Tribunal File Number: 16-000989/AABS
Case Name: 16-000989 v Wawanesa Mutual Insurance Company
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:
P. C.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
Adjudicator: Anna Truong
Appearances: Geoffrey Williams, Counsel for the Applicant Dave Dhillon, Counsel for the Respondent
Heard in writing on: November 23, 2016
OVERVIEW
1The applicant was involved in an automobile accident on October 8, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The applicant applied for medical benefits, but was denied, because the respondent determined that he had predominantly minor injuries as defined under the Schedule and treatment of his injuries was subject to the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided:
Did the applicant sustain predominately minor injuries as defined under the Schedule?
If the answer to issue one is no:
a. Is the applicant entitled to a medical benefit as outlined in the Treatment and Assessment Plan (OCF-18) dated February 8, 2016 completed by Dr. Tariq Hossain of Centre for the Rehabilitation Sciences Inc., chiropractor, for chiropractic treatment in the amount of $2,563.72?
b. Is the applicant entitled to a medical benefit as outlined in the Treatment and Assessment Plan (OCF-18) dated April 8, 2015 completed by Dr. Tariq Hossain of Centre for the Rehabilitation Sciences Inc., chiropractor, for chiropractic treatment in the amount of $1,323.72?
c. Is the applicant entitled to the cost of a physiatry assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated June 22, 2016 completed by Dr. Yen-Fu Chen of Excel Medical Diagnostics, physiatrist, in the amount of $2,460?
RESULT
4Based on the totality of the evidence before me, I find that:
The applicant sustained predominately minor injuries as defined under the Schedule.
Since the answer to issue one is yes, I do not need to determine whether or not the treatment plans are reasonable and necessary. The applicant is entitled to a maximum of $3,500 for medical and rehabilitation benefits less amounts paid.
ANALYSIS
1. Applicability of the Minor Injury Guideline
5The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.
6Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 limit. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG limit.
7The minor injury provisions in the Schedule are a limit on an insurer’s liability, not an exclusion from coverage. The onus of establishing entitlement beyond the limit rests with the applicant. The applicant must establish his entitlement to coverage beyond the $3,500 limit for minor injuries.
Injuries Sustained
8The applicant was given the opportunity to submit a Reply according to the case conference adjudicator’s Order, but no Reply was submitted. The only evidence submitted by the parties is documentary evidence and I have considered all of the documents submitted. I have summarized the ones that I find relevant to my determination.
9From his submissions, it appears that the applicant’s predominant complaint after the accident was his right shoulder followed by his low back and neck. He submits that he has been able to return to work, but his job duties have been affected, because of his right shoulder injury.
10An X-ray of the applicant’s right hand and wrist dated October 22, 2014 found no bone, joint or soft tissue abnormality.
11The applicant’s treating chiropractor, Dr. Hossain, submitted a Treatment Confirmation Form (OCF-23) dated November 19, 2014. This form is used initially for injuries that fall within the MIG and provides quick access to the $3,500 in funds without the need for prior approval from the insurer. In the OCF-23, Dr. Hossain confirms that the applicant’s injuries fall within the MIG and he sustained whiplash associated disorder (WAD) II with complaint of neck pain as well as radiculopathy of the lumbosacral region, radiculopathy of the thoracic region and tension-type headaches as a result of the accident.
12Dr. Hossain completed a Treatment and Assessment Plan (OCF-18) dated April 8, 2015, wherein he recommends chiropractic treatment. In this treatment plan, Dr. Hossain notes that the applicant suffers from WAD II with complaint of neck pain with musculoskeletal as well as radiculopathy, radiculopathy of the thoracic region and tension-type headaches.
13In his note dated September 18, 2015, Dr. Gerald Tullio, neurologist, states that an Electromyography (“EMG”) and nerve conduction study of the applicant’s right shoulder and arm dated September 17, 2015 was conducted to determine whether or not he had radiculopathy. The studies resulted in normal neurodiagnostic results and a normal neurological exam. Dr. Tullio noted that the applicant had more issues with his right shoulder than those that would be consistent with a cervical radiculopathy. Dr. Tullio did not confirm a diagnosis of radiculopathy or any other neurological disorder.
14An MRI of the applicant’s right shoulder dated November 8, 2015 found:
Moderate to marked supraspinatus tendinopathy with bursal surface and undersurface fraying.
AC joint arthritis which is moderate to marked.
Reduced subacromial space with evidence for subacromial bursitis.
15Dr. Hossain completed a second, almost identical to the first, Treatment and Assessment Plan (OCF-18) dated February 8, 2016, wherein he also recommends chiropractic treatment. In this treatment plan, Dr. Hossain notes that the applicant suffers from WAD II with complaint of neck pain with musculoskeletal signs as well as radiculopathy of the lumbosacral region, radiculopathy of the thoracic region and tension-type headaches. Dr. Hossain’s diagnosis of the applicant is almost identical in all three of his OCF forms.
16Dr. Chen completed a Treatment and Assessment Plan (OCF-18) dated June 22, 2016, wherein he recommends a physiatry assessment. In this treatment plan, Dr. Chen notes that the applicant suffers from WAD II with complaint of neck pain with musculoskeletal as well as tension-type headaches and radiculopathy of the lumbosacral and thoracic regions.
17In an independent physiatry evaluation dated August 15, 2016, Dr. Chen states that the applicant’s most symptomatic complaints are his right shoulder and his low back. Dr. Chen opines that the applicant’s injuries do not fall within the MIG, because his diagnosis includes “right upper and lower limb numbness of unclear etiology, with normal neurodiagnostic testing”. Dr. Chen states that the applicant’s “symptoms support the presence of nerve root irritation that may be too mild to have produced changes detectable with previous testing”. Dr. Chen concludes that given the complexity of the applicant’s symptoms and findings suggestive of underlying neurological disorder, the applicant’s injuries do not fall under the MIG.
18In a note dated September 21, 2016, Dr. Franco Tavazzani, the applicant’s treating orthopaedic surgeon, concludes that the applicant’s ongoing reported shoulder limitations are related to right rotator cuff strain with subacromial bursitis, myofascial strain of the cervical spine and myofascial strain of the right shoulder girdle. He found no evidence of significant structural damage of the applicant’s shoulder. He recommends the applicant manage his ongoing symptoms with corticosteroid injections.
19The applicant’s family physician, Dr. Ingrid Lam, submitted a Disability Certificate (OCF-3) dated October 25, 2016, which states that the applicant suffers from right c-spine and low back myofascial strain and right shoulder pain as a result of moderate supraspinatus tendinopathy, subacromial bursitis and AC joint arthritis. This OCF-3 is dated over two years after the accident.
20A physiatry insurer’s examination report dated September 18, 2015 by Dr. A. Oshidari, physiatrist, concludes that the applicant experienced contusion with sprain/strain of the muscles as a result of the accident, which can be treated under the MIG. Dr. Oshidari completed a second physiatry insurer’s examination report and an addendum report, both dated March 16, 2016. In his second report, Dr. Oshidari’s opines that the applicant’s injuries are consistent with a minor injury. In his addendum report, Dr. Oshidari was provided with the applicant’s MRI and EMG and nerve conduction study. After reviewing the additional documents, Dr. Oshidari’s opinion remained unchanged.
21The applicant submits that his injuries fall outside the MIG. Dr. Chen is of the opinion that the applicant’s injuries are not treatable inside the MIG. Dr. Oshidari is of the opinion that the applicant’s injuries are treatable inside the MIG. Neither doctor provides a definitive diagnosis with respect to the applicant’s condition. Since both assessors have contradicting opinions, I must look to the treating records for corroborating evidence.
22His family physicians, Dr. Trojan and Dr. Lam’s clinical notes and records do not indicate that the applicant sustained anything other than minor injuries as a result of the accident. Dr. Tullio’s neurological examination did not find any neurological disorders. The applicant’s EMG and nerve conduction study were normal. His X-ray was negative. The applicant’s MRI results are remarkable, but the findings are indicative of soft tissue injuries. This is confirmed by Dr. Tavazzani, who diagnosed the applicant with subacromial bursitis, myofascial strain of the cervical spine and myofascial strain of the right shoulder girdle. Based on her OCF-3, Dr. Lam is in agreement with this diagnosis. I find that the applicant suffers from soft tissue injuries and associated sequelae based on the opinions of Dr. Tavazzani, Dr. Tullio and Dr. Lam and the results of objective medical testing. This falls within the MIG.
23The applicant submits that there are “neurological underpinnings” to his injuries. With respect to the applicant’s “neurological underpinnings”, no doctors have diagnosed the applicant with a neurological disorder, even Dr. Chen. Dr. Chen opines that the applicant has “limb numbness of unclear etiology”, but states that the applicant may have an underlying neurological disorder that is too mild to detect with testing. I cannot put any weight on these hypotheticals. If the applicant has a neurological disorder, there must be evidence of it before me in order to make a finding.
24Dr. Tullio, the applicant’s treating neurologist, found no neurological disorder upon examination, which was confirmed by the EMG and nerve conduction study. It is difficult to place much weight on Dr. Chen’s opinion that the applicant suffers from an “underlying neurological disorder”, when the primary basis for his opinion are the applicant’s symptoms. I place much greater weight on Dr. Tullio’s opinion and the objective medical testing. Based on the medical evidence before me, I do not find that the applicant has established that he suffers from a neurological disorder as a result of the accident.
25Based on the evidence that the applicant has adduced, I find that he has not met the burden that on a balance of probabilities he sustained anything other than minor injuries. Therefore, I find that the applicant sustained predominately minor injuries, as defined under the Schedule, as a result of the accident.
26Since the applicant has not raised any pre-existing conditions, I do not have to consider if there is compelling evidence that the applicant suffered from a pre-existing condition, documented by a healthcare practitioner before the accident, which prevents him from achieving maximal recovery under the MIG.
2. The Two Chiropractic Treatment Plans and Physiatry Assessment
27The parties did not lead any evidence as to whether or not the applicant has exhausted the MIG limit. They have only made submissions and submissions are not evidence. The applicant submits that the treatment plans in dispute were submitted “for further funding because the initial funding has been exhausted” and that “the MIG funding was not enough”. The respondent submits that “the Insurer has thus far paid $1,715 in benefits under the MIG limit”. Since there is no evidence before me, I cannot make a determination as to the remaining limit under the MIG.
28Since I have found that the applicant sustained predominately minor injuries as defined under the Schedule, I do not need to determine whether the two chiropractic treatment plans and the cost of the physiatry assessment are reasonable and necessary. The applicant is entitled to a maximum of $3,500 for medical and rehabilitation benefits less amounts paid.
CONCLUSION
29For the reasons outlined above, I find that:
The applicant sustained predominately minor injuries as defined under the Schedule.
Since the answer to issue one is yes, I do not need to determine whether or not the treatment plans are reasonable and necessary. The applicant is entitled to a maximum of $3,500 for medical and rehabilitation benefits less amounts paid.
Released: March 24, 2017
___________________________
Anna Truong,
Adjudicator