Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-007563/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:
Nelson P Medeiros Da Ponte
Applicant
and
Jevco Insurance Company
Respondent
DECISION
ADJUDICATOR: Nathan Prince
APPEARANCES:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: David Koots, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nelson Medeiros Da Ponte, the applicant, was involved in an automobile accident on February 12, 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, Jevco 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? Note: The MIG limits have been exhausted.
ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 (“plan”) dated October 24, 2021?
iii. Is the applicant entitled to $2,712.00 for an attendant care assessment, proposed by Medex Assessments Inc. in a plan dated July 15, 2021?
iv. Is the applicant entitled to $2,881.50 for a functional abilities evaluation assessment, proposed by Medex Assessments Inc. in a plan dated November 10, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG.
4As the applicant is in the MIG, it is not necessary to consider whether the plans in dispute are reasonable and necessary.
5As there are no overdue payments of benefits, the applicant is not entitled to interest.
ANALYSIS
The applicant remains in the MIG
6I find the applicant has not demonstrated on a balance of probabilities that his accident-related injuries warrant 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 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 submits that he should be removed from the MIG based on chronic pain, psychological injuries, and the aggravation of his pre-accident impairments. He relies on the clinical notes and records (“CNRs”) of his family doctor, Dr. Sarah Takach, as well as a consultation report from Dr. Flor Muniz who specializes in physical medicine and rehabilitation, and a clinical note from Dr. Bill Wand, neurosurgeon.
10The respondent submits that the applicant has not demonstrated that he suffers from impairments which would take him out of the MIG and relies upon the section 44 reports of Stacey Woods, occupational therapist, Dr. Allan Kopyto, general practitioner, and Dr. Rakesh Ratti, psychologist.
11For the reasons that follow, I find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
The applicant has not demonstrated that he suffers from chronic pain with a functional impairment
12I find the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG.
13The applicant submits that he suffers from chronic pain and suggests that this is sufficient to remove him from the MIG. In support of this proposition, he points me to 17-003735 v. Certas Direct Insurance Company, 2018 CanLII 39445 (“17-003735”) and 17-000081 v. RBC General Insurance Company, 2017 CanLII 59504 (“17-000081”).
14I am not bound by prior decisions of the Tribunal and, in any event, I find that 17-003735 and 17-000081 are distinguishable from the matter before me. In both 17-003735 and 17-000081 the applicant had obtained section 25 reports from chronic pain specialists which had found that the applicant suffered from chronic pain syndrome. There is no section 25 report before me in this case.
15In addition, as previously noted, chronic pain, by itself, is not sufficient to remove the applicant from the MIG. The chronic pain must be accompanied by functional impairment. The AMA Guides list six criteria for assessing chronic pain claims. I am not bound by the AMA Guides; however, the Tribunal has held that the AMA Guides can be a useful tool for the evaluation of chronic pain. To support a diagnosis of chronic pain under the AMA Guides, the applicant must meet at least three of the following six criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
16I find that the applicant has not met at least three of the criteria as outlined in the AMA Guides and therefore I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident.
17The applicant did not point me to any evidence which suggests that he is dependent on prescription drugs or other substances, that he is dependant on others, that there is any secondary physical decondition, that he has withdrawn from social milieu, or has insufficient capacity to pursue work, family, or recreational needs.
18In reviewing the CNRs of Dr. Takach, I find that, although there was reporting of ongoing pain, the CNRs are silent with respect to any associated functional impairment. On May 26, 2021, the applicant saw Dr. Takach and reported back, wrist, and ankle pain. On June 3, 2021, he reported back, shoulder, and hip pain to Dr. Takach. Finally, on April 19, 2022, he saw Dr. Takach a third time and reported back, shoulder, and ankle pain. While I acknowledge the fact that Dr. Takach makes a notation of chronic pain in her CNRs, I find that this is insufficient to remove the applicant from the MIG as the CNRs do not address the functional impact of the applicant’s reported ongoing pain.
19Based on the foregoing, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG.
The applicant has not demonstrated that he suffers from a psychological impairment
20I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a psychological impairment as a result of the accident.
21As set out above, an injured person is not subject to the MIG if they can show that they have a psychological injury as a result of the accident. However, the psychological injury must be more than sequalae of the minor injury. If the symptoms are sequelae and do not rise to the level of impairment, they are captured in the minor injury definition.
22The applicant submits that he sustained psychological injuries as a result of the accident. The applicant reported to Dr. Takach that he was having issues with his mood due to the loss of functionality, loss of strength, loss of movement, and constant pain associated with the subject accident.
23I have reviewed the CNRs of Dr. Takach, and while I am aware of the reporting of mood changes, I find that Dr. Takach has not diagnosed the applicant with any mental health condition. And while the April 19, 2022 CNR of Dr. Takach suggests a referral to a mood disorders clinic, I was not pointed to any evidence to suggest that the applicant attended at any mood disorders clinic.
24In addition, I was not pointed to any evidence that would suggest that the applicant has engaged in any mental health treatment or been prescribed any psychotropic medications.
25I find that there is a lack of any DSM diagnosis in the medical record. The applicant has not pointed me to any evidence which would suggest that he was diagnosed with any accident-related psychological impairment. The section 44 assessment of Dr. Ratti found that the applicant did not meet the criteria for any mental health diagnosis.
26Based on the foregoing, I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a psychological impairment that would warrant removal from the MIG.
The applicant has not demonstrated that he has a pre-existing condition that will prevent maximal recovery within the MIG
27I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.
28As set out above, under section 18(2) of the Schedule, the applicant must show, on a balance of probabilities, that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG.
29The applicant submits that he should be removed from the MIG on the basis that his pre-existing impairments were aggravated by the subject accident. The applicant was involved in two prior accidents in 2016 and 2018 which resulted in a mild traumatic brain injury and an L3 fracture. The applicant also reported that he suffered from headaches, dizziness, numbness, depressed mood, and anxiety as a result of the 2016 and 2018 accidents.
30The applicant relies on 17-002688 v. Aviva Insurance Company of Canada, 2017 CanLII 85693 (“17-002688”) in which the adjudicator found that the applicant in that case should be removed from the MIG because the accident exacerbated degeneration of the osteoarthritis in her left knee. I am not bound by prior decision of the Tribunal and am not persuaded by the reasoning provided in 17-002688 because in my view it does not fully consider the test outlined in section 18(2) of the Schedule.
31While I am alive to the applicant’s pre-accident history, with respect, the test for removal from the MIG under section 18(2) of the Schedule is not whether the applicant’s pre-existing conditions are aggravated by the subject accident. In fact, there need not be any aggravation of a pre-existing condition to warrant removal from the MIG under section 18(2). To meet the test under section 18(2) the applicant must show that a pre-existing injury is preventing recovery within the limits of the MIG through compelling medical evidence that states that this is the case.
32The applicant has not pointed me to any compelling medical evidence which would suggest that his pre-existing conditions are posing a barrier to his recovery within the MIG and therefore I find that the applicant has not met his onus of demonstrating that his pre-existing conditions warrant removal from the MIG.
The applicant is not entitled to the plans in dispute
33As I have found the applicant to remain in the MIG, and the MIG limits have been exhausted, it is not necessary to consider whether the plans in dispute are reasonable and necessary.
The applicant is not entitled to interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
35As there are no overdue payments of benefits, the applicant is not entitled to interest.
ORDER
36For the reasons above, I find that:
i. The applicant remains in the MIG;
ii. As the applicant is in the MIG, it is not necessary to consider whether the plans in dispute are reasonable and necessary;
iii. As there are no overdue payments of benefits, the applicant is not entitled to interest; and
iv. The application is dismissed.
Released: March 21, 2025
Nathan Prince
Adjudicator