Hajinian v. Wawanesa Mutual Insurance Company
Licence Appeal Tribunal File Number: 22-011047/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:
Harotion Hajinian
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Jim Zotalis
APPEARANCES:
For the Applicant: Christina Trotta, Counsel
For the Respondent: Sonya Reid, Counsel
HEARD: By way of written submissions
OVERVIEW
1Harotion Hajinian, the applicant, was involved in an automobile accident on August 8, 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, Wawanesa Mutual 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 limit?
ii. Is the applicant entitled to $2,200.00 for physiotherapy services, proposed by South Barrie Health Group in a treatment plan/OCF-18 (“plan”) dated June 30, 2022?
iii. Is the applicant entitled to $1,372.78 for physiotherapy services, proposed by Scarborough South Physio and Rehab Centre Inc., in a treatment plan/OCF-18 (“plan”) dated November 25, 2020?
iv. Is the applicant entitled to $1,574.06 for physiotherapy services, proposed by Scarborough South Physio and Rehab Centre Inc., in a treatment plan/OCF-18(“plan”) dated August 18, 2020?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3Before proceeding to decide the issues in dispute, the respondent submits issues i., v and vi. as listed in the Case Conference Report and Order dated May 17, 2023, are correctly listed; however, the respondent further submits that the Ontario Claim Forms (“OCFs”) identified as issues ii., iii and iv., are described incorrectly and should be identified as: two OCF-18s for chiropractic treatment, physiotherapy, and massage; and one OCF-18 proposing a chronic pain assessment.
4The applicant references treatment plans submitted for chronic pain assessment, physiotherapy, massage and chiropractic treatment in the applicant’s reply submissions but does not specify these were incorrectly identified in the application nor were they corrected at the time of the case conference. I have reviewed the documentation and agree with the respondent that issues iii and iv should be identified as two OCF-18s for chiropractic treatment, physiotherapy, and massage; and issue ii as one OCF-18 proposing a chronic pain assessment.
RESULT
5I find the applicant has not demonstrated that he has a pre-existing condition that requires treatment beyond the limits of the MIG.
6I find the applicant has not demonstrated that he has chronic pain syndrome to warrant removal from the MIG.
7I find the applicant is not entitled to the medical benefits or the cost of the assessment sought in the treatment plans;
8No interest is payable pursuant to s. 51 of the Schedule.
9No award is payable.
ANALYSIS
Removal from the MIG
10I find the applicant has not demonstrated his pre-existing condition requires treatment beyond the limits set by the MIG.
11Section 18(1) of the Schedule provides that medical rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.”
12An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside the definition of a minor injury, or in accordance with s.18(2) of the Schedule. To be removed from the MIG under s.18(2), the insured must meet all three of the following requirements:
i. The insured must have a pre-existing medical condition;
ii. The pre-existing medical condition was documented by a health practitioner before the accident; and
iii. The insured’s treating health practitioner determines and provides compelling evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services subject to the $3,500.00 limit of the MIG.
Does the applicant’s pre-existing condition prevent maximal recovery within the MIG?
13Prior to the accident of August 8, 2020, the applicant was involved in a motor vehicle accident that occurred on June 20, 2013, and for which he sustained injuries. The applicant submits he should be removed from the MIG based on a pre-existing condition which was exacerbated by the accident and prevents maximal recovery within the MIG.
14I find the applicant has not established that his pre-existing condition will prevent maximal recovery within the MIG.
15The applicant reported the following conditions to his family doctor, Dr. Boyrazian because of the August 8, 2020, accident: headaches, dizziness, neck pain and stiffness, lower back pain, spasms and bilateral shoulder pain.
16The applicant submits that the pre-existing injuries he has suffered to his neck, back and a full thickness tear to his right shoulder were exacerbated by the accident and have prevented maximal recovery within the MIG as evidenced by the ongoing and continual pain complaints. The applicant contends the clinical notes and records of his treating physician along with the MRI report of his right shoulder, dated February 26, 2020, showing a large full-thickness supraspinatus tendon tear, are indicative of a pre-existing condition. The applicant further submits that this condition was exacerbated by the accident and have prevented maximal recovery within the MIG.
17The respondent notes in its submissions that evidence of a pre-existing condition alone is not sufficient to justify removal. Rather, the evidence must demonstrate that the pre-existing condition prevents the achievement of maximal recovery in the MIG. The respondent relies on the physiatry report of Dr. Ryan Williams which concludes that the applicant’s pre-existing condition would not prevent him from achievement of maximal medical recovery if subjected to the limits of the MIG. The respondent submits the applicant has made complaints that appear in both the pre-accident and post-accident clinical notes and records of his family doctor and as such does not establish an exacerbation of pre-existing injuries.
18The applicant must demonstrate on a balance of probabilities through compelling medical evidence that the pre-existing condition prevents the achievement of maximal recovery in the MIG for his otherwise minor injuries.
19I agree with the respondent that the pre-existing condition does not prevent the achievement of maximal recovery in the MIG for the following reasons. Although the applicant has satisfied me that a pre-existing condition has been documented by the applicant’s health care practitioner, in the form of clinical notes and records documenting the applicant’s complaints of pain to his neck and shoulders with respect to the 2013 accident, in addition to the MRI of the right shoulder, dated February 26, 2020, which confirmed a large, full thickness supraspinatus tendon tear, the applicant has not provided compelling evidence that would support the second part of the test under s.18(2) of the Schedule. Specifically, the evidence that is lacking is that of “the insured’s treating health practitioner determines and provides compelling evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services subject to the $3,500.00 limit of the MIG.” It is this part of the test that the applicant has not satisfied and for which he is unsuccessful in convincing me that he should be taken out of the MIG.
20The applicant argues that “it is evident within the clinical notes and records of Dr. Boyrazian, as well as the MRI report dated February 26, 2020, that Mr. Hajinian had sustained significant pre-existing injuries to his neck, back and a full-thickness tear to his right shoulder. These pre-existing injuries were exacerbated by the accident and have prevented maximal recovery within the MIG as evidenced by the ongoing and continual pain complaints.” While I agree with the applicant that there is well documented evidence of the pre-existing condition suffered as a result of the 2013 accident, where I do not agree with the applicant is the submission that the ongoing and continual pain complaints by the applicant is evidence that the pre-existing condition precludes maximal recovery if kept within the confines of the MIG. The applicant must demonstrate not only that he has a pre-existing medical condition documented by a health practitioner before the accident but that the insured’s treating health practitioner determines and provides compelling evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services subject to the $3,500.00 limit of the MIG. The applicant has not done so.
21The applicant directs me to the LAT decision in Almonte v. Wawanesa Mutual Insurance Company, 20222 CanLII 45254 (ON LAT) for the proposition that a finding of an exacerbation of a pre-existing injury will prevent the applicant from achieving maximum medical recovery if subjected to the MIG limits. In that case, Adjudicator Grant made a finding that the applicant’s subject accident exacerbated the applicant’s pre-existing right knee condition and as a result prevented the applicant from achieving maximum medical recovery if he remained in the MIG limits. The adjudicator made a finding of a pre-existing athletic injury suffered by the applicant as a teenager, which was exacerbated by the subject accident. Further, in that case, the adjudicator noted the applicant made numerous knee pain complaints after the subject accident and received pain medication prescriptions and eventually required knee surgery due to an ACL tear and lateral meniscal tear revealed by diagnostic imaging. First, I am not bound by previous LAT decisions. Second, I disagree with the applicant’s reliance on this case for the proposition that the existence of a pre-existing condition and an exacerbation of the pre-existing condition by itself take an applicant outside of the MIG limits. I have not been directed to compelling medical evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limits of the MIG. Making submissions that an applicant’s pre-existing condition is exacerbated by the subject accident and thus prevented from achieving maximal recovery within the MIG is not equivalent to leading compelling evidence of such matters.
22The respondent argued the applicant has not produced any competing medical opinion to that offered by the s.44 assessor, Dr. Ryan Williams, wherein he stated the applicant’s pre-existing condition did not prevent achievement of maximum medical recovery within the MIG. The respondent also made submissions the applicant has attempted to minimize his pre-existing issues and/or blame them on the subject accident and thus his self-reports should carry no weight. Further, the respondent also argued the applicant cannot rely on evidence of a pre-existing condition alone to ground removal from the MIG. Rather, there must be compelling evidence to demonstrate the pre-existing condition prevents the achievement of maximal recovery if confined to the MIG limits.
23I agree with the respondent. I find inconsistencies in the applicant’s account of the information he provided Dr. Williams and what is found in the medical records. For example, the applicant reported a history of right shoulder pain at an assessment by Dr. Ghazavi, orthopaedic surgeon, in March 2020. The record notes the applicant was referred to another orthopaedic surgeon for a second opinion or surgical plan. However, no further follow-up is noted in the CNRs. Yet, the applicant reported to Dr. Williams that this pain was resolved at the time of the subject accident. I find this account is not supported by the pain complaints made by the applicant along with the diagnostic tests conducted to diagnose the condition. Therefore, I place little weight on the self-reporting by the applicant.
24For the reasons stated above, I find the applicant has not established he has a pre-existing condition that would prevent him from achievement of maximal medical recovery if subjected to the MIG limit.
Are the treatment plans reasonable and necessary?
25As I have found the applicant suffered injuries described as minor and fall within the MIG, and there is no compelling evidence to take the applicant out of the MIG due to a pre-existing condition, there is no need to conduct the reasonable and necessary analysis for the treatment plans because they propose treatment outside of the MIG threshold.
Is the chronic pain assessment reasonable and necessary?
26For the same reasons as listed above, there is no need to conduct the reasonable and necessary analysis for the chronic pain assessment.
Is there evidence of chronic pain syndrome to warrant removal from the MIG?
27In the respondent’s submissions, they state “the applicant also seems to seek removal from the MIG based on chronic pain syndrome.” I infer from this the respondent suggests another basis for the applicant’s removal from the MIG as it is not addressed as a separate issue by the applicant but is subsumed under the heading of the chronic pain assessment which is a treatment plan. For this reason, I shall address this issue now separately.
28The applicant submits he meets three of the six criteria for chronic pain according to the American Medical Association Guides to Permanent Impairment (AMA Guides). Although the AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule, they have been found to be a useful interpretative tool for evaluating chronic pain claims. The six criteria of the AMA Guides are listed as follows:
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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.
29The applicant argues he meets criteria 2, 4 and 5 and thus warrants removal from the MIG based on meeting any three of the six criteria for a diagnosis of chronic pain. In support of his chronic pain argument, the applicant submits he has had an excessive dependence on health care providers and points to the number of visits to his doctor in the three years post-accident. The applicant further submits that his need for personal care has placed him in reliance upon his spouse and family. The applicant also contends he has withdrawn from social interaction with friends and family due to psychological symptoms post-accident.
30The respondent directs me to a decision in 17-007825 v Aviva 2018 CanLII 98282 (ON LAT) whereby the Tribunal distinguished chronic pain as a severe, debilitating condition as opposed to ongoing or recurring pain. The respondent submits the applicant has not satisfied the three criteria referred to above and therefore does not qualify for a diagnosis of chronic pain syndrome. The respondent points to the clinical notes and records of the family physician to demonstrate the applicant stopped attending his family physician around two years post-accident. Further, the respondent submits the applicants’ withdrawal from social activities is documented both pre-accident and post-accident and thus cannot satisfy the second criterion.
31I agree with the respondent that the applicant has not demonstrated he has chronic pain syndrome to warrant removal from the MIG for the following reasons: The applicant stopped attending his family doctor entirely around two years post-accident. I find this is evidence that he did not demonstrate excessive dependence on health care providers as he discontinued seeing his family doctor despite the alleged chronic pain syndrome. Further, the applicant returned to work post-accident on a full-time basis which I find contradicts the position that the applicant has failed to regain his previous level of function after the accident. Finally, the applicant’s submissions on withdrawal from social and recreational activities post-accident contradicts the records form the pre-accident period, including CNRs from Dr. Boyrazian, dated February 1, 2020, wherein the doctor notes the applicant had difficulty maintaining employment, learning, handling stress, going into the community, and interacting with others, personal care, and participation in social and recreational activities. For these reasons, I find the applicant has not satisfied that he meets three of the six criteria under the AMA Guides’ chronic pain criteria for a diagnosis of chronic pain syndrome.
32For the reasons stated above, I find the applicant has not demonstrated he suffers from chronic pain syndrome sufficient to remove him from the MIG.
Award
33The applicant sought an award under s. 10 or Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits are payable, I find no award is due to the applicant.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not due any benefits, the applicant is not entitled to interest as there are no overdue benefits.
ORDER
35I order the following:
i. I find the applicant has not demonstrated that he has a pre-existing condition that requires treatment beyond the $3,500.00 limits of the MIG and is therefore subject to the MIG limits;
ii. I find the applicant has not demonstrated that he has chronic pain syndrome to warrant removal from the MIG;
iii. I find the applicant is not entitled to the medical benefits or the cost of the assessment sought in the treatment plans;
iv. No interest is payable pursuant to s. 51 of the Schedule;
v. No award is payable; and
vi. The application is dismissed.
Released: January 3, 2025
Jim Zotalis
Adjudicator