Licence Appeal Tribunal File Number: 22-008946/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:
Nehme Kamra
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Nehme Kamra, Applicant
Michael Adamek, Counsel
For the Respondent:
Co-operators General Insurance Company
Amanda Lennox, Counsel
HEARD:
In Writing
OVERVIEW
1Mr. Nehme Kamra (the applicant), was involved in an automobile accident on December 18, 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, Co-Operators 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. 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?
ii. Is the applicant entitled to a physiotherapy treatment plan $2,195.00 recommended by Prime Physiotherapy Plus dated April 1, 2022.
iii. 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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that, the applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
4As the applicant remains in MIG and he subject to the $3,500.00 funding limit. As the treatment plan in question is beyond the funding limit, there is no need to adjudicate if the treatment plan is reasonable or necessary.
5As no payment was unreasonably withheld or delayed, no special payment is owed.
6As no payment is due, there is no interest owing.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7Section 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.”
8An 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 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.
9The 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 he should be removed from the MIG due to chronic pain with a functional impairment.
10The respondent argues that the applicant has not met the burden of proof that his injuries from the motor vehicle accident have led to chronic pain with a functional impairment.
The applicant remains within the MIG.
11I find that the applicant has not met his onus and demonstrated that he suffers from chronic pain with a functional impairment that warrants his removal from MIG.
Does the applicant suffer from chronic pain with a functional impairment?
12I do not find that the applicant suffers from chronic pain with a functional impairment.
13The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
14The applicant submits that he suffers from chronic pain with a functional impairment due to the motor vehicle accident.
15The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that he suffers from chronic pain with a functional impairment. The respondent also submits that through the various clinical notes and records (“CNRs”) in evidence, the applicant has frequently listed other sources that created his back pain issues that are not related to the motor vehicle accident.
16The applicant relies on the CNRs from Dr. Sandhu, his family doctor, Dr. Robinson, chiropractor, Dr. Fouda, physiotherapist, Dr. Alfasi, pain specialist, Dr. Wai, orthopaedic surgeon.
17The respondent relies on the same CNRs.
18In the reviewed CNRs of Dr. Sandhu, they note that the applicant did not report the accident to his doctor till nearly a month after the accident. Dr. Sandhu diagnosed the injury as a back strain. The CNRs show a consistent diagnosis of back strain diagnosis as well as a pattern of the applicant reporting recovering form the injury. Of note in the CNRs, the applicant had an appointment with his doctor prior to reporting the motor vehicle accident and did not mention it to Dr. Sandhu nor any pain the applicant was experiencing. In addition, the CNRs note that the applicant visited the Queensway Carleton Hospital ER department on January 6, 2021, and attributed the pain he was experiencing to twisting abnormally while walking and did not mention the motor vehicle accident. I am not directed to information in the CNRs of Dr. Sandhu that would corroborate a diagnosis of chronic pain with a functional impairment.
19Reviewing the CNRs of Dr. Robinson, Chiropractor, the intake form completed by the applicant from January 5, 2021, notes the source of his pain is that he bent down the wrong way and his back is sore. This is corroborated by the applicants reporting to the ER department at Queens Carlton Hospital ER department as the source of his injury, not the motor vehicle accident. The CNRs show a pattern of recovery as reported by the applicant. Any ongoing pain reporting by the applicant in the CNRs are attributed to none motor vehicle accident sources, such as driving to Mount Tremblant or sleeping on a couch. I am not directed to any entries in the CNRs of Dr. Robinson that would corroborate the applicant’s assertion that he is experiencing chronic pain with a functional impairment.
20The CNRs of Dr. Fouda, physiotherapist, range from June 30, 2021, to August 20, 2022. On June 30, 2021, the CNRs indicate that the doctor diagnosed the applicant with sprain and strain of sacroiliac joint and Lumbago with sciatica. Over the course of a year’s worth of CNRs, Dr. Fouda notes predominately notes that the patient is feeling better or the same as last session, seeming to indicate a pattern of recovery with the applicant. In April of 2022, the applicant begins to report an increase in complaints about lower back pain, but the source of the sudden change in reporting is not attributed to a source in the CNRs.
21The CNRs of Dr. Alfasi show the doctor recommending the applicant complete a chronic pain management program or mindful therapy counselling. Dr. Alfasi does not attribute the source of the pain experienced by the applicant. In addition, the doctor recommends physiotherapy to strengthen core muscles. The CNRs range from November 1, 2021, to May 1, 2023, at no point in the CNRs is there any mention of the motor vehicle accident, or a discussion of the source of the ongoing reported pain by the applicant. As such, the CNRs do not corroborate that the diagnosis is in relation to the motor vehicle accident. The CNRs also do not outline the functional impairments suffered by the applicant in association with the diagnosis.
22The CNRs of Dr. Wai, Orthopaedic Surgeon, show the doctor diagnosed the applicant with mechanical back pain. The doctor recommended daily exercise and CBT-1 and referred the applicant back to his family doctor to consider chronic multidisciplinary pain clinic. I do not see in Dr. Sandhu’s CNRs that the he has made such a referral. I am not directed in the CNR of Cr. Wai, corroborating evidence that the applicant suffers from chronic pain with a functional impairment.
23Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries he 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 directly linked to the motor vehicle accident is present in the applicant. The reviewed CNRs indicate that the applicant reported pain and received treatment for it, the vast majority of the CNRs the applicant relies on do not attribute the ongoing pain to the accident. The applicant did not direct me to medical evidence that establishes a strong tie between the evolving back pain experienced by the applicant and the motor vehicle accident.
25The applicant has not satisfied his onus to prove on a balance of probabilities that he suffers from chronic pain with a functional impairment due to the motor vehicle accident.
Conclusion
26For the reasons noted above, the applicant has not proven that he suffers from chronic pain with a functional impairment to warrant removal from MIG.
The Treatment Plans
27As I have found the applicant to remain within the MIG and subject to its limits for treatment plans, and as the treatment plans in question are beyond the MIG limits remaining, the applicant is not entitled to payment for either plan.
Special Award
28As the applicant is not entitled to payment for the two treatment plans in question, no special award under s.10 of Reg. 664 is due.
Interest
29As the applicant is not entitled to any payments no interest is due.
ORDER
30I find that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to payment for the disputed treatment plan.
iii. The applicant is not entitled to a payment of an award under s.10 of Reg. 664.
iv. As nothing is owed, no interest is due.
v. The application is dismissed.
Released: October 7, 2024
Robert Rock
Adjudicator