17-006571 v TD Home & Auto Insurance Company, 2018 CanLII 115669

Date: 2018-10-04

Tribunal File Number: 17-006571/AABS

Case Name: 17-006571 v TD Home & Auto 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:

Applicant

and

TD Home & Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the applicant: Rohan Hate, Counsel

For the respondent: Omar Sewhdat, Counsel

Written Hearing on: July 3, 2018

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on May 18, 2015, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When his claims for benefits were denied by the respondent (“TD”), [the applicant] applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2TD denied [the applicant]’s claims because it determined that all of his injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). [The applicant]’s position is the opposite.

3If [the applicant]’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary.

4If TD’s position is correct, then [the applicant] is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary.

ISSUES

5Did [the applicant] sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

6If [the applicant]’s injuries are not within the MIG, then I must determine the following issues:

(i) Is the applicant entitled to receive medical benefits recommended by In Motion Rehab & Wellness Centre as follows:

(a) $645.51 for chiropractic services in a treatment plan submitted on September 21, 2015, denied by the respondent on October 2, 2015;

(b) $1,472.75 for chiropractic services in a treatment plan submitted on October 16, 2015, denied by the respondent on October 27, 2015;

(c) $1,472.76 for chiropractic services in a treatment plan submitted on November 17, 2015, denied by the respondent on November 20, 2015;

(d) $1,472.76 for chiropractic services in a treatment plan submitted on December 11, 2015, denied by the respondent on December 16, 2015;

(e) $2,505.52 for chiropractic services in a treatment plan submitted on January 15, 2016, denied by the respondent on January 27, 2016;

(f) $1,929.14 for chiropractic services in a treatment plan submitted on March 17, 2016, denied by the respondent on March 28, 2016;

(g) $1,352.76 for chiropractic services in a treatment plan submitted on April 28, 2016, denied by the respondent on May 10, 2016;

(h) $1,465.52 for chiropractic services in a treatment plan submitted on April 28, 2016, denied by the respondent on June 6, 2016; and,

(i) $2,745.52 for chiropractic services in a treatment plan submitted on July 29, 2016, denied by the respondent on August 12, 2016?

(ii) Is the applicant entitled to payments for the cost of examinations for assessments proposed by TDI Chronic Pain & Medical Assessments as follows:

(a) $2,259.83 for a psychological assessment recommended in a treatment plan submitted on February 12, 2016, denied by the respondent on February 19, 2016;

(b) $1,788.16 for an in home assessment and form 1 for attendant care recommended in a treatment plan submitted on February 12, 2016, denied by the respondent on February 19, 2016; and,

(c) $1,716.47 for a functional abilities evaluation recommended in a treatment plan submitted on February 12, 2016, denied by the respondent on February 19, 2016?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7Based on a review of the evidence before me, I find that [the applicant]’s injuries are subject to treatment within the MIG. It is therefore unnecessary to consider whether the disputed treatment plans are reasonable and necessary.

8I find that [the applicant] is not entitled to interest.

ANALYSIS

The Minor Injury Guideline

9Section 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”. The MIG also defines what these terms for injuries mean.

10Section 18(1) limits the entitlement to medical and rehabilitation benefits for minor injuries to $3,500.

11The onus is on [the applicant] to show that his injuries fall outside of the MIG³.

Accident-related injuries

12For the reasons that follow, I find that the evidence establishes that [the applicant] sustained accident-related physical injuries, but that those injuries are defined as predominantly minor.

13A diagnostic imaging report dated May 19, 2015 from Dr. Weldon Liu of the William Osler Health Centre, revealed vertebral alignment is maintained with no fractures detected. Additionally, Dr. Liu’s report revealed mild degenerative changes at multiple levels.

14In her report dated June 17, 2015, approximately one month after the accident, Dr. Gail Wright, Chiropractor, diagnosed [the applicant] with cervicogenic headaches, blurry vision, cervical/thoracic/lumbar spine injuries, and bilateral shoulder/arm/wrist/hand and hip/knee injuries.

15In support of the above-noted diagnosis from Dr. Wright, [the applicant] further relies on the report of Dr. Wright, who opines that [the applicant] suffered serious depressive symptoms and PTSD as a result of the accident, in addition to suffering from a “chronic pain condition”. Dr. Wright does not define “chronic pain condition” further or equate it to “chronic pain syndrome.” The wording provides me with no guidance in respect of the basis for this diagnosis and no guidance concerning how this “condition” lifts [the applicant] out of the MIG. Dr. Wright also notes that [the applicant] has pre-existing diffuse degenerative changes of the lumbar spine that are acting as barriers to his recovery and to achieving maximal recovery.

16For the reasons that follow, I place very little weight on Dr. Wright’s report. First, Dr. Wright’s reporting that [the applicant] suffering from a chronic pain “condition” is not a helpful diagnosis. Second, any psychological findings are beyond Dr. Wright’s area of expertise. Third, there are lumbar and knee MRI reports which contradict Dr. Wright’s reporting.

17[The applicant]’s Family Physician, Dr. Michael Kates, arranged for an MRI, which took place on or about August 21, 2015. The right knee MRI revealed “a small effusion in the suprapatellar joint recess, a flap tear of the anterior horn lateral meniscus which is undisplaced and a thickening of proximal deep fibers compatible with prior sprain injury”. Regarding the indication of a flap tear, [the applicant] submits the definition of a minor injury does not include a tear. I disagree. A minor injury does not include a full tear injury, however, a partial, or in this case, a flap tear, falls under the definition of a minor injury. All of the injuries [the applicant] has been diagnosed to have suffered are defined under the MIG.

18In addition to his argument that a tear removes him beyond the limits of the MIG, [the applicant] submits that his pre-existing condition was aggravated as a result of the subject accident. [The applicant] contends that his pre-existing condition would place him outside of the MIG as a result.

19For the reasons that follow, I do not find that any pre-existing condition [the applicant] may have was aggravated as a result of the subject accident.

20A pre-accident MRI dated November 3, 2011 revealed “diffused degenerative changes in the lower lumbar spine L3-L4 with mild disc spur complexes. In addition, moderate foramen narrowing and mild degenerative changes at L4-L5. Further, disc bulging was noted with mild facet degeneration and neural foramen narrowing. At L5-S1, there were degenerative facet changes noted to be moderate to severe and moderate neural foramen narrowing”. These results are in line with Dr. Liu’s diagnostic imaging reports, almost 4.5 years later, where he notes [the applicant] has mild degenerative changes at multiple levels.

21There is no indication of any worsening of [the applicant]’s pre-existing condition. More importantly, the test to determine that a pre-existing condition removes someone from the MIG is that pre-existing condition must be proven to make the injured person’s recovery take longer. [The applicant] has not provided me with compelling evidence to satisfy me that his pre-existing condition was worsened by the subject accident or that his recovery was impeded by that pre-existing condition.

22At a May 20, 2016 visit to his family physician, Dr. Kates, Dr. Kates notes “[the applicant] has no issues, is pain-free and has no other problems going on”. At the conclusion of the May 2016 visit, Dr. Kates made dietary recommendations, again, not accident-related. A previous visit to Dr. Kates on March 27, 2016 provided no indication of any accident-related complaints.

23[The applicant] has not provided me with compelling evidence to establish his physical injuries are anything but minor. To the contrary, I find that the evidence supplied is consistent with a minor injury. For example, the August 21, 2015 MRI of the right knee noted minimal degenerative change, normal alignment, no fractures, and no joint effusion. Further, the August 21, 2015 MRI of the lumbar spine also found normal alignment, the vertebral body heights and intervertebral disc spaces are maintained with no fractures found. Again, I am not presented with evidence of how this may have prevented maximal recovery.

24Dr. Wright`s letter does not support that the subject accident has caused [the applicant] to suffer injuries that are not minor in nature. Further, there is no compelling evidence that confirms [the applicant] suffers from a chronic pain diagnosis that lifts him out of the MIG or that any pre-existing condition was aggravated by the subject accident.

25Dr. Wright’s “chronic pain condition” findings were made within one month of the accident, well within the 90 days or so the MIG contemplates for recovery from soft tissue injuries. It is not enough that a “chronic pain condition” is referenced in a letter. There must be clear, objective evidence, obtained through diagnostic testing or other medical assessment that concludes a person suffers from chronic pain. This matter does not contain such objective evidence.

26The letter from Dr. Wright supports the injuries sustained by [the applicant] are minor in nature. Based on the combined evidence of the MRI reports and clinical notes and records from Dr. Kates, I find that [the applicant] has sustained minor injuries from the subject accident. Further, the evidence does not support a finding that there is compelling evidence that [the applicant] has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent him from achieving maximal recovery from the minor injury. As a result, [the applicant] has not satisfied his onus to prove that he has suffered anything but minor injuries as a result of the subject accident.

27[The applicant] is limited to the $3,500.00 limit in benefits available under the MIG, which has been exhausted, and I therefore do not need to address the question of whether the treatment plans are reasonable and necessary.

CONCLUSION

28[The applicant] sustained predominantly minor injuries that fall within the MIG. Accordingly, [the applicant] is not entitled to payment for the treatment plans claimed in this application. His application is dismissed.

Released: October 4, 2018

___________________________

Derek Grant

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24```