17-007471 v RBC General Insurance Company, 2018 CanLII 83526

Date: 2018-08-17

Tribunal File Number: 17-007471/AABS

Case Name: 17-007471 v RBC General 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 General Insurance Company

Respondent

DECISION

ADJUDICATOR: Dawn Kershaw

HEARD IN WRITING: June 25, 2018

OVERVIEW

1On September 19, 2015, the applicant was a pedestrian in a parking lot when he was hit by a car reversing out of a parking spot. The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2Because the respondent refused to pay for certain medical benefits, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

3I must decide the dispute based on the written materials the parties have filed with the Tribunal.

ISSUES IN DISPUTE

4The disputed claims in this hearing are as follows:

i. Are the applicant’s injuries considered minor injuries as defined in s. 3(1) of the Schedule, and therefore subject to treatment within the Minor Injury Guideline (“MIG”) limit of $3500 (Issue 1)?

ii. If the applicant’s injuries are not considered predominantly minor injuries, is the applicant entitled to payment in the amount of:

a. $2200.00 for the cost of a psychological assessment recommended by Pilowsky Psychological Professional Corporation in a treatment plan dated February 23, 2016, denied by the respondent on May 3, 2016 (Issue 2);

b. $1960.00 for chiropractic services recommended by Spinal Touch Wellness Centre in a treatment plan dated December 17, 2015, denied by the respondent on January 28, 2016 (Issue 3); and

iii. Is the applicant entitled to interest on any overdue payments (Issue 4)?

iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant (Issue 5)?

RESULT

5Based on the evidence before me, I find that:

i. The applicant’s injuries are minor injuries as defined in s. 3(1) of the Schedule, and therefore subject to treatment within the MIG limit of $3500 (Issue 1);

ii. Because of the MIG limit, the applicant is not entitled to payment for the treatment set out in the two treatment plans (Issues 2 and 3);

iii. The applicant is not entitled to interest as there are no outstanding amounts payable (Issue 4); and

iv. There is no basis for an award under Regulation 664 (Issue 5).

REASONS

ISSUE 1 – MINOR INJURY Guideline

6The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500 funding limit on treatment.

7Section 18(2) of the Schedule provides exceptions to the $3500 limit. Pursuant to that subsection, the applicant takes the position that he is exempt from the MIG limit because of:

1. a pre-existing condition that prevents him from achieving maximal recovery from the minor injury under the MIG;

2. a psychological injury that is not mere sequelae of his soft tissue injuries.

8Having reviewed the medical evidence regarding the applicant’s injuries and the parties’ submissions, I have determined that the applicant falls within the MIG and is subject to its $3,500 funding limit, for the reasons that follow.

The applicant’s physical injuries

9The applicant sustained injuries primarily to the right side of his body. The November 23, 2015 Disability Certificate completed by the physiotherapist listed the applicant’s injuries as whiplash associated disorder (WAD II) with complaints of neck pain with musculoskeletal signs, sciatica, impingement syndrome of shoulder, sprain and strain of thoracic and lumbar spine, chest pain and cervical disc disorder with radiculopathy.

10The onus is on the applicant to demonstrate that he has physical injuries that do not come within the MIG. The applicant argues he should not come within the MIG because he had pre-existing injuries. The $3,500 MIG limit does not apply to the applicant if he meets the following conditions:

i. The applicant’s health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing medical condition will prevent him from achieving maximal recovery (MMR) from the minor injury.

11I turn now to a consideration of these factors.

Pre-existing, documented medical condition and MMR

12The applicant argues he had the following pre-existing conditions:

i. Obesity;

ii. Psoriatic arthritis and left knee pain; and

iii. Bell’s palsy; and

iv. Right shoulder pain.

Weight

13The applicant submits his weight of over 300 pounds prevents MMR, but provided no medical evidence that this was the case. Dr. Gupta only wrote in his clinical note of October 2017 that he was worried about the applicant’s weight, but did not opine on its effect on his recovery.

Psoriatic Arthritis and Left Knee Stiffness

14The applicant also submits he had pre-existing psoriatic arthritis and left knee stiffness that he managed with medications. While Dr. Lubbers, the IE psychologist, reported that the applicant said his left knee pain worsened because he used it to compensate for the right leg injury, the applicant did not provide any medical evidence, let alone any compelling medical evidence, that he had pre-existing left knee pain. He also failed to provide any medical information that his psoriatic arthritis prevented MMR.

Bell’s Palsy

15The applicant provided medical evidence that he had Bell’s palsy prior to the accident, but provided no medical evidence that this prevented MMR. Dr. Lubbers reported that the applicant said that after the accident, the affected side of his face felt heavier. Dr. Sarathy, chiropractor, also reported the Bell’s palsy in the Disability Certificate as a pre-existing condition, but neither doctor provided any medical evidence that the Bell’s palsy prevented MMR.

Right Shoulder Pain

16The applicant had pre-existing right shoulder pain for which he saw his family doctor, Dr. Gupta, on May 19, 2015 and June 9, 2015. A May 28, 2015 x-ray showed bicipital tenosynovitis and rotator cuff tendinopathy.

17Shortly after the accident, the applicant saw Dr. Gupta who diagnosed his joint pains as increased RA [rheumatoid arthritis] and prescribed him increased medications [note that the applicant’s submissions refer to his condition as psoriatic arthritis not RA].

18Dr. Sarathy, a chiropractor, completed a Treatment Confirmation form (OCF-23) on November 23, 2015 in which he wrote that the applicant’s injuries were minor. He also wrote a Minor Injury Treatment Discharge Report on February 29, 2016 in which he referred to the applicant’s shoulder injury as a sprain and strain. He also completed a Treatment Plan (OCF-18) the same day and again wrote that the applicant’s impairment was predominantly a minor injury.

19The applicant had four months of massage and attended physiotherapy after the accident. Dr. Sarathy completed a November 23, 2015 Disability Certificate in which he stated the applicant did not suffer a complete inability to carry on a normal life, nor was he unable to perform the essential tasks of his employment, and the expected duration of his disability was 9 to 12 weeks. Dr. Sarathy noted the applicant was back to work as a tow truck driver though pain in his back, shoulders and neck meant he had to take breaks.

20The applicant saw Dr. Gupta again in February and May 2016 for shoulder and right arm pain from his neck to his elbow, and in November 2016 for neck pain. A July 2016 right shoulder MRI showed rotator cuff and biceps tendinopathy and an anterosuperior labral tear. He saw Dr. Gupta again for right shoulder pain in October 2017.

21The respondent sent the applicant to Dr. Casses, an orthopaedic surgeon, for an IE. Dr. Casses also authored an addendum after reviewing the applicant’s shoulder MRI. Dr. Casses in his initial report agreed the applicant had pre-existing tenosynovitis and rotator cuff tendinopathy, but wrote that the ultrasound showed that the majority of the supraspinatus tendon was intact and the tiny, low grade, partial thickness tear did not change his opinion that the applicant had minor injuries. The MRI results did not change his opinion. The MRI confirmed the pre-existing conditions and demonstrated degenerative changes. The respondent submits that a partial tear of a ligament comes within the definition of minor injury.

22The applicant saw Dr. Tavazzani, an orthopaedic surgeon, in October 2017 who wrote that the applicant had pain through his anterior and lateral deltoid aspect of the shoulder since the accident, which was not constant but was exacerbated if he slept on it or did any heavy and repetitive reaching, lifting, pushing or pulling.

23Dr. Tavazzani wrote that the applicant had to quit his job as a tow truck driver and was working as a machine operator where he did not have to do heavy or repetitive tasks. He found the applicant had diffuse supraspinatus tendinosis with some mild subacromial impingement, as well as a questionable labral tear. He recommended an ultrasound-guided corticosteroid injection.

24Dr. Casses and Dr. Tavazzani provided different opinions with respect to the existence of impingement. Dr. Casses reported that there was mention of impingement in the treatment plan, but he found none. Dr. Tavazzani described the impingement as mild.

25I reviewed the medical evidence related to the applicant’s shoulder and find the applicant had pre-existing, medically-documented shoulder tenosynovitis and rotator cuff tendinopathy, which continued after the accident. However, I find that this did not prevent MMR.

26After the accident, the applicant had additional right shoulder findings, including a small tear and perhaps some mild impingement. Both orthopaedic surgeons agreed the tear is small. I accept Dr. Casses’ evidence that the small tear indicates degeneration not trauma, as Dr. Tavazzani’s report did not provide any evidence to the contrary. In addition, although Dr. Tavazzani stated there was mild impingement on the MRI, the author of the MRI identified the two pre-existing conditions of anterosuperior labral tear and early glenohumeral and mild acromioclavicular joint degenerative changes.

27I find the applicant’s pre-existing shoulder condition has not prevented MMR for the following reasons:

i. Dr. Sarathy concluded the applicant had minor injuries only, which included his shoulder injury;

ii. The new finding of a small tear in the applicant’s shoulder since the accident comes within the definition of minor injury because it is a partial not a complete tear;

iii. There is no evidence that the new finding of mild impingement has prevented MMR.

Conclusion - Pre-existing, Documented Medical Condition

28I find that the applicant had minor injuries only and his pre-existing physical injuries did not prevent MMR that would result in him being removed from the MIG limit (Issue 1).

ISSUES 2 & 3 – TREATMENT PLANS

29Because I find that the applicant’s injuries fall within the MIG, the MIG limit applies. As the applicant has already exhausted the $3,500 MIG limit, I need not determine whether the applicant is entitled to the treatment set out in the treatment plans.

ISSUE 4 – INTEREST

30Because there are no outstanding amounts payable, the applicant is not entitled to interest.

ISSUE 5 – AWARD

31The applicant has requested an award because he alleges the respondent acted unreasonably in withholding payment of the denied treatment plans, but there is no basis for such an award given my finding that the applicant is not entitled to the treatment plans claimed.

CONCLUSION

32The applicant’s claim is dismissed.