Alam v. TD General Insurance Company, 2024 CanLII 910

Citation: Alam v. TD General Insurance Company, 2024 ONLAT 21-014607/AABS

Licence Appeal Tribunal File Number: 21-014607/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:

Saadat Alam

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Camille Narine-Ramrattan, Paralegal

For the Respondent: Olga Elmanova, Counsel

HEARD: By way of written submissions

OVERVIEW

1Saadat Alam, was involved in an automobile accident on September 16, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The case conference report and order dated September 21, 2022, addresses benefits denied arising out of two accidents, on May 31, 2017, and September 16, 2018. A preliminary issue pertaining to the applicant being barred from proceeding with a hearing because he did not dispute the benefits within the two-year limitation period was raised pursuant to section 56 of the Schedule. Section 56 provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s denial.

PRELIMINARY ISSUES

3The Tribunal later determined on December 1, 2022, at a preliminary issue hearing, and in a Preliminary Issue Order, that two treatment plans relating to the accident on May 31, 2017, were statute-barred, however the applicant was not statute -barred from proceeding with a treatment plan arising out of the September 16, 2018, accident. On December 1, 2022, the Tribunal determined that the applicant is statute-barred from proceeding with a hearing in relation to the two treatment plans arising out of the accident on May 31, 2017, bearing file number 21-013221. However, the Tribunal found that the applicant was not statute-barred from proceeding in relation to the disputed treatment plan arising out of the September 16, 2018, accident.

4The Tribunal found that the limitation period for the application arising out of the September 16, 2018, accident was within the limitation period by reason of the operation of O. Reg. 73/20. File number 21-014607/AABS was not barred by section 56 of the Schedule. The treatment plan relating to the September 16, 2018, accident was denied on November 8, 2019. In normal circumstances, the applicant would have had until November 8, 2021, to dispute the denial. However, on March 20, 2020, the Ontario Government enacted O. Reg. 73/20, which regulation suspended limitation periods retroactively from March 16, 2020. O. Reg. 73/20 was repealed on September 14, 2020. The legislation was in force for 183 days. As such, a limitation period that began running before March 16, 2020, could be extended a further 183 days.

5The applicant now requests a determination of the two issues which are the subject of 21-013221/AABS, arising out of the May 31, 2017 accident, despite the Tribunal decision to the effect that the applicant’s application in 21-013221/AABS is statute-barred. Therefore, the matter of 21-013221, is res judicata. As submitted by the respondent, the Tribunal decision of December 1, 2022 is determinative of the two treatment plans arising out of the May 31, 2017, accident and therefore the applicant is statute-barred pursuant to section 56.

6I will not revisit the preliminary issue determination of December 1, 2022, as it is res judicata. The applicant had the opportunity to make submissions on an extension of time pursuant to section 7 of the Licence Appeal Tribunal Act (“LAT Act”), which permits statutory discretion to extend the time for commencing a proceeding. The applicant did not request an extension of the limitation period and as a result he did not meet his onus to establish that an extension was appropriate. Therefore, LAT file number 21-013221/AABS is closed and I will not adjudicate the issues in this matter as it is res judicata as stated based on the previous Tribunal decision noted dated December 1, 2022.

ISSUES

7The issues in dispute as set forth in the Case Conference Report and Order dated September 21, 2022, are as listed below. The treatment plan arising from the date of loss on September 16, 2018, in section iii, remains in dispute together with a determination of the application of the Minor Injury Guideline:

Date of loss of May 31, 2017:

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 limit in the Minor Injury Guideline (“MIG”) limit for both dates of loss?

ii. Is the applicant entitled to medical services proposed by Alexmuir Wellness Centre, as follows (Two issues in dispute in section ii (a) and (b) are statute barred and vacated as determined by the Tribunal on December 1, 2022; LAT file number 21-013221/AABS is closed):

a. $2,125.00 for psychological services, in a treatment plan submitted December 9, 2017, and denied December 21, 2017; and

b. $3,426.16 for physiotherapy services, in a treatment plan submitted December 6, 2017, and denied December 20, 2017?

Date of loss of September 16, 2018:

iii. Is the applicant entitled to $2,190.00 for a chronic pain assessment, in a treatment plan/OCF-18 (“plan”) proposed by Alexmuir Wellness Centre submitted November 5, 2019 and denied November 8, 2019?

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

RESULT

8I find that the applicant sustained minor injuries as a result of the accident on September 16, 2018, which are treatable within the MIG.

9According to the respondent’s submissions the MIG limit has not been entirely exhausted. The applicant has used $1,700.00 of the $3,500.00 Minor Injury Guideline limit available. Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit is below the $2,190.00 cost for a proposed chronic pain assessment, submitted November 5, 2019, in an OCF-18, an analysis of whether the treatment and assessment plan in dispute is reasonable and necessary is not required.

10The applicant is not entitled to the treatment plan in dispute, as the MIG limit is below the $2,190.00 cost for the proposed chronic pain assessment, submitted on November 5, 2019, in an OCF-18.

11Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Analysis

The applicant has not demonstrated that removal from the MIG is warranted by reason of pre-existing physical injuries or injuries caused by the accident on September 16, 2018

12The issue of whether the applicant sustained a minor injury as defined by section 3 of the Schedule must first be addressed before determining the reasonableness and necessity of the Treatment and Assessment Plan in dispute. It is the applicant’s submission that he experiences ongoing pain and functional limitation by reason of pre-existing injuries resulting from the May 31, 2017, accident as documented by his family physician Dr. Tat-Kwan Wong’s clinical notes and records (“CNRs”). However, I find that the applicant’s submission is not supported by the CNRs of Dr. Tat-Kwan Wong, which show the applicant reporting accident-related symptoms shortly after the September 16, 2018 accident on September 25, 2018, and then not again until over a year afterwards on November 4, 2019. Following that date, there are no CNRs available from November 4, 2019, to January 20, 2021. I agree with the respondent’s submission that the applicant’s injuries resulting from the May 31, 2017, accident were not aggravated, following the accident on September 16, 2018, to the extent that removes him from the MIG. Dr. Julie Millard, in her Physiatry section 44 IE assessment opines that the applicant’s injuries meet the criteria of the MIG, taking into account the effects of the accident on May 31, 2017. Dr. Julie Millard finds in her report dated April 25, 2019, that the applicant sustained soft tissue sprain injuries capable of maximal recovery within the MIG limit.

13Section 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. In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

14Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.” The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that his injuries are not minor, or the applicant has a pre-existing condition that would prevent maximal recovery within the MIG. In all cases, the burden of proof lies with the applicant.

15The applicant submits that he is prevented from maximal recovery if he is limited to the MIG. The applicant’s reply states that the MIG limit has been paid in the amount of $2,299.50 and that $1,200.50 remains before the MIG is exhausted. The respondent states at paragraph 7 of submissions that $1700.00 has been incurred.

16The applicant is 27-years-of age. An OCF-3 dated September 19, 2018, prepared by Ginni Bajaj, physiotherapist, lists the duration of the applicant’s disability as being 9 to 12 weeks. The injuries listed are Whiplash Associated Disorder II, sprain and strain of shoulder joint, shoulder girdle, thoracic and lumbar spine, pain in left hand and left arm, chest pain, headache, and sleep disorder.

17I find that the applicant experienced accident-related symptoms requiring medical and rehabilitation treatment for approximately one year following the September 16, 2018 accident from September 2018, to November 2019 based on a review of the attendance records at Alexmuir Wellness Center Inc. and the medical evidence. The applicant received physical treatment at Alexmuir Wellness Center Inc. from September 19, 2018, however, his last date of treatment was November 5, 2019. In addition, as submitted by the respondent, there is a period of one year and two months when no appointments with the family physician Dr. Tat-Kwan Wong are included in the CNRs from November 4, 2019, until January 20, 2021. In addition, no prescription summary for the applicant has been included in evidence. I find the lengthy gap in time between visits with Dr. Tat-Kwan Wong, considered together with no evidence of prescription medication to address accident-related complaints, and the applicant no longer seeking physical treatment at Alexmuir Wellness Center after November 5, 2019, does not support the applicant’s submission that his accident related injuries are outside the MIG.

18As stated, the CNRs from the applicant’s family physician, Dr. Tat-Kwan Wong demonstrate the applicant reporting accident-related symptoms from September 25, 2018, to November 4, 2019. The CNRs of Dr. Tat-Kwan Wong stop after November 4, 2019, until January 20, 2021. The respondent submits that on September 25, 2018, October 16, 2018, November 6, 2018, and on December 3, 2018, Dr. Tat-Kwan Wong assesses the applicant with chest wall strain, sprain of the left shoulder and left wrist, tension headaches and stress. Dr. Tat-Kwan Wong advises the applicant to continue physiotherapy, get rest, and, in addition, that the chest pain which the applicant complains of is not a dangerous symptom. In addition, the respondent notes at paragraph 17 of the applicant’s submissions that it is referenced on September 3, 2019, the applicant telling Dr. Tat-Kwan Wong that he no longer attends physical therapy treatment due to its denial by the respondent, although the applicant actually attended treatment until November 5, 2019.

19The respondent relies on expert reports including the section 44 physiatry report of Dr. Julie Millard dated April 25, 2019, opining in relation to the MIG respecting the September 16, 2018, accident. Dr. Julie Millard opines based on her examination of the applicant and review of the medical evidence, that from a musculoskeletal perspective, the applicant’s injuries resulting from the accident, meet the criteria of a minor injury as described in the MIG. Dr. Millard takes into account the effects of the accident on May 31, 2017, which resulted in injuries to the applicant’s neck and back as set forth in the medical file provided. Dr. Millard finds that based on the applicant’s ability to work and function independently, that the prior injuries from the May 31, 2017, accident may possibly be contributing to his current condition, but Dr. Millard opines that she does not anticipate that it will prevent the applicant from reaching maximal medical recovery given his functionality.

20Dr. Millard found no objective evidence of myelopathy or radiculopathy in her Insurance Examination section 44 report. Dr. Millard’s diagnosis of the applicant’s injuries resulting from the motor vehicle accident on September 16, 2018, includes post-traumatic headaches, cervical musculoligamentous sprain, bilateral trapezius musculotendinous strain, lumbar spine musculoligamentous/ tendinous sprain. Dr. Millard finds that the applicant sustained soft tissue musculoligamentous sprain injuries to his cervical spine and lumbar spine as well as musculoligamentous injuries to his bilateral trapezius. No joint limitations or restrictions were identified by Dr. Millard and the neurological examination was normal. Dr. Millard was not provided with CNRs from Dr. Tat-Kwan Wong pre-dating the accident on September 16, 2018, nor were any diagnostic test results provided with the CNRs of Dr. Tat-Kwan Wong.

21As submitted by the respondent, medically compelling evidence is required for the applicant to meet the burden of showing that a pre-existing condition prevents the applicant from achieving maximum medical recovery under the MIG. The respondent submits that the applicant’s submissions do not describe the injuries resulting from the May 31, 2017, accident as exacerbated, following the accident on September 16, 2018.

22I find the applicant has not pointed me to evidence to support his claim that his pre-existing conditions were aggravated by the accident on September 16, 2018, preventing him from maximal recovery within the limits of the MIG. The CNRs of Dr. Tat-Kwan Wong, show that the pre-existing and accident-related injuries do not require treatment outside the limitations of the MIG. Dr. Tat-Kwan Wong’s diagnosis of the applicant following the September 16, 2018, accident, is consistent with treatment being limited to the MIG. Dr. Tat-Kwan Wong’s treatment recommendations show that he considered the injuries minor because he did not order diagnostic tests, nor refer the applicant to a specialist following the accident. Dr. Tat-Kwan Wong suggests the applicant engage in exercise to improve his symptoms and use ice and heat as compresses. The applicant reports accident-related pain to Dr. Tat-Kwan Wong following the accident but declines pain medication when offered.

23Dr. Millard finds based on the applicant’s ability to work and function independently, that the prior injuries from the May 31, 2017, accident may be contributing to his current condition but Dr. Millard opines that she does not anticipate that it will prevent the applicant from reaching maximal recovery given his functionality. By reason of the CNRs of Dr. Tat-Kwan Wong failing to provide sufficient evidence that the applicant’s injuries require medical treatment beyond the limitations of the MIG, I prefer the findings and opinion as set forth in the s. 44 physiatry report of Dr. Julie Millard dated April 25, 2019, that opines the applicant sustained soft tissue sprain injuries and that his injuries are capable of maximal medical recovery within the limits of the MIG.

24I find that the applicant has failed to meet his burden to demonstrate that his pre-existing injuries and accident-related injuries require medical benefits beyond the limitations of the MIG, in order for the applicant to reach maximum medical recovery. Pursuant to section 18(2) the applicant is required to provide compelling medical evidence that a pre-existing condition, prevents the applicant from achieving maximum medical recovery if confined to the MIG.

Psychological Impairments

25I find that the applicant’s submission that the CNRs of Dr. Tat-Kwan Wong offer a psychological diagnosis is not accurate and there is insufficient evidence provided by the applicant to meet the burden of demonstrating a psychological impairment pre-existing or caused by the accident on September 16, 2018. The applicant reports symptoms in Dr. Tat-Kwan Wong’s CNRs and Dr. Tat-Kwan Wong does not refer the applicant to a psychologist or psychiatrist. I prefer the evidence offered in the Insurance Examination and psychological assessment of Dr. Shahriar Moshiri, dated September 26, 2019, where Dr. Moshiri opines following psychological testing and based on DSM-5 diagnostic categories, that the applicant does not experience a psychological condition.

26The applicant submits that as a result of the accident, he experiences flashbacks causing sleep disturbances, that the applicant suffers low mood, poor appetite and feelings of sadness.

27I find there is insufficient evidence that the applicant had a pre-existing psychological condition exacerbated by the September 16, 2018, accident, taking into account the previous accident on May 31, 2017, in order for the applicant to meet his burden. The CNRs of Dr Tat-Kwan Wong offer sparse evidence of the applicant experiencing psychological impairments following the accident on May 31, 2017, or September 16, 2018. On June 19, 2017, the applicant describes experiencing low mood and adjustment disorder. The applicant did not report psychological symptoms again until September 25, 2018, following the accident on September 16, 2018, when the applicant reports that his concentration was poor. However, on the same day, the applicant denied having a depressed mood or nightmares. The applicant similarly stated at his next appointment on November 6 that he was not experiencing depression. The applicant did not discuss any psychological symptoms following the September 2018 accident, nor mention any psychological issues at his next appointment on December 3, 2019.

28I find that the CNRs of Dr. Tat-Kwan Wong, showing the applicant’s infrequent mention of accident-related psychological effects, after lengthy intervals of four months post-accident, and then nine months following the accident, without a psychological diagnosis by Dr. Tat-Kwan Wong, do not persuade that he experienced psychological impairments as a result of the accident. The applicant sporadically describes to Dr. Tat-Kwan Wong that he has psychological issues following the accident on September 16, 2018, however there is no psychological diagnosis offered nor referrals to specialists. It is not until approximately four months after the September 2018 accident, at an appointment with Dr. Tat-Kwan Wong on January 7, 2019, that the applicant describes experiencing low mood and poor sleep as a result of the accident. However, nine months afterwards on September 3, 2019, the applicant states that he has no symptoms of anxiety, nor that he experiences depression. On November 4, 2019, the applicant advises Dr. Tat-Kwan Wong that he was having mood swings, experienced irritability, and has issues with concentration as a result of the accident.

29The applicant relies on the CNRs of Dr. Tat-Kwan Wong to demonstrate he experienced psychological impairments. The respondent relies on the section 44 IE psychological assessment of Dr. Shahriar Moshiri, dated September 26, 2019, completed one year following the accident. The psychological evaluation includes the Burns Anxiety Inventory, Brief Mood Survey, Beck depression inventory and Beck anxiety inventory being administered. Based on DSM-5 diagnostic categories, Dr. Moshiri, found that the applicant does not have a formal psychological condition. The applicant stated to Dr. Moshiri that he had no issues with his memory or concentration; that he enjoys visiting friends, listening to music, and going for walks. The applicant denied to Dr. Moshiri that he experiences depression, anxiety, and anger. Dr. Moshiri found that a treatment plan for a psychological assessment of the applicant was not a reasonable and necessary expense as no psychological diagnosis were identified.

30As stated, I find that the CNRs of Dr. Tat-Kwan Wong do not offer a psychological diagnosis nor evidence supportive of any psychological impairment as a result of the accident. I prefer the evidence offered in the IE psychological assessment of Dr. Moshiri, dated September 26, 2019, which shows following psychological testing and an interview with the applicant that, based on DSM-5 diagnostic categories, Dr. Moshiri found the applicant does not have a psychological condition. I prefer the evidence of Dr. Moshiri because it consists of a diagnosis following psychological testing and medical document review rather than the applicant’s subjective, and somewhat inconsistent reporting.

31I find that the applicant has failed to meet his onus to provide sufficient probative evidence that he can not reach maximal recovery from his psychological injuries, if he is limited to the MIG.

Chronic Pain Syndrome

32I find that the applicant has not met his burden of proof by providing compelling evidence of chronic pain. In addition, I find that the applicant has failed to provide evidence sufficient to meet his burden demonstrating that the chronic pain assessment proposed in the treatment plan dated November 5, 2019, in the amount of $2,190.00, is reasonable and necessary by reason of the evidence failing to show the existence of chronic pain syndrome based on a consideration of the AMA guides as described in the reasons which follow.

33The applicant submits that his ongoing pain as described in the CNRs of Dr. Tat-Kwan Wong, establishing chronic pain syndrome in addition to a significant functional impairment. The respondent submits that Dr. Tat-Kwan Wong’s CNRs record chronic pain complaints, however, Dr. Wong’s medical records do not describe a chronic pain diagnosis.

34For chronic pain to be more than sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or 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 effects on the person’s function, or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that the chronic pain is more than mere sequelae.

35As noted in 16-000438 v. The Personal Insurance Company (2017 CanLII 59515), ongoing or chronic pain alone does not automatically remove the applicant from the MIG but rather, there must be a significant reduction in the applicant’s functionality.

36The applicant described to Dr. J. Millard for the purpose of the s. 44 Physiatry report dated April 25, 2019, that following the accident on September 16, 2018, he stopped working as an automobile detailer. Mr. Dennis Polygenis, prepared a s. 44, IE physiotherapist job site analysis, dated June 10, 2019. Mr. Polygenis found the applicant’s pre-accident position as an automobile detailer in the light physical demand characteristic. However, Mr. Polygenis found that the applicant demonstrated inconsistent effort throughout the testing and that he failed cross-reference validity tests and that statistical measures of effort validity were not measurable as a result of the applicant’s inconsistent efforts.

37Mr. Polygenis opined that by reason of the applicant’s inconsistent effort the test results were not a reliable nor a valid indication of the applicant’s functional abilities. Mr. Polygenis opined based on what measurements were reliable that the applicant satisfied the frequency requirements of his pre-accident vocation. The applicant declined to be measured for the purpose of testing lifting, reaching, crouching and kneeling. Mr. Polygenis determined the test results were not a valid indication of the applicant’s current functional abilities because he refused to participate in the named elements of the testing. Mr. Polygenis opined that the medical evidence would be more determinative based on the applicant’s inconsistent efforts in the job site analysis, making it impossible to obtain an accurate measure of the applicant’s level of functionality.

38The respondent submits that the applicant has failed to meet his burden to provide evidence of limited functionality beyond his reported accident-related pain. I agree with the respondent that the applicant’s inconsistent efforts in permitting measurement of his functionality in the job site analysis by Mr. Polygenis, does not support the applicant’s submission that accident-related pain limits his functionality. Despite the applicant describing pain and limited functionality, Dr. Millard found the applicant had an active cervical range of motion within normal limits in all directions with the exception of cervical rotation to the right which was 70 to 75% of normal based on the applicant’s reports of pain and stiffness at end range. The applicant displayed an active lumbar range of motion and an active shoulder range of motion. In addition, the applicant displayed a normal biomechanical gait.

39The applicant did not provide prescription records. There is no record of the applicant being prescribed or seeking to take pain medication to support his submission of experiencing chronic pain syndrome. The CNRs of Dr. Tat-Kwan Wong, demonstrate that the applicant did not take pain medication following the accident on May 31, 2017, nor following the accident on September 16, 2018. The applicant described at appointments with Dr. Tat-Kwan Wong, that he takes non-prescription Tylenol and Advil when he experiences accident-related pain. Dr. Tat-Kwan Wong prescribed anti-inflammatories Mobicox, following the May 31, 2017, accident, on August 3, 2017, and on January 20, 2021, in addition to Vimovo, another anti-inflammatory medication, prescribed more than two years and three months following the September 16, 2018, accident. The applicant declined prescription pain medication offered by Dr. Tat-Kwan Wong on October 16, 2018, November 6, 2018, December 3, 2018, on February 20, 2019, and on September 3, 2019.

40I find the applicant’s infrequent and delayed reports of chronic pain to Dr. Tat-Kwan, for the purpose of receiving medical treatment for the described pain, does not support the existence of a chronic pain condition. The applicant submits that the CNRs of Dr. Tat-Kwan Wong offer medical evidence of chronic pain post-accident. The applicant reports chronic pain for the first time on January 7, 2019, four months after the September 16, 2018, accident. He reported chronic low back pain on September 3, 2019, a year after the accident, and then he does not report chronic pain again until the year 2021, on March 1, 2021, and on March 15, 2021, when the applicant attends appointments with Dr. Tat-Kwan Wong, more than two and a half years following the accident.

41The respondent submits that Dr. Tat-Kwan Wong’s CNRs record chronic pain complaints by the applicant, but that Dr. Wong’s medical records do not include a chronic pain diagnosis. In addition, as stated, the respondent submits that there is a gap of 14 months in the CNRs from November 4, 2019, to January 20, 2021, when the applicant did not seek medical care addressing his contended accident-related pain and injuries. Dr. Tat-Kwan Wong recommends exercise, ice and heat to remedy reported pain on September 25, 2018, and on December 3, 2018. In addition, as stated, despite the applicant’s complaints of chronic pain he declines pain medication and is not in fact prescribed pain medication, only anti-inflammatories on a few occasions post-accident on August 3, 2017, and on January 20, 2021.

42The respondent submits that on September 25, 2018, October 16, 2018, November 6, 2018, and on December 3, 2018, Dr. Tat-Kwan Wong assesses the applicant with cervical and lumbar strain, left shoulder strain, left wrist strain, chest wall strain, tension headaches and stress. As stated earlier, Dr. Tat-Kwan Wong advises the applicant to continue physiotherapy, get rest, and that the chest pain the applicant complains of is not dangerous. The respondent notes that at paragraph 17 of the applicant’s submissions it is referenced in the CNRs that on September 3, 2019, the applicant states he no longer attends physical therapy treatment due to its denial by the respondent, although the applicant attended treatment until November 5, 2019, and as stated, the CNRs cease after November 4, 2019, until January 20, 2021.

43The respondent relies on expert reports including the s. 44, physiatry report of Dr. Julie Millard dated April 25, 2019, opining in relation to the Minor Injury Guideline respecting the September 16, 2018, accident. As stated earlier, Dr. Julie Millard opined based on her examination of the applicant and review of the medical evidence, that from a musculoskeletal perspective, the applicant’s injuries resulting from the accident, met the criteria of a minor injury as described in the MIG. Dr. Millard took into account the effects of the accident on May 31, 2017. Dr. Millard found that based on the applicant’s ability to work and function independently, that the prior injuries from the May 31, 2017, accident may possibly be contributing to his current condition, but Dr. Millard opines that she does not anticipate it will prevent the applicant from reaching maximal medical recovery given his functionality.

44Dr. Milliard found no objective evidence of myelopathy or radiculopathy in her IE section 44 report. Dr. Millard’s diagnosis of the applicant’s injuries resulting from the accident on September 16, 2018, includes post-traumatic headaches, cervical musculoligamentous sprain, bilateral trapezius musculotendinous strain, and lumbar spine musculoligamentous/ tendinous sprain. Dr. Millard finds that the applicant sustained soft tissue sprain injuries to his cervical spine and lumbar spine as well as musculoligamentous injuries to his bilateral trapezius. Dr. Millard finds no joint limitations or restrictions were identifiable and her neurological examination was normal.

45The Tribunal has adopted the American Medical Association (“AMA”) Guides as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The respondent submits that considering the six criteria described in the AMA Guides below, for the purpose of a chronic pain syndrome diagnosis, the applicant does not meet any three of the six criteria. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:

(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 need; and;

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

46As stated, the applicant submits that Dr. Tat-Kwan Wong’s CNRs support a finding of chronic pain syndrome. The respondent submits that the applicant has not met his burden to provide medical evidence supportive of any three of the six AMA Guides criteria to demonstrate the applicant has a diagnosis of chronic pain syndrome. I agree with the respondent.

47I agree with the submissions of the respondent that considering the first criteria of the AMA Guide, the applicant did not use prescription medication in a manner which might constitute abuse or dependence nor did he show an interest in taking pain medication. There is no evidence of the second criteria which is dependence on health care providers, or family members, nor secondary deconditioning due to disuse and or fear avoidance submitted by the applicant (criteria iii).

48The applicant described to Dr. Moshiri for the purpose of her psychological assessment and to Dr. Tat-Kwan Wong, that he had not withdrawn from social contacts or social milieu (criteria iv). As stated, Dr. Moshiri found that the applicant did not suffer any psychological impairments following psychological testing. The applicant therefore did not develop psychosocial sequelae including anxiety, fear-avoidance, depression, or nonorganic illness behaviors as a result of the accident (criteria vi). With respect to the applicant’s functionality, beyond his reports, the applicant has failed to consistently participate in the job site analysis of physiotherapist, Mr. Polygenis, therefore, the applicant has failed to meet his burden to establish the limited functionality described by the applicant. The IE s. 44 physiatry assessment of Dr. Milliard did not substantiate the physical limitations reported by the applicant (criteria v).

49I do not accept that pain that lasts for more than six months without discussion of the level of pain, medical evidence of the pain’s effect on the person’s function, or whether the pain is bearable without treatment, is more than mere sequelae. Without something more than the length of time pain lasted, I do not accept based on the applicant’s reports that he has “chronic pain syndrome.” The applicant has not satisfied me, on a balance of probabilities, that the pain complained of is not merely sequelae of the soft tissue injuries nor has the applicant provided sufficient evidence that the pain he reports gives rise to a functional limitation.

50I agree with the respondent’s submissions that the applicant has not met his burden of proof by providing compelling evidence of documented pre-existing medical conditions, accident-related injuries, psychological impairments or chronic pain, which will prevent maximal recovery from what are sequelae of minor injuries if the applicant is subject to the $3,500.00 limit under the MIG. In addition, I find that the applicant has failed to provide evidence sufficient to meet his burden demonstrating that the chronic pain assessment proposed in the treatment plan dated November 5, 2019, in the amount of $2,190.00, is reasonable and necessary by reason of the evidence failing to show the existence of chronic pain syndrome based on a consideration of the AMA guides.

INTEREST

51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. In this case the applicant has not provided evidence that the respondent delayed or refused payment of benefits, therefore, no interest is owing.

52Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit is below the $2,190.00 cost for a proposed chronic pain assessment, submitted November 5, 2019, in an OCF-18, an analysis of whether the treatment and assessment plan in dispute is reasonable and necessary is not required. However, as stated, I find that the applicant has failed to provide evidence sufficient to meet his burden demonstrating that the chronic pain assessment proposed in the treatment plan dated November 5, 2019, in the amount of $2,190.00, is reasonable and necessary by reason of the evidence failing to show the existence of chronic pain syndrome based on a consideration of the AMA Guides.

ORDER

55I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

56The applicant is not entitled to the treatment plan in dispute, as the MIG limits will not meet the cost of the treatment plan and the treatment plan is neither reasonable nor necessary.

57Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

58The application is dismissed.