Licence Appeal Tribunal File Number: 23-001032/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:
Stacy Ferron
Applicant
And
The Personal Insurance Company
Respondent
DECISION
VICE-CHAIR: Neil Levine
APPEARANCES:
For the Applicant: Marie Kwok, Paralegal
For the Respondent: Aleah Thomas, Counsel
HEARD: By way of written submissions
OVERVIEW
1Stacy Ferron, the applicant, was involved in an automobile accident on December 20, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, 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 $2,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,400.00 for chiropractic services, proposed by Spinal Touch Wellness Centre in a treatment plan/OCF-18 dated February 9, 2022?
iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated on a balance of probabilities that she should be removed from the MIG.
4The applicant is not entitled to the treatment plans claimed.
5The applicant is not entitled to an award.
6The applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline
7The applicant has not proven based on the balance of probabilities that her injuries are not minor injuries as defined by the Schedule.
8Section (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.”
9An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule,” 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 the insured person is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
10The applicant submits that they should be removed from the MIG on the grounds of chronic pain.
Evidence: Chronic Pain and the MIG
11The applicant submits that she suffers from chronic pain with functional impairment as a result of the accident and should be removed from the MIG.
12Following the collision the applicant visited Milton Hospital the next day, and then visited her family doctor, Dr. Terence Rose, shortly thereafter. She reported pain in her neck and back, as noted in Dr. Rose’s clinical notes and records from January 27, 2017.
13The applicant received physiotherapy, massage and chiropractic treatments for her neck and back at Spinal Touch Wellness Centre from December 20, 2015 to February 9, 2022.
14In a medical assessment for Keyassets Children’s Services (for foster parenting), from March 18, 2015 Dr. Rose noted lower back pain but no impairment. Dr. Rose noted, in particular, in this assessment that the applicant had no muscular or skeletal disease, and in particular that the applicant did not have any issues or problems that affected their daily functioning. A lumbar spine and thoracic x-ray were conducted on March 3, 2017 at Milton Diagnostic Imaging. The results were normal, and clinical notes and records from a subsequent physical examination with Dr. Meena Hussain, the applicant’s new family physician, on March 8, 2017 contained no mention of back pain. However, clinical notes and records from a subsequent visit to Dr. Hussain on November 30, 2017 noted continued upper back pain but no mention of any impairment.
15An examination by Dr. David Mula, a chronic pain specialist, was conducted on December 6, 2017. Dr. Mula diagnosed chronic pain syndrome, chronic myofascial rhomboids pain, chronic upper back pain and chronic mid back pain.
16The applicant relies on Dr. David Mula’s report, dated January 17, 2018. It notes intermittent pain in her middle and upper back at five out of 10 on the Visual Analogue Scale. She noted that her pain had improved 90 per cent to date. However, Dr. Mula believes that the applicant has chronic pain syndrome, chronic myofascial rhomboids pain, chronic upper back pain and chronic mid back pain, and noted that it was the motor vehicle accident that caused this. Dr. Mula’s report noted that the applicant sustained a “permanent and serious impairment of an important physical function as a consequence of the accident,” and that the pain interferes with her activities of daily living and ability to perform her employment. It also notes the applicant’s need for medication like Tylenol or Advil to sleep.
17More than a year later, at a visit to Dr. Hussain on May 15, 2019, a pre-employment health questionnaire for the applicant filled out by Dr. Hussein said the applicant was able to perform PSW duties including lifting and carrying, pushing and pulling. There was no evidence cited by the doctor of any functional impairment. In a health questionnaire for Keyassets Children’s Services, for foster parenting, on September 14, 2020, the only mention of pain was intermittent back pain for which the applicant took Tylenol.
18The applicant visited Dr. Hussain on June 10, 2021, during which she reported back pain (along with tiredness and low energy) and said that she was “struggling to do regular chores.” On September 19, 2023, Dr. Hussain noted “on and off back pain,” and the clinical notes and records noted that the applicant’s spine is non-tender, her range of motion is normal, her neck is supple, and she has strength in all limbs. Over-the-counter Advil was noted as being used to alleviate this pain.
19The respondent submitted a s. 44 insurer’s examination conducted by Dr. Max Kleinman, a physiatrist, dated September 7, 2017. Dr. Kleinman’s report differs from Dr. Mula’s and opined that there was no compelling evidence of chronic pain.
20The respondent submits that the applicant herself stated that her pain had improved 90 per cent to date, that the applicant stopped attending physical therapy six months before the December 2017 assessment, that she takes no prescription pain medication, that she reported no change in her recreational or social activities, was independent with housekeeping, personal care and driving, and pain did not prevent walking, sitting or standing. The respondent submits that these factors disprove the existence of chronic pain.
21The medical records of the applicant are at odds with the assessment by Dr. Mula. Some pain is mentioned in the clinical notes and records when the applicant visited her family doctor, Dr. Rose, in 2015, after the accident. By 2016 there are no mentions of pain much less functional impairment though there are records from physiotherapy indicating some pain. X-rays in March of 2017 and family doctor visits in 2017 show no back pain or issues until the end of the year, with a mention of back pain in a visit with Dr. Hussain.
22Furthermore, from 2018 to 2020 there are no mentions of back pain nor impairment save for in pre-employment questionnaires and examinations from Dr. Hussain where the pain is noted as occasional. However, it is noted by Dr. Hussain in these examinations that the applicant is able to perform physical tasks like pushing and pulling and lifting – which is not at all consistent with chronic pain and functional impairment. In a visit on June 11, 2021, the applicant does report back pain to Dr. Hussain and that she has struggled to do regular chores.
23While it is not binding, the Tribunal often uses the AMA Guides, 6th ed. to help determine whether an applicant meets the threshold for chronic pain. According to the guides, a patient needs to meet three of the six criteria for a diagnosis of chronic pain syndrome. These criteria, summarized, are:
i. the use of prescription drugs beyond the recommended duration,
ii. excessive dependence on health care providers or family,
iii. secondary physical deconditioning due to disuse,
iv. withdrawal from social milieu including work or social contacts,
v. a 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 incident.
24The applicant has presented little consistent objective evidence from medical professionals diagnosing chronic pain with functional impairment save for the s. 25 examination by Dr. Mula. As noted earlier, Dr. Mula’s assessment is at odds with the clinical notes and records from family doctor visits over a number of years. In some of those years there are no mentions at all of pain related to the accident or functional impairment. Chronic pain syndrome must meet three of the six criteria noted in the AMA Guides. The applicant has not submitted any evidence that shows the applicant has, for example, become dependent on prescription drugs, has excessive dependence on health care providers, shows physical deconditioning due to disuse or fear-avoidance, or has withdrawn from social activities. There has been very little evidence submitted by the applicant of any functional impairment, nor evidence that any of these six AMA Guides criteria have been met.
25Accordingly, I find that the applicant has not met her burden of proving on a balance of probabilities that she suffers from chronic pain with functional impairment.
26The applicant remains within the MIG, and accordingly is not entitled to the treatment plan in dispute.
Interest
27The applicant is not entitled to interest.
Award
28The applicant is not entitled to an award.
ORDER
29I find that the applicant:
i. Remains within the MIG.
ii. Is not entitled to the treatment plans in dispute.
iii. Is not entitled to interest.
iv. Is not entitled to an award.
30The application is dismissed.
Released: January 31, 2025
Neil Levine Vice-Chair