17-004431 v The Guarantee Company of North America, 2018 CanLII 95552

17-004431 v The Guarantee Company of North America

Date: 2018-07-13 Tribunal File Number: 17-004431/AABS Case Name: 17-004431 v The Guarantee Company of North America

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

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR: Paul Gosio

APPEARANCES:

Paralegal for the Applicant: Ryan Jeffries Counsel for the Respondent: Caroline Theriault

HEARD: In-Person: February 13, 14, 15, 2018

OVERVIEW

1The applicant was involved in a motor vehicle accident on August 24, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent approved and paid for the benefits identified in the Treatment Confirmation Form (OCF-23) dated August 26, 2016. The applicant then submitted additional treatment plans which the insurer denied, taking the position that the applicant’s injuries fell within the minor injury guideline (“MIG”) and as a result, no more medical and rehabilitation benefits were payable.

2In addition to the medical and rehabilitation benefits sought, the applicant applied for a non-earner benefit. The respondent denied entitlement to the non-earner benefit based on several insurer examinations conducted under s. 44 of the Schedule that concluded that the applicant did not meet the non-earner test because the applicant did not suffer from a complete inability to live a normal life.

3The applicant disagreed with the respondent’s decision and submitted an Application by an Injured Person for Auto Insurance Dispute Resolution, dated July 6, 2017, under the Insurance Act, RSO 1990, c I.8.

ISSUES

4The following are the issues to be decided:

i. Do the applicant’s injuries fall within the Minor Injury Guideline?

ii. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the time period from September 21, 2016 to date and ongoing?

iii. Is the applicant entitled to receive a medical benefit in the amount of $43.60 for physiotherapy, recommended by Doctor Med Rehabilitation Centre in a treatment plan dated August 26, 2016, denied by the respondent on November 22, 2016?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,300.00 for physiotherapy, recommended by Doctor Med Rehabilitation Centre in a treatment plan dated November 28, 2016, denied by the respondent on December 28, 2016?

v. Is the applicant entitled to receive a medical benefit in the amount of $884.15 for physiotherapy, recommended by Doctor Med Rehabilitation Centre in a treatment plan dated August 26, 2016, denied by the respondent on September 1, 2016?

vi. Is the applicant entitled to receive a medical benefit in the amount of $1,790.11 for physiotherapy, recommended by Doctor Med Rehabilitation Centre in a treatment plan dated February 10, 2017, denied by the respondent on February 23, 2017?

vii. Is the applicant entitled to receive a medical benefit in the amount of $200.00 for physiotherapy, recommended by Doctor Med Rehabilitation Centre in a treatment plan dated May 10, 2017, denied by the respondent on May 25, 2017?

viii. Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment, recommended by Finch Health Centre in an assessment plan dated April 24, 2017, denied by the respondent on May 8, 2017?

ix. Is the applicant entitled to payment for the cost of examinations in the amount of $200.00 for the cost of preparing an OCF 18 for an in-home assessment recommended by Doctor Med Rehabilitation Centre in an assessment plan dated October 31, 2016, denied by the respondent on November 11, 2016?

x. Is the applicant entitled to payment for the cost of examinations in the amount of $200.00 for the cost of preparing an OCF 18 for a psychological assessment recommended by Doctor Med Rehabilitation Centre in an assessment plan dated February 1, 2017, denied by the respondent on March 7, 2017?

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

RESULT

5I find that the applicant’s injuries fall within the minor injury guideline and, as such, the applicant is not entitled to any of the medical benefits or cost of examinations in dispute as the $3,500.00 MIG limit has already been exhausted. I also find that the applicant is not entitled to a non-earner benefit in the amount of $185.00 per week for the time period from September 21, 2016 to date and ongoing. No interest is payable as I have found that no benefits are payable.

DISCUSSION

6The applicant bears the onus of establishing, on a balance of probabilities that her injuries fall outside the confines of MIG. Section 3 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.” Subsection 18(1) of the Schedule caps recovery for predominately minor injuries at $3,500.00. Treatment for minor injuries follows a treatment framework set out in a document called the minor injury guideline.

Did the applicant sustain predominantly minor injuries as defined under the Schedule?

7The applicant argues that her injuries fall outside the confines of the MIG due to her chronic lower back pain. She began complaining of lower back pain shortly after the motor vehicle accident as evidenced by the [hospital] both of which are dated August 24, 2016. An x-ray of her lumbar spine was taken on August 24, 2016. No fractures were demonstrated but severe facet joint osteoarthritis was noted at L3-4, L4-5 and L5-S1.

8A Treatment Confirmation Form was prepared by Dr. Panahloo, chiropractor, on August 26, 2016. The Treatment Confirmation Form noted in part that the applicant was suffering from a sprain and strain of the thoracic and lumbar spine. Dr. Panahloo completed a Disability Certificate on August 31, 2016, wherein he reiterated that the applicant was suffering from a sprain and strain of the thoracic and lumbar spine.

9The clinical notes and records from the applicant’s family doctor, Dr. Alrezaq, indicate that the applicant complained of lower back pain on August 29, 2016, December 14, 2016, February 6, 2017 and November 1, 2017. On November 1, 2017, Dr. Alrezaq made a referral for physiotherapy.

10On June 8, 2017, Dr. Fuller conducted a chronic pain assessment. Dr. Fuller noted that the applicant was not on any medication at that time and that she rated her pain in her lower back as being 5 out of 10. She indicated that her pain is aggravated when walking, after prolonged sitting and when bending and lifting. The applicant also reported that her unresolved pain resulted in restricted range of motion and decreased functional endurance.

11Dr. Fuller’s physical examination revealed the following. Range of motion with respect to the cervical and lumbar spine was were very mildly restricted or full and pain was reported with movement at the end of the range. The thoracic spine examination revealed tightness. Based on his examination, Dr. Fuller opined that the applicant suffered from generalized pain and weakness and unresolved biomechanical dysfunction of the cervical, thoracic and lumbar spine. Dr. Fuller further opined that the applicant is suffering from a chronic pain condition given that pain was still present despite the amount of time that had elapsed since the accident.

12Dr. Fuller conducted a paper review and on January 26, 2018. His addendum report noted the following:

i. It was not unreasonable for assessors to conclude that the applicant’s injuries fell with the MIG;

ii. The physiotherapy report from Life Mark Woodbridge Physiotheray suggests that the applicant has had some positive response to physiotherapy as there was some improvement in the applicant’s pain and back limitation assessment scores.

iii. That the applicant still had some pain 17 months post-accident.

13Dr. Fuller maintained his opinion that the applicant is suffering from a chronic pain condition. The applicant relies on Dr. Fuller’s opinion and submits that her injuries are not predominately minor as defined by the Schedule.

14Chronic pain in and of itself does not remove an applicant from the MIG. The applicant bears the onus of establishing on a balance of probabilities that her chronic pain is not a sequelae of her soft tissue injuries. In this case, the applicant has not sufficiently shown how Dr. Fuller’s diagnosis of chronic pain is not a sequelae of her soft tissue injuries.

15In addition to this, I note the evidence of Dr. Czok. Dr. Czok conducted physiatry examinations on behalf of the respondent in accordance with s. 44 of the Schedule. An in-person examination was conducted on November 15, 2016 wherein Dr. Czok opined that the applicant sustained a cervical and lumbar strain/sprain and that she did not present with any functional limitations or physical restrictions from a musculoskeletal perspective. Dr. Czok’s diagnosis and opinion remained the same after the paper review he conducted on January 25, 2017. At that time, he also opined that the applicant’s injuries fall within the confines of the MIG. On January 11, 2018, Dr. Czok conducted another in-person physiatry examination and also had the opportunity to review the Chronic Pain Assessment report prepared by Dr. Fuller. Dr. Czok’s diagnosis and opinions remained unchanged.

16Based on a totality of the evidence before me, I find that the applicant’s injuries are predominately minor as defined by the Schedule.

Pre-existing Medical Condition

17Section 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 cap placed on benefits. In order to escape the confines of 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 cap on treatment costs under the MIG.

18The standard for excluding an impairment on the basis of pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG. The MIG requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

19In this case, the applicant submits that she has a history of suffering from lower back pain and that this is a pre-existing medical condition that prevents maximal recovery under the confines of the MIG. The applicant has failed, however, to put forward any compelling evidence from a healthcare practitioner that her pre-existing lower back pain prevents her from achieving maximal recovery within the $3,500.00 guideline. I find that the applicant has not met her onus in this regard and is therefore not exempt from the $3,500 cap placed on benefits for predominantly minor injuries.

Non-Earner Benefit

20Section 12(1)1 of the Schedule sets out the test for the non-earner benefit. The test is particularly onerous and is only met if an insured person establishes that he/she suffers a complete inability to carry on a normal life as a result of the accident.

21Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as follows: a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

22In addition to this, the parties submit that the principles articulated in the Court of Appeal’s decision in Heath v. Economical Mutual Insurance Company¹ apply. My decision has taken those principles into account.

23The applicant, her husband and her daughter all testified with respect to the applicant’s activities and life circumstances pre-accident. Pre-accident, the applicant was a dedicated homemaker. She would prepare all meals from scratch, meticulously clean the home, do the grocery shopping and attend to the pond and the gardening. She enjoyed going for walks with her husband and spending time with her children and grandchildren. The applicant identified her homemaker duties as being most important to her.

24The applicant submits that her ongoing back pain has continuously prevented her from engaging in substantially all of these activities. I disagree with the applicant’s submission and find that the applicant has not met her onus in establishing on a balance of probabilities that she is entitled to the non-earner benefit.

25The applicant, her husband and her daughter all testified with respect to the applicant’s activities and life circumstances post-accident. Post-accident, the applicant continues to: assist with some of the meal preparation, complete light housekeeping duties, go for walks with her husband, do the grocery shopping and spend time with her children and grandchildren. The surveillance evidence submitted confirmed portions of this testimony.

26This testimony is consistent with the medical evidence before me. The Minor Injury Treatment Discharge Report (OCF-24), dated November 28, 2016, notes that the applicant is partially returning to regular duties. Dr. Czok also noted that there were no functional limitations or physical restrictions identified during his examination on October 27, 2016. He opined that from a musculoskeletal perspective, the applicant did not suffer a complete inability to carry on a normal life.

27Although the applicant demonstrated that there were some changes in her post-accident life with respect to the scope, frequency and duration with which she engaged in some of these activities, she failed to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities. Therefore, based on the totality of the evidence before me, I find that the applicant does not suffer from a complete inability to carry on a normal life.

CONCLUSION

28For the reasons outlined above, I find that:

i. The applicant’s injuries fall within the minor injury guideline.

ii. The applicant is not entitled to any of the medical benefits or cost of examinations in dispute as the $3,500.00 MIG limit has already been exhausted.

iii. The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week for the time period from September 21, 2016 to date and ongoing.

iv. No interest is payable as I have found that no benefits are payable.

Footnotes

1. 1Heath v. Economical Mutual Insurance Company, 2009 ONCA 391