Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006678/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:
Nyathi N Badanile Applicant
and
Co-operators General Insurance Company Respondent
Decision
Adjudicator: Rasha El Sissi
Appearances:
For the Applicant: Sulakshana Kumar, Paralegal
For the Respondent: Emily Schatzker, Counsel
Heard: By way of written submissions
Overview
1Nyathi Badanile, the applicant, was involved in an automobile accident on December 26, 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 $2,680.00 for an orthopedic assessment, proposed by Complete Rehab in a treatment plan dated December 13, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
Result
3The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limit.
4The applicant is not entitled to the treatment plan in dispute or interest.
Analysis
Minor Injury Guideline
5I find that the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG limit. I do not find any basis that warrants removing the applicant from the MIG.
6Section 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."
7The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under s.18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within the MIG.
8The 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. To demonstrate she should be removed from the MIG, the applicant must show she sustained chronic pain with functional impairment that is more than sequalae from her accident-related injuries. The Tribunal has held that chronic pain syndrome, or pain that is a severe, debilitating condition distinct from ongoing or recurring pain, qualifies as chronic pain.
Pre-existing Condition
9The applicant's position is that she should be removed from the MIG based on her pre-existing existing medical condition of lower back pain, neck pain and headaches that was exacerbated as a result of the accident.
10The applicant relies on the Independent Orthopedic Assessment Report of Dr. Manoj Bhargava, orthopedic surgeon, as well as clinical notes and records of Dr. Michael Katarynych, family doctor at Mimico Medical Centre.
11For context, Dr. Bhargava's Orthopedic Assessment was proposed by Complete Rehab in the treatment plan in dispute, which the respondent had previously denied. The applicant seeks the cost of the examination expense of this assessment in addition to removal from the MIG.
12The respondent's position is that the applicant's injuries from the accident are confined to the MIG. In addition, the respondent submits that the applicant has not provided compelling medical evidence stating and explaining how or why her pre-existing medical condition precludes maximal recovery from the subject accident if she is kept within the MIG. The respondent also cites the statement of Dr. Bhargava in his orthopedic report that he did not think that the applicant's pre-existing neck and low back pain contributed to the applicant's current condition.
13The applicant provided medical evidence of her injuries from the accident in the form of the clinical notes and records of her visit to the Humber River Hospital emergency department ("ER") immediately after the accident and follow-up appointments with Dr. Katarynych. She complained of central neck pain, mid back pain, left rear shoulder pain (unable to fully extend her left arm), left knee pain (limited range of motion), sternal chest pain, tender and worse with palpitation and deep inspiration. Diagnostic imaging was ordered, which revealed no definite evidence of fracture, aortic injury and the x-ray of the left knee appeared normal. She was given a prescription for Naproxen on discharge and advised to use ice and Tylenol as needed.
14The applicant had virtual visits with her family doctor Dr. Katarynych on December 28 and 29, 2020 to discuss her soreness from the accident and review the hospital's investigations. She had a telephone visit on January 5, 2021, at which she complained of right wrist pain and on February 2, 2021 at which she complained of back pain since the accident and reported seeing a physiotherapist for it. The applicant commenced various therapies at Complete Rehab on January 25, 2021. On that date, Dr. Rahim Jessa, chiropractor, provided an OCF-3 containing a diagnosis of strain and sprain in many parts of her body (neck, mid- and low-back, ribs, sternum, left knee, right wrist, shoulder), insomnia and headache.
15Based on the foregoing, I find that the applicant's physical injuries from the subject accident fall within the definition of minor in section 3 of the Schedule because they were predominantly sprains, strains and whiplash related, according to the evidence.
16The next question is whether the applicant should be removed from the MIG because of her pre-existing condition of lower back pain, neck pain and headaches as set out in s. 18(2) of the Schedule and submitted by the applicant.
17Section 18(2) of the Schedule requires the applicant to show that she has a documented pre-existing condition. The applicant has met this requirement.
18The applicant states that she was involved in motor vehicle accident in 2017 in which she suffered head injuries, facial fractures and developed residual back pain, neck pain and headaches. In this regard, she relies on the IU Health Methodist Hospital Discharge Summary, dated June 22, 2017.
19The applicant also states that she has a history of experiencing lower back pain, neck pain and headaches. She relies on (a) the clinical notes and records of Mimico Medical Centre from January 1, 2017 to August 3, 2022 (which include an ER visit for a migraine headache on January 14, 2020) and (b) Dr. Bhargava's orthopedic assessment report dated January 25, 2022 under the heading "Past Medical History". There, Dr. Bhargava writes that the applicant had pre-existing low back and neck pain where she experienced occasional headaches and neck stiffness with prolonged sitting, and occasional low back pain with repeated/frequent bending or lifting. She also refers to Dr. Katarynych's referral to a neurologist on November 3, 2021 for symptoms of anosmia, metallic taste in mouth and recurrent headaches ongoing since prior to the subject accident.
20However, s. 18(2) of the Schedule also requires a determination by the insured person's health practitioner that the pre-existing medical condition will prevent the person from achieving maximal recovery from the minor injury if the person is subject to the limits under the MIG. The applicant has not met this requirement.
21Having reviewed the medical evidence, I do not find any such determination or compelling support for it in the records of Dr. Katarynych nor any report from a neurologist further to Dr. Katarynych's referral on November 3, 2021.It is not sufficient to argue that the applicant's pre-existing condition was worsened by the accident. It is well-settled that submissions alone are not evidence.
22In addition, Dr. Bhargava's report does not support the applicant's submission that her pre-existing condition will prevent her from achieving maximal recovery from the subject accident if she is limited to the MIG. In this regard, Dr. Bhargava was asked to comment in his orthopedic assessment report on any pre-existing conditions and advised that the applicant had a history of postural-related neck and lower back pain, which was not functionally limiting. He said that this pain resolved with changing postures and stretching and opined that, "I do not consider these symptoms to be significantly contributing to her current condition."
23Accordingly, the applicant has not met her burden of proof to establish that she should be removed from the MIG because of a pre-existing condition under s. 18(2) of the Schedule.
Chronic Pain
24The applicant relies on the report of Dr. Bhargava, which contains a diagnosis of chronic pain related to cervical spine sprain/strain WAD I and chronic pain related to lumbar spine sprain/strain. The applicant also submits that she meets three out of the six criteria under the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th Edition ("AMA Guides") for chronic pain.
25The respondent submits that ongoing pain alone does not take the applicant out of the MIG; rather, it must be continuous or be a chronic pain syndrome, accompanied by functional impairment or disability. In addition, the respondent submits that the applicant has not provided enough medical information to show that she has a functional impairment related to her pain; for example, the respondent submits that the applicant's evidence is missing the effect on her function or whether the pain is bearable without treatment. The respondent submits that the applicant has not demonstrated that she meets any of the criteria under the AMA Guides.
26In his report, Dr. Bhargava recorded the applicant's present pain complaints related to the neck, right wrist, low back and knees (all either constant or intermittent) and that her subjective intensity of pain was between 5/10 and 10/10. He found pain during examination in all four areas. In addition to diagnoses of sprain/strain and chronic pain of the cervical and lumbar spine, he diagnosed bilateral right greater than left patellofemoral syndrome. For her right wrist pain, he recommended an MRI (scaphoid fracture v. TFCC tear and/or DRUJ injury), and reserved comment on her right wrist pending completion of diagnostic imaging. She reported taking extra strength Tylenol once or twice per week for various pain complaints.
27The Tribunal has held that chronic pain syndrome, or pain that is a severe, debilitating condition distinct from ongoing or recurring pain, qualifies as chronic pain. I find that the probative value of Dr. Bhargava's report as a medical report on the applicant's chronic pain is somewhat limited. He noted that since most soft tissue injuries resolve in four to six weeks, it appears that the applicant has developed chronic pain and would therefore benefit from a chronic pain assessment. He did not explain the basis of his diagnosis of chronic pain (aside from its chronicity) or address the criteria for the AMA Guidelines in establishing chronic pain as referred to in the applicant's submissions. His diagnosis of accident-related chronic pain on January 25, 2022 is not supported by the clinical notes and records of Dr. Katarynych.
28Dr. Bhargava also did not explain the basis for his opinion that the subject accident was the direct cause of the applicant's neck, low back, right wrist and bilateral knee pain. This is problematic because Dr. Bhargava's assessment occurred on January 25, 2022, more than a year after the accident and the last visit to Dr. Katarynych about accident-related pain on February 2, 2021.
29There are ongoing pain reports to Dr. Katarynych from the second day after the accident, December 28, 2020 until February 2, 2021. There are no ongoing pain reports to Dr. Katarynych related to the accident after February 2, 2021. Dr. Katarynych did not prescribe prescription pain medication or refer the applicant to a chronic pain specialist. He did refer the applicant to a neurologist for anomia and sleep complaints on November 3, 2021 ongoing since prior to the subject accident, but there is no report from this referral or evidence that the referral took place. There is no evidence that the applicant received a right-wrist diagnosis further to the recommendation of Dr. Bhargava. The clinical notes of Dr. Katarynych are not listed among the documents reviewed by Dr. Bhargava.
30For the foregoing reasons, I am not persuaded that Dr. Bhargava's report alone meets the applicant's burden to show that she has accident-related chronic pain. I have therefore considered the applicant's submissions regarding the AMA Guides.
31The AMA Guides require that the injured person meet at least three of the six criteria to qualify as having chronic pain. The Tribunal does not have to use the AMA Guides to determine if an injured person has chronic pain, but they can be a useful interpretive tool. The six criteria are: 1) use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; 2) excessive dependence of health care providers, spouse, or family; 3) secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; 4) withdrawal from social milieu, including work, recreation, or other social contacts; 5) 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; and 6) development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
32I am not persuaded that the applicant has established that she meets at least three criteria of the AMA Guides with respect to accident-related chronic pain, as submitted. She primarily relies on self-reports to Dr. Bhargava as recorded in his report, on which I place limited weight for the reasons explained, and she relies on submissions, which are not supported by specific evidence. As noted, it is well established that submissions alone are not evidence.
33Regarding criterion 3, the applicant submits that she longer participates in physical recreational activities due to fear of getting injured and due to her pain. In this regard, she relies on Dr. Bhargava's statement that she decreased her participation in social activities, including attending church, due to decreased motivation associated with her pain. The applicant did not offer evidence that she experienced secondary physical deconditioning, which is what criterion 3 describes. The evidence actually offered is not particularly relevant to criterion 3 of the AMA Guides and accordingly I find she does not meet criterion 3, as submitted.
34Regarding criteria 6, the applicant submits that she experiences anxiety and decreased mood and intense headaches since the subject accident. She submits that she experiences increased anxiety traveling in a vehicle as a passenger. She submits that she has developed sleep disturbances, cognitive problems, difficulties with focusing and sustaining attention as well as problems with short term memory due to pain and sleep disturbances and being overwhelmed since the accident. The applicant reported similar psychological symptoms to Dr. Bhargava. She also reported ongoing headaches and pain-related sleep disturbances to her treating therapists at Complete Rehab Centre on April 3 and 18, 2024. As the latter reports are more than three years after the accident, and there is no evidence that the applicant sought help for accident-related psycho-social symptoms after 2021, I am only able to place limited weight on the evidence. As a result, I am not persuaded that the applicant meets criterion 6.
35Regarding criterion 5, the applicant submits that, due to her pain from the accident, she has difficulties returning to her recreational activities such as going out with her friends, watching television, and household duties since the accident. However, it is not necessary for me to address whether the applicant meets criterion 5 because at least three of six criteria of the AMA Guides have not been met. The applicant did not lead evidence that she meets any of the other three remaining criteria of the AMA Guides.
36Accordingly, I find that the applicant has not met her burden of proof to establish that she has accident-related chronic pain.
37It is not necessary for me to consider the applicant's level of functional impairment because she has not established that she suffers from accident-related chronic pain.
38In sum, I find that the applicant's injuries are predominantly minor, subject to treatment within the MIG limit and that there is no basis that warrants removing the applicant from the MIG.
39As I have found that the applicant's injuries are predominantly minor, these injuries are subject to treatment within the MIG limit. Therefore, it is not necessary for me to consider whether the treatment plan in dispute is reasonable and necessary.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are overdue, the applicant is not entitled to any interest.
Order
41For the above reasons, I find:
i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is not entitled to the treatment plan or interest.
iii. The application is dismissed.
Released: April 28, 2025
Rasha El Sissi Adjudicator