Tribunal File Number: 16-002077/AABS
Case Name: 16-002077/AABS v Scottish & York 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.R.
Applicant
and
Scottish & York Insurance Company
Respondent
DECISION
ADJUDICATOR: Khizer Anwar
APPEARANCES: R. J. Ford, counsel for the Applicant Patrick Baker, counsel for the Respondent
HEARD IN WRITING ON: April 7, 2017
OVERVIEW
1C.R. (“the applicant”) was injured in an automobile accident on June 24, 2015 (“the subject accident”), and sought benefits from his auto insurer (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
2The applicant submitted a treatment and assessment plan (OCF-18) to the respondent, requesting funding for chiropractic treatment, which was denied by the respondent. The respondent held that the applicant had suffered predominantly minor injuries, which could be treated within the Minor Injury Guideline (“the MIG”), as defined in s. 3 of the Schedule.
3The applicant disagreed with the respondent’s decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
4The issues in dispute identified by the parties in their submissions and to be decided are:
- Do the applicant’s injuries fall under the Minor Injury Guideline?
- Is the applicant entitled to a medical benefit in the amount of $4,273.00 for chiropractic services, as outlined in the Treatment and Assessment plan (OCF-18) dated August 24, 2015?
- Is the applicant entitled to interest on overdue payment of benefits?
RESULT
5Based on the totality of evidence before me, I find that:
- The applicant’s injuries do not fall under the Minor Injury Guideline.
- The Treatment and Assessment plan in dispute is not reasonable and necessary.
- The applicant conceded in her submissions that since the costs of treatment have not been incurred, interest is not payable.
ANALYSIS
6Despite being afforded an opportunity, the applicant did not make reply submissions. As this is a written hearing, the only evidence before me is in the form of documentary evidence. I will only consider the evidence specifically referred to by the parties in their respective submissions.
7The issues in dispute in this matter ultimately turned on the evidence before me with respect to the applicant’s pre-existing injuries and the chronic pain syndrome diagnosis by one of the assessors. As detailed in the coming sections, while the applicant’s evidence is not perfect and the respondent makes strong submissions to support its position, I find that the applicant provided sufficient and satisfactory evidence to prove on a balance of probabilities that she is r entitled to treatment beyond the $3,500 limit under the MIG.
1. The Minor Injury Guideline (the “MIG”)
8The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 of the Statutory Accident Benefits Schedule (“the Schedule”) as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3.
9S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 (“the Cap”) minus any amounts paid in respect of an insured person under the MIG.
10Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the Cap. This is possible where an injured person’s healthcare provider 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 would prevent the injured person from achieving maximal recovery from the minor injury if benefits are limited to the Cap.
11It is important to note that existence of a pre-existing condition will not automatically exclude a person’s impairment from the MIG. The pre-existing medical condition must also prevent maximal recovery under the Cap.
12The respondent relies upon the Divisional Court decision of Scarlett v Belair Insurance, 2015 ONSC 3635, to support its position that the applicant bears the onus of proving entitlement to the benefit beyond the Cap. I agree with the respondent. Accordingly, in this matter, the applicant carries the onus of establishing her entitlement beyond the Cap.
2. Position of the Parties
13I will now analyze the evidence referred to by the parties in their submissions, to determine whether the applicant’s accident-related injuries fall outside the MIG.
THE APPLICANT’S POSITION
14The applicant contends that her injuries do not fall within the MIG, as they would be a barrier to her maximal recovery under the Cap. She relies on the reports of the following assessors in her submissions to support her position:
- Scott Blad, Kinesiologist
- Dr. Stuart Kinsinger, Chiropractor
- Dr. Gordon Ko, Physiatrist
15The OCF-18 lists the applicant’s accident related injuries as: a) low back pain b) pain in upper and lower limbs; c) cervicalgia; d) paraesthesia of skin; and e) other chronic pain.
Functional Abilities Evaluation by Scott Blad
16The applicant underwent a functional abilities evaluation (FAE) with Mr. Blad, where she was assessed for functional limitations and impairments in relation to her pre-accident occupation, housekeeping, home maintenance and avocational activities, as a result of both the 2012 and 2015 accidents. I found the reports of the other two assessors, discussed next, to be sufficient in evidence and relevance in my deliberations. Mr. Blad’s report did not offer any additional opinions and recommendations that would affect my findings. Hence, I need not analyze Mr. Blad’s report in detail.
Dr. Stuart Kinsinger
17Dr. Kinsinger assessed the applicant for injuries and impairments sustained by her as a result of both 2012 and 2015 accidents. His examination combined physical testing, reviewing medical documents, including the applicant’s family doctor’s clinical notes and records, and subjective reporting by the applicant, to determine her collision related impairments.
18Based on his examination, Dr. Kinsinger makes extensive diagnoses related to the applicant’s neck, back, right shoulder (upper extremities) and head, leading to limitations in the applicant’s daily living and activities. Dr. Kinsinger concludes that the applicant’s complaints are “materially contributed to by both the collisions” and that the 2015 accident aggravated her injuries sustained in the 2012 accident.
19I find Dr. Kinsinger’s report to be thorough and persuasive and accept his extensive diagnoses, as they pertain to the applicant’s physical injuries and impairments. I have not assigned any weight to his opinion on the applicant’s psychological injuries and impairments, as he is not qualified to comment on them.
Dr. Gordon Ko
20Dr. Ko also evaluated the applicant for injuries and resulting impairments sustained in both the 2012 and 2015 accidents. He finds that the 2015 accident caused aggravation of pre-existing injuries, particularly in the lumbosacral region. Dr. Ko further opines that the 2012 accident was the primary source of the applicant’s ongoing and chronic pain, as it had caused “scar tissue particularly affecting the holding elements through the upper spinal region.” He concludes that the applicant’s impairments are serious and permanent, and the combined effects of the injuries had produced a chronic pain syndrome (“the Syndrome”) in the applicant.
21I accept Dr. Ko’s assessment and diagnosis of the Syndrome. Dr. Ko’s assessment was part of a multidisciplinary assessment regime and in light of his expertise as a physiatrist, I am satisfied with his conclusion, his testing methods and the documents reviewed in the process.
22Based on the reports of Dr. Kinsinger and Dr. Ko, I am satisfied that the 2015 accident, coupled with the 2012 accident, materially contributed to the development of the chronic pain syndrome in the applicant. Both the reports also identify that the 2015 accident aggravated the applicant’s pre-existing injuries sustained in the 2012 accident. While I am convinced with Dr. Ko’s and Dr. Kinsinger’s conclusions, their reports warrant an inquiry into the applicant’s pre-existing injuries and the evidence before me in relation to those injuries, which I will turn to next.
Pre-existing Injuries
23The information on the applicant’s pre-existing injuries comes from: a) the applicant’s submissions; and b) the expert reports of the assessors who examined the applicant. The applicant did not provide clinical notes and records (“CNRs”) of a treating health practitioner or her family doctor. Hence, there is no evidence before me that outlines the applicant’s pre-existing injuries, documented prior to the 2015 accident. The applicant also does not specifically make submissions on whether the pre-existing injuries would prevent her maximal recovery under the MIG. As a result, the respondent has invited me to draw an adverse inference from the applicant’s failure to do so.
24While the CNRs of a treating health practitioner may serve as an important source of background information regarding the applicant’s pre-existing injuries, the applicant is not mandated to produce them. It is left to the applicant’s discretion to put forward the best evidence in support of its position. In this matter, the applicant seemed content in relying on the expert reports of the assessors to establish that both her current and pre-existing injuries are a barrier to her maximal recovery under the MIG.
25The medical reports of Dr. Kinsinger and Dr. Ko show that as part of their multi-disciplinary examinations, they reviewed a variety of documents, including the applicant’s family doctor’s CNRs. There is no evidence before me that discredits their conclusions or calls into question their credibility, other than the fact argued by the respondent that these experts were retained by the applicant for her tort matter, which I reject. While having the CNRs of the family doctor before me may have assisted in deliberating this matter, I am, nonetheless, satisfied with the information contained in Dr. Kinsinger and Dr. Ko’s reports. Hence, I accept that the applicant was suffering from pre-existing chronic pain and the 2015 accident materially contributed to the development of the chronic pain syndrome, as diagnosed by Dr. Ko.
26As a result, I have decided not to draw an adverse inference, as requested by the respondent. It has already been established above that the burden of proof rests with the applicant in this matter. However, it is noteworthy that this onus does not absolve the respondent of its responsibility to seek and obtain information it deems necessary to continually adjust the applicant’s file or to support its own position.
27In this matter, the respondent failed to provide any evidence of any steps taken by it to obtain the treating practitioner’s CNRs (or other information such as the previous accident benefits file), absence of which it claims was prejudicial to its position. Some of the examples of the steps the respondent could have taken include requesting the applicant to produce the CNRs, or absent cooperation from the applicant, seeking an order from the Tribunal at the case conference or thereafter, for their production. Regardless, I find in this case the applicant has satisfied her onus based on the evidence provided.
28Based on the medical evidence provided by the assessors, which was consistent in its findings, I find the evidence with respect to the applicant’s pre-existing injuries is sufficient and compelling. It is an undisputed fact that the applicant did sustain injuries in the 2012 accident. It is the nature and extent of aggravation of these pre-existing injuries as a result of the 2015 accident that is the bone of contention. I find that the 2015 accident did cause the applicant’s impairment and materially contribute to the development of the chronic pain syndrome.
THE RESPONDENT’S POSITION
29The respondent relies on Dr. Jugnundan’s report, who diagnosed the applicant with soft tissue injuries to her neck, thoracic, lumbosacral region, arm and leg, coupled with aggravation of pre-existing injuries. Dr. Jugnundan reports that he relied upon the applicant’s self-reporting to find out about her pre-existing injury, which was identified by the applicant as a right shoulder rotator cuff injury. He did not have access to the reports of assessors discussed above or to the CNRs of the applicant’s family doctor. Based on his examination, Dr. Jugnundan concludes that the injuries sustained by the applicant as a result of the 2015 accident are predominantly minor in nature and the pre-existing right shoulder injury would not prevent the applicant from reaching maximal recovery under the MIG.
30While Dr. Jugnundan is more specific and direct in addressing the issues in dispute as compared to the assessors the applicant relies on, he fails to comment on the issue of chronic pain at all, despite the OCF-18 listing chronic pain as one of the injuries and sequelae. Dr. Jugnundan’s opinion is also uninformed as he neither had access to the reports of the assessors discussed above, nor to the CNRs of the applicant’s family doctor.
31With respect to the chronic pain syndrome, the respondent contends that it first became aware of it at the case conference, and in the absence of an OCF-18 requesting a chronic pain assessment, it was unable to send the applicant for an assessment. Hence, it was prejudiced as it was denied an appropriate opportunity to adjust and assess the matter. I do not accept this reasoning by the respondent and refer it back to my comment in paragraph 29 above regarding the steps it could have taken to ensure it has sufficient relevant information, if it felt prejudiced by the applicant’s actions (or inactions).
Finding
32In light of the foregoing, I find the reports of Dr. Kinsinger and Dr. Ko to be more convincing than Dr. Jugnundan’s. I find that the 2015 accident aggravated the applicant’s pre-existing injuries and materially contributed to the development of the chronic pain syndrome in the applicant. As a result, the applicant’s injuries fall outside of the MIG and the applicant is entitled to treatment beyond the Cap.
3. Disputed Treatment Plan
33The treatment plan in dispute, dated August 2015, completed by Dr. Gordon Lawson, outlines the applicant’s accident-related injuries as mid and low back pain, neck pain, upper shoulder pain, headaches, cervicalgia and other chronic pain, amongst other. The treatment plan further outlines the applicant’s impairments as related to bending, gripping, kneeling, lifting, pulling, pushing, reaching, sitting and sleeping. Dr. Lawson recommends multiple sessions of aquatherapy, chiropractic care, acupuncture, neuro emotional technique and exercise therapy.
34Dr. Lawson acknowledges under additional comments that the applicant was involved in a car accident in 2012, which she did not fully recover from. On page 28 of his report, Dr. Kinsinger mentions that the applicant “has been under a multidisciplinary care since her original motor vehicle collision of November 21, 2012 and was “involved in an ongoing multidisciplinary rehabilitation program when she suffered additional injuries as a result of the June 24, 2015 collision.”
35The question I must ask here is what about the proposed treatment in the disputed treatment plan different than the treatment received by the applicant to date, and what makes it reasonable and necessary? The answer to this question is largely unclear because the applicant failed to provide me with any information on treatments received to date and as part of a multidisciplinary care prior to the 2012 accident.
36As a result, the applicant has failed to provide me with evidence that would show that the treatment plan is reasonable and necessary, and has failed to meet her onus. The evidence before me suggests that despite being part of a multidisciplinary care prior to the 2015 accident, the applicant did not recover completely from her injuries sustained as a result of the 2012 accident. Furthermore, as per Dr. Lawson’s comments attached to the treatment plan, the applicant did not make significant progress with the treatment received after the 2015 accident. It seems that previous treatments, the details of which have not been provided to me, were largely unhelpful and it is unclear to me whether the treatment proposed in the disputed treatment plan is distinguishable from previous treatments. In the context of this matter then, simply stating that Dr. Ko’s recommendations align with the treatment plan is not sufficient and does not render the disputed treatment plan reasonable and necessary.
37In light of the foregoing, I find that the proposed treatment and assessment plan is not reasonable and necessary.
CONCLUSION
38For the reasons noted above, I find that:
- The applicant’s does not suffer from predominantly minor injuries, as defined under the Schedule.
- The Treatment and Assessment plan is not reasonable and necessary.
- The applicant concedes that she is not entitled to interest, as treatment has not been incurred.
ORDER
39As a result of my finding above, the applicant’s appeal is allowed in part.
Date of Issue: January 9, 2018
___________________________
Khizer Anwar, Adjudicator