Licence Appeal Tribunal File Number: 23-004477/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:
Cherrion Brown
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Linda M Spurrel, Paralegal
For the Respondent:
Alexei Batten, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Cherrion Brown, the Applicant, was involved in an automobile accident on June 5, 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, Allstate, 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 medication expenses in the amount of $151.69, submitted via OCF-6 dated September 27, 2021.
iii. Is the Applicant entitled to medication expenses in the amount of $29.44, submitted via OCF-6 dated June 28, 2022.
iv. Is the Applicant entitled to $4013.28 for chiropractic services proposed by Natural Touch Rehabilitation Centre in an OCF-18/treatment plan, dated July 21, 2022.
v. Is the Applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the Applicant withdrew issues 2, 5, 6, 7, and 8 as listed in the case conference report and order.
RESULT
4I find that the Applicant is removed from the MIG.
5I find that the Applicant is entitled to the medication expenses submitted via OCF-6 dated September 27, 2021.
6I find that the Applicant is entitled to the medication expenses submitted via OCF-6 dated June 28, 2022.
7I find that the Applicant is entitled to the chiropractic services proposed by Natural Touch Rehabilitation Centre in a treatment plan dated July 21, 2022.
8I find that the Applicant is entitled to interest pursuant to s. 51 on the overdue payment of benefits.
ANALYSIS
Minor Injury Guideline
9Section 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.”
10An 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.
11In this instance, the Applicant submits that she should be removed from the MIG due to her persistent chronic pain and psychological impairments.
Does the Applicant suffer from chronic pain with a functional impairment?
12I find on a balance of probabilities that the Applicant has chronic pain with a functional impairment that warrants her removal from the MIG.
13The Applicant submits that she was diagnosed with varying chronic pain diagnoses by Harleen Kaur, a physiotherapist, Dr. James Kim, MD, a pain specialist, and Dr. Makinde, the Applicant’s family doctor. The Applicant relies on the report from Dr. Kim dated September 16, 2021, which diagnoses the Applicant with subacute chronic mechanical low back pain.
14The Applicant also relies on an OCF-18 from Dr. Dima Rozen, dated September 8, 2021. Dr. Rozen found that the Applicant had no injuries prior to the subject accident, that the injuries resulting from the subject accident have impaired the Applicant’s ability to carry out her activities of normal life, and that the impairments from the accident are not predominantly minor as referred to in the MIG.
15The Respondent submits that the Applicant should not be removed from the MIG on the basis of chronic pain and that the Applicant does not meet the two-part test of Chronic Pain Syndrome, and that she does not have a proper chronic pain diagnosis.
16The Respondent submits that the report from Ms. Kaur is not a proper chronic pain diagnosis as it is not within the scope of practice of a physiotherapist. They submit that the report from Dr. Kim is not a proper diagnosis of chronic pain either, as he diagnosed the Applicant with subacute chronic mechanical low back pain and not chronic pain syndrome. The Respondent further submits that the chronic pain diagnosis from Dr. Makinde was not given until after the Applicant was in a second accident on September 12, 2022 (“the second accident”) and therefore their chronic pain diagnosis is not as a result of the subject accident.
17The Respondent relies on an IE physiatry assessment of Dr. Yuri Marchuk, and an IE psychology assessment of Dr. Douglas Saunders, both dated January 12, 2022. The Respondent submits that during the psychological assessment with Dr. Saunders, the Applicant reported that her lower back pain “comes and goes” and that she has experienced a 70% recovery in her neck and back. The Respondent submits that pain cannot be considered to be “continuous” when it has improved over time, “comes and goes” and, is at times not present at all.
18The Applicant submits on reply that she continues to experience pain in her back, neck, and shoulders, along with ongoing sleep disturbances, anxiety, and depression since the subject accident on June 5, 2021. The Applicant submits that she has not stopped seeking treatment and incurring costs to maintain her quality of life and functional stability, since the subject accident.
19I find that the evidence before me indicates that Dr. Kim diagnosed the Applicant with an accident-related chronic pain condition, specifically, subacute chronic mechanical low back pain, on September 16, 2021. I find this diagnosis is consistent with the Applicant’s complaints of pain. Although the Respondent disputes the validity of these accident-related diagnoses, I find that Dr. Kim’s diagnosis of subacute chronic mechanical low back pain, is evidence of chronic pain as a result of the subject accident. Dr Kim is a medical doctor and pain specialist, and this diagnosis is within the scope of his practice. The Tribunal has consistently found that chronic pain with functional impairment is grounds for removal from the MIG.
20I find that the Applicant has established that she has chronic pain as a result of the accident. I also find that the Applicant has a functional impairment due to her chronic pain.
21The Applicant submits that on February 9, 2022 she spoke to Dr. Makinde on the phone and reported “still having back pain, not able to do much, house bound, little activities.” During this appointment, Dr. Makinde confirmed in a report that the Applicant engaged in a frank discussion about a long-term plan for chronic pain management. This report predates the second accident and is evidence of functional impairment.
22I also find that in the Applicant’s OCF-3 dated June 17, 2021, completed by Harleen Kaur, physiotherapist, reports that the Applicant has a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. Ms. Kaur reported that the Applicant can “work for modified hours and do light activities,” which I find is persuasive evidence of a functional impairment as a result of pain.
23The Respondent submits that the Applicant does not suffer a significant functional impairment or disability on account of her pain symptoms as she was able to return to work immediately after the accident and returned to driving. The Respondent submits that she has reported being functionally independent in activities of daily living, and to only need assistance with vacuuming and shopping, with that occasional assistance being provided by her daughter.
24I find that the clinical notes of Dr. Makinde demonstrate that the Applicant’s chronic pain has impacted her ability to function, including doing home maintenance that she would have normally performed prior to the subject accident. Therefore, I find that the Applicant has chronic pain with functional impairment as a result of the accident.
25I find on a balance of probabilities that the Applicant has chronic pain with a functional impairment that warrants removal from the MIG.
26I find that the Applicant is not entitled to the treatment plan for chiropractic services submitted July 21, 2022.
27I find the Applicant has provided insufficient evidence that points to why chiropractic treatment is reasonable and necessary. There is evidence of physiotherapy being recommended. However, I do not see sufficient evidence of physiotherapy being provided.
28The term “reasonable and necessary” laid out in section 15 of the Schedule requires that an insurer “shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident”.
29The applicant’s submissions reference physiotherapy, however, chiropractic services are the treatment plan in dispute. I find I was not pointed to sufficient evidence of the reasonableness and necessity of chiropractic treatment by the Applicant because the Applicant failed to identify the goals of the treatment, how the plan would meet the goals of that treatment or that the cost of the treatment is reasonable.
30Therefore, the Applicant is not entitled to the treatment for chiropractic services.
Medication
31I find that the Applicant’s medical expenses are reasonable and necessary following the evidence provided in Dr. Kim’s report.
32I find that the Applicant is entitled to medication expenses in the amount of $29.44. This prescription was written by Dr. Makinde, her family doctor, to address her depression and anxiety. These symptoms are consistent with her diagnosis of chronic pain, causing associated mental health challenges.
33The Applicant submits that the challenges in acquiring treatment as well as difficulty falling and staying asleep due to discomfort and recurring thoughts since the accident are relevant to the subject accident and the chronic pain diagnosis.
34The Respondent submits that the medication is not reasonable or necessary as the MIG limits have been exhausted and the applicant failed to prove the disputed treatment plan and medication expenses are reasonable and necessary as a result of the accident.
35As I have found the Applicant is removed from the MIG, I find this prescription is reasonable and necessary. The Applicant’s psychological symptoms, such as anxiety and sleep disturbances, are a comorbidity to her chronic pain management and recovery as indicated in the clinical notes and records of Dr Makinde.
36I also find that the Applicant is entitled to medication expenses in the amount of $151.69. The Applicant was prescribed a compound topical by Dr. James Kim for her chronic pain condition. Given that I have found that the applicant has accident-related chronic pain, and this has caused associated mental health challenges, I find this prescription is reasonable and necessary as pain management is a reasonable and necessary component of chronic pain management and recovery. While the Respondent denied the expenses on the basis of the MIG, given my finding that the MIG does not apply, I find the expenses are reasonable and necessary under s. 38(2)(c)(i).
37I find on a balance of probabilities these prescriptions are reasonable and necessary.
Interest
38Pursuant to s. 51 of the Schedule, I do not find the Applicant is entitled to interest on overdue benefits.
ORDER
39I find that:
i. The Applicant is removed from the MIG.
ii. The Applicant is entitled to medication expenses in the amount of $151.69 and 29.44.
iii. The Applicant is not entitled to the treatment plan for chiropractic services.
iv. The Applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Released: March 12, 2025
Sarah Guergis
Adjudicator