Licence Appeal Tribunal File Number: 23-002888/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:
Renaldo Allen
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR: Jan Dymond
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Dale Stuckless, Counsel
HEARD: By way of written submissions
OVERVIEW
1Renaldo A. Allen, the applicant, was involved in an automobile accident on May 20, 2019 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, Intact 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 (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to an income replacement benefit from May 10, 2021 to date, denied May 10, 2021 and if so, in what amount? The applicant claims entitlement to $400.00 per week.
iii. Is the applicant entitled to $3,747.40 for physiotherapy services from Health-Pro Wellness proposed by Dr. Robert Tarummi, chiropractor, in a treatment plan (OCF-18) dated January 12, 2023?
iv. Is the applicant entitled to $1,633.62 for physiotherapy services from Health-Pro Wellness proposed by Dr. Tarummi, in a treatment plan dated June 6, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limits.
4As the MIG limits have been exhausted, the applicant is not entitled to any of the treatment plans at issue.
5As no benefits are due, the applicant is not entitled to interest.
ANALYSIS
The applicant’s injuries are predominantly minor and the MIG applies
6I find that the applicant has not met the onus of establishing, on a balance of probabilities, that he suffers from chronic pain with functional impairment that warrants removal from the 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 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.”
8An 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.
9The applicant argues that he is not subject to the MIG limit because he suffers from chronic pain.
10The appellant submits that he suffers from ongoing mechanical and chronic back pain, neck pain, a right shoulder tear, and has consistently complained of ongoing pain more than three years after the accident.
11The respondent submits that the applicant’s submissions regarding chronic pain do not satisfy the burden of proof in establishing the applicant has chronic pain as a result of the accident.
a) The applicant’s medical evidence does not support a finding of chronic pain with physical Impairment
12In order to be removed from the MIG because of chronic pain, the applicant must first establish that he suffers from pain that is more than sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule.
13I find that the applicant has not met his onus because the medical evidence submitted by the applicant does not indicate that he suffers from pain that is continuous and causes functional impairment or disability.
14The applicant first sought medical attention from Dr. Tarulli, a chiropractor, on May 22, 2019 – two days post-accident. Dr. Tarulli diagnosed the applicant with sprain and strain of the cervical spine, thoracic spine, lumbar spine, sacroiliac joint, shoulder joint, and shoulder joint rotator cuff capsule which are all injuries consistent with the definition of a minor injury under the Schedule. He also notes that the applicant reported suffering from headache, tension-type headache, malaise and fatigue, other sleep disorders, and acute pain. Dr. Tarulli reported that the applicant suffered a complete inability to carry on normal life with an anticipated duration of 9-12 weeks.
15The applicant next attended a walk-in clinic on June 10, 2019, approximately three weeks post-accident. I find that the complaints noted in the clinical notes and records (“CNRs”) of this visit are consistent with the definition of a minor injury; they do not indicate a diagnosis of chronic pain. The CNRs of Dr. Baghee indicate that the applicant reported having lower back pain and neck pain following the accident. Dr. Baghee prescribed use of a heating pad, Tylenol, and physiotherapy. The applicant was advised to return in the case of worsening symptoms or if not improvement after 5 days. There is no indication that the applicant returned to the walk-in clinic for further treatment.
16The applicant relies on the CNRs of family physician, Dr. Joseph DeCaria. I find that the CNRs dated August 8, 2019 (approximately eleven and a half weeks post-accident) report the applicant as complaining of right should/neck pain that “sometimes bothers him at work when working overhead”. The CNRs indicate the applicant reported that he had been attending physio twice per week and that the pain had improved. The August 8, 2019 CNRs do not mention the complaints of lumbar or sacroiliac pain that the applicant reported to Dr. Tarulli on May 22, 2019, suggesting that these complaints may have been resolved within the 9 to 12-week timeframe estimated by Dr. Tarulli.
17The applicant visited Dr. DeCaria on August 8, September 17 and October 4, 2019 with continued complaints of shoulder pain. Diagnostic imaging identified a rotator cuff partial tear, bursitis and impingement. There is no diagnosis linking the findings to injuries sustained in the accident. The applicant was advised to return for a cortisone injection if the pain did not improve with further physical therapy. There are no further records of pain complaints until November 2022.
18I find a re-assessment conducted by Health Pro on February 29, 2022 and submitted by the applicant does not support the applicant’s claim of chronic pain. The CNRs record the applicant as suffering from mild intermittent pain of the cervical spine, and intermittent lumbar and shoulder pain of unstated severity.
19The applicant visited Dr. DeCaria on half a dozen occasions for various ailments between November 2019 and May 2021; however, the CNRs for these visits do not mention complaints of pain related to the accident. Dr. DeCaria’s CNRs of November 28, 2022 note the applicant reported “intermittent lower back pain especially if sitting too long or when bending forward.” Dr. DeCaria diagnosed the applicant with mechanical back pain. Considering the two-year gap between complaints of pain to his family physician, I find that this evidence does not support that the applicant as suffering from ongoing pain of sufficient severity to indicate that he suffers from chronic pain.
20Finally, CNRs of an August 23, 2023 visit to Dr. DeCaria highlighted by the applicant note the applicant as reporting intermittent aches and pains all over his body and “pain, especially back pain that started following an MVIA that occurred in November 2022.” This suggests to me that the applicant’s pain symptoms reported in August 2023 were not the result of injuries sustained in the 2019 accident which is the subject of this application.
21The applicant claims that he suffers from functional limitations; however, he does not identify specific functional impairments nor point me to evidence of ongoing functional impairment. The OCF-3 reports the applicant as experiencing difficulties with activities of daily living and recreational tasks requiring repetitive bending, lifting from the flow, overhead lifting as well as housekeeping. There is no indication as to the severity of the difficulties; however, the OCF-3 lists the expected duration as nine to twelve weeks. The applicant has not directed me to any evidence that he complained to a health care professional of difficulties in any activities of daily living other than intermittent work-related difficulty. The CNRs of Dr. DeCaria record the applicant as reporting intermittent pain when working overhead but Dr. DeCaria does not offer a diagnosis of functional impairment.
22I also find that the applicant has not established that he meets three out of six criteria required for a finding of chronic pain because he does not point me to any evidence supporting his claims.
23While the test in the American Medical Association Guides to the Evaluation of a Permanent Impairment, 6th edition (“AMA Guides”) is not referenced in the Schedule, this Tribunal has found that it provides a helpful tool to assist in determining whether an applicant is suffering chronic pain, and I agree. According to the AMA Guides, a person must meet at least three of six AMA Guides criteria to support a diagnosis of chronic pain.
24In his submissions, the applicant claims that he suffers from all six of the criteria used to assess chronic pain; however, I find he does not support this claim with evidence. The applicant’s assertion that he meets the AMA Guides criteria is not sufficient for a finding of chronic pain – there must be specific and objective medical evidence that support his claim under each criterion for a finding of chronic pain.
25Specifically, the applicant did not point me to any evidence, nor are there references in the CNRs or other documents provided by the applicant, that indicate the applicant:
i. used prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs and other substance;
ii. has an excessive dependence on health care providers, spouse or family;
iii. experienced secondary deconditioning due to disuse and or avoidance of physical activity due to pain;
iv. has withdrawn from social milieu, including work, recreation and other social contracts;
v. has developed psychological sequelae after the initial incident including anxiety, fear-avoidance, depression and non-organic illness behaviours.
26Further, I note that while he has reported intermittent difficulty with some employment related tasks such “when working overhead,” it does not rise to the level of functional impairment.
27I find that the applicant has not met his onus to establish that, on a balance of probabilities, he has chronic pain with a physical impairment that warrants removal from the MIG.
Benefits Claimed
28Since I have found that the applicant’s claims are subject to the treatment within the $3,500.00 limit of the MIG, and since that limit has already been exhausted, the applicant is not entitled to the benefits claimed.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is payable.
ORDER
30I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline.
ii. As the limits of the Minor Injury Guideline have been exhausted, there is no entitlement to the benefits at issue.
iii. No interest is payable.
Released: February 14, 2025
Jan Dymond
Vice-Chair