17-005000 v. RBC Insurance Company, 2018 CanLII 83511

17-005000 v RBC Insurance Company

Date: 2018-07-20 Tribunal File Number: 17-005000/AABS Case Name: 17-005000 v RBC Insurance Company

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

RBC Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Eli Smolarcik, Counsel for the Applicant For the Respondent: Kathleen Mertes, Counsel for the Respondent

HEARD IN WRITING ON: April 19, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident on January 19, 2015 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent. The respondent denied the applicant’s claims because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”).¹

2As a result, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) on August 8, 2017.

3The parties were unable to resolve their dispute at a case conference and the matter proceeded to a written hearing. All submissions and evidence were filed with the Tribunal on or by March 26, 2018. No reply submissions from the applicant were received. A review of those documents form the basis of this decision.

ISSUES TO BE DECIDED

4The following issues are to be decided:

(a) Did the applicant sustain predominately minor injuries as defined under the Schedule?

(b) If the answer to issue (a) above is “no,” then I must determine the following issues:

i. Is the applicant entitled to receive a medical benefit in the amount of $1,491.20 for physiotherapy treatment recommended by Toronto Healthcare in a treatment plan dated July 27, 2015 and denied by the respondent on August 6, 2015?

ii. Is the applicant entitled to payment for a cost of an examination in the amount of $2,200.00 for chronic pain assessment recommended by Toronto Healthcare in a treatment and assessment plan dated August 6, 2015 and denied by the respondent on August 19, 2015?

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

RESULT

5Based on the totality of the evidence before me, I find that the applicant’s injuries fall within the MIG and, therefore, it is unnecessary to consider the reasonableness of the treatment plan, the cost of examinations or the issue of interest because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.

ANALYSIS

The Minor Injury Guideline

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of 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 also defined in the MIG.

7Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

8The onus is on the applicant to show that her injuries fall outside of the MIG.²

Did the applicant sustain a predominately minor injury?

9I find that the applicant has not provided the evidence necessary to establish that her injuries are outside of the MIG.

10A Disability Certificate (OCF-3) completed by Dr. Domenic Minnella dated January 23, 2015, was submitted by the respondent. This OCF-3 noted that the applicant sustained the following injuries: Lumbar Spine – strain/sprain; Cervical spine – strain sprain; Thoracic spine – strain/sprain; Headache – post traumatic; Shoulder girdle – sprain/strain (bilateral); Knee – sprain/strain; and Behaviour – symptoms and signs involving emotional state.

11On January 23, 2015, Dr. Nancy Ibrahim, Family Physician, noted that the applicant presented with neck pain and had whiplash with a mild tender cervical spine.

12On January 26, 2015, Dr. Grace Trihn, Family Physician, also noted that the applicant had a whiplash injury, an injury to her right hand (third finger) and a right knee injury. Dr. Trihn also noted that the applicant complained of neck pain but that it improved with physiotherapy twice a week. Dr. Trihn further stated that the general appearance of the applicant was, “looks well, no distress.” The applicant declined pain medication samples and was advised by Dr. Trihn to continue physiotherapy.

13On January 28, 2015, the applicant saw Dr. Ibrahim and was diagnosed with a neck sprain and again declined pain medication.

14On March 13, 2015, the applicant attended an Insurer’s Examination (“IE”) conducted by Dr. Irina Safir, GP, who diagnosed the applicant with the following injuries: Cervical spine sprain/strain - WAD I/ll; Thoracolumbar spine sprain/strain; Right shoulder sprain/strain; Right wrist sprain/strain; and Right knee contusion. Dr. Safir concluded that the injuries sustained by the applicant were “minor” as defined in the Schedule.

15On July 15, 2015, the applicant attended an IE conducted by Dr. Edwin Urovitz, Orthopaedic Surgeon, who concluded that the applicant suffered soft tissue injuries involving the cervical spine, shoulder girdles, and dorsolumbar spine, with possible contusional injuries to the knees.

16On October 22, 2015, the applicant attended an IE conducted by Dr. Joel Maser, Internal Medicine, who concluded that the applicant sustained “uncomplicated injuries of a soft tissue nature.” Dr. Maser found that the applicant, “sustained soft tissue injuries including minor whiplash (WAD 1) and low back pain and strain syndrome as a result of the subject accident. She also sustained some bruising.” Dr. Maser also noted, “all of the above injuries have healed.”

17The evidence supports that the applicant sustained soft tissue and contusion injuries, which alone would mean that she sustained a “minor injury” as defined in section 3 of the Schedule. In this case, however, the applicant argues that cervical radiculopathy and/or chronic pain take her out of the MIG. For the reasons provided below, I find that the applicant is not removed from the MIG based on cervical radiculopathy, chronic pain or a pre-existing condition.

a) Cervical Radiculopathy

18The applicant’s position is that since she sustained an injury of cervical radiculopathy as a result of the accident, her injuries falls outside of the Guideline because radiculopathy is not within the definition of “minor injury” in the Schedule.

19The applicant relies upon the decision in Qasimi v. State Farm Mutual Automobile Insurance Co.,³ where the arbitrator determined that cervical radiculopathy falls outside of the MIG. The applicant also submitted the decision in S. (S.) v. State Farm Mutual Automobile Insurance Co. (2016),⁴ wherein the Adjudicator also considered radiculopathy to take an applicant outside of the MIG.

20The applicant relies on a May 26, 2016 report by Dr. Lance B. Majl, Neurologist to demonstrate that she suffers from cervical radiculopathy. The applicant also submitted a website printout entitled, “Diagnosing Cervical Radiculopathy,” by Dr. Zinovy Meyler for the proposition that upper limb numbness and pain, as experienced by the applicant after the accident, are common symptoms of cervical radiculopathy.

21The respondent argues that at no time has the applicant been diagnosed with cervical radiculopathy. The respondent emphasizes Dr. Majl’s statement of “some suggestion” of cervical radiculopathy which was based on the applicant’s self-reporting.

22The respondent also relies upon the following reports to argue that there is no evidence that the applicant suffers from cervical radiculopathy because there is no evidence of any cord or nerve root compression:

i. An August 22, 2016 MRI report which states, “there is no evidence of cord or nerve root compression at any point in the cervical spine;”

ii. An August 30, 2016 X-ray report which notes, “mild thoracic scoliosis convex right,” noting that there is no reference to causation of the mild scoliosis and no mention of evidence of a spinal injury; and

iii. A May 7, 2017 MRI report that the respondent states, “shows no evidence of any cord or nerve root compression.”

23The respondent did not address Qasimi and S.(S.) in its submissions.

24While I am mindful that a formal diagnosis is not required on physical injuries and, depending on the evidence, symptoms can be enough for the purpose of adjudication,⁵ there is not sufficient documentary evidence, supporting reasons and analysis in this case to establish that the applicant has cervical radiculopathy.

25Dr. Majl’s May 26, 2016 report states, “there is some suggestion of a cervical radiculopathy down the right side.” In her submissions, the applicant elevated Dr. Majl’s language of “some suggestion” to a definitive diagnosis of cervical radiculopathy. I disagree with this interpretation. In my view, the words of Dr. Majl indicate that he was unable to make a diagnosis of cervical radiculopathy which is supported by his actions of ordering further tests on the applicant.

26Unfortunately, Dr. Majl’s follow-up notes and records of the further testing of the applicant are completely illegible. I was not able to determine any further information from Dr. Majl’s records about the applicant suffering from cervical radiculopathy.

27The applicant also submitted the decisions of Qasimi and S.(S.). In S.(S.), the Adjudicator distinguished Qasimi by stating that the health practitioners in that case had assessed a cervical radiculopathy injury having considered a number of medical records and reports including a Nerve Conduction Test. The Adjudicator stated:

One of the health practitioners in Qasimi stated that a diagnosis of nerve radiculopathy was based on the Nerve Conduction Test; and the other health practitioner stated that the Nerve Conduction Test is not solid proof of radiculopathy, but does support the diagnosis and is strong evidence that requires further testing (my emphasis added).⁶

28Similarly to the persuasive decision in S.(S.), the applicant’s health practitioners in this case did not conduct a Nerve Conduction Test which would have been “strong evidence” of cervical radiculopathy. Further, I was not presented with any evidence that a Spurling’s Test was completed as part of the examination of the applicant. Dr. Meyer’s website printout that was relied upon by the applicant states that a Spurling’s Test is performed as part of a diagnosis of cervical radiculopathy.

29As a result, the applicant has failed to present sufficient and clear documentary evidence through tests such as a Nerve Conduction Test and a Spurling’s Test that would be “strong evidence” in support of her position that she suffers from cervical radiculopathy which would remove her from the MIG. I also agree with the respondent’s position that there is no imaging evidence of any cord or nerve root compression that would generally be present for a diagnosis of cervical radiculopathy.

b) Chronic Pain

30The applicant also argues that chronic pain removes her from the MIG.

31In the persuasive decision of 16-000438 v. the Personal Insurance Company,⁷ the Adjudicator held that in order for “chronic pain” to remove the applicant from the MIG, the applicant must prove on a balance of probabilities that her chronic pain is more than just sequelae or a symptom arising from her minor injuries.⁸

32The Adjudicator further held:

i. Ongoing pain alone is insufficient to take one out of the MIG. Rather, that ongoing pain also must be accompanied by some functional impairment;⁹

ii. For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability;¹⁰ and

iii. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae (my emphasis added).¹¹

33I agree with the respondent’s position the applicant has not been diagnosed with Chronic Pain Syndrome. However, a diagnosis of Chronic Pain Syndrome is not the only avenue that chronic pain could remove the applicant from the MIG based on the criteria set out in the decision of 16-000438 as outlined above.

34I also disagree with the applicant’s argument that simply because her pain has persisted beyond two years post-accident, that it has become chronic in nature. I am persuaded by 16-000438 that ongoing pain alone is not sufficient to remove someone from the MIG – the ongoing pain must be accompanied by some functional impairment.

35The clinical notes and records of Dr. Ibrahim show that the applicant attended five times between January and August 2015. On four of these visits, the applicant complained about accident related neck pain. On the last visit, the record states that her neck pain is improving and she is referred to a physiatrist. However, no reports or evidence of a physiatrist were before me.

36At the March 13, examination 2015 with Dr. Safir, the applicant reports pain in her neck, middle back, low back, right shoulder and right wrist pain. At the July 15, 2015 examination, Dr. Urovitz notes that the applicant is no longer complaining of any pain in her neck, back and knees.

37On October 15, 2015, the applicant attended an IE for Psychology completed by Dr. Sahri Schwartz. The applicant reported to Dr. Schwartz that the applicant’s pain in her neck, back, shoulders and arms is better than before because of therapy. Dr. Schwartz also noted that the applicant was no longer receiving physical therapy.

38On October 22, 2015, the applicant attended an IE conducted by Dr. Joel Maser, Internal Medicine. The applicant reported to Dr. Maser that her condition has very much improved and that her neck was doing much better. She reported that she still feels discomfort in her low back if she overexerts herself or does heavy lifting.

39Four months later on February 19, 2016, the applicant sees Dr. Ibrahim. At this time she reports low back pain but Dr. Ibrahim notes “no neck pain.”

40In contrast, the applicant reports to Dr. Majl on May 26, 2016, that she continues to have neck pain about twice per week which sometimes radiates to her right elbow. The applicant reports to Dr. Majl that she has mild low back pain but that it has significantly improved.

41Given the significant gaps in time between the applicant seeking out care for her pain and the discrepancies in her pain reporting to insurer assessors, I cannot conclude that the applicant has shown on a balance of probabilities that her pain is ongoing. I also place weight on the evidence that the applicant has not taken any pain medication since the accident for her injuries and she is no longer in physical therapy. There is no evidence before me that leads me to conclude that the applicant is experiencing any functional impairment and, therefore, the applicant has not shown that any alleged chronic pain is not merely sequelae or a symptom of her minor injuries.

c) Pre-existing Condition

42The respondent raised the issue in its submissions of whether or not the applicant had a pre-existing condition that would prevent her from being treated within the MIG limit. No reply submissions were received by the applicant in response to this issue being raised.

43Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.¹²

44There was no compelling evidence before me demonstrating that the applicant had a pre-existing medical condition which would prevent her from being diagnosed within the $3,500.00 MIG limit. I agree with the respondent that the applicant’s family doctors’ clinical notes and records only show that the applicant was previously seen for unrelated medical issues and not for any pre-existing conditions that would prevent the applicant from achieving maximal recovery within the MIG limit.

45Since I have found that the applicant’s injuries as a result of the accident fall within the MIG, I do not need to determine whether or not the treatment plan and cost of examination are reasonable and necessary as the maximum of $3,500.00 for medical and rehabilitation benefits in the MIG has been exhausted.

Interest

46Because I have found that there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

47For the reasons outlined above, I find:

i. The applicant sustained predominately minor injuries as defined under the Schedule; accordingly, it is not necessary to determine whether or not the treatment plan and the cost of examination are reasonable and necessary because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

ii. The applicant is not entitled to interest; and

iii. The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3[2015] O.F.S.C.D. No. 303 (F.S.C.O. Arb.) (“Qasimi”).
4. 42016 CanLII 67137 (ON LAT) [“S.(S.)”].
5. 5Saadati v. Moorhead, 2017 SCC 28.
6. 6S.(S.) at para. 33.
7. 72017 CanLII 59515 (ON LAT) (“16-000438”).
8. 8Ibid. at para. 23.
9. 9Ibid. at para. 27. Also see 17-002337/AABS v. Wawanesa Mutual Insurance Company, 2017 CanLII 99137 (ON LAT) at paras. 28 and 30.
10. 10Ibid. at para. 28.
11. 11Ibid.
12. 12Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.