Neutral Citation: 2016 ONFSCDRS 61

FSCO A14-007595

BETWEEN:

SVETLANA CHAPARINA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Susan Sapin

Heard: December 1 and 2, 2015, in Whitby, Ontario.

Appearances: Mrs. Chaparina represented herself Thomas Elliot for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Svetlana Chaparina, was injured in a motor vehicle accident on August 19, 2013. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm paid medical and rehabilitation benefits of $3,498.12 under the Minor Injury Guideline but refused to pay for further treatment on the basis that Mrs. Chaparina’s injuries were predominantly minor injuries as defined under the Guideline, and therefore it was not required to pay more than the maximum $3,500 allowable under the Guideline.

The parties were unable to resolve their disputes through mediation, and Mrs. Chaparina applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

Should Mrs. Chaparina’s claims be dismissed because the OCF-18 Treatment and Assessment Plans were not signed either by her or by a regulated health professional, as required by section 38(3) of the Schedule?
Should Mrs. Chaparina’s claims be dismissed because her injuries are minor injuries as defined in the Minor Injury Guideline?

Result:

Mrs. Chaparina’s claims are dismissed because the Treatment and Assessment Plans were not signed by her or by a regulated health professional, as required by section 38(3) of the Schedule.
Mrs. Chaparina’s claims are dismissed because she has not presented any compelling evidence that her injuries are not minor injuries as defined in the Minor Injury Guideline.

Subsection 38(3) of the Schedule requires that a Treatment and Assessment Plan must be signed by the insured person unless the insurer waives the requirement. In addition, the plan must be completed and signed by a regulated health professional.

Subsection 38(2) further states that an insurer is not liable to pay for medical or rehabilitation expenses incurred before the insured person submits a Treatment and Assessment Plan that satisfies the requirements of ss. 38(3).

None of the three plans in dispute² was signed by either Mrs. Chaparina or Dr. Andrea Giaschi, the chiropractor whose name appears in Part 4 of the plans, and who apparently completed them on behalf of PhysioMax. Mrs. Chaparina’s evidence was that she did not know anything about the OCF-18’s, had not seen them, did not go for the proposed treatment, and did not incur the expenses described in the plans.

There is no evidence that State Farm advised Ms. Chaparina when the OCF-18’s were submitted, that one of the reasons it refused to pay for them was because they were not signed. That would have been helpful, and perhaps would have alerted Mrs. Chaparina about her obligations under the Schedule in a timely manner, instead of the issue being raised only at the arbitration hearing itself. Given the complexity of the statutory accident benefits scheme, including the numerous forms required, insured persons will not necessarily understand all of the requirements for claiming benefits.

Regardless, the language of s. 38 is clear and straightforward: an insurer is under no obligation to pay for treatment outlined in a Treatment and Assessment Plan that has not been signed by either the insured person or the health professional who prepared and submitted it on her behalf. On that basis, the claims should be dismissed.

In the event I am wrong, I will address the second issue.

No compelling evidence that Ms. Chaparina’s injuries fall outside the Minor Injury Guideline:

There is no dispute that Ms. Chaparina suffered soft tissue sprains and strains to her neck, shoulders and back when the van in which she was a passenger was struck on the driver’s side by another vehicle. Mrs. Chaparina’s purpose in pursuing this arbitration proceeding is that she continues to suffer from frequent headaches, neck, shoulder and back pain and sleeplessness over two years after the accident, and has developed jaw pain which makes it difficult to eat and talk. She wants to know why her symptoms have persisted for so long, and she feels she needs further treatment, which she cannot afford. As a hairdresser who stands for lengthy periods and works with her hands mostly at shoulder height, she finds her work aggravates her pain. She states she has had to take on fewer clients and requires more breaks. She is afraid she will not be able to keep working without treatment.

State Farm’s position is that Ms. Chaparina has not provided “compelling” evidence that her injuries are not minor, as required by the Schedule.

The law regarding minor injuries

Section 3(1) of the Schedule states that “minor injury” means 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. Section 18(1) further states that a person who sustains an impairment that is “predominantly a minor injury” is not entitled to more than $3,500 in medical and rehabilitation benefits, which is paid in accordance with the treatment framework prescribed in the Minor Injury Guideline.

However, section 38(2) specifies that the $3,500 limit does not apply to an insured person “if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500 limit . . .” ³[emphasis added]

Compelling evidence is evidence that is sufficient to establish, on a balance of probabilities, that a person’s accident injuries are not minor, or predominantly minor, and therefore fall outside the Guideline.⁴ The insured person bears the onus of proving that she has ongoing accident-related impairments that meet this test. The Guideline states that “Compelling evidence is to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.”⁵

Findings and Analysis:

In this case, the compelling evidence Mrs. Chaparina must provide must address whether or not her lingering pain and symptoms should be considered to be “clinically associated sequelae” of her accident injuries. If they are, then she is subject to the $3,500 limit on treatment. I find that, at this time, Mrs. Chaparina has not provided any compelling medical evidence that would take her out of the Guideline.

In support of its decision that Mrs. Chaparina’s injuries should be treated as predominantly minor under the Guideline, State Farm relies on an insurer examination (IE) report dated December 4, 2013 by Dr. Andrew Gwardjan, a physiatrist who assessed Mrs. Chaparina on November 21, 2013.⁶

Mrs. Chaparina acknowledged that she returned to her full time duties as a hairdresser ten days after the accident, but testified that over time, her pain worsened and she had to modify her duties. Her treating chiropractor, Andrea Giaschi, felt Mrs. Chaparina’s injuries fell outside the Guideline: “Based on the patient’s existing health conditions (tailbone fracture 3-4 years ago) and presence of apparent yellow flags (feeling tired since the accident, low energy, sleep dysfunction, nightmares, dizziness, and fears\anxious while in car), I do not believe Mrs. Svetlana Chaparina is a MIG.”⁷

Other than listing Mrs. Chaparina’s injuries in several treatment plans, Dr. Giaschi did not provide State Farm with any medical documentation to support her opinion. As noted above, the Guideline states compelling evidence is to be provided using the OCF-18 with attached medical documentation “if any.” Based on that wording, I do not find that supporting medical documentation would necessarily be required in every case. The OCF-18 itself is a comprehensive form and provides ample opportunity to report findings, opinions or test results about pre-existing or other medical conditions that might warrant treatment above the Guideline limits.

In Mrs. Chaparina’s case, however, I find the information provided in the Treatment Plans was not, of itself, compelling. The only pre-existing condition noted is a fully healed tailbone fracture that occurred three to four years before the accident, with no explanation about why such an old injury would justify taking Mrs. Chaparina out of the Guideline. Mrs. Chaparina acknowledged that the fracture had healed, and Dr. Gwardjan was of the opinion that it would not affect her prognosis or treatment for her accident-related injuries.

Having reviewed clinical notes of treating practitioners provided by Mrs. Chaparina, I find there is no information in them relevant to whether or not she should be treated outside of the Guideline.

What is notable, however, and which has not been adequately addressed by either party, is that Mrs. Chaparina has clearly developed symptoms of chronic pain as a result of the accident. The widely accepted definition of chronic pain is pain that persists beyond 12 weeks once the original injuries have healed. This is a description, not a diagnosis. There has been no diagnosis in this case. Mrs. Chaparina testified about the pain she was feeling, and Dr. Gwardjan acknowledged both in his testimony at the hearing and in his December 4, 2013 report, that “Subjectively, Ms. Chaparina reports a gradual worsening of her symptoms. Objectively, from a physical perspective, today’s physical examination did not reveal any signs consistent with residual physical impairments. At this point, she has achieved pre-injury status.”

Dr. Gwardjan bases his opinion on medical literature relating to soft tissue injuries to the axial spine, which “endorses an active timely program of rehabilitation designed to optimize function but not necessarily to achieve a short term relief of pain. Such treatment is generally undertaken during the first 10-12 weeks following the injuries coinciding with the predominant healing times of most soft tissue injuries [emphasis added]”.⁸ The Guideline also confirms that the treatment phase “will not typically exceed twelve weeks in duration.”⁹

There are some problems with this opinion. For one thing, I find Mrs. Chaparina could not be said to have reached “pre-injury status” when she continued to complain of pain and had to modify her job tasks because of it. Secondly, Dr. Gwardjan’s testimony that the purpose of the Guideline was to restore function and not to manage pain is contrary to the wording of the Guideline itself, which includes a pain management component. Dr. Gwardjan declined to provide an opinion on the issue of chronic pain, pointing out that it was outside his expertise as a physiatrist, and did not form part of his report. In other words, he ignored the effect of pain on Mrs. Chaparina’s ability to function. He did, however, concede on cross-examination by Mrs. Chaparina that, statistically, a small minority of people who experience soft tissue whiplash injuries continue to experience lingering pain and limitations after the 10-12 week “normal” healing period, and that Mrs. Chaparina may well fall into that category. I find this likely to be the case, based on her uncontradicted testimony.

Whether an insured person can be eligible for treatment to manage pain from uncomplicated soft tissue injuries that persists beyond the 12-week treatment window specified in the Guideline, is an open question.¹⁰ It depends in part on whether lingering pain and symptoms come within the definition of “clinically associated sequelae,” as noted above, or whether they no longer qualify as “predominantly minor.”

The answer to those questions, according to the Guideline, requires compelling evidence by a health practitioner. Mrs. Chaparina has not provided any in this case. On that basis, her claims for treatment outside the Guideline to diminish the effects of ongoing chronic pain-related impairment of function, or to manage the pain itself, must be dismissed.

EXPENSES:

Under Rule 79.1 of the Code, if the parties are unable to agree on the matter of expenses, either party may, within 30 days of the dated of this decision, request in writing that I determine expenses, which I will do by way of written submissions from the parties.

February 19, 2016

Susan Sapin Arbitrator

Financial Services Commission of Ontario