submissions, there has been no recommendation for chronic pain assessment and that the November 15, 2021 CNRs of Oakdale Medical Center only indicates that chronic pain management was "discussed”, but there was no specific mention of a referral or recommendation to a chronic pain specialist / program.
Chiropractic and Massage Services Plan, submitted January 5, 2022
38I find that the applicant is entitled to $3,178.09 for chiropractic and massage services, in a plan proposed by Hydroactive Aquatherapy, submitted January 5, 2022 and denied March 1, 2022.
39The plan was submitted by Dr. Mahsa Takallou, chiropractor for chiropractic therapy, physiotherapy, massage therapy and a TENS machine services. The plan sets out:
i. the goal of pain reduction, increase in strength, increased range of motion and return to activities of daily living;
ii. evaluation of progress toward reaching goals as VAS, ROM, subjective reporting, objective testing, functional testing;
iii. noted moderate progression from previous plan.
40I find that the CNRs of Dr. Hoca and the physical examination results set out in Dr. Ko’s report outlined above support a finding of the reasonableness of the plan’s goals of pain reduction, increasing strength and range of motion.
41I find that services proposed in the plan are reasonable and necessary in respect of the injury as:
i. the treatment goals set out in the plan are reasonable,
ii. the method for evaluation of progress toward reaching the goals are reasonable, and
iii. the overall cost of achieving the goals of $3,178.09 is reasonable.
Aquatic Therapy Services Plan, submitted March 30, 2022
42I find that the applicant is entitled to $3,162.92 for aquatic therapy services proposed by Hydroactive Aquatherapy, in a plan submitted March 30, 2022 and denied April 5, 2022.
43The plan was submitted by Dr. David Huang, chiropractor for aquatic therapy services, and includes a detailed description of the aquatic therapy program which facilitates exercises that the applicant would not normally be able to perform on land as a means to returning to full functional abilities.
44The plan sets out:
i. the goal of pain reduction, increase in strength, increased range of motion, return to activities of daily living and the additional goals of “Improving flexibility, balance and coordination, building muscle strength and endurance, enhancing aerobic capacity, assisting with gait and locomotion, reducing stress and promoting relaxation”.
ii. evaluation of progress toward reaching goals as “re-assessment, subjective and objective findings, ranges of motion, Pain scale, Orthopaedic testing, Neurological testings, Vestibulo-ocular testings”.
45I find that services proposed in the plan are reasonable and necessary in respect of the injury as:
i. the treatment goals set out in the plan are reasonable as the applicant suffers from a decrease in range of motion and strength and has not returned to his activities of daily living,
ii. the method for evaluation of progress toward reaching the goals are reasonable, and
iii. the overall cost of achieving the goals of $3,162.92 is reasonable.
Chronic Pain Assessment
46I find that the applicant is entitled to $2,460.00 for a chronic pain assessment proposed by HydroHealth Evaluations Inc., in a plan submitted March 23, 2022 and denied April 19, 2022.
47The plan was submitted by Dr. Michael Gofeld, physician, for a chronic pain assessment, and includes that assessment will determine the extent of the applicant’s chronic pain suffering in relations to the subject motor-vehicle-collision and will provide recommendations for appropriate multidisciplinary pain management program will be provided to assist him with his recovery process and self-management.
48The plan sets out:
i. the goal of pain reduction and to restore functional tolerance and endurance, and to return to activities of daily living.
ii. evaluation of progress toward reaching goals of follow-up evaluations, orthopaedic testing, palpation tests, symptom monitoring,
49I find that the chronic pain assessment is reasonable and necessary as a result of the accident.
i. As set out above, I have found that the applicant suffers from chronic pain as a result of the injuries he sustained in the accident;
ii. a chronic pain assessment to provide recommendations for a pain management program and assist in his recovery are reasonable;
iii. the overall cost of the chronic pain assessment of $2,460.00 is reasonable.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
51Having found that the applicant is entitled the amounts claimed in respect of the plans, the applicant is entitled to interest pursuant to s. 51 of the Schedule.
ORDER
52I order that the applicant’s medical and rehabilitation benefits are not subject to the MIG limit of $3,500.00.
53I order that the respondent shall pay:
i. $3,178.09 for chiropractic and massage services, in a plan proposed by Hydroactive Aquatherapy, submitted January 5, 2022 and denied March 1, 2022;
ii. $3,162.92 for aquatic therapy services proposed by Hydroactive Aquatherapy, in a plan submitted March 30, 2022 and denied April 5, 2022;
iii. $2,460.00 for a chronic pain assessment proposed by HydroHealth Evaluations Inc., in a plan submitted March 23, 2022 and denied April 19, 2022; and
iv. interest in respect of the plans pursuant to s.51 of the Schedule.
Released: September 6, 2024
Margaret Sims Adjudicator