Licence Appeal Tribunal File Number: 23-009527/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:
Monica Guerreno
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Marina Korshunova, Counsel
For the Respondent:
Thomas Petrella, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Monica Guerreno, the applicant, was involved in an automobile accident on July 1, 2017, 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, Unifund Assurance 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 the treatment proposed by Active Therapy Works Inc. as follows:
(1) $515.00 for physiotherapy services, proposed in a treatment plan dated October 14, 2021;
(2) $1,140.00 for physiotherapy services, proposed in a treatment plan dated November 30, 2021;
(3) $1,140.00 for physiotherapy services, proposed in a treatment plan dated January 6, 2022;
(4) $1,140.00 for physiotherapy services, proposed in a treatment plan dated January 25, 2022; and
(5) $1,037.50 for physiotherapy services, proposed in a treatment plan dated April 7, 2022?
iii. Is the applicant entitled to $6,522.20 for physiotherapy services, proposed by The Rehab Centre, in a treatment plan, dated February 16, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”), dated March 18, 2024, lists issue 8 as, “Is the applicant entitled to $2,199.32 for a psychological assessment, proposed in a treatment plan, dated October 18, 2021?”. The applicant in her submissions has stated that this issue is withdrawn. Therefore, I have not included it in the issues in dispute.
4The CCRO lists issue 9 as “Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?” The applicant in her submissions has stated that this issue is withdrawn. Therefore, I have not included it in the issues in dispute.
RESULT
5I grant the application in part, namely:
i. I find that the applicant is removed from the MIG;
ii. I find that the applicant is entitled to the treatment plans for physiotherapy proposed by Active Therapy Works, plus applicable interest; and
iii. I find that the applicant is not entitled to the treatment plan dated February 16, 2022, proposed by The Rehab Centre.
ANALYSIS
The applicant is removed from the MIG
6I find that the applicant has met her onus and demonstrated that her accident-related impairments 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.
9In this matter, the applicant submits that she should be removed from the MIG because she suffers from a chronic pain condition as a result of the accident.
10Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
11The applicant submits that she has chronic pain with functional limitations, specifically chronic neck pain, shoulder pain, back pain, cervical radiculopathy, syrinx or prominent central canal and hearing loss. The applicant submits that she used a variety of prescription medications to manage her pain following the accident. She constantly followed up with her family physician and underwent investigations of her injuries. She reported that she is limited with respect to her housekeeping activities and has altered her participation in such activities including light cooking, cleaning and laundry. She stopped attending dance classes. She further reports that she has pain with working, and she is on modified duties as she can no longer carry heavy items. She relies upon the clinical notes and records (“CNRs”) of her family physician, Dr. Kris Cheng, which document her ongoing complaints post-accident. The applicant also relies upon the reports of Dr. A. Kachooie, physical medicine and rehabilitation consultant, who diagnosed her with mild chronic denervation C6 radiculopathy, right rotator cuff tendonitis, greater occipital neuralgia, sacroiliac joint disorder and chronic pain disorder. Finally, the applicant relies upon the CNRS of Active Therapy Works which document her post-accident treatment, ongoing complaints and functional limitations.
12The respondent submits that the applicant has not discharged her burden to prove that her injuries fall outside of the MIG. The respondent claims that the applicant sustained, at most, minor soft tissue injuries as a result of the accident, and there is a lack of objective medical evidence demonstrating an ongoing accident-related physical impairment. The respondent submits that the applicant does not meet the criteria for chronic pain syndrome in the AMA Guides and has not established any of the required criteria. The respondent further relies upon the Insurer Examination (“IE”) physiatry assessment reports of Dr. Seyed Hossein Hosseini, dated December 9, 2021 and June 27, 2023, and his addendum report, dated November 8, 2023, all of which confirmed that the applicant sustained minor injuries. The respondent submits that with respect to the report of Dr. Kachooie, dated February 16, 2022, there is no discussion or analysis by Dr. Kachooie attributing the applicant’s injuries to the subject accident.
13I find that the applicant has provided sufficient evidence to support her claim that she suffers from a chronic pain condition with functional impairment as a result of the accident.
14I find that an applicant may be removed from the MIG based on persistent reports of pain beyond the time expected for the sequalae of minor injuries, accompanied by functional impairment. In this case, I find that the applicant has established on a balance of probabilities that she suffers functional impairments from persistent pain resulting from the accident. She has shown that removal from the MIG is warranted on this basis.
15I find that the evidence tendered by the applicant supports her ongoing complaints and limitations. In reaching my conclusions, I have placed significant weight on the CNRs of Dr. Cheng, family physician and Active Therapy Works. The applicant continued to see Dr. Cheng regularly following the accident with ongoing physical complaints and reports of functional limitations. There are also multiple references to her injuries being chronic throughout the CNRs. The applicant was also prescribed medication to manage her pain on a consistent basis. I find these CNRs are consistent with the CNRs of Active Therapy Works, which document and provide regular evaluations of the applicant’s ongoing complaints and functional impairments.
16I do not accept the respondent’s submissions that Dr. Kachooie in his February 16, 2022 report does not attribute the applicant’s injuries to the subject accident. It is clear from his report that the applicant was referred to him to assess the injuries she suffered in the subject accident. I further find that while the respondent suggests that the applicant had long-term degenerative conditions that pre-date the accident, the CNRs of the family doctor do not support any physical complaints in the years leading up to the accident, except for a report of left shoulder pain on April 12, 2018. I find that there is nothing in the medical evidence provided that supports that the applicant’s complaints of pain were not caused or contributed to by the subject accident.
17With respect to the IE report of Dr. Hosseini, dated June 27, 2023, I find that the applicant reported that she continues to experience pain in her neck, left axilla, and low back, as well as headaches. She reported an overall improvement of 40% in her accident-related complaints to date. She reported that she is on modified duties at work where she does not lift bins onto skids. She reported that she is able to do light cooking, cleaning and laundry tasks with frequent breaks. She has not resumed dancing. I find that Dr. Hosseini concluded that from a musculoskeletal perspective, the applicant presented with impairments in range of movement of bilateral cervical lateral flexion and bilateral lumbar lateral flexion. I find that Dr. Hosseini’s conclusion two years after the accident that the applicant continued to have these impairments supports that the applicant’s reports of pain are beyond the time expected for the sequalae of minor injuries. While Dr. Hosseini states that the impairments are temporary and that the prognosis is guarded, he does not comment on the fact that his assessment is being conducted two-years post-accident, or what this implies in terms of the chronicity of her injuries.
18I agree with the respondent that a diagnosis of chronic pain based on satisfying the criteria in the AMA Guides will warrant the removal of an insured from the MIG. However, such a finding is sufficient, but not necessary, to be removed from the MIG. I find that the AMA Guides are not binding on the Tribunal. While such an opinion would be helpful and determinative of the issue, it is not mandatory for a finding that the applicant suffers from a chronic condition.
19For the reasons set out above, I find that the applicant has proved on a balance of probabilities that she suffers from a chronic pain condition that warrants removal from the MIG.
Entitlement to the treatment plans in dispute
a) The applicant is entitled to the treatment plans prepared by Active Therapy Works for physiotherapy
20I find that the applicant is entitled to the treatment plans for physiotherapy.
21To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.
22The applicant claims entitlement to the following treatment plans for physiotherapy proposed by Active Therapy Works:
i. $515.00 for physiotherapy services, proposed in a treatment plan dated October 14, 2021;
ii. $1,140.00 for physiotherapy, proposed in a treatment plan dated November 30, 2021;
iii. $1,140.00 for physiotherapy services, proposed in a treatment plan dated January 6, 2022;
iv. $1,140.00 for physiotherapy services, proposed in a treatment plan dated January 25, 2022; and
v. $1,037.50 for physiotherapy services, proposed in a treatment plan dated April 7, 2022.
23The applicant submits that the treatment plans in dispute are reasonable and necessary because she has ongoing physical impairments which require treatment to reduce her pain and improve her physical limitations. The applicant submits that at the time the treatment plans were submitted, she experienced constant left shoulder pain, back pain and neck pain. She relies upon the CNRs of her family physician, Dr. Cheng, which support his ongoing recommendations that the applicant continue with physiotherapy treatment. She further relies upon the CNRs of Active Therapy Works. Finally, she relies upon the report of Dr. Kachooie, dated February 16, 2022, which referred her to a multidisciplinary rehab program.
24The applicant submits that the goals of the treatment plans include pain reduction, increase in range of motion, increase in strength, return to activities of normal living, return to pre-accident work activities, assist in pain management, provide education, improve functional tolerance and improve tolerance for ADL’s, housekeeping and leisure activities. The applicant submits that the treatment plans outline the injuries and impairments sustained by the applicant which are consistent with the injuries and impairments noted by the applicant’s treatment physicians. The applicant submits that she proceeded to incur physiotherapy and other services at Active Therapy Works despite the respondent’s denials, but eventually stopped treatment due to the financial burden.
25The respondent submits that the treatment plans in dispute are not reasonable and necessary. The respondent submits that it has denied the treatment plans based on the applicant’s medical records and the objective findings of Dr. Hosseini in his IE reports, which concluded that the applicant’s injuries are minor. The respondent argues that the family doctor notes referenced by the applicant are sporadic and do not support or reference accident-related impairments requiring treatment outside of the MIG. The respondent further submits that the applicant has not provided evidence and submissions to establish that each specific treatment or assessment proposed will have a therapeutic and/or restorative impact on the applicant. It states that merely reproducing the particulars of a treatment plan without providing an analysis or directing an adjudicator towards evidence in support of their argument is insufficient. The respondent argues that it is not sufficient for the applicant to solely rely on a treatment plan in support of a physiotherapy treatment plan.
26I find that the applicant has provided sufficient medical evidence to show that the treatment plans for physiotherapy are reasonable and necessary. I find that the CNRs of Dr. Cheng, family physician, support the need for physiotherapy which is based on the multiple recommendations made throughout the CNRs. These CNRs are contemporaneous with the treatment plans submitted and consistently note the applicant’s report of pain. While the IE reports of Dr. Hosseini indicate that the applicant’s injuries are minor, the CNRS of Dr. Cheng demonstrate her ongoing pain complaints. I further find that the CNRs of a treating practitioner who regularly assesses the applicant should be given more weight than a report of an IE assessor who only sees the applicant for the purpose of an assessment.
27I further find that upon review of the IE reports of Dr. Hosseini, there was no assessment of any treatment plans in dispute and there is no mention of whether further treatment is reasonable and necessary. I find that the IE report dated December 9, 2021, notes that, “The prognosis is favourable with the consideration of proper rehabilitation and pharmacological treatment”. This would imply that further rehabilitation treatment should be considered.
28I do not accept the respondent’s argument that the applicant is only relying on the specific treatment plan to support the need for physiotherapy. I find that the applicant has provided sufficient objective evidence in the records of Dr. Cheng and Dr. Kachooie, to support the need for ongoing therapy.
29For the reasons set out above, I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plans for physiotherapy proposed by Active Therapy Works.
b. The applicant is not entitled to the treatment plan prepared by The Rehab Centre
30I find that the applicant is not entitled to the treatment plan proposed by The Rehab Centre.
31The applicant claims entitlement to the treatment plan proposed by The Rehab Centre, dated February 16, 2022, recommending a multi-disciplinary program in the amount of $6,522.20. The treatment plan recommends the following:
Documentation, support activity for claim form:
$200.00
20 one-hour sessions of physical rehabilitation:
$1,977.20
10 one-hour acupuncture sessions:
$750.00
TENS unit:
$350.00
Mental health assessment:
$2,000.00
5 one-hour sessions of therapeutic intervention NEC:
$750.00
Back support:
$150.00
One hour of education:
$95.00
Massager:
$250.00
32The applicant in her submissions has indicated that this treatment plan is for physiotherapy. Upon review of the treatment plan, the recommendations are for physical rehabilitation, acupuncture, therapeutic intervention NEC, assistive devices and a mental health assessment. I find that the applicant has not specifically made arguments about this treatment plan in her submissions, and instead has included this treatment plan in her arguments about her entitlement to the physiotherapy treatment plans proposed by Active Therapy Works.
33I find that the applicant has not led sufficient evidence to establish that the proposed treatment plan, including a mental health assessment, is reasonable and necessary. I find that attaching a copy of the treatment plan in the applicant’s submissions on its own is not sufficient. A treatment plan must be supported by medical evidence that is contemporaneous, relevant and objective. I find that the treatment plan is not seeking physiotherapy treatment as submitted by the applicant – but is seeking active therapy, acupuncture, therapeutic intervention, assistive devices and a mental health assessment. The applicant has not provided any submissions with respect to these treatment modalities or mental health assessment or why they are reasonable and necessary.
34Given the lack of submissions and medical evidence provided by the applicant with respect to her entitlement to the treatment plan dated February 16, 2022, I find that she has not met her onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary as a result of the accident.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the treatment plans for physiotherapy proposed by Active Therapy Works.
ORDER
36For the reasons outlined above, I grant the application in part and find:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to the treatment plans for physiotherapy proposed by Active Therapy Works, plus applicable interest; and
iii. The applicant is not entitled to the treatment plan dated February 16, 2022, proposed by The Rehab Centre.
Released: May 20, 2025
__________________________
Melanie Malach
Adjudicator