Hartman-Stolk v. Co-operators General Insurance Company, 2017 CanLII 152822

Citation: Hartman-Stolk v. Co-operators General Insurance Company, 2021 ONLAT 20-002758/AABS

Licence Appeal Tribunal File Number: 20-002758/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:

Darlya Hartman-Stolk

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Carlos Ortiz, Paralegal

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on June 2, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010.¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a Case Conference on August 20, 2020 but were unable to resolve all the issues in dispute. The parties submitted written submissions, with the applicant choosing not to submit a reply.

ISSUES

3At the Case Conference, the parties consented to the following issues being in dispute:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a medical benefit in the amount of $200.19 in pharmacy costs recommended by Dr. H. Demian, via Shoppers Drug Mart in a treatment plan (OCF-18) submitted on August 26, 2019, and denied on September 27, 2019?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULTS

4The applicant’s injuries are minor in nature. The applicant is not entitled to the treatment plans in dispute. The applicant is not entitled to interest nor a special award.

LAW

5Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

6Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that she has a pre-existing medical condition that will prevent her from achieving maximal recovery from the minor injury if she is subject to the Minor Injury Guideline (“MIG”) funding limit.

EVIDENCE AND Analysis

Does the applicant have any pre-existing conditions?

7Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.²

8The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

9After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant does have a pre-existing injury.

10However, I also find that she has not demonstrated how this pre-existing injury will prevent her maximal recovery from the minor injury if subjected to the limits of the MIG for the following reasons:

i. I found that the applicant suffered from a pre-existing injury for the following reasons: The applicant demonstrated that she did have a noted history of a pre-existing injury. To do so, she relied on the clinical notes and records (‘CNR’s) of her family doctor, Dr. Don Williamson. Dr. Williamson notes that prior to the accident³, the applicant visited him and was having neck pain with right arm radiation, paresthesia, muscle spasm, and musculoskeletal neck pain with right side radicular symptoms. The applicant was prescribed opiates to address this pain.

Dr. Williamson, via medical investigation⁴, eventually determined that this neck and right arm pain and tingling were due to Degenerative Disk Disease (‘DDD’) and osteoarthritis of the applicant’s cervical spine with nerve root involvement.

ii. Dr. Williamson opined the following⁵ in a letter to support this position. “While I am certain that the injuries sustained in this accident significantly contributed to her ongoing neck pain and related symptoms, it is very difficult to accurately characterize the degree of impairment directly related to this event. I can however say that she currently suffers from severe, daily impairment as a result of the combined effects of her pre-existing cervical spine disease, the accident in question and further deterioration since the accident.”

Dr. Williamson concluded this letter by stating that due to the applicant’s severe physical impairments, he does not believe she will ever return to any gainful employment.

Dr. Williamson provided a subsequent letter⁶, which changed the applicant’s diagnosis to chronic upper back and neck pain and daily headaches. Dr. Williamson still opines that these issues are as a direct result of the accident and said injuries are causing significant disabilities secondary to her injuries.

The respondent submitted that these letters should be afforded less weight, as Dr. Williamson was advocating for his patient and not acting as an independent medical professional. It submitted this is supported by the noted change in Dr. Williamson’s opinion and cause of the applicant’s disabilities.

The burden to prove one’s case falls on the applicant to demonstrate that she had a pre-existing condition, normally vial evidence from medical professionals. In this case, the only medical evidence I have is of the applicant, as the respondent argued that the applicant failed to discharge her burden of proof. Despite the internal inconsistencies, I found Dr. Williamson’s evidence more compelling, as he addressed the applicant’s pre-existing injuries and accident related injuries, despite his change in opinion. I found that the applicant met her burden to prove she had a pre-existing condition.

iii. I also found the evidence of Dr. Rehan Dost, Neurologist and Electromyographer more persuasive than the arguments of the respondent.

Dr. Williamson referred the applicant⁷ to Dr. Dost due to her arm tingling, which was linked to her DDD. Dr. Dost saw the applicant in 2007 due to radicular symptomology aka arm tingling.

Dr. Dost reported⁸ that despite the applicant’s history of arm tingling, the applicant stated she was able to work. However, the applicant said this changed due to her accident, causing an increase in arm pain, numbness and tingling and increased neck pain.

Based on Dr. Dost’s investigation, he opined that the applicant has bilateral radicular symptoms but is functional, and that this change occurred due to the accident. Dr. Dost referred the applicant for trigger point injections for relief of her cervical pain.

iv. The respondent acknowledged the applicant’s pre-existing history of DDD in her cervical spine and arm numbness. However, it submitted that the applicant has not shown how her pre-existing condition was impacted by the accident.

It submitted that the applicant’s medical records corroborate that the applicant failed to mention the accident in relation to her pain complaints⁹. It also submitted that the applicant suffered a fall that reinjured her neck¹⁰.

The respondent argued that the applicant’s application for Employment Insurance Short-Term Disability through Manulife and eventual application for Canada Pension Plan disability benefits (‘CPPD’) fail to mention the accident and only address her pre-existing DDD.

I also considered the respondent’s submissions regarding the applicant’s inconsistent evidence, namely that Dr. Williamson’s CNRs¹¹, which indicate that the applicant did not mention the accident in subsequent visits with her doctor.

Though I certainly comprehend the respondent’s position related to this, I was more persuaded by the applicant’s position, which was supported by medical evidence.

v. Since I have determined that the applicant does have pre-existing condition, I must now consider section 18(2) of the Schedule, namely whether the pre-existing condition will prevent the applicant from reaching maximal recovery if that she is subjected to limits of the MIG.

The applicant provided significant medical evidence regarding her pre-existing condition and her on-going treatment. However, her submissions and evidence related to requiring treatment beyond the MIG were limited.

She submitted that she is treated with physiotherapy, steroidal injections, Cannabidiol (‘CBD’) and prescription medication, and a cervical cone. She relied on Dr. Williamson’s letters, which indicate that as a result of the accident, her condition will persist. The applicant submitted that she ought to be compensated for these expenses.

The respondent reminded the Tribunal that hat a pre-existing injury does not automatically warrant removal for an injured person from the MIG¹². Furthermore, an aggravation of a previous injury is not the test to remove an injured person from the MIG¹³. Instead, the insured person must demonstrate that he/she/they have a pre-existing injury, that this pre-existing injury was documented by a healthcare practitioner before the accident and that this pre-existing injury will prevent the applicant from achieving maximal recovery from the MIG if limited to the monetary limit¹⁴.

The respondent submitted that the applicant had failed to provide supporting medical evidence that she required treatment beyond the MIG limits.

The respondent directed me to the above-mentioned letters of Dr. Williamson and Dr. Dost, which fail to specifically state that the application requires treatment beyond the MIG limits. It submitted that even though the letters comment on the applicant’s injuries, they fail to make specific recommendations that the applicant required treatment outside of the MIG due to her pre-existing injuries.

Furthermore, it noted that the applicant’s prescriptions were prescribed prior to her accident and have changed little since it occurred.

I find that the applicant has not demonstrated based on a balance of probabilities that being limited to MIG would prevent her from reaching maximum recovery. As the applicant has not provided the opinion of a medical professional that her injuries require treatment beyond the MIG, I cannot find such.

11Since I have found that the applicant’s injuries are subject to the MIG, I do not need to consider if the treatment plan in dispute is reasonable or necessary.

Interest

12As there are no benefits owing, no interest is payable.

Special Award

13Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to fifty per cent of the amount in which the person was entitled.

14Since I have found that there are no payment of benefits owing, there is no basis to consider an award in this matter.

CONCLUSION

15For the reasons outline above, I find that:

i. The applicant’s injuries do not warrant removal from the MIG and are minor in nature.

ii. The applicant is not entitled to the medical benefit in dispute.

iii. The applicant is not entitled to interest.

iv. The applicant is not entitled to an award under O. Reg. 664.

Footnotes

1. 1O. Reg. 34/10 as amended
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
3. 3CNRs of Dr. Williamson dated April 26, 2016
4. 4Magnetic resonance imaging (‘MRI’) of May 19, 2018
5. 5Dr. Williamson letter dated October 30, 2018
6. 6Dr. Williamson letter dated November 22, 2020
7. 7From CNRS of Dr. Williamson dated June 5, 2018
8. 8Dr. Dost’s letter from July 14, 2018 sent to Dr. Williamson
9. 9CNRs of Dr. Baker from September 6, 2016 and Dr. Williamson from October 2016 to April 2017
10. 10CNRs of Dr. Williamson dated April 19, 2017
11. 11CNRS from Dr. Williamson from October 2016 to April 2017
12. 12M.J. v. The Dominion of Canada General Insurance Company, 2020 CanLII 45482 (ON LAT)
13. 13H.F. v Certas Home and Auto Insurance Company, 2019 CanLII 101447 (ON LAT)
14. 14Section 18(2) of the Schedule and commented on in Castillo v TD Insurance Meloche Monnex, 2020 CanLII 80276 (ON LAT)