Licence Appeal Tribunal File Number: 22-007474/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:
Habtom Solomon
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Linda Spurrell, Paralegal
For the Respondent:
Thomas Petrella, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Habtom Solomon, the applicant, was involved in an automobile accident on June 27, 2020, 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, Belair Insurance Company Inc., 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 limit (“MIG”)?
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from June 4, 2020 to January 17, 2021?
iii. Is the applicant entitled to $2,486.00 for psychological services, proposed by Medex Assessments in a treatment plan dated August 8, 2020?
iv. Is the applicant entitled to the treatment plans proposed by Premier Medical as follows:
a. $1,197.50 for chiropractic services dated August 18, 2020;
b. $1,067.50 for chiropractic services dated July 7, 2021; and
c. $1,954.96 for chiropractic services dated March 17, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not established that his accident-related impairments warrant removal from the MIG.
ii. The applicant is not entitled to the treatment plans in dispute or interest; and
iii. The applicant is not entitled to income replacement benefits.
ANALYSIS
Minor Injury Guideline
4Section 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.”
5An 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.
6The applicant submits that he should be removed from the MIG on the basis of chronic pain and psychological impairment.
The applicant has not established chronic pain warranting removal from the MIG
7The applicant submits that he has developed chronic left shoulder, neck, and low back pain as a result of the subject accident. He relies on the clinical notes and records (“CNRs”) of his family physician Dr. Charles King, which detail his ongoing pain complaints post-accident and a medical note from his physician Dr. Matthews who opined that the applicant has developed chronic pain of the left shoulder, cervical and lumbar spine. The applicant further submits that a March 2022 MRI of his lumbar spine suggested nerve root irritation.
8The respondent disputes that the applicant has developed chronic pain. It argues that the applicant sustained only minor, soft tissue injuries as a result of the accident, relying on the multiple s. 44 assessment reports of its general practitioner (“GP”) Dr. Eric Silver. The respondent further submits that the CNRs of Dr. King reference only sporadic reports of ongoing pain post accident, and that the applicant does not meet any of the criteria of the American Medical Association’s (“AMA”) Guides for a diagnosis of chronic pain.
9I find that the applicant has not met his onus to prove pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.
10The applicant relies in large part on the CNRs of Dr. King, however, I find that they fail to establish chronic pain as a result of the accident. In the first six months post-accident the applicant reported left shoulder, lower back and left knee pain. Dr. King did not prescribe any prescription pain medication. From November 2020 to August 2021 the applicant attended Dr. King’s office for a number of unrelated medical issues, but did not report ongoing accident-related pain. The applicant began to again report left shoulder, left knee, neck and low back pain beginning in August 2021. However, from my review of the CNRs, Dr. King did not diagnose the applicant with chronic pain.
11Rather the applicant relies on the March 22, 2022 medical note of Dr. Paul Matthews for a chronic pain diagnosis, who notes that the applicant had suffered injuries to his left shoulder, cervical and lumbar spine “and now he has chronic pain”. However, no CNRs were provided from Dr. Matthews and he does not appear to be the applicant’s treating family physician. I agree with the respondent that the note from Dr. Matthews does not provide any explanation as to how he arrived at his conclusions. It is unclear if Dr. Matthews was referencing the applicant’s self-reports of chronic pain or if he was providing a formal chronic pain diagnosis and if so, on what basis. As such, I do not find the isolated note from Dr. Matthews to be persuasive evidence of a chronic pain diagnosis. I place greater weight on the CNRs of the applicant’s treating family physician Dr. King, who did not diagnose the applicant with chronic pain.
12I further find that the applicant has not established that he meets three out of the six criteria of the AMA Guides for a diagnosis of chronic pain. He has not led evidence of an overdependence on prescription pain medication, but rather, has repeatedly confirmed that he uses only over the counter Advil or Tylenol as needed. No submissions or evidence have been led of excessive dependence on healthcare providers or family and the CNRs of Dr. King only make one reference to psychosocial sequalae after the accident.
13Although the applicant argues that he meets the three criteria of secondary physical deconditioning, withdrawal from social milieu/work and failure to restore pre-accident functioning, I find that the evidence in this regard fails to show that these criteria are present. With respect to physical deconditioning, the respondent’s GP s. 44 assessor consistently found that the applicant had full range of motion in his cervical and lumbar spine and bilateral shoulders. The CNRs of Dr. King do not reveal significant functional limitations post-accident, and the applicant reported to Dr. King on January 19, 2022 that he “continues to work”.
14The applicant submits that the medical note of Dr. Matthews refers to restrictions including a 10-15 minute limit for walking and standing, no lifting or repetitive movements with either shoulder. However, I find that no such functional restrictions are reflected in the CNRs of the applicant’s family physician Dr. King. The applicant further reported to the respondent’s psychological s. 44 assessor, Dr. Louise Koepfler, that he had minimal functional or physical limitations with the exception of heavy lifting and that there was no household chore that he could not do. The applicant also reported to Dr. Koepfler in December 2021 that he called his former employer to resume employment once they had reopened post-Covid, and that he had applied to a different employer as well.
15As such, I find that the medical evidence fails to establish sufficient functional impairment due to chronic pain to warrant removal from the MIG.
The applicant has not established a psychological impairment warranting removal from the MIG
16I further find that the applicant has not established an accident-related psychological impairment. The CNRs of Dr. King indicate only one reference to psychological symptoms post-accident, on August 17, 2021. Dr. King notes that the applicant has had anxiety and depression for about a year, although now he is “getting better”. However, the applicant does not direct me to any CNR entry either before or after the August 17, 2021 entry where psychological symptoms are discussed. No psychological treatment was suggested or provided.
17The respondent’s s. 44 psychological assessor Dr. Koepfler conducted two psychological assessments. After the clinical interview and psychometric testing, Dr. Koepfler determined that the applicant did not meet the threshold for a formal psychological diagnosis and that psychological services were not required. The applicant has not led sufficient evidence to refute Dr. Koepfler’s findings.
18As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.
Income Replacement Benefit (“IRB”)
19I find that the applicant has not established entitlement to IRBs.
20To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
21The applicant applied for and received IRB payments until January 17, 2021, when the respondent denied his IRB claim on the basis of its s. 44 GP assessment and Functional Abilities Evaluation (“FAE”). The applicant submits that due to his neck, left shoulder and lower back pain, he was unable to return to his pre-accident employment as a mechanical assembler at Nanowave Technologies. He argues that his ongoing pain would be exacerbated by his employment tasks of refurbishing handheld size electronic parts using hand and power tools. The applicant relies on the March 22, 2022 medical note of Dr. Matthews, who noted the MRI revealed suspected nerve root irritation and stated that this restriction will remain over the long term and prevented the applicant from working.
22I find that the applicant has led insufficient evidence to establish that he suffers from a substantial inability to perform the essential tasks of his employment. With respect to Dr. Matthews’ medical note, I agree with the respondent that Dr. Matthews did not provide any explanation as to how he came to his conclusion. The note does not refer to the applicant’s pre-accident employment role or how he is specifically restricted from completing his workplace tasks. The only reference to employment is that the applicant’s restrictions have “prevented him from working [sic] having a full life.”
23However, the CNRs of the applicant’s treating family physician, Dr. King, do not contain a similar conclusion. In his January 19, 2022 CNR entry, Dr. King noted the applicant’s reports of worsening neck and shoulder pain and that he is “quite stiff”. He noted that the applicant “continues to work” and suggested physiotherapy. As such, I find that the CNRs of the applicant’s family doctor fail to support an inability to resume his pre-accident employment.
24The respondent’s s. 44 assessors found that the applicant did not suffer from a substantial inability to complete the essential tasks of his employment. The respondent’s FAE assessor found that the applicant’s role was at a Light Physical Demands Level. Dr. Silver, the GP assessor, noted the applicant’s reports that he would sit or stand while assembling parts. Dr. Silver concluded that the applicant’s uncomplicated soft tissue injuries of the left shoulder and mild myofascial strain of the neck did not limit his ability to complete his pre-accident tasks. When comparing the s. 44 assessments to Dr. Matthew’s medical note, I prefer the respondent’s evidence as they specifically considered the applicant’s pre-accident employment role and workplace tasks. Finally, I note that the applicant reported to Dr. Koepfler, the respondent’s psychological assessor, that he called his former employer to resume employment once they had reopened post-Covid, and that he had applied to a different employer within the aerospace industry as well.
25As such, I find that the applicant has not met his burden of proving entitlement to IRBs.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing or overdue, the applicant is not entitled to interest.
ORDER
27For the foregoing reasons I find that:
i. The applicant remains within the MIG.
ii. The applicant is not entitled to the treatment plans in dispute, IRBs or interest; and
iii. The application is dismissed.
Released: October 3, 2024
__________________________
Ulana Pahuta
Adjudicator