Citation: Williams v. RSA Insurance, 2024 ONLAT 22-010172/AABS

Licence Appeal Tribunal File Number: 22-010172/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:

Adrian Lopez Williams

Applicant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Michael Courneyea, Counsel

HEARD:

By Way of Written submissions

OVERVIEW

1Adrian Lopez Williams, the Applicant, was involved in an automobile accident on October 1, 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, RSA Insurance, 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?

ii. Is the Applicant entitled to $465.12 ($1,996.14 less $1,531.02 approved) for chiropractic services, proposed by Physio Care and Rehab in a treatment plan/OCF-18 (“plan”) dated March 9, 2022?

iii. Is the Applicant entitled to $1,176.11 for chiropractic services, proposed by Physio Care and Rehab in a treatment plan/OCF-18 (“plan”) dated January 18, 2023?

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

RESULT

3I find that:

i. The Applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.

ii. As the Applicant remains within the MIG, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. As no benefits are payable, the Applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline (“MIG”)

4I find that the Applicant has not proven on a balance of probabilities that he is suffering from accident-related impairments that warrant removal from the MIG.

5Section 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.”

6An 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 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.

7The Applicant submits that he should be removed from the MIG on the basis of:

i. Pre-existing impairments such as: right-hand pain, right shoulder pain, and neck pain related to an ulnar nerve issue which required surgery in 2020;

ii. Chronic pain; and

iii. Psychological impairment.

8The Respondent submits that the Applicant has sustained uncomplicated soft tissue injuries as a result of the accident. As such, the Respondent argues that the Applicant’s injuries fall under the MIG.

The Applicant does not suffer from a pre-existing condition that warrants removal from the MIG

9I am not persuaded that the Applicant should be removed from the MIG based on a pre-existing condition.

10The presence of pre-existing conditions alone is not sufficient to remove the Applicant from the MIG. The Applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG.

11The Applicant submits that he should be removed from the MIG based on pre-existing impairments such as right-hand pain, right shoulder pain, and neck pain that was aggravated and worsened by the subject accident. Moreover, the Applicant relies on 17-002688 v. Aviva Insurance Company of Canada, 2017 CanLII 85693 (ON LAT), in which the Tribunal held the Applicant’s injuries did not fall within the MIG given that the applicant’s prior mental health issues and pre-accident knee pain were aggravated by the accident.

12The Respondent submits that while there is suggestion that the Applicant’s right-hand pain may have been mildly aggravated by the subject accident, there is no compelling medical evidence that any of his pre-existing issues will prevent him from achieving maximum medical recovery within the MIG.

13While I agree with the Applicant that clinical notes and records (“CNRs”) of family practitioner, Dr. Rayat, and the Disability Certificate (“OCF-3”), dated March 9, 2022, by Dr. Harpreet Ghuman of Physiocare & Rehab, document pre-existing impairments, I am not satisfied that the Applicant has met the second part of the test pursuant to s.18(2) of the Schedule. The second half of the test is that there must be compelling evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if the Applicant were subject to the MIG.

14The CNRs of Dr. Rayat, provided by the Applicant, are sparse. As such, I turn to the Respondent’s materials which have a more comprehensive picture of the Applicant’s attendance.

15The Applicant complained that his pre-existing right-hand pain had “gotten more sore” to Dr. Rayat on October 26, 2021, and followed up with pain complaints on December 3, 2021, and April 13, 2022. In the entry dated April 13, 2022, Dr. Rayat reported the Applicant had started physio and requested he return if he experienced a flare up of pain. Despite the records continuing to July 12, 2022, the CNRs do not document further reports of pre-existing complaints. I have not been pointed to evidence of Dr. Rayat opining that there was an aggravation of the Applicant’s right-hand pain as a result of the subject accident, or more importantly, that it would prevent maximum medical recovery. Neither party has provided CNRs for Dr. Rayat beyond July 2022.

16Moreover, despite the OCF-3 indicating that, prior to the accident, the Applicant had right-hand ulnar nerve and tendon repair in 2020, I am not pointed to any notation that this pre-accident condition would prevent the Applicant’s maximal medical recovery of any accident-related injury. In fact, anticipated duration of disability is marked as 9-to-12 weeks.

17In contrast, the Respondent points to Dr. Michael Hanna’s s.44 General Practitioner Assessment, dated June 27, 2022, as evidence that the Applicant’s pre-existing impairments would not prevent him from achieving maximal recovery within the MIG limits. Dr. Hanna diagnosed myofascial sprain/strain injuries of the cervical spine and sprain/strain of the right shoulder. Prognosis for recovery was considered favourable. With respect to the Applicant’s pre-existing impairments, Dr. Hanna opined that, while there is evidence of ulnar neuropathy, this is not expected to prevent him from achieving maximal medical recovery if he was subject to the $3,500 limit within the MIG. Dr. Hanna maintained his opinion in the addendum report, dated December 1, 2022.

18In any event, the onus is on the Applicant to prove he should be removed from the MIG, on a balance of probabilities, and not on the Respondent to disprove. Once again, I acknowledge the documented complaints of the pre-existing condition, however, the Applicant has not directed me to any medical opinion that his pre-existing conditions would prevent maximal medical recovery if he was kept within the MIG limits.

19Lastly, I differentiate 17-002688 v. Aviva Insurance Company of Canada from the present case as, in 17-002688: i) the treating physicians related the applicant’s exacerbation of pre-existing impairments to the subject accident; and ii) there was compelling medical evidence that supported the applicant’s removal from the MIG on the basis of an exacerbated pre-existing injury. The Applicant in this case has failed to provide compelling medical evidence that would suggest he requires treatment outside of the MIG on the basis of an exacerbated pre-existing condition.

20In summary, the Applicant has not provided compelling medical evidence to establish that, on a balance of probabilities, his pre-existing condition would prevent him from maximal medical recovery if he were kept within the MIG.

The Applicant does not suffer from chronic pain that warrants removal from the MIG

21I am not satisfied that the Applicant suffers from chronic pain that warrants removal from the MIG.

22The Applicant submits that his accident-related physical pains have become chronic, as they have been ongoing for approximately 28 months since the accident. The Applicant further argues that he has reported his ongoing physical pain to his family doctor and continues to rely on pharmaceuticals for relief of his chronic pain.

23It is well established by this Tribunal that chronic pain cannot be inferred solely based on the length of time elapsed since the injury. A diagnosis of chronic pain or chronic pain syndrome is not strictly required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the Applicant must demonstrate, on a balance of probabilities, that he suffers from accident-related pain that causes functional impairment.

24Firstly, the Applicant’s written submissions suggest that on October 31, 2023, Dr. Rayat reported chronic right-hand pain. This is noted as being found at Tab 15 of the Applicant’s submissions. The Respondent submits that they have no record of receiving the CNR entry from Dr. Rayat, dated October 31, 2023. On review of the Applicant’s evidence, I am unable to corroborate said entry as it does not appear to be included. The Applicant has not pointed me to any other document that makes note of chronic pain.

25In any event, the Applicant argues that he is continuing to struggle with neck pain, right shoulder pain, right arm pain, and back pain. Initially, the Applicant reported to Dr. Rayat on October 4, 2021, that he had neck tightness, felt lightheaded, and was very anxious as a result of the subject accident. Dr. Rayat opined that the Applicant sustained cervical muscle strain and prescribed Naproxen and Baclofen. On his next appointment, he complained of tightness in the neck and back of shoulder blade, and that his right hand has “gotten more sore”. Dr. Rayat recommended physiotherapy but did not prescribe any medications. On December 3, 2021, he complained of hand soreness and Dr. Rayat noted neck tightness. Dr. Rayat prescribed medication and referred the Applicant for medical imaging. Cervical spine radiographs, dated January 27, 2022, returned as a normal examination. Finally, on April 13, 2022, the Applicant followed up with respect to his wrist. Dr. Rayat noted mild weakness and did not prescribe any medication or make any referrals.

26As noted above, the CNRs of Dr. Rayat that were provided, cease in and around July 2022. The last physical complaint documented is on April 13, 2022. The Applicant has not pointed me to any other evidence or referral to any specialists for any pain related symptomology. There are no chronic impairments identified within the OCF-3.

27Secondly, the Applicant has not demonstrated that he has an ongoing functional impairment as a result of the alleged accident-related pain. I turn to the OCF-3 and the two s.44 reports to address same.

28The OCF-3 reported that, at the time of its completion, the Applicant was on modified work duties, having difficulty lifting and taking care of his 2-year-old son and doing household chores.

29In contrast, Dr. Hanna reported with respect to functional limitations, that the Applicant has maintained the same level of personal care, mobility tasks and housekeeping independence pre-and-post accident. This assessor further noted that the Applicant “indicated an improvement in his post-accident activities of daily living, as compared to his pre-accident functionality.”

30Similarly, Dr. Marc Mandel, in his Psychological Assessment report, dated June 27, 2022, reported the Applicant continued to handle all aspects of his own self-care, returned to work, and received no outside assistance in his home. From a psychological perspective, Dr. Mandel stated that “no limitations have been observed to comment upon” with respect to functional impairments.

31As both reports are approximately 3 months after the OCF-3 was completed, I give more weight to their accuracy with respect to the Applicant’s functional abilities in connection to alleged chronic pain, at that time. The Applicant has not provided any further medical evidence that would substantiate a functional impairment.

32Lastly, the Applicant relies on 17-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445 and 17-000081 v. RBC General Insurance Company, 2017 CanLII 59504, to support that chronic pain has been found to take an applicant outside of the MIG. While the Applicant has cited these two cases, it is not clear in which way they relate to or are in support of the Applicant’s own evidence. In both cases, the applicants provided expert diagnoses opining chronic pain. The Applicant in this matter has not pointed me to any compelling evidence of a chronic pain diagnosis in their submissions and supporting evidence.

33The Applicant has the onus of evidencing chronic pain and in the present case, as there are no compelling expert reports or evidence that opines on chronic pain, the Applicant has not done so.

34Based on the foregoing, the Applicant is not removed from the MIG on the basis of his alleged chronic pain.

The Applicant does not suffer from a psychological condition that warrants removal from the MIG

35I find that the Applicant has not provided sufficient evidence to demonstrate that he sustained psychological impairments as a result of the accident, which would justify his removal from the MIG.

36An applicant may be removed from the confines of the MIG should they have sustained 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. A psychological impairment must be more than clinically related sequelae of a minor injury.

37The Applicant submits that he has suffered from psychological impairments as a result of the subject accident, such as low mood, anxiety and stress that requires psychological treatment that is only accessible if he is removed from the MIG.

38The Respondent argues that there is limited medical evidence to support a psychological impairment: the Applicant was not formally diagnosed with any psychological conditions, no OCF-18s for any psychological assessments/treatment are at issue in this dispute, and that Dr. Mandel found no objective information that would support a psychological diagnosis.

39Based on the evidence provided, I am not satisfied that the Applicant should be removed from the MIG on the basis of psychological impairments.

40I prefer the position of the Respondent. The Applicant has not demonstrated that he requires psychological treatment beyond the MIG limits. Beyond intermittent self-reported symptoms to Dr. Rayat, and prescribed medication, Dr. Rayat did not make a formal psychological diagnosis.

41Secondly, the Applicant has not sought psychological treatment from any specialists or any other medical practitioner. Moreover, Dr. Mandel’s report notes that, according to the Applicant, he has not attended for any psychological assessments, he has not received any psychological treatment, and that his family physician has also not made any referrals for psychological or psychiatric intervention.

42Lastly, the Applicant has pointed me to authorities, 17-000081 v. RBC General Insurance Company, 2017 CanLII 59504 and 16-002951 v. Primmum Insurance Company, 2017 CanLII 33672 in support of a psychological impairment not falling within the MIG. Both are distinguishable in separate ways.

43The Applicant relies on 17-000081 v. RBC General Insurance Company, on the basis that the Tribunal concluded that the applicant provided compelling and documented evidence wherein the psychological injuries suffered by the applicant did not fall within the definition of ‘minor injury’. That is not the case in this matter. The Applicant, as noted above, has failed to produce sufficient and compelling evidence of a psychological impairment.

44The Applicant relies on 16-002951 v. Primmum Insurance Company, on the basis that the Tribunal held that the Applicant’s diagnosis of depression and driving anxiety did not fall under the MIG. The Applicant in this matter has not been formally diagnosed with a psychological impairment. In fact, s. 44 assessor, Dr. Mandel has opined, “that there is a lack of consistent objective information present that would support poor prognosis, DSM-5-TR diagnosis and/or suggest that he suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the subject motor vehicle accident at this time.”

45I cannot conclude, on a balance of probabilities, that the Applicant suffered an accident-related psychological impairment that would warrant treatment outside of the MIG limits.

Conclusion

46As a result of the aforementioned, the Applicant has not proven on a balance of probabilities, that he is suffering from chronic pain, psychological impairment, or pre-existing condition that would warrant removal from the MIG.

47As I have found the Applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

The Applicant is not entitled to interest pursuant to s. 51 of the Schedule

48As there are no overdue payment of benefits, the Applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

49For the reasons outlined above, I find that:

i. The Applicant’s impairments are predominantly minor and are therefore subject to the MIG limits;

ii. As the Applicant remains within the MIG, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted; and

iii. As no benefits are payable, the Applicant is not entitled to interest.