minicounsel

Footnotes

The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
Scarlett v. Belair Insurance, 2015 ONSC 3635 Divisional Court.
Ibid.
The Schedule.
Ms. Vicente was not involved in any accident in 2010, and suspects that the treating practitioner simply made an error when recording the year of the accident.
See Scarlett and Belair (FSCO P13-00014, November 28, 2013), which was followed in the FSCO appeal decision Sleep and Aviva Canada Inc. (FSCO P17-00034, July 10, 2018).
(FSCO A13-005199, May 7, 2015).

Neutral Citation: 2018 ONFSCDRS 140

FSCO A15-002370

BETWEEN:

ANA VICENTE

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: June 7, 8, July 12, 2016, and April 18, 2017 at the offices of the Financial Services Commission of Ontario in Toronto. Final submissions were received on May 2, 2018

Appearances: Andra Preda for Ms. Vicente Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ana Vicente, was injured in a motor vehicle accident on May 8, 2012. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Vicente applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Did Ms. Vicente sustain impairments that are predominantly minor injuries as defined in the Minor Injury Guideline?
Do Ms. Vicente’s impairments come within the Minor Injury Guideline within the meaning of the Schedule?
Is Ms. Vicente entitled to receive a medical benefit for chiropractic treatment and physical therapy in the amount of $3,487.60 as recommended in a treatment and assessment plan dated June 3, 2014, submitted by Dr. Daniel Chan?
Is Wawanesa liable to pay Ms. Vicente’s expenses in respect of the arbitration?
Is Ms. Vicente liable to pay Wawanesa’s expenses in respect of the arbitration?
Is Ms. Vicente entitled to interest for the overdue payment of benefits?

Result:

Ms. Vicente sustained impairments that are predominantly minor injuries as defined in the Minor Injury Guideline.
Ms. Vicente’s impairments do not come within the Minor Injury Guideline within the meaning of the Schedule.
Ms. Vicente is entitled to receive a medical benefit for chiropractic treatment and physical therapy in the amount of $3,487.60, as recommended in a treatment and assessment plan dated June 3, 2014, submitted by Dr. Daniel Chan, plus interest for the overdue payment of this benefit.
The issue of expenses in this proceeding is deferred.

EVIDENCE AND ANALYSIS:

Background and Overview:

On May 8, 2012, a commercial truck rear-ended the car that Ms. Vicente was driving. Her car then struck the car in front of her. The accident was serious enough that the police and an ambulance attended the scene. However, she did not go to the hospital. Her car was towed, and she drove a rental car home.

At that time, Ms. Vicente was 50 years old. She was born in Portugal and came to Canada in 1987. She was married, and lived with some of her children and grandchildren. Prior to the accident, Ms. Vicente had stopped working as a salesperson in a shoe store due to ongoing issues with left hip bursitis, swelling in her knees and thighs and lower back pain. She also reported shoulder pain prior to the accident and a test also showed degenerative changes to her neck. Her medical issues resulted in numerous tests and visits to health practitioners. These were reported to her treating health practitioners.

Shortly after the accident, Ms. Vicente reported injuries to her neck, shoulders, back, pelvis, knee and headaches. She was subsequently diagnosed with chronic pain syndrome.

For the reasons set out below, I find that Ms. Vicente has sustained an impairment that is predominantly a minor injury as defined in the Minor Injury Guideline (MIG). I also find that her chronic pain diagnosis is a clinically associated sequelae to her minor injury. In addition, I find that she has proven on a balance of probabilities that her health practitioners have determined and provided compelling evidence that satisfactorily demonstrates that she has pre-existing medical conditions (that were documented by her health practitioners) before the accident and that will prevent her from achieving maximal recovery from the minor injury if she is subject to the $3,500 limit on medical rehabilitation treatment established by section 18 of the Schedule.

Further, as set out below, I find that the medical benefit Ms. Vicente is seeking for physiotherapy in the amount of $3,487.60 as recommended in a treatment and assessment plan dated June 3, 2014, submitted by Dr. Daniel Chan is reasonable and necessary.

Procedural Issue regarding Timeliness of Service of Ms. Vicente’s Documents

On the first day of the hearing, Wawanesa claimed, and Ms. Vicente was unable to refute that Ms. Vicente’s brief of documents had been served outside the time limits required by Rule 39 of the Dispute Resolution Practice Code (Fourth Edition, Updated January 2014) (the Code).

At the start of the second day of the hearing, Ms. Vicente was able to establish that due to a statutory holiday, Wawanesa had erred in calculating the time Ms. Vicente had available for service of her documents. For all the documents Wawanesa had received previously, I found that any prejudice to it was minor. Accordingly, I ruled that the documents Ms. Vicente had served in accordance with Rule 39 of the Code were admissible.

The only document that Wawanesa had not received previously was a report from Dr. Arunkumar Pillai, a psychologist. Although technically this report was admissible, I have not relied upon it, although I could have.

Did Ms. Vicente sustain an impairment that is a predominantly “minor injury” as defined in the MIG?

How is the MIG defined?

Section 268.3 of the Insurance Act provides that the Superintendent may issue guidelines on the interpretation and operation of the Schedule. Under this section, it is a requirement that any such guideline be considered in any determination involving the interpretation of the Schedule.²

One of these guidelines is the Minor Injury Guideline – Superintendent’s Guideline No. 02/10 (”MIG”). As stated by the Divisional Court in Scarlett v. Belair Insurance:³

The objectives of the guideline are to speed access to rehabilitation, improve utilization of healthcare resources, provide certainty around cost and payment for insurers, and be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries as defined in the SABS.⁴ Consistent with these objectives, the MIG sets out the goods and services that will be paid for by the insurer without approval if provided to an insured person who has sustained a minor injury.

In February 2014, the Superintendent replaced the MIG of 2010 with another MIG – Superintendent’s Guideline No. 01/14. The new Guideline applies to documents delivered on or after February 1, 2014, regardless of the date of the accident to which they related. Since the Treatment and Assessment Plan under consideration in this case is dated June 3, 2014, this revised MIG applies in this case.

Under the revised MIG, section 18 of the Schedule sets out the monetary limits for medical and rehabilitation benefits. It states as follows:

Monetary Limits Re Medical and Rehabilitation Benefits

(1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.

(2) Despite subsection (1), the $3,500 limit in that subsection 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 from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.

Subsection 3(1) of the Schedule defines the terms “impairment”, “minor injury”, “Minor Injury Guideline”, “sprain”, “strain”, “subluxation”, and ”whiplash associated disorder”, as follows:

Definitions and interpretation

(1) In this Regulation

“impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function;

“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 injury;

Minor Injury Guideline” means a guideline,

(a) that is issued by the Superintendent under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and

(b) that establishes a treatment framework in respect of one or more minor injuries

“sprain” means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear;

“strain” means an injury to one or more muscles, including a partial but not a complete tear;

“subluxation” means a partial but not a complete dislocation of a joint;

“whiplash associated disorder” means a whiplash injury that,

(a) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and

(b) does not exhibit a fracture in or dislocation of the spine;

“whiplash injury” means an injury that occurs to a person’s neck following a sudden acceleration-deceleration force.

In other words, if an insured person’s impairment is predominantly a minor injury (such as a sprain or whiplash), he or she will be subject to the $3,500 limit for medical and rehabilitation benefits. This includes any clinically associated sequelae to such injury.

This limit does not apply if the insured person’s health practitioner provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured from achieving maximal recovery from the minor injury, if the insured person is subject to the $3,500 limit. Based on the 2014 amendment to the MIG, this pre-existing medical condition must have been documented by a health practitioner before the accident.

Under section 4 of the MIG, the existence of any pre-existing condition will not automatically exclude a person’s impairment from the MIG. The MIG states that it is intended that the vast majority of pre-existing conditions will not do so.

Section 4 of the MIG also provides that “Only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury … is the person’s impairment to be determined not to come within this Guideline.”

Positions of the Parties:

Ms. Vicente’s Position:

Ms. Vicente submits the following:

She has substantial pre-existing physical impairments, including scoliosis, left hip bursitis and degenerative changes to her spine which prevent her from achieving maximal recovery within the limits of the MIG.
As a result of the accident, she sustained additional physical and psychological impairments including chronic back pain, neck pain, headaches, insomnia, fatigue, irritability, depression and post-traumatic stress disorder (PTSD).
Ms. Vicente’s pre-existing impairments were documented by her health practitioners and prevent her from achieving maximal recovery if she is subject to the $3,500 limit imposed by the MIG.
Ms. Vicente’s accident-related injuries super-imposed on her pre-existing musculo-skeletal conditions render her less able to engage in independent active therapies and exercises that would promote recovery, and render her more dependent on supervised facility-based care. Therefore, her treatment plan is reasonable and necessary.

Wawanesa’s Position:

Wawanesa submits the following:

Ms. Vicente’s diagnosis of chronic pain does not necessarily exclude her from the MIG.
A pre-existing condition, exempts Ms. Vicente from the MIG only in extremely limited instances, where it is documented before the accident and where there is compelling evidence from her health practitioner that she will be unable to achieve maximal recovery under the MIG.
Even if Ms. Vicente could establish that the MIG is not applicable, she must still prove that the Treatment Plan in dispute is reasonable and necessary.

Evidence and Analysis:

Ms. Vicente’s Credibility

Ms. Vicente testified in a straightforward manner. Wawanesa noted that she had not mentioned to her assessors that she had fallen on her front porch and broken her left ankle near the end of 2015. However, Dr. Elena Sokolova, her neurologist testified that Ms. Vicente’s back pain and her pre-existing left hip issues were in no way related to her left ankle fracture, and did not have an impact on her accident-related impairments. The fracture itself was an isolated event, from which Ms. Vicente seems to have recovered well from. Based on the consistency of her testimony with the rest of the evidence, I find Ms. Vicente to be a credible witness, and give substantial weight to her evidence.

Ms. Vicente’s Pre-Accident Activities:

Ms. Vicente is married and has four adult children and seven grandchildren. She resides with her husband and two of her adult children, as well as her daughter’s family, which consists of

Ms. Vicente’s son-in-law and three of her grandchildren. Prior to the accident, Ms. Vicente was responsible for all the housekeeping and caregiving duties around the home.

Also, prior to the accident, Ms. Vicente had resigned from her over 10 years of employment as a shoe salesperson due to continuous and recurrent pain stemming from left hip bursitis, swelling in her knees and thighs, and lower back pain. At the hearing, she testified that she enjoyed this job, and that even though her employer was willing to provide accommodation, she could not continue.

In addition, Ms. Vicente provided some bookkeeping assistance to her husband’s construction business.

Ms. Vicente’s Pre-Accident Medical Condition:

Ms. Vicente testified that prior to the accident, her biggest complaints were lower back pain and hip pain that would occasionally radiate down her legs. As a result of her pain and restrictions, she often called her manager at Shoe Plus to advise him that she was unable to attend for work. Finally, she was forced to resign due to the pain in her hip and back.

She also testified that in the years prior to the accident she was struggling with shoulder pain, and was diagnosed with left hip bursitis, arthritis and tendinosis. She was advised that she would likely require surgery to deal with left hip bursitis.

Dr. Chen was Ms. Vicente’s family physician from 2006 to 2013, including around the time of the accident. In 2013, his practice was taken over by Dr. Powers and he shifted his focus to chronic pain. Prior to the accident, he saw Ms. Vicente for common colds and ear infections, but also saw her repeatedly for back pain and left hip pain, which he attributed to left hip bursitis and possible arthritis of the lower back.

Ms. Vicente submitted that Dr. Chen’s testimony is corroborated by his clinical notes and records. Handwritten notes were taken by treating practitioners at Boniface Park Medical Centre from September 27, 2009 to May 3, 2012, with the last visit being days before the accident. During that time span, Ms. Vicente visited Boniface Park Medical Centre 24 times. Apparently, 20 of the 24 visits were due to Ms. Vicente’s left hip pain and two other visits were due to back pain.

Ms. Vicente also testified that her family doctor, Dr. Chen, referred her to specialists to help her deal with her impairments. Dr. Michael Pflug, a specialist that Ms. Vicente saw on several occasions, gave her cortisone injections to aid with her pain levels and to improve her mobility. Dr. Pflug’s consultation note dated August 6, 2010 noted that during his examination,

Ms. Vicente had some tenderness over the mid SI joint. He also went on to write that he had injected Ms. Vicente with Depo-Medro and 2% Xylocaine.

Ms. Vicente submitted that prior to the accident she had the following tests performed at Markham-Lawrence X-ray & Ultrasound Clinic

On September 17, 2009, Ms. Vicente underwent a bilateral hip ultrasound. The report notes Ms. Vicente’s clinical history to be significant for hip pain and the conclusion of the ultrasound is listed as mild left iliopsoas bursitis.
On April 6, 2010, Ms. Vicente underwent cervical spine and bilateral shoulder x-rays. The report stated that Ms. Vicente had mild degenerative disc disease from C4 to C6, as well as narrowed lateral right sub acromial space, which may be related to rotator cuff disease.
On April 6, 2010, Ms. Vicente underwent a bilateral shoulder ultrasound. The report concludes that Ms. Vicente suffered from bilateral subscapularis and supraspinatus tendinosis.
On April, 2, 2011, Ms. Vicente had additional x-rays of her lumbar spine, sacrum and coccyx, pelvis and left hip. The report notes that there is a moderate to severe disc space narrowing at L5-S1. Ms. Vicente is found to have scoliosis and degenerative changes of the lower lumbar spine.
Just weeks before her accident on April 20, 2012, Ms. Vicente again had x-rays. The report showed mild dextroscoliosis centred at L5.
At that time, Ms. Vicente also had a repeat bilateral ultrasound. It revealed mild bilateral greater trochanteric bursitis.

Ms. Vicente’s Post-Accident Activities:

Ms. Vicente testified that after the accident her husband and children assisted her with heavier household duties, since she had difficulty with carrying laundry up and down stairs, carrying groceries, bathroom cleaning, vacuuming and cleaning the floors.

Ms. Vicente also testified that she had difficulty with taking care of her grandchildren, when it required more physical activity. In addition, she was restricted from fully engaging in family events, church activities and community activities to the extent she did before the accident.

She continued to do some bookkeeping for her husband’s business.

Ms. Vicente’s Post-Accident Medical Condition

As a result of her medical conditions, Ms. Vicente submits that she suffers from chronic and acute pain in her neck, back, shoulders, left hip, and knees, headaches, anxiety, mood disorders, depression and sleep disorders.

The day after the accident, Ms. Vicente saw Dr. Chen. She complained about pain in her neck, shoulders, back, pelvis, knee and headaches. She also indicated that she was having difficulty with mobility in her neck. Dr. Chen referred her for therapy at Total Health Physio, and sent her for x-rays, which did not reveal a fracture.

In 2013, after the accident, Dr. Chen, switched his practice to focus on chronic pain (as previously noted). His practice was taken over by Dr. Powers. Dr. Chen initially saw

Ms. Vicente as a patient at his pain clinic on August 17, 2013. At that time, she received interventional pain injections in her neck. After her visit with Dr. Chen, Ms. Vicente saw Dr. Chen’s partner, Dr. Dao Viet, who also focuses on pain management. He recommended interventional pain injections. In addition, he recommended that Ms. Vicente attend a consultation with a psychiatrist or psychologist to manage her mood.

On November 21, 2014, Ms. Vicente had additional imaging done at Markham-Lawrence X-ray & Ultrasound Clinic. The report of her back ultrasound listed her clinical history to be significant for constant back pain, right greater than left, since the accident in 2010⁵ and concluded that there was a right para spinal muscle strain or low grade partial thickness tear.

Dr. Powers, Ms. Vicente’s new family physician also referred her to Dr. Elena Sokolova, a neurologist. She was referred due to her pre-existing left hip pain, as well as her accident-related back pain. Since Ms. Vicente demonstrated a decreased sensation to pinprick, Dr. Sokolova opined that Ms. Vicente might have neuropathic pain from degenerative spine changes. She recommended that Ms. Vicente have additional testing. Dr. Sokolova testified at the hearing that the results of the additional testing were yet to come, and therefore, she had not met with

Ms. Vicente for a second consultation.

Shortly after the accident, Ms. Vicente started treatment with Dr. Chan, a chiropractor. In a Disability Certificate (OCF-3) he completed on May 16, 2012, he notes WAD II, injury of muscle and tendon at neck level, sprain and strain of thoracic, lumbar spine and pelvis, shoulder joint, infraspinatus tendon, and supraspinatus muscle, and contusion of knee and headaches.

Ms. Vicente submits and Wawnesa did not deny that in the denied treatment plan dated June 3, 2014 (OCF-18), Dr. Chan noted that Ms. Vicente has moderate to severe disc space narrowing at the L5-S1 level that affects her response to treatment of her accident-related injuries. Her pre-accident x-rays dated April 11, 2011 also refer to this diagnosis.

Ms. Vicente’s Chronic Pain Assessments:

Ms. Vicente underwent a multidisciplinary chronic pain assessment with Mr. Allen Eshmoili, a registered physiotherapist and Dr. John Lee, a registered psychologist. Their report is dated May 6, 2016.

Report and Testimony of Ms. Vicente’s examination with Mr. Eshmoili, physiotherapist:

In his report, Mr. Eshmoili noted that Ms. Vicente had tenderness to palpation in numerous places in her back. He also noted mechanical lower back pain. He stated that

Ms. Vicente would benefit from participating in the Interdisciplinary Pain Rehabilitation Program to improve her physical, functional, emotional, cognitive and behavioral pain management strategies. He testified that Ms. Vicente would meet the definition of chronic pain as she continues to experience pain several years after the accident

Report and Testimony of Ms. Vicente’s examination with Dr. John Lee, psychologist:

Dr. Lee noted that Ms. Vicente indicated ongoing physical pain along her mid-back, neck and head. Psychologically, she reported marked depression, lack of patience, and difficulties with concentration and memory since the accident. She attributed some of these psychological impairments to her disturbed sleep, caused by her physical ailments.

Ms. Vicente had the following results based on her psychometric testing:

On the Patient Profile Test, her scores suggested that she is experiencing a heightened level of depressed mood, anxiety, and somatic focus; preoccupation when compared to other pain patients.
On the Depression Anxiety Stress Scales, her responses placed her in the extremely severe range of symptoms of anxiety and stress and in the severe range of depression.

Dr. Lee opined that Ms. Vicente suffered from Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Somatic Disorder with Predominant Pain.

At the hearing, Dr. Lee testified that based on Ms. Vicente’s test results and his evaluation of her, he found that her stress and her psychological impairments are as a result of her physical pain, which is partly attributable to the accident. He also opined that her stress is exacerbating her physical pain. He found Ms. Vicente to be truthful and straightforward in her answers and did not consider her to be exaggerating her symptoms. Under all these circumstances, he recommended that she continue with the interdisciplinary chronic pain program so that she may learn how to better manage her symptoms.

Section 44 Insurer’s Examinations:

Report of Dr. Paul Tepperman, insurer’s examination physician:

On October 17, 2012, Ms. Vicente attended a section 44 insurer’s examination with Dr. Paul Tepperman, a physician. He noted in his report dated October 24, 2012 that Ms. Vicente continued to attend treatment at Total Health Physio. This treatment consisted of electrotherapy, ice, exercises, massages and Thera band activity. He also notes that Ms. Vicente has reported a 70% improvement with respect to her accident-related impairment, and continues to complain of neck pain, back pain and headaches.

On page 3 of his report, his physical examination finds restricted range of motion in her neck, right shoulder and lower back, with tenderness noted at multiple locations on her upper, mid and lower back.

In Dr. Tepperman’s “Summary” on page 4 of his report, he states, “Her injuries have had more than sufficient time to heal and she is now left with some residual discomfort due to deconditioning.” I have the following issues with this statement:

He discounts her continuing pain as “residual discomfort.”
In spite of physical findings that suggest that her injuries have not healed, he simply states that her “… injuries have had more than sufficient time to heal…”
He does not address how Ms. Vicente may deal with the deconditioning, and how proposed exercises or treatment for deconditioning would be feasible in light of her pre-existing medical issues.

Also on page 4 of his report, Dr. Tepperman states that “her pre-existing left hip bursitis has not prevented her from achieving maximum recovery from the minor injury when subject to the $3,500 limit.” I have the following issues with this statement:

He provided no basis for this conclusion.
He fails to address her other documented pre-existing conditions such as arthritis and degenerative disc disease, which have a direct impact on her recovery within the MIG.
He does not address the disc space narrowing that Dr. Chan views as a barrier affecting Ms. Vicente’s response to treatment of her accident-related injury.

Due to my issues with Dr. Tepperman’s conclusions in this report, I give it little weight.

Dr. Tepperman was not asked to prepare an addendum report with respect to Dr. Chan’s recommendation for physiotherapy in the amount of $3,487.60 in a Treatment and Assessment Plan dated June 3, 2014.

Report and Addendum of Dr. David Dos Santos insurer’s examination chiropractor

Ms. Vicente attended a section 44 insurer’s examination with Dr. David Dos Santos, chiropractor, on June 26, 2014. In his report dated July 9, 2014, he notes that Ms. Vicente received treatment from May to September 2012. This treatment consisted of cold packs, interferential current, stretching exercises, stability ball exercises, chiropractic spinal manipulative therapy and massages. He mentions that she obtained the most relief from massage therapy. He also states that Ms. Vicente reports mid-back and neck pain, which can also trigger headaches, nausea and vomiting. In addition, he mentions that she says treatment has helped a lot, but feels as if she has regressed since stopping treatment.

During Dr. Dos Santos’ physical examination, he noted right-side shoulder and neck symptoms were reported as a result of his testing. During testing, he also observed an increase in pain. In his report, he concludes that Ms. Vicente’s injury is predominantly a minor injury and that the treatment recommended in the treatment plan (OCF-18) dated June 3, 2014 is not reasonable and necessary as a result of the motor vehicle accident-related injuries. In addition, he opined that given the duration of time that has elapsed and the lack of significant improvement reported that he did not feel optimistic that further clinic-based therapies would affect the outcomes over the longer term.

Dr. Dos Santos prepared a chiropractic addendum report dated September 12, 2014. After reviewing additional pre-accident clinical notes and records, as well as imaging reports and consultation notes, Dr. Dos Santos admits that Ms. Vicente has a longstanding history of musculoskeletal symptoms, mostly of her lower back and hips (including x-rays a month prior to the accident), and also a history of shoulder pains. He states that the reviewed documentation confirms a history of chronic musculoskeletal symptoms. He also states that his original conclusion remains unchanged.

I give little weight to Dr. Dos Santos initial and addendum reports for the following reasons:

On page 3 of the initial report, Dr. Dos Santos states that Ms. Vicente’s health history reveals that she had prior difficulties with her left hip, and that she had been diagnosed with bursitis. Although x-ray reports and Dr. Chan’s OCF-18 dated June 3, 2014 indicate otherwise, Dr. Dos Santos states that Ms. Vicente has not seen any other health practitioners for any other health conditions.
On page 3 of his initial report, Dr. Dos Santos states that: “Ms. Vicente says that she did not have any musculoskeletal symptoms prior to the motor vehicle accident.” However, on page 4 he states that: “Ms. Vicente says that she does not have any other symptoms other than the prior problems she has had with her left hip area.” He thereby directly contradicts himself.
On page 7 of his report, Dr. Dos Santos addresses the question of what pre-existing conditions were present at the time of the accident and how they impact on the

accident-related impairments. In his response, Dr. Dos Santos states that “The only reported pre-accident condition was left hip bursitis.” This contradicts the earlier section in the report on page 2, under the heading “Documentation List” where he refers to several imaging reports that clearly indicate that prior to the accident Ms. Vicente was diagnosed with bilateral greater trochanteric scoliosis, degenerative changes of the lumbar spine and L5-S1 degenerative disc disease.

Also on page 7, Dr. Dos Santos opines that left hip bursitis has no impact on her accident-related impairments, despite bursitis usually significantly limiting mobility and ability to do exercises at home, (which he recommends in his report).
Dr. Dos Santos only saw Ms. Vicente for one hour.
Dr. Dos Santos does not consider whether further chiropractic treatment would assist Ms. Vicente in maintaining her current functioning levels, and provide her with pain relief, despite her report of regression in her functioning since therapy was discontinued.
In his addendum report, Dr. Dos Santos does not provide the basis as to why Ms. Vicente’s admitted chronic and longstanding history of musculoskeletal symptoms have no impact on her achieving maximal recovery if her treatment is restricted to MIG limits.

Report of Dr. Debra Mandel, insurer’s examination psychologist:

In a report dated May 17, 2016, Dr. Debra Mandel, psychologist noted that “While it is most certainly reasonable to conclude that the accident is a source of considerable psychological distress for Ms. Vicente, I am unable to reliably conclude from the psychometric data before me that there is any valid objective evidence of psychological impairment. Specifically, there is a lack of objective evidence to substantiate any of Ms. Vicente’s subjective complaints related to her reported psychological dysfunction.” She bases this conclusion “on several inconsistencies on the validity test, which make it difficult to interpret the test results.”

Despite Dr. Mandel’s lack of valid objective evidence, I accept her reasonable conclusion that the accident is a source of considerable psychological distress for Ms. Vicente.

Analysis, Findings and Conclusion:

Did Ms. Vicente sustain an impairment that is predominantly a minor injury as defined in the Minor Injury Guideline (MIG)?

The Director’s Delegate and Divisional Court decisions in Scarlett confirm that the burden of proof is on Ms. Vicente. These cases also state that I must decide whether Ms. Vicente’s impairment was predominantly a minor injury and whether certain complaints were or were not the clinically associated sequelae of the minor injury.

I accept that as set out by Dr. Chan in an OCF-3 dated June 3, 2014, Ms. Vicente sustained a whiplash injury in the accident as well as muscle and tendon injuries to her neck, upper, middle, and lower spine. I also accept that she injured her pelvis, shoulder joint, had a contusion of the knee, and headaches. These sorts of injuries fall under the definition of a minor injury set out in the MIG, and I so find.

Subsequently, Ms. Vicente was diagnosed with chronic pain and/or mood disorders by the following health practitioners:

Dr. Powers, her current family physician
Dr. Julien Chen, her previous family physician and a chronic pain specialist
Mr. Eshmoili, physiotherapist
Dr. Lee, psychologist.

Wawanesa did not submit any evidence that credibly refuted these diagnoses.

Based on these diagnoses and Ms. Vicente’s evidence, I find that Ms. Vicente has chronic pain and psychological mood disorders. The health practitioners who made these diagnoses recommend further treatment or infer that it is reasonable and necessary; however, by itself, this is not sufficient to take Ms. Vicente out of the MIG. As set out in the definition of the MIG, the clinically associated sequelae of the minor injury do not take Ms. Vicente out of the MIG. I find that Ms. Vicente’s diagnoses of chronic pain and mood disorders are clinically associated sequelae of her minor injury, and therefore, are not sufficient to take her out of the MIG.⁶

Alternatively, since Ms. Vicente’s impairment is predominantly a minor injury, is there compelling evidence provided by her health practitioner(s) that she has pre-existing medical conditions that were documented before the accident and that will prevent her from achieving maximal recovery from the minor injury if subject to the $3,500 limit on medical and rehabilitation benefits?

Ms. Vicente submits that she has pre-exiting medical conditions that were documented before the accident and that prevent her from achieving maximal recovery from the minor injury if subject to the MIG limit of $3,500.

Ms. Vicente provided testimony and substantial documentation from her health practitioners of her pre-existing medical conditions. The questions I must answer are whether this evidence constitutes “compelling evidence” and meets the test of “extremely limited instances” required by section 4 of the MIG.

For the reasons set out below, I find that they do.

Wawanesa suggests that Ms. Vicente was able to function in many ways as she had prior to the accident. For example, Dr. Tepperman, in his insurer’s examination report states that

Ms. Vicente is self-sufficient with her personal care, is doing all of her own housekeeping, but “slowly” and resumed driving after one week. But whether Ms. Vicente is able to perform her activities of daily living is not the test here. In addition, for the reasons set out above, I give little weight to Dr. Tepperman’s conclusions in his report.

Even Dr. Dos Santos' Addendum Report, at page 3, acknowledges that Ms. Vicente has an extensive history of pre-existing medical conditions. He states that “After reviewing the pre and post-accident clinical notes and records, there is evidence that Ms. Vicente had a longstanding history of musculoskeletal symptoms, mostly of her lower back and hips (including x-rays a month prior to the accident), but also a history of shoulder pains.” He also admits “The reviewed documentation confirms a history of chronic musculoskeletal symptoms.”

Ms. Vicente submits that her long-standing pre-existing scoliosis and degenerative changes in her spine have affected her recovery and continue to contribute to her chronic pain.

In Scarlett, Director’s Delegate Evans stated that “The Legislature has mandated in the SABS itself that the evidence has to be ‘compelling’ or ‘probant,’ which I find goes beyond being merely credible. Whether the evidence meets that test in any given case is a matter of fact, but I find that the evidence must be considered in the light mandated in the SABS.”

In Basson v. Royal & Sunalliance Insurance Co. of Canada,⁷ Arbitrator Feldman found that the standard set by the Schedule to remove an Applicant from the MIG as a result of a pre-existing condition requires that the Applicant present evidence that is more than just persuasive, it must be compelling.

According to the handwritten clinical notes and records of her treating practitioners at Boniface Park Medical Centre from September 27, 2009 to May 3, 2012, Ms. Vicente saw her doctors 24 times prior to the accident due to hip and back pain and diagnosed impairments. The last visit was only five days before her accident. She also underwent numerous x-rays and tests regarding these issues. All of the test reports indicated various conditions and impairments regarding her hip, back, neck and shoulders.

For example, on April, 2, 2011, Ms. Vicente had additional pre-accident x-rays of her lumbar spine, sacrum and coccyx, pelvis and left hip. The report notes that there is a moderate to severe disc space narrowing at L5-S1. Ms. Vicente is found to have scoliosis and degenerative changes of the lower lumbar spine. In the denied treatment plan dated June 3, 2014 (OCF-18), Dr. Chan also notes that Ms. Vicente has moderate to severe disc space narrowing at the L5-S1 level that affects her response to treatment of her accident-related injuries.

Dr. Chen was Ms. Vicente’s family physician for seven years from 2006 to 2013, including around the time of the accident. Prior to the accident, he saw her repeatedly for back pain, degenerative disc disease and left hip pain, which he attributed to left hip bursitis and possible arthritis of the lower back. He continued to treat her after the accident in his pain clinic. Obviously, Dr. Chen was very familiar with Ms. Vicente’s physical condition both before and after the accident. As a result, I find his testimony credible and give his evidence substantial weight. At the hearing, he testified that Ms. Vicente’s conditions and the pain levels associated with them did have a direct correlation to her ability to recover within the limits of the MIG.

I find Dr. Chen’s testimony credible. However, case law has shown in order to be compelling, this evidence must be more than merely credible or persuasive.

I find that Dr. Chen’s testimony, in addition to her numerous medical appointments, cortisone injections, tests and diagnoses regarding her hip, back and shoulder pain, documented prior to the accident plus her pre-accident inability to perform a long-standing job add up to and meet the standard of “compelling evidence.”

Based on all of the foregoing, I find that Ms. Vicente has satisfied her burden of proof by providing compelling evidence from her health practitioners, including Dr. Chen and the treatment plan dated Jun 3, 2014 from Dr. Chan, that satisfactorily demonstrates that she suffers from pre-existing medical conditions in her back and hip that would prevent her from achieving maximum medical improvement if subject to the $3,500 limit on medical rehabilitation treatment. I also find that Ms. Vicente meets the test created by the reference to “extremely limited instances.” Few people would have as significant a history of musculo-skeletal issues prior to her accident as she did.

Is Ms. Vicente entitled to receive a medical benefit for chiropractic treatment and physical therapy in the amount of $3,487.60 as recommended in a treatment and assessment plan dated June 3, 2014, which was submitted by Dr. Daniel Chan?

Ms. Vicente seeks a medical benefit for chiropractic treatment and physical therapy in the amount of $3,487.60 as recommended in a treatment and assessment plan dated June 3, 2014, which was submitted by Dr. Daniel Chan. Dr. Chan is her treating chiropractor.

The test for medical benefits is set out at section 15 of the Schedule. It states that, subject to monetary limits, an insurer will pay for all reasonable and necessary expenses incurred by an insured for things like chiropractic and psychological treatment.

Ms. Vicente testified regarding her ongoing neck, hip and back pains, and the psychological and functional limitations caused by it. As discussed above, I have found her to be a credible witness. She has been diagnosed with chronic pain syndrome.

On page 2 of Dr. Tepperman’s insurer’s examination report, he notes that Ms. Vicente reported that her neck and low back pain were relieved by therapy, as did Dr. Dos Santos on page 3 of his insurer’s examination report.

Ms. Vicente submits that her accident injuries superimposed upon her pre-existing scoliosis and degenerative changes in her spine render her less able to engage in independent active therapies and exercise which would promote recovery, and render her more dependent on supervised facility-based care. I agree.

In view of Ms. Vicente’s ongoing pain, psychological symptoms and functional limitations, I find that the medical benefit she is requesting is reasonable and necessary, in order to maintain function and provide her with pain relief, which would also assist with her psychological issues.

Accordingly, I find that Ms. Vicente has proven on a balance of probabilities that she is entitled to receive a medical benefit for chiropractic treatment and physical therapy in the amount of $3,487.60 as recommended in the treatment and assessment plan dated June 3, 2014, submitted by Dr. Daniel Chan.

Is Ms. Vicente entitled to interest for overdue payment of benefits?

The relevant portions of section 51 of the Schedule state:

(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue.

(3) Interest is payable at the rate of 1 per cent per month, compounded monthly, from the date on which the amount becomes overdue until the earlier of the following dates:

The date on which the overdue amount is paid.

(5) Despite subsection (3), if payment of the benefit is overdue on December 31, 2014, interest is payable on the overdue amount at the rate of 1 per cent per month, compounded monthly, from the date on which the amount became overdue until the date on which the overdue amount is paid.

Ms. Vicente proved her entitlement to receive a medical benefit for chiropractic treatment and physical therapy in the amount of $3,487.60 as recommended in the treatment and assessment plan dated June 3, 2014, submitted by Dr. Daniel Chan. Accordingly, I find that she is owed interest, as calculated above.

EXPENSES:

Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, either party may, within 30 days of the date of this decision, make a written request to determine the matter in accordance with Rules 75 through 79 of the Code.

August 24, 2018

Anne Sone Date Arbitrator

Financial Services Commission of Ontario