Tribunal File Number: 17-005871/AABS
Case Name: 17-005871 v Certas Direct Insurance Company
In the matter of an Application Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
ST
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
Counsel for the Applicant: Elena Steinberg
Counsel for the Respondent: Sylvia M. Robin
Written Hearing on: May 28, 2018
OVERVIEW
1ST (“the applicant”) was injured in an automobile accident (“the accident”) on September 10, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (“the MIG”). The applicant’s position is exactly the opposite.
3If the applicant’s ’s position is correct, then the applicant is not subject to a
a. $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be necessary.
ISSUES
4The issues in dispute were identified and agreed to as follows:
(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
(ii) If the applicant did not sustain predominantly minor injuries as defined under the Schedule, is the applicant entitled to:
(a) A medical and rehabilitation benefit in the amount of $1,459.70 for physiotherapy treatment recommended by Toronto Healthcare Clinic Inc. in a treatment plan (OCF-18) submitted on January 23, 2016, and denied on March 15, 2017?
(b) A medical benefit in the amount of $2,000.00 for a Chronic Pain Assessment, recommended by Toronto Healthcare in a treatment plan submitted January 18, 2018, and denied on January 31, 2018 and February 20, 2018?
RESULT
5I find that the applicant’s injuries fall outside of the MIG.
6I find that the applicant is not entitled to a medical and rehabilitation benefit in the amount of $1,459.70 for physiotherapy.
7I find that the applicant is entitled to a medical benefit in the amount of $2,000.00 for a Chronic Pain Assessment.
ANALYSIS
The Minor Injury Guideline
8Section 3(1) of the Schedule defines a “minor injury” 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”
9Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500. The onus is on the applicant to show that his/her injuries fall outside of the MIG3
Did the applicant sustain predominantly minor physical injuries?
10I find that the evidence establishes that the applicant sustained a physical injury or injuries that is not defined as a predominantly a minor injury.
11The applicant relies entirely on a File Review Report, conducted at his request, by Dr. Domenic Minnella, dated March 12, 2018. Her evaluation of the applicant occurred on September 10, 2015. The applicant states:
“the Report addresses all of the Issues in Dispute. Dr. D. Minnella inter alia opines that the Applicant is suffering from Chronic Pain.”
12The applicant argues that he should be removed from the MIG because of chronic pain syndrome because the prescribed definition of “minor injury” does not include chronic pain conditions
13The respondent relies heavily on its own Insurance Examinations (IEs); one conducted by Dr. Charanjit Sandu, Occupational Medicine Physician on February 24, 2017 and a follow up report by Dr. Sandu on January 20, 2018. These IEs found that the applicant’s injuries were minor in nature, mostly involving soft tissue injuries. The first IE, conducted on February 24, 2017, was administered to determine the applicant’s entitlement to Income Replacement Benefits (IRB), the applicability of the MIG and if the treatment plan for physiotherapy was reasonable and necessary.
14Based on the evidence before me, I am persuaded that the applicant is suffering from chronic pain which removed him from the MIG for the following reasons:
15The evidence presented by both parties ultimately presented a clear picture of the applicant’s history of chronic pain. This begins with the applicant’s Family Doctor, Dr. Thushyianthy clinical notes and records (CNRs).
16The CNRS present an applicant who was regularly complaining about his pain affecting his life. The evidence showed he was suffering from a pre-existing condition that was exasperated by the accident. On July 12, 2015, or 2 months before his accident, the applicant complained of shoulder pain. He was prescribed the NSAID Vimovo.
17This pain continues to be documented throughout the applicant’s CNRs, as he visits Dr. Thushiyanthy several times throughout 2015 and 2016. The respondent highlights that the applicant stopped attending his family doctor regarding his accident related pain. The respondent does not take into account that the applicant was attending Toronto HealthCare Inc., a physical therapy and rehab clinic from approximately September 2015 until March 2016, where he received physiotherapy services. I do not agree with the respondent’s position, since the applicant was under the treatment of a chiropractor and was receiving treatment at this time to deal with his accident related injuries
18The applicant participated in an IE assessment conducted by the aforementioned Dr. Sandhu at the request of the respondent.
19I note that Dr. Sandhu does document the applicant’s continued complaints of pain. Though the respondent argues this report is determinative in its claim that the applicant suffered a minor injury, if anything, I find this report confirms the applicant was still suffering from pain approximately a year and a half after his accident.
20Dr. Sandhu opines that the applicant has reached maximum medical recovery, given the nature of his injuries. And yet the applicant states he is still in significant pain.
21The respondent relies on a follow up IE conducted by Dr. Sandhu on January 20, 2018. Dr. Sandhu found “the applicant’s presentation was consistent with residual symptoms from myofacial sprains to his cervical spine and lumbar spine”. Dr. Sandu also notes that the applicant has been provided with shoulder immobilizing exercise and has been booked for a steroid injection.
22When reviewing the evidence presented by Dr. Sandhu, I see the applicant has continued presenting pain related to his accident, now almost 2 and a half years post-accident. In addition, the applicant has demonstrated that he has taken continuous action to try to address his pain, via physiotherapy, exercise and more recently, steroid injection.
23For these reasons, I find the applicant does suffer from chronic pain of the kind that is not captured by the MIG and requires more treatment beyond the MIG.
ARE THE MEDICAL BENEFITS REASONABLE AND NECESSARY?
24In accordance with ss. 14 and 15, the onus of proving entitlement to a medical benefits falls is on the applicant. He must show that the proposed benefits are reasonable and necessary.
Physiotherapy
25Dr. Minnella, in conjunction with Dr. Marcia Richards, Chiropractor, suggested the applicant continue physiotherapy treatment at Toronto Healthcare Inc.
a. According to the Treatment and Assessment Plan completed by Dr. Richards, the physiotherapy is intended to address the applicant’s chronic lumbar and cervical strain and/or sprain.
26The applicant received approval from the respondent in the amount of
a. $1,250.00 for physiotherapy in a treatment plan dated December 5, 2015. I note this treatment plan is almost identical to the treatment plan in dispute in the amount of $1,459.70, submitted and dated January 23, 2016.
27Both treatment plans share the same injury and sequelae information and proposed goods or services requiring insurer approval. I find that using the same treatment modalities for the same injury will most likely produce the same results for the applicant. These sentiments are echoed in the CNRs of the applicant’s family doctor, Dr. Thushyianthy, who states on January 17, 2016:
“Patient still continues to have right shoulder pain. He tends to lift heavy objects at his work place. Physio does not seem to be helping much. Came for f/u”.
28Therefore, based on the evidence before me, I am not convince that this treatment is reasonable or necessary.
Chronic Pain Assessment
29I must also determine if the disputed chronic pain assessment is reasonable & necessary, pursuant to section 25(1)(3) of the Schedule. The applicant has the onus of showing on a balance of probabilities that the medical expenses and/or examinations are reasonable and necessary as a result of injuries caused by the accident.
30Based on the evidence submitted before me in regards to the applicant being removed from the MIG on the basis of him continuing to suffer from chronic pain as discussed above I find that the chronic pain assessment is reasonable and necessary. It is reasonable to investigate the condition further based on the substantiated evidence.
CONCLUSION
31For the reasons outlined above, I find that:
(i) The applicant has not sustained predominantly minor injuries that fall within the MIG.
(ii) The applicant is not entitled to a medical and rehabilitation benefit in the amount for physiotherapy in a treatment plan (OCF-18) submitted on January 23, 2016, and denied on March 15, 2017.
(iii) I find that the applicant is entitled to a medical benefit for a Chronic Pain Assessment in the amount of $2,000.00 for a Chronic Pain Assessment, recommended by Toronto Healthcare in a treatment plan submitted January 18, 2018, and denied on January 31, 2018 and February 20, 2018.
Released: October 10, 2018
Stephanie Kepman
Adjudicator
Insurance Act.
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the
- Scarlett v. Belair, 2015 ONSC 3635 para.24