C.A. v. The Dominion of Canada General Insurance Company
Tribunal File Number: 16-004033/AABS
Case Name: 16-004033 v The Dominion of Canada General 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:
C.A.
Applicant
And
TD General Insurance Company The Dominion of Canada General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
Counsel for the Applicant: Yousef Jabbour
Counsel for the Respondent: Lisa Van Arnhem
HEARD: Written Hearing: May 3, 2017
OVERVIEW:
1The applicant was injured in a motor vehicle accident on March 13, 2015 and he applied for accident benefits to TD General Insurance Company The Dominion of Canada General Insurance Company (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied claims for an attendant care benefit, medical benefits and examination expenses on the basis that it found the applicant’s injuries to be minor and subject to the Minor Injury Guideline (the “MIG”).
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on February 22, 2017, and the matter proceeded to this written hearing.
3The applicant argues that he suffers from chronic pain and a psychological impairment as a result of the accident, and that these impairments remove him from the MIG. Recent case law from the Financial Services Commission of Ontario as well as the Licence Appeal Tribunal have supported that a diagnosis of chronic pain or psychological impairment may remove an individual from the MIG.
4The respondent maintains that the applicant’s injuries are minor and that he has failed to provide compelling medical evidence from a health practitioner that his accident-related injuries are not minor, or that he had a pre-existing condition that would prevent him from achieving maximum medical recovery under the MIG.
ISSUES IN DISPUTE:
5The following issues are in dispute before the Tribunal:
Did the applicant suffer predominantly minor injuries as a result of the March 13, 2015 motor vehicle accident? 1
If the applicant’s injuries fall outside of the MIG, is he entitled to an attendant care benefit in the amount of $538.35 per month from March 13, 2015 to date and ongoing?
If the applicant’s injuries fall outside of the MIG, is he entitled to the following medical benefits and examination expenses:
a) $211.00 for physiotherapy services, recommended by Pro Care Health Group in a treatment plan dated August 27, 2015;
b) $749.60 for physiotherapy services, recommended by Progressive Rehab Clinic in a treatment plan dated April 5, 2016;
c) $2,486.00 for an in-home assessment, recommended by Elite Specialist Group in a treatment plan dated May 26, 2015;
d) $2,697.30 for a chronic pain assessment, recommended by Elite Specialist Group in a treatment plan dated November 6, 2015; and
e) $2,697.30 for a psychological assessment, recommended by Elite Specialist Group in a treatment plan dated November 4, 2015.
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to an order of costs in this proceeding?
RESULT:
6I find the applicant suffered predominantly minor injuries, and did not provide compelling evidence of a pre-existing medical condition that would remove him from the MIG.
7The applicant is not entitled to payment of attendant care benefits as he sustained a minor injury.
8In light of my findings on the MIG, I do not need to determine whether the treatment plans for medical benefits and examination expenses are reasonable or necessary.
9The respondent is not entitled to an order for costs.
THE LAW, EVIDENCE AND ANALYSIS:
10In order for me to make a finding with respect to whether or not the applicant’s injuries are minor, I must look to section 3 of the Schedule, which provides the following definition of a minor injury:
“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
11Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit.
12The onus is on the applicant to prove that his injuries are not minor.
13The respondent has approved medical treatment up to the MIG limit of $3,500.00. To date, the applicant has incurred only $2,750.00 in medical treatment.
Did the applicant suffer predominantly minor injuries as a result of the March 13, 2015 accident?
14I find the applicant’s injuries to be minor and fall within the MIG for the reasons that follow.
15First, with the exception of the chronic pain assessment of Dr. Youssef, Clinical Anesthesiologist (with an interest in chronic pain), the diagnosis made by the bulk of the physicians list minor injuries. For example, Dr. Klieman who saw the applicant at the [ ], a walk-in clinic, three days following the accident diagnosed him with back pain lumbar strain, and an x-ray completed on the same date revealed no fractures or abnormalities. Further, the majority of the treatment plans (OCF-18) submitted by Pro Care, the treating clinic, confirmed the diagnosis that the applicant suffered from soft tissue injuries. There was one OCF-18 submitted that did not list minor injuries but there was no medical explanation with respect to why.
16Second, the sign-in sheets from Procare Health Group from March to August 2015 revealed that the applicant started attending treatment less and less throughout time which would indicate that his injuries were healing. For example, the clinic’s records demonstrated that he attended treatment twice in March, April and May, and once in June, July and August 2015.
17Third, the insurer examinations (IEs) conducted by Dr. Hosseini, Physiatrist, on October 7, 2015 and Dr. Oshidairi, Physiatrist, over a year and a half later corroborated the diagnosis that the applicant suffered a minor injury. The reports indicated the applicant demonstrated a full range of motion, a normal neurological examination and no functional limitations or restrictions.
18Finally, the evidence demonstrates that there was a year and a half gap between requests for treatment. In addition, the respondent contends that, to date, the applicant has only incurred $2,750.00 of the $3,500.00 approved treatment. No explanation from the applicant was given with respect to why that is the case.
19It is clear from the diagnosis listed in the forms and by the treating physicians that the applicant’s injuries are minor and fit within the definition of the MIG. However, before a final conclusion can be reached an analysis must be done on whether or not the applicant suffers from chronic pain as a chronic pain diagnosis would remove him from the MIG.
Does the applicant suffer from Chronic Pain?
20The applicant asserts that he suffers from pain on a daily basis and, as a result, was referred to Dr. Youssef for a chronic pain assessment. Dr. Youssef’s report dated March 21, 2016 diagnosed the applicant with chronic pain, chronic myofascial strain to the cervical and lumbar spine and mood and adjustment disorder. The applicant argues that Dr. Youssef’s chronic pain diagnosis removes him from the MIG.
21The respondent contends that Dr. Youssef’s report should not be relied upon because he was given minimal records and was missing important medical information that might have changed his opinion. Further, the report concludes that the applicant demonstrated a normal range of motion and much of the assessment relied on the applicant’s subjective complaints.
22I find that the applicant does not suffer from chronic pain for the following reasons.
23First, Dr. Youssef’s report reveals that he was provided with minimal clinical notes and records prior to his assessment. The report indicates that the applicant was involved in a previous motor vehicle accident in October 2011 and sustained a back injury for which he did not seek treatment. The applicant claims that the 2015 accident exacerbated his pre-existing back injury. Nevertheless, other than what is reported to the assessors, no other evidence or documentation was submitted to support this pre-existing injury.
24Second, I agree with the respondent that the bulk of the report relies on the applicant’s self-reporting of his pain not the doctor’s objective physical examination. In addition, Dr. Youssef’s report shows many inconsistencies. For example, first it states that the applicant was independent with carrying out his basic activities of daily living and personal care tasks with pain. Then the doctor says the applicant reported he could no longer do the dishes because it hurt to stand. However, Dr. Youssef’s physical examination concludes that the applicant could sit and stand with ease as he sat in the chair for the whole assessment.
25Third, the in-home assessment completed by Maria Elma, Occupational Therapist, is contradictory with respect to the applicant’s physical limitations. While Dr. Youssef reports that the applicant does not have any problems with activities of daily living, the in-home assessment indicates that the applicant needs assistance with everything from bathing to grooming and all of his housekeeping responsibilities. No explanation was provided with respect to this significant difference of opinion.
26Due to the inconsistencies in the reports of the applicant’s own assessors, the lack of corroborating evidence and the results of the insurer examinations, I do not find that the applicant suffers from chronic pain as a result of the accident. Furthermore, the applicant has yet to incur all approved medical treatment. I found the insurer examinations more persuasive as they are more thorough and consistent and the assessors were provided with relevant medical records.
Does the applicant suffer from a Psychological Impairment?
27I find that the applicant does not suffer from a psychological impairment for the following reasons.
28First, I agree with the respondent that the OCF-18 completed by Dr. Pilowsky dated December 22, 2015, nine months post-accident, lacked details with respect to a psychological impairment.
29Second, the only evidence submitted to support that the applicant suffers from a psychological impairment is Dr. Youssef’s report in which he diagnoses the applicant with mood and adjustment disorder. I found Dr. Youssef’s findings with respect to the applicant’s psychological state inconsistent. The report indicates the applicant advised him he had not noticed a change in his mood since the accident. Then Dr. Youssef reports the applicant complained of a decrease in attention span, memory, experiences a high degree of anxiety and reported his mood to be depressed. Dr. Youssef concludes that the applicant’s symptoms of decreased energy, attention and concentration “could be” associated with depression. No other evidence was submitted to support the applicant suffered from pre-existing psychological issues or to corroborate Dr. Youssef’s findings.
30Consequently, due to the inconsistencies in Dr. Youssef’s report and lack of evidence to substantiate his findings, I do not find that the applicant suffered from a psychological impairment as a result of the accident that would remove him from the MIG.
Conclusion
31I find that the applicant’s accident-related injuries are minor injuries, and that he has not provided compelling medical evidence that his injuries fall outside of the MIG.2 In addition, the applicant has failed to provide any documented evidence of a pre-existing medical issue which would prevent him from achieving maximum medical recovery under the MIG.
Is the applicant entitled to an Attendant Care Benefit?
32I do not find the applicant is entitled to an attendant care benefit because the applicant’s injuries are minor injuries and pursuant to section 14 of the Schedule attendant care benefits are not available if the impairment is a minor injury.
Is the Respondent entitled to costs?
33The respondent’s request for costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (“Rules”) is denied because the respondent has not provided any evidence to establish that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith.
ORDER:
1For the above-noted reasons this application is dismissed.
Released: August 4, 2017
Rebecca Hines, Adjudicator