Licence Appeal Tribunal File Number: 22-013479/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:
David Lyn
Applicant
and
Certas Direct
Respondent
DECISION
VICE-CHAIR: Kevin Kovalchuk
APPEARANCES:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: Branson Wong, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1David Lyn, the applicant, was involved in an automobile accident on June 28, 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, Certas Direct 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 $2,476.68 for physiotherapy proposed by Health One Markham in a treatment plan/OCF-18 ("plan") submitted on January 5, 2021; and
iii. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by Hydro Health Evaluations Inc. in a plan submitted on May 25, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the totality of the evidence before me, I find:
The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to the funding limit of the MIG.
As the applicant remains within the MIG, he is not entitled to the treatment plans in dispute.
As there are no overdue benefits payable the applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline
4The MIG establishes a framework for the treatment of minor injuries. The term "minor injury" is defined in section 3(1) of the Schedule as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such injury". The terms, "strain, sprain subluxation and whiplash associated disorder" are also defined in section 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
5An 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 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.
6The applicant submits that he should be removed from the MIG on the basis of:
Pre-existing carpal tunnel syndrome associated with pain and numbness and psychological difficulties with mood and anger.
Chronic pain; and
Psychological impairment.
7The respondent submits that that the applicant has failed to lead sufficient evidence that he suffers from chronic pain or has sustained a psychological impairment as a result of the accident. Further, the respondent submits that the applicant has failed to demonstrate that he should be removed from the MIG based on a pre-existing condition.
The applicant does not suffer from a pre-existing condition that warrants removal from the MIG.
8The applicant has not persuaded me on a balance of probabilities that he should be removed from the MIG based on a pre-existing condition.
9As noted above, the presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximum recovery within the MIG.
10The applicant submits that he should be removed from the MIG based on pre-existing carpal tunnel syndrome and mood issues. He also submits that his pre-accident left shoulder issues were aggravated and worsened by the accident.
11The applicant relies on 17-002688 v. Aviva Insurance Company of Canada, 2017 CanLII 85693 (ON LAT), in which the Tribunal held that an applicant's injuries did not fall within the MIG given that, the applicant's prior mental health issues and pre-accident knee pain were aggravated by the accident.
12The respondent submits that the applicant has not met his onus to demonstrate that he has suffered pre-existing conditions that would remove him from the MIG because he has not satisfied the test set out in s.18(2) of the Schedule.
13With respect to the carpal tunnel syndrome, I find the applicant has not established that he has a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG. Although the applicant has submitted a clinical record from Markham Stouffville Urgent Care dated October 3, 2018, in support of his submission that he has a pre-accident medical history significant for carpal tunnel syndrome, this evidence does not establish that he has carpal tunnel syndrome or that it precludes his recovery within the MIG. Rather, the note indicates that the applicant was referred to "the first available Neurologist" for a routine evaluation to rule out right carpal tunnel syndrome. The symptoms listed were tingling/numbness, pain, and weakness of the right hand. The record indicates "no show March 1, 2019 @ 2 pm".
14A note titled Patient Order Summary submitted by the applicant indicates that an EMG nerve conduction study for 20/08/19 was cancelled due to a "no show" by the applicant.
15The applicant has also submitted a ("treatment plan") dated January 5, 2021, from Jody Leila a physiotherapist. In Part 7 of the plan Ms. Leila answers "no" to the question of whether the applicant had a pre-existing condition that could affect his response to treatment for the accident-related injuries.
16Accordingly, I find on a balance of probabilities that the applicant has not submitted any compelling medical evidence that he had pre-existing carpal tunnel syndrome that would preclude his recovery within the MIG.
17With respect to the applicant's submission that his pre-accident left shoulder issues were aggravated by the accident, the applicant did not point me to any medical evidence showing that he suffered from left shoulder problems prior to the accident.
18Accordingly, I find on a balance of probabilities that the applicant has not submitted any compelling medical evidence that he had pre-existing left shoulder problems that would preclude his recovery within the MIG.
19With respect to the applicant's pre-existing mental health condition, I also find that the applicant has not met the test under s.18(2) of the Schedule. While the evidence submitted by the applicant references difficulties controlling his anger, it does not establish that he had a pre-existing condition documented by a health practitioner. Specifically, a clinical record from Dr. Ishaan Arora of Markham Stouffville Urgent Care dated February 10, 2020, notes that the doctor saw the applicant for a regular checkup and that the applicant stated that he was having difficulty controlling his anger and wanted to see a therapist for dialect (sic), behaviour therapy. However, Dr. Arora notes that he advised the applicant to look up a psychologist and contact them directly as no referral was needed.
20The applicant has not submitted any further evidence in support of his submission that he had a pre-existing history significant for mood or anger issues. The applicant submitted a Treatment and Assessment Plan ("plan") dated May 14, 2021, from Dr. Peter Waxer a psychologist. In Part 7 of the plan, Dr. Waxer answers "unknown" to the question of whether the applicant has a pre-existing condition that would affect his response to treatment for his accident-related injuries. Under additional comments Dr. Waxer notes the psychological difficulties the applicant experienced post accident but does not mention any pre-accident psychological difficulties the applicant was experiencing.
21I find that the medical records submitted by the applicant do not provide any compelling medical evidence that the applicant has a pre-existing medical condition that would prevent him from achieving maximum recovery if he was subject to the $3,500.00 limit under the MIG. I find on a balance of probabilities that he is not removed from the MIG on the basis of a pre-existing physical or psychological condition.
The applicant does not suffer from chronic pain warranting removal from the MIG.
22The applicant has not proven on a balance of probabilities that he suffers from a chronic pain condition that would remove him from the MIG.
23The applicant submits that his accident-related physical pains, have become chronic as they have been ongoing for over three and a half years. The applicant further submits that he has reported ongoing physical pain to his walk-in clinic and has attended physical therapy "as often as possible".
24The respondent submits that the applicant is not suffering from chronic pain as there is no evidence of any functional impairment nor has the applicant advanced any evidence that he meets at least three of the six criteria for chronic pain syndrome as provided by the AMA Guides to the Evaluation of Permanent Impairment 6th Edition 2023.
25The AMA Guides' six criteria for chronic pain were not incorporated into the Schedule and are not binding on this Tribunal. However, this Tribunal has consistently considered them a useful interpretive tool for assessing chronic pain in accident benefit cases and I agree they are a useful interpretive tool.
26I also agree with the applicant that a diagnosis of chronic pain can be grounds for removal from the MIG. However, the applicant has not pointed me to any medical evidence where a diagnosis of chronic pain has been made.
27Further, the applicant has not pointed me to any medical evidence that he meets even one of the AMA Guides' six criteria and therefore I find that he has not established that he meets these criteria.
28In addition, the applicant has not pointed me to any compelling medical evidence of any functional impairment or disability due to accident -related chronic pain.
29Based on the above I am not persuaded on a balance of probabilities that the applicant suffers from chronic pain with functional impairment as a result of the accident.
The applicant is not removed from the MIG on the basis of psychological injuries.
30I find that the applicant does not have a psychological impairment that warrants his removal from the MIG.
31The applicant submits that he should be removed from the MIG because of his psychological injuries. He submits that he has issues with vehicular anxiety and that his past anger issues have become worse since the accident.
32The applicant points to the plan dated May 14, 2021, noted above, submitted by Dr. Waxer of Hydro Health Evaluations in support of his submission that he should be removed from the MIG because of psychological injuries. Dr. Waxer conducted "a brief" pre-assessment, to ascertain the appropriateness of a full psychological assessment which he recommended in the plan.
33The respondent submits that the medical records of the applicant do not show any post-accident psychological complaints nor has the applicant been diagnosed with a psychological impairment post- accident.
34In my view the psychological pre-screen assessment of Dr. Waxer dated May 14, 2021, is not sufficient evidence to support the applicant's submission that his psychological injuries should remove him from the MIG. I find that the pre-screen assessment is based solely on the applicant's self-reporting and is not supported by contemporaneous evidence showing an accident-related psychological impairment. The applicant has not directed me to any contemporaneous evidence that he sustained a psychological impairment because of the accident.
35Although I am alive to the applicant's self reports of psychological symptoms, because I was not directed to any contemporary or corroborating evidence that the applicant has sustained a psychological injury, I find that the applicant has not persuaded me on a balance of probabilities that he suffers from a psychological impairment that would be sufficient to remove him from the MIG.
None of the treatment plans are payable.
36The applicant is not entitled to the disputed plans because I have determined that the applicant is subject to treatment within the monetary limits of the MIG. It is therefore not necessary to consider whether the disputed plans are reasonable and necessary.
No Interest is payable.
37As there are no benefits payable there is no interest owing on any overdue payment of benefits.
ORDER
38As a result of the above and on a balance of probabilities I find that:
i. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
ii. As I have found the applicant's injuries to be subject to treatment within the MIG it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.
iii. As there are no outstanding benefits or overdue payments the applicant is not entitled to interest.
iv. The application is dismissed.
Released: January 24, 2025
Kevin Kovalchuk
Vice-Chair