S. C. W. H. v. The Dominion of Canada General Insurance Company, 2017 CanLII 9807

Tribunal File Number: 16-000677/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:

S. C. W. H.

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Samia Makhamra

For the Applicant: Philip Kay Kwong Yeung, representative

For the Respondent: Leanne Kenning, counsel

HEARD in writing, October 12, 2016

Overview

1. This matter involves a claim arising from a motor vehicle accident on June 4, 2014. The Applicant was involved as the driver. She applied for and received benefits under the Statutory Accident Benefits Schedule – Accidents On or After November 1, 2010 (“Schedule”).

2. The Applicant seeks payment for medical benefits including chiropractic and physiotherapy services, all of which the Respondent denied on the basis that the Applicant suffered predominantly minor injuries as defined in s. 3(1) of the Schedule. It is the Respondent’s position that because the Applicant’s injuries are minor, treatment is subject to a $3,500.00 cap within the provisions of the Minor Injury Guideline, and that it has paid this amount.

3. The Applicant disagrees. She submits that her injuries are not minor, but, if they are, she suffers from a pre-existing medical condition that entitles her to funding for treatments in excess of the $3,500.00 limit. She also claims that the Respondent breached procedure in its denials.

The issues in dispute:

4. The issues in dispute at this hearing are:

i. Are the Applicant’s injuries predominantly minor injuries that should be treated within the provisions of the Minor Injury Guideline (the “MIG”)?

ii. Is the Applicant entitled to medical benefits in the amount of $484 for chiropractic services as set out in a treatment plan (OCF 18), dated August 28, 2014 submitted by Perfect Physio and Rehab Centre?

iii. Is the Applicant entitled to medical benefits in the amount of $2,392.40 for chiropractic services as set out in a treatment plan (OCF 18), dated December 18, 2014 submitted by Dr. Georgia Palantzas of Perfect Physio and Rehab Centre?

iv. Is the Applicant entitled to payments for the completion of an OCF-3 by Perfect Physio and Rehab Centre in the amount of $200?

v. Is the Applicant entitled to interest for the overdue payment of benefits?

Decision:

5. I find that the Applicant suffered predominantly minor injuries as a result of the accident, and that she did not suffer from a pre-exiting medical condition that would take her treatment out of the MIG. Consequently, as she has exhausted the monetary limit for treatment, she is not entitled to the benefits that are in dispute. As there are no benefits owing, the Applicant is not entitled to interest.

Analysis and reasons:

6. I begin my analysis with the issue of whether the Applicant’s injuries are minor and should be treated within the MIG. My finding will determine whether I need to consider if she is entitled to the medical benefits that are in dispute.

7. I must consider two questions: are her injuries from the accident predominantly minor in nature, and if so, is there a pre-existing medical condition that was documented by a health practitioner before the accident, which would have prevented her from achieving maximal recovery if subjected to the MIG limit?

8. The Applicant submitted written arguments, a number of documents in support of her arguments, and two affidavits: her own, and another from Dr. G. Palantzas, a treating chiropractor.

9. The Respondent submitted written arguments with documents in support of its position. Relying on the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”), the Respondent submits that the onus is on the Applicant to provide compelling evidence of a pre-existing medical condition to establish her entitlement to a level of coverage that is beyond the MIG cap limit.

Are the Applicant’s injuries predominantly minor in nature?

10. I find the evidence does not establish that the Applicant’s injuries are not minor in nature. She has not met her burden of proof on the balance of probabilities.

11. The Applicant saw her family physician, Dr. S. Seit, on June 23, 2014, 19 days after the accident, for complaints related to the motor vehicle accident. Dr. Seit noted that she was experiencing neck and chest pain. Her chest x-ray showed no fractures. She was feeling neck and back pain during sleep, but her chest was getting better. She had tight tender paraspinal muscles, but that there was no injury to her nerves, veins, arteries, or lymphatic system (“nerurovascularly intact”). Dr. Seit noted musculoskeletal strain and recommended physiotherapy.

12. Dr. Seit’s diagnosis of musculoskeletal strain indicates that the Applicant’s injuries from the accident were minor. The term “minor injury” is defined in s. 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” (emphasis added).

13. If her injuries are minor, the Applicant is subject to a monetary limit for treatment by the MIG. Section 18(1) sets out a limit of $3,500 for medical and rehabilitation benefits for an insured person who sustains an impairment that is predominantly a minor injury, less any amounts paid in respect of the insured person in accordance with the MIG.

14. The Applicant’s own assessors identified her impairment as predominantly minor. A chiropractor from Perfect Physio and Rehab Centre submitted a Disability Certificate (OCF-3 form) dated June 18, 2014 which did not indicate that the Applicant sustained injuries that were not minor. The injuries listed include: radiculopathy of the cervical region; injury of muscle and tendon at neck and thorax level; sprain and strain of the thoracic spine, ribs and sternum, shoulder joint, lumbar spine, and sacroiliac joint; contusion of thorax and knee; non-organic sleep disorders; and phobic anxiety disorders (emphasis added).

15. This was also the case in the first two Treatment Confirmation Forms that were submitted, both using forms applicable to minor injuries (OCF-23), dated June 18 and June 19, 2014. Three subsequent Treatment Confirmation Forms dated July 11, August 28 and December 18, 2014 all used forms applicable to treatment of injuries that are not minor (OCF-18). However, the treatment providers identified the applicant’s impairment as predominantly minor on these three forms.

16. Specifically, the injuries identified in the above Treatment Confirmation Forms are:

• A treatment plan dated June 17, 2014 on an OCF 23, prepared for the Applicant shortly following the accident, listed her injuries as: other sprain and strain of cervical spine, sprain and strain of ribs and sternum, and sprain and strain of thoracic spine.

• Subsequent treatment plans listed the following: contusion of thorax and knee, non-organic sleep disorders, phobic anxiety disorders, radiculopathy of the cervical region, injury of muscle and tendon at neck and thorax level, sprain and strain of the shoulder joint, lumbar spine, and sacroiliac joint, dizziness and giddiness, and headache.

17. The Applicant submits that phobic anxiety disorders, sleep disorders, and a radiculopathy are not minor injuries. The problem with this submission is that the treatment providers submitted no medical documentation to support a diagnosis of a sleep or anxiety disorder, or a radiculopathy, for example.

18. The Applicant’s treating chiropractor, in her affidavit, provided an account of her diagnosis of the Applicant in August 2014. She stated that she diagnosed the Applicant with cervical radiculopathy, injury of muscle and tendon at neck level; sprain and strain of thoracic spine, ribs, sternum, shoulder joint, lumbar spine, sacroiliac joint; contusion of thorax, knee; nonorganic sleeping disorders; phobic disorders; dizziness; and headache. In her opinion, the Applicant’s injuries and impairments required treatment outside of the MIG.

19. The Respondent submits that there is no objective medical evidence to support Dr. Palantzas’ opinion that the Applicant requires treatment outside the MIG. I agree. The notes from the Applicant’s family physician, when he saw her for accident-related complaints, indicate that she was neurovascularly intact, which suggests no neurovascular trauma and no impairments such as dizziness, headaches or a radiculopathy. Further, I cannot accept the additional diagnoses of a sleeping disorder or phobic disorders, as a chiropractor cannot make such diagnoses, and no further tests were ordered or conducted to investigate these conditions.

20. In her affidavit, the Applicant states that she remains negatively affected by the accident. She has trouble sleeping, she has nightmares, she tires more easily, she feels anxiety related to driving and being a passenger, and she has occasional headaches and dizziness. She also submits that she now struggles with chronic pain. The Applicant believes she would benefit from more physical treatment and counselling.

21. Taking the Applicant’s affidavit at face value, the difficulty for her is the lack of objective medical evidence to establish that her injuries as documented are not minor. The medical records from the family physician, which include notes and records from June 2011 to July 2016, contain only one record of complaints or injuries related to the accident of June 2014, and that is the visit of June 23, 2014. The decoded OHIP summary, which covers the period of January 2009 to June 2016, shows no entries for complaints that could be related to the accident after June 2014.

Is there a pre-existing medical condition that would take the Applicant out of the MIG?

22. I find that the Applicant does not suffer from a pre-existing medical condition that would take her out of the MIG.

23. The Schedule requires that there be a documented pre-existing medical condition, in order for the Applicant to access funds in excess of the MIG limits. Specifically, s. 18(2) provides that treatment in excess of the $3,500 limit can be obtained if the insured person's 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 person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit.

24. The Applicant submits that she meets the requirement in s. 18(2). She relies on two visits to her family physician. After the first visit on November 17, 2012 Dr. Seit recommended physiotherapy and acupuncture for the Applicant’s back strain. During the second visit, on May 27, 2013 Dr. Seit prescribed Arthrotec, an arthritis medication, to treat her ankle pain.

25. The Applicant also relies on the affidavit of her treating chiropractor who states that she reviewed the notes of the family physician, and, it is her opinion that the Applicant had a documented pre-existing condition of back strain and ankle pain, that prevented her from reaching maximal medical recovery within the monetary limits of the MIG.

26. The applicant makes no further complaint about the back strain of 2012 or the ankle pain of 2013 to the family physician in later visits. Also, they are not mentioned by the treatment providers in the Treatment Confirmation Forms that were submitted. Contrary to the Applicant’s submissions, her own assessors were not of the opinion that she suffered from a pre-existing condition that would negatively impact her recovery. This is the case for all the Treatment Confirmation Forms where the treatment providers checked off the box indicating that the Applicant did not have any disease, condition or injury that could affect response to treatment.

27. The Schedule and Scarlett are clear that the Applicant must provide “compelling evidence” of a pre-existing medical condition documented by a health practitioner to establish entitlement beyond the MIG. She has not met her onus. The Applicant has not submitted a diagnosis of a pre-existing condition from a health practitioner. Her chiropractor’s paper review of the family physician’s notes, particularly because her family physician has not diagnosed a pre-existing medical condition, and two recorded visits to her family physician who recommended treatment for back strain and ankle pain are not enough to convince me that it is more likely than not she suffers from a pre-existing condition that prevents her from reaching maximal recovery if subject to the $3500 MIG cap.

Did the Respondent breach procedure in its denials?

28. This was not identified as an issue in dispute in the case conference order. The Applicant raised it as part of her arguments. The Respondent submitted that this was the first time that the Applicant raised an issue with the denial of benefits pursuant to s. 38(8) of the Schedule. Despite this, it responded to the issue without objection. Therefore, I have determined that there is no prejudice to the Respondent in considering submissions on this issue.

29. I have considered the parties’ submissions and do not find that the Respondent breached procedure in its denials of the benefits.

30. The Applicant’s submissions in this respect can be summarized as: the Respondent failed to provide the Applicant with medical and all of the other reasons for denying the treatment plans, in breach of s. 38(8); the Respondent did not advise the Applicant that it believed the MIG applied, in breach of s. 38(9); and the Respondent never arranged an Insurer Medical Examination to contradict the opinion of the Applicant’s service providers.

31. As authority, the Applicant relies on the decision of Augustin v Unifund Assurance Company, FSCO A12-000452 (Augustin). However, Augustin can be distinguished. The arbitrator in Augustin dealt with a claim under s. 38 in the context of a preliminary issue: whether the insured was precluded from mediation when she failed to attend an insurer’s examination under s. 44. Further, the parties in Augustin disagreed at the outset on whether the insured’s injuries were in the MIG. As noted earlier, in this case the treatment providers identified the Applicant’s injuries as minor.

32. I disagree with the Applicant. I do not find that the Respondent failed to adequately deny the treatments, or provide adequate reasons for doing so.

33. In this case, treatments were requested on the basis that the Applicant’s injuries were minor, and no pre-existing medical condition that prevented her from maximal recovery if she was subject to the MIG cap was identified. Both the Applicant and the Respondent proceeded on the basis that the Applicant’s injuries were minor, as confirmed in letters from the Respondent on June 25, July 21 and September 16, 2014.

34. I accept the Respondent’s submission that through these letters it satisfied the notice requirements under s. 38(8) and (9) that it identify the goods, services, assessments and examinations named in the treatment plans the Respondent agreed to pay for, and that the Respondent believed the MIG applied to the Applicant’s impairments. Further, in a letter on July 21, 2014, the Respondent advised the Applicant to forward any medical documentation if she believed her injuries no longer met the definition of minor according to the Schedule. There is no evidence before me showing that the Applicant submitted any additional medical documentation for the Respondent to consider that her injuries were other than minor.

35. As the Respondent and the Applicant’s treatment providers agreed that the applicant’s injuries were minor, there Respondent (likely) saw no need for a s. 44 examination. The Applicant did not forward any medical information or claim of a pre-existing injury to the Respondent that might trigger the need for a s. 44 examination, despite notice to do so in the July 21, 2014 letter, until this application to the Tribunal. I accept that the Respondent could have arranged for the Applicant to undergo an Insurer Medical Examination, but it was not required to do so.

Conclusion:

36. I find that the Applicant’s injuries, as a result of the accident, are predominantly minor, and she does not suffer from a pre-existing condition that would take her out of the MIG. The Applicant has not provided me with evidence to conclude otherwise. As a result, I find that she is not entitled to the benefits in dispute.

Released: January 30, 2017

Samia Makhamra, Adjudicator