V. C. v. RBC General Insurance Company, 2017 CanLII 59504

V. C. v. RBC General Insurance Company

Date: 2017-08-31 Tribunal File Number: 17-000081/AABS Case Name: 17-000081 v RBC General Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8., in relation to statutory accident benefits

Between:

V. C.

Applicant

and

RBC General Insurance Company

Respondent

DECISION

Adjudicator: Rupinder Hans

Appearances:

For the Applicant: Michael A. Yermus, Counsel For the Respondent: Samantha Mason, Counsel

Heard in writing: April 27, 2017

DECISION AND ORDER

OVERVIEW

1The applicant, V. C., was struck on the right side of her body and injured in a motor vehicle accident on October 15, 2014 while a pedestrian.

2The applicant applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent, RBC General Insurance Company, initially paid for rehabilitation benefits, but denied payment for two treatment plans related to chiropractic services. The denial was based upon the respondent’s position that the applicant’s injuries were predominately minor injuries, and thus, treatment of them fell within the Minor Injury Guideline (the “Guideline”), as defined in subsection 3(1) of the Schedule.

3The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), seeking approval of the medical benefits, interest on the outstanding benefits, and a determination that her entitlement to benefits is not subject to the Guideline.

4This matter was heard in writing with written submissions due by April 27, 2017. Accordingly, this decision is based upon my review of the parties’ written submissions

ISSUES IN DISPUTE

5The following issues are in dispute:

(1) Do the applicant’s injuries fall within the Guideline?

(2) Is the applicant entitled to receive a medical benefit in the amount of $180.00 for chiropractic services, recommended by chiropractor Dr. Josh Brandes in a treatment plan dated February 10, 2015, denied by the respondent on February 24, 2015?¹

(3) Is the applicant entitled to receive a medical benefit in the amount of $1,280.00 for chiropractic services, recommended by Dr. Brandes in a treatment plan dated May 20, 2015, denied by the respondent on May 24, 2015?

(4) Is the applicant entitled to interest for any overdue payment regarding the claimed benefits?

RESULT

6Based upon a review of the evidence and submissions presented, I find that the applicant’s injuries fall outside the Guideline, and that she is entitled to the medical benefits as set out in the two treatment plans because the expenses incurred are reasonable and necessary. The applicant is also entitled to interest on the incurred medical benefits

DISCUSSION

7I will discuss, first, the applicability of the Guidelinebecause it would be a barrier to the payment of medical benefits if applicable; second, the applicant’s entitlement to the medical benefits sought; and, third, whether interest is owing on the unpaid benefits.

Issue 1: The Applicability of the Guideline

8I find that the applicant suffers from physical injuries as a result of the motor vehicle accident that are not predominately minor, and her entitlement to benefits is therefore not subject to the Guideline.

9The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1). Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.²

10The respondent argues that the applicant’s injuries are properly considered minor. In this regard, the respondent relies on the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”). In that case, the Divisional Court reviewed the minor injury provisions in the Schedule, and found that they were a limit on an insurer’s liability, but not an exclusion from coverage, and thus the onus of establishing entitlement beyond the $3,500.00 limit rests with the claimant. I agree. Applying Scarlett, the onus is on the applicant to prove that her entitlement to medical benefits is not subject to the Guideline and its prescribed $3,500.00 limit for minor injuries.

11To meet her burden and establish that her injuries are not minor, the applicant has provided a report, dated September 28, 2016, from Dr. Michael A. Zahavi, a chronic pain specialist. The applicant also relies upon the reasoning in Arruda v. Western Assurance³ to support the proposition that a diagnosis of chronic pain syndrome falls outside of the Guideline. In Arruda, the applicant’s diagnosis of chronic pain was found to take her outside of the Guideline, and thus, not subject to the $3,500 limit.

12In his report, Dr. Zahavi states that the applicant has “possible lumbar zygapophyseal joint pain”, “hyperalgesia and hyperpathia of the right gluteal and thigh areas as well as deceased hip joint mobility.”⁴ Dr. Zahavi explained that the applicant has pain generated from the zygapophyseal joints in her spine. She also has hyperalgesia and hyperpathia, meaning an excessive sensitivity to pain stimuli, and wherein the feeling of pain continues even after the stimulus that causes it has been removed. This appears limited to her right gluteal and thigh areas. He states that the applicant “has chronic pain, and possible chronic regional pain syndrome.”⁵ He notes that without further treatment, there would be no improvement in her limitations. He states that a comprehensive chronic pain management program is necessary, and would be the most effective way to improve the applicant’s functional capacity. He states that her prognosis is poor, and without aggressive treatment, it is possible that her symptoms could worsen dramatically over the next few years.

13Dr. Zahavi performed several tests on the applicant including an examination of her hips, which revealed “all movement of the right hip was extremely tender...moderate limitation of external rotation and severe limitation of internal rotation.”⁶ I find this conclusion reached by Dr. Zahavi to be based upon objective testing of the applicant.

14The respondent states that the medical report of Dr. Zahavi should be given little weight because Dr. Zahavi was not the applicant’s treating physician, nor did he examine the applicant contemporaneously with the accident. I find the respondent’s argument unpersuasive. I note that the same can be reasonably stated with regard to the respondent’s sole expert, Dr. Esmat Dessouki, an orthopaedic surgeon, who first examined the applicant on July 3, 2015, and prepared a report dated July 17, 2015, about nine months after the accident.⁷ Dr. Dessouki later prepared two separate addendum reports, dated January 20, 2017 and March 30, 2017, based upon a paper review of clinical notes and records, and later a review of Dr. Zahavi’s report and decoded OHIP summaries.⁸ Dr. Dessouki has not physically assessed the applicant since his first report two years earlier.

15In its submissions, the respondent further states that Dr. Zahavi did not make a firm diagnosis of chronic pain syndrome. I disagree with this interpretation. In my opinion, Dr. Zahavi was clearly able to state that the applicant’s ongoing injuries and complaints were chronic, and provided sufficient evidence of the applicant’s ongoing and lasting chronic pain.

16Conversely, I am unconvinced by the conclusions drawn by Dr. Dessouki in his reports that the applicant’s injuries fall within the Guideline. His initial report of July 17, 2015 provides brief details as to the tests conducted on the applicant, and the results. He states that the applicant’s accident-related diagnosis is consistent with lumbar strain, sacroiliac joint strain and right trochanteric bursitis. He does however make several notations wherein he documents that the applicant complained of pain in her waist, right side gluteal region, right thigh, right knee and right leg. The report lists the applicant rating her pain level at 7-8, on a scale of 0 to 10 (where 0 represents no pain, and 10 represents excruciating pain).⁹

17By contrast, I find that the report of Dr. Zahavi provides significantly more details as to the physical testing conducted on the applicant, and the results of such testing. The greater detail outlined in Dr. Zahavi’s report was, in my opinion, reflective of a more thorough assessment of the applicant and the extent of her alleged impairment and injuries. Dr. Zahavi lists the tests performed on the applicant, including, a musculoskeletal examination of the applicant’s lower back and lower limb areas, examination of her hips, neurological examination, examinations of her chest, abdomen, gait, sitting posture, and blood pressure. I am persuaded by the conclusions drawn in Dr. Zahavi’s medical report that the applicant suffers from chronic pain as a result of the motor vehicle accident.

18Given the submission regarding chronic pain and the application of Arruda, I find that the applicant’s physical injuries are not minor, and therefore fall outside of the Guideline.

19I note that the applicant has asserted that she also suffers from psychological impairments as a result of the accident. However, she has provided insufficient medical evidence in this regard. In any event, as I have found that the applicant’s physical injuries take her out of the Guideline and no psychological treatment plans are before me, further analysis of any psychological impairment is not necessary.

20Having determined that the applicant’s injuries fall outside of the Guideline, I must now determine the applicant’s entitlement to the disputed medical benefits, specifically, whether the two treatment plans are reasonable and necessary.

Issues 2 and 3: The Applicant’s Entitlement to the Medical Benefits for Chiropractic Services

21In order to find that a medical benefit is payable, I must be satisfied that the applicant has proven on a balance of the probabilities that the treatment plans are reasonable and necessary.

22Dr. Brandes completed both treatment plans and made similar notations in both plans regarding the applicant’s injuries sustained due to the accident, and the goals of treatment. The treatment plans indicate that the applicant sustained the following injuries as a direct result of the accident: internal derangement of her right knee, muscle strain, pelvic region and thigh, segmental and somatic dysfunction, lumbar region. The stated goals of the treatment are, inter alia, to reduce pain, increase strength, and increase range of motion. Both treatment plans proposed twelve (12) sessions of chiropractic services to be provided by Dr. Brandes.¹⁰

23In addressing whether the treatment plans are reasonable and necessary, I am confronted with the conflicting opinions of Dr. Zahavi and Dr. Dessouki. I accept Dr. Zahavi’s opinion over that of Dr. Dessouki for the reasons set forth above. Dr. Zahavi opines that a comprehensive chronic pain management program is necessary, and would be the most effective way to improve functional capacity. I also note that the respondent partially approved the first treatment plan up to the Guideline, and thus, deemed it reasonable and necessary up to the $3,500.00 limit.

24The medical evidence indicates that the applicant continues to experience ongoing pain, and the pain associated with her impairment inhibits and impacts her daily activities. She expressed that her pain affected her ability to work as a nanny since August 2015.¹¹ One of the goals of treatment is to reduce pain so that she is able to engage in daily activities. I find both treatment plans to be reasonable and necessary to address the applicant’s impairment.

Issue 4: The Applicant’s Entitlement to Interest

25Section 51 of the Schedule states:

51. (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 for each day the amount is overdue from the date the amount became overdue until it is paid, at the rate of 1 per cent per month compounded monthly.

(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:

1. The date on which the overdue amount is paid.

2. The date, if any, on which interest becomes payable in accordance with subsection (4).

(4) In case of a dispute in respect of an insured person’s entitlement to statutory accident benefits or in the amount of statutory accident benefits to which an insured person is entitled, interest on the benefits in dispute is calculated at the prejudgment interest rate described in subsection 128 (3) of the Courts of Justice Act that is used for past pecuniary loss, and is payable for the period that begins on the date on which the application to the Licence Appeal Tribunal is brought under subsection 280 (2) of the Act and ends on the date a settlement is reached or a decision is issued that finally disposes of the dispute.

26The respondent raised a preliminary issue about interest on the unpaid medical benefits. The respondent states that this particular issue was not included in the applicant’s application, nor was it brought forth at the case conference, and as such, it should not be considered by the Tribunal at the hearing.

27I disagree with the respondent’s position on this issue. The costs incurred under the treatment plans are found to be reasonable and necessary, and thus, interest should be payable on the unpaid incurred portion of those treatment plans.

ORDER

28After considering the evidence, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that:

a. The applicant’s injuries fall outside the Guideline.

b. The following expenses incurred for medical benefits as set out in the two treatment plans are reasonable and necessary:

i. $180.00 for chiropractic services, recommended by Dr. Brandes in a treatment plan dated February 10, 2015; and

ii. $1,280.00 for chiropractic services, recommended by Dr. Brandes in a treatment plan dated May 20, 2015.

c. The applicant is entitled to interest on the unpaid incurred expenses for the medical benefits in accordance with section 51 of the Schedule.

Footnotes

1. 1I note that this Treatment and Assessment Plan sought the amount of $1,280.00, of which $1,100 was approved by the respondent, leaving a balance of $180.00. Tab D, Respondent’s Submissions.
2. 2I note that the applicant has not asserted a pre-existing injury that would prevent her from achieving maximal recovery if benefits are limited to the cap under the Guideline. An analysis in this regard, is thus, not necessary.
3. 3Arruda v. Western FSCO A13-003926 decision by Arbitrator Shapiro dated July 7, 2015.
4. 4Tab 2, Exhibit F, Applicant Submissions
5. 5Tab 2, Exhibit F, Applicant Submissions
6. 6Tab 2, Exhibit F, Applicant Submissions
7. 7Tab G, Respondent’s Submissions
8. 8Tabs I & J, Respondent Submissions
9. 9Tab G, Respondent’s Submissions
10. 10The treatments specified in the plans have been provided and associated costs incurred. Tab 2, Exhibit D, Applicant’s Submissions
11. 11Tab 2, affidavit of applicant, Applicant’s Submissions