17-000233 v. RSA Insurance, 2018 CanLII 97836

Date: 2018-01-11

Tribunal File Number: 17-000233/AABS

Case Name: 17-000233 v RSA Insurance

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

RSA Insurance

Respondent

DECISION

Adjudicator: Nicole Treksler

Appearances:

Applicant: F.M.

Counsel for the Applicant: Davide Cortinovis

Counsel for the Respondent: Jennifer Reid

Hearing-in-writing: August 1, 2017

I. Overview:

1The applicant was injured in an automobile accident on June 29, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The respondent denied the applicant’s claim for an income replacement benefit (“IRB”), a medical benefit and a cost of examination.

3The insurer’s examinations (IEs)¹ found that the applicant’s injuries are minor and subject to the $3,500 limit of the minor injury guideline (MIG). IEs² addressing entitlement to an IRB determined that the applicant does not suffer a substantial inability to perform his pre-accident tasks of his employment and, consequently, does not meet the test IRBs.

4The applicant’s position is that his injuries are not minor due to pre-existing conditions, psychological impairment, and chronic pain syndrome. He submits that he is entitled to IRBs because he suffers a substantial inability to perform the essential tasks of his pre-accident employment.

5The onus is on the applicant based on a balance of probabilities to prove that he is entitled to the benefits in dispute.

6I find that the applicant’s injuries are not minor and he meets the test for IRBs.

II. Issues:

7For this hearing, the issues in dispute are as follows:

a. Are the applicant’s injuries predominantly minor and subject to a $3,500.00 limit under section 18 of the Schedule?

b. Is the applicant entitled to a weekly IRB in the amount of $400 per week from January 12, 2016 to date and ongoing?

c. Is the applicant entitled to receive a medical benefit for physiotherapy services in the remaining amount of $125.49, (in treatment plan for $1,300 of which $1,174.51 had been approved), provided by Dynamic Health Sports Injury Clinic, treatment plan partially denied on October 30, 2015?

d. Is the applicant entitled to receive the cost of a psychological assessment in the amount of $2,938.00 by Dr. Romeo Vitelli, denied by the respondent on November 19, 2015?

e. Is the applicant entitled to interest on the claimed benefits?

III. Result:

8The applicant’s injuries are not minor because he suffers from a psychological impairment and chronic pain syndrome.

9The applicant is entitled to the cost of the psychological assessment in the amount of $2000.00.

10The respondent is not required to pay the remaining amount of $125.49 in a treatment plan for physiotherapy services, as the massage services exceeded the hourly limit payable under FSCO guidelines.

11The applicant is entitled to IRBs in the amount of $400 per week from January 12, 2016 to date and ongoing under the Schedule.

12The applicant is entitled to interest on all approved benefits.

IV. Analysis:

a) Are the applicant’s injuries predominantly minor and subject to the $3,500 limit?

13I find that the applicant’s injuries are not minor and thus not subject to the $3,500 limit under the MIG.

14Under section 18 (1) of the Schedule, the applicant is only entitled to medical and rehabilitation benefits in the maximum amount of $3,500 if he sustained a minor injury in the accident.

15Under section 3 of the Schedule, a minor injury “means 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.”

16The applicant submits that he should be removed from the MIG because of a pre-existing right shoulder pain, headaches and diabetes. He also asserts that he has a psychological impairment and chronic pain syndrome.

i. Pre-existing conditions

17I find that the applicant failed to show how his pre-existing injuries remove him from the $3,500 cap under the MIG.

18In the applicant’s submissions, he indicated that he has several pre-existing conditions to support that the accident aggravated his pre and post-accident injuries.

19As a result of the accident, the applicant asserted that he suffers from cervicalglia (neck pain toward the cervical spine); dorsalgia (pain emerging from muscle nerves or joints associated with spine); lower back pain; injury of the muscle and tendon at neck level; injury of muscle and tendon of abdomen lower back and pelvis; right shoulder pain and insomnia.

20The existence of pre-existing conditions is not sufficient to remove the applicant from the MIG. He must show how these pre-existing conditions prevent him from recovering from his injuries within 9-12 week timeframe under the MIG.

21The applicant produced the clinical notes and records (CNRs) of his family doctor, Dr. Romeo Tan, from March 2010 to the date of the accident. In these CNRs, there is one reference to a right shoulder issue dated February 9, 2012; leg pain reported on April 11, 2015; and a history of diabetes.

22The applicant failed to provide any persuasive evidence, such as medical reports, that comment on how these pre-existing conditions slowed down and/or impacted his recovery.

23The applicant suffers from right shoulder pain as a result of the accident, and he suffered from a right shoulder injury in 2012. The ultrasound conducted of the right shoulder in February 2012 showed a partially healed tear. In a MRI report dated May 10, 2016, it showed that the applicant has a partial thickness tear involving the rotator cuff of his right shoulder. The applicant failed to provide a report or evidence that indicated whether the current right shoulder injury is a pre-existing condition to the 2012 right shoulder injury.

24The applicant submitted that he had leg pain prior to the accident. The applicant’s primary complaints are about his neck, back and right shoulder. The applicant failed to explain how his pre-accident leg pain, which he no longer has, delays the recovery from his injuries sustained from the accident.

25The applicant asserted that he has physical restrictions related to his diabetes. I agree with the respondent that the applicant does not indicate what those physical restrictions are nor does he provide any evidence to show how his diabetes impedes his recovery.

26In the absence of persuasive evidence from the applicant, I am unable to remove the applicant from the MIG as a result of pre-existing injuries.

ii. Psychological impairment

27I find that the applicant has a psychological impairment as a result of the accident that cannot be addressed under the $3,500 limit under the MIG.

28In Dr. Tan’s CNRs, Dr. Tan on 4 occasions(February 26, 2016, July 28, 2016, August 25, 2016 and February 16, 2017), noted that the applicant is depressed, irritable, has decreased motivation, is non-social and suffers from insomnia. Dr. Tan referred the applicant to a psychiatrist on August 25, 2016 and February 16, 2017.

29Dr. Vitelli, psychologist, diagnosed the applicant with an adjustment disorder with anxiety and depressed mood and chronic pain disorder associated with psychological factors and general medical condition. Dr. Vitelli opined that the applicant’s psychological impairment limits his participation in recreational and social activities. Dr. Vitelli noted that the applicant is “not amenable to counselling though he may be a candidate or further treatment if his recovery is delayed or new emotional problems arise.”

30Even though Dr. West is an orthopaedic surgeon, I still found his opinion about the applicant’s psychiatric impairment relevant along with the other supporting evidence. In Dr. West’s orthopaedic report dated September 16, 2016, he wrote that the applicant appeared to be moderately depressed throughout the assessment and diagnosed the applicant with post traumatic anxiety and stress with depressive episodes. Dr. West diagnosed the applicant with chronic pain and noted that often accompanying chronic pain is psychological problems.

31The respondent relied on Dr. Rockman’s psychological assessment conducted on December 11, 2015, which concludes that the applicant does not suffer from any diagnosable impairment. According to Dr. Rockman, the applicant denied having any psychological problems and does not require treatment in this regard. In Dr. Rockman’s addendum report dated April 10, 2017, she indicated that Dr. Vitelli’s report did not provide any information that would change her opinion of the applicant and reiterated that the applicant “presented with subclinical psychological symptomatology that did not warrant a diagnosis.”

32The respondent submitted that in Dr. Vitelli’s findings, the applicant reported “significant symptoms of depression, stress and irritability.” However, the respondent argues that these symptoms relate to the applicant’s financial situation and pain and that the applicant does not have any suicidal ideation, post-traumatic symptoms or cognitive issues. As such, the applicant’s minimal psychological impairment is “clinically associated sequelae to his pain complaints.”

33The onus is on the applicant to show that his psychological impairment requires treatment beyond the $3,500 limit. Dr. Tan’s CNRs show that the applicant consistently complained of stress and depression and upon the applicant’s request, Dr. Tan referred him to a psychiatrist on two occasions. Both Drs. Vitelli’s and West’s findings corroborate the information in Dr. Tan’s CNRs, which is likely the most objective and accurate indication of the applicant’s condition.

34I was not persuaded by the respondent’s arguments that given that the applicant did not have any suicidal ideation, post-traumatic symptoms or cognitive issues that his impairment was just clinically associated sequelae to his pain. There is evidence before me that the applicant has post-traumatic symptoms which are documented in Dr. Tan’s CNRs. Dr. Rockman fails to make any reference or explain the findings in Dr. Tan’s CNRs nor comments on Dr. Tan’s referrals to a psychiatrist.³

35Both Drs. Rockman and Vitelli indicate that the applicant is not amenable to psychological treatment at the time of their assessments. However, in Dr. Tan’s CNRs, the applicant requested a referral to a psychiatrist on July 28, 2016 which suggests to me that the applicant attempted to address his psychological issues. I am of the view that if an applicant refuses to seek treatment does not mean that he is not entitled to that treatment.

36There is sufficient evidence before to support that the applicant has a psychological impairment that cannot be treated under the MIG and requires psychological treatment—treatment which is not sufficiently covered under the MIG limit of $3,500.

iii. Chronic pain syndrome

37In a report dated September 16, 2016, Dr. West, orthopaedic surgeon, diagnosed the applicant with chronic pain syndrome.

38Dr. West wrote that chronic pain syndrome is “said to exist when symptoms have been present for many months, sometimes years after injury. The pain is constant and intrusive in nature” Often accompanying chronic pain is psychological problems and emotional difficulties such as stress, anxiety, depression, headaches, insomnia.

39I note that the applicant reported the above symptoms on a regular basis to his family doctor, Dr. Tan. In fact between June 2015 and March 9, 2017, the applicant attended Dr. Tan’s office over 18 times to address both his psychological and physical injuries after the accident.

40In Dr. Urovitz’s orthopaedic assessment dated May 26, 2017, he wrote that from an orthopaedic perspective, the applicant’s residual complaints are that of persisting pain and stiffness in his neck, his lower back and his right shoulder. Dr. Urovitz concluded that the applicant does not have any objective musculoskeletal impairment.

41I did not find Dr. Urovitz’s report to be very helpful. He did not provide any information to help me understand the challenges with Dr. West’s report, specifically Dr. West’s diagnosis of chronic pain syndrome.

42After the accident, Dr. Tan’s CNRs show a patient regularly complaining of pain, specifically to his right shoulder, back and neck, and of anxiety, depression and irritability. Both Drs. Urovitz and West indicate that the applicant suffers from persistent pain. However, Dr. West provided a chronic pain syndrome diagnosis and Dr. Urovitz offered no alternative explanation to or critique of Dr. West’s diagnosis.

43Based on the evidence provided, I find that the applicant suffers from chronic pain syndrome.

a) Is the applicant entitled to the treatment plan for physiotherapy services in dispute?

44The respondent partially denied the treatment plan for physiotherapy services because the hourly fee for massage therapy was approximately $87. According to FSCO guidelines, the hourly rate for a massage therapist is $58.19.

45The difference between the amount approved and the amount claimed in the treatment plan is $125.49.

46The applicant did not confirm or deny what is the hourly rate of a massage therapist. However, the applicant requested that the respondent pay $4,078.18 for incurred expenses for physiotherapy treatment at Dynamic Physiotherapy.

47To my knowledge, prior to the hearing, the applicant did not file a motion to add or modify an issue. As such, I am only able to make a decision on the issue before me. At the time of the application, the applicant was only requesting the remaining amount of $125.49.

48In the absence of any evidence from the applicant, I agree with the respondent that the hourly fee for massage therapy is $58.19 and not $87.

49Therefore, the respondent is not required to pay the remaining amount of $125.49 of the treatment plan.

b) Is the applicant entitled to the cost of examination for a psychological assessment in the amount of $2,928.00?

50Given that I found that the applicant’s injuries are not minor based on a psychological impairment, Dr. Vitelli’s report is reasonable and necessary to assess the applicant’s psychological impairment and to recommend treatment.

51The applicant acknowledged that the cost of the examination in the amount of $2,928.00 is above the amount that is payable under the Schedule. The applicant submitted that cost of Dr. Vitelli’s report is $2,200, which included the cost for preparing the treatment plan (OCF-18).

52The respondent argued that according to section 25(5) of the Schedule, the applicant is only entitled to $2000 to cover the fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. However, under the Superintendent’s Guideline No. 03/14, the respondent is required to pay $200 for the preparation of the OCF-18, in addition to the cost of the assessment in the amount of $2,000.

53As such, the respondent is required to pay $2,200 for the assessment, including the cost for preparing the treatment plan under the Schedule.

c) Is the applicant entitled to IRBs?

54I find that the applicant is entitled to IRBs in the amount of $400 per week from January 12, 2016 up until the 104 week mark.⁴

55Under s. 5(1) of the Schedule provides that the respondent shall pay an IRB if the applicant person:

(i) Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

56The respondent submitted that the applicant is no longer entitled to IRBs because he no longer suffers from a substantial inability to perform the essential tasks of his employment.

57The respondent terminated the applicant’s benefits based on the IEs of Dr. Abram, general practitioner, Dr. Rockman, psychologist, Dr. Edwin Urovitz, orthopaedic surgeon and Mr. Peter Ramos, kinesiologist. The assessors concluded that the applicant from both a psychological and physical perspective did not meet the test.

58The onus is on the applicant to show that he is entitled to IRBs. At the time of the accident, the applicant worked in the shipping/receiving department at a metal company. He had been working at that company since 1992. His responsibilities included shipping boxes/skids of finished goods to customers and received incoming shipments. Sometimes, the applicant had to use a pump truck to maneuver the shipment that he received. According to the applicant, his job was physically demanding and he usually worked 5 days/40 hours a week.

59In Dr. West’s orthopaedic assessment dated September 16, 2016, he opined that the applicant suffers injuries to his “low back, right shoulder, neck, headaches, insomnia, overall decrease in energy fatigue, fear of being a passenger in a vehicle, feelings of stress, irritability, and anxiety and depression. In Dr. West’s medical opinion his findings are supported by objective medical evidence—an ultrasound report indicated a partial thickness tear involving the rotator cuff of his right shoulder. Dr. West stated that the applicant’s job is physically demanding and requires a lot of bending and lifting of heavy parts.

60Dr. West diagnosed the applicant with:

i. Myofascial strain lumbosacral spine

ii. Myofascial strain cervical spine;

iii. Muscular ligamentous strain right shoulder

iv. Post-traumatic cervicogenic headaches;

v. Post-traumatic insomnia

vi. Post-traumatic fatigue

vii. Post-traumatic anxiety and stress with depressive episodes; and

viii. Chronic pain syndrome.

61Although Dr. Vitelli did not opine on whether or not the applicant met the test for IRBs, I did find his findings relevant. Dr. Vitelli indicated that the applicant has an adjustment disorder with anxiety and depressed mood and chronic pain disorder associated with both psychological factors and a general medical condition. Dr. Vitelli recommended a chronic pain program to address the applicant’s accident related pain.

62Dr. Tan’s CNRs from September 10, 2015 to March 9, 2017 show a consistent history of the applicant’s pain, specifically to his neck, back and shoulder. According to the applicant, his pain has prevented him from returning to work since the accident.

63I prefer the findings of the applicant’s assessors over the assessors of the insurance company. Firstly, Mr. Ramos’ conclusions in both functional abilities evaluation and job site analysis reports do not support his findings that the applicant does not suffer a substantial inability to perform the essential tasks of his employment. Mr. Ramos wrote that the applicant did not “demonstrate any functional limitations; however, he moved somewhat slowly and displayed consistent signs of discomfort with repetitive right arm reaching, sustained/static squatting and sustained/static kneeling.” Mr. Ramos concluded that the applicant “demonstrated the capacity to meet most, but not all, of the physical demands of his pre-accident employment. He did not meet the lifting, carrying, pushing and pulling demands.”

64I am not persuaded by Mr. Ramos’ conclusions. The applicant’s pre-accident employment requires him to lift, carry, push and pull approximately 8 hours per day. Yet, Mr. Ramos concluded that the applicant has met most of the physical demands of his pre-accident employment. Further, Mr. Ramos conceded that the applicant did his pre-accident tasks more slowly and with discomfort. In the applicant’s pre-accident employment, he handled loads up to 40 lbs on an occasional basis and the loads varied widely from a few ounces up to 80 lbs.

65Given Mr. Ramos’ observations and the applicant’s persistent complaints of pain, I am not persuaded that the applicant could perform his pre-accident tasks 5 days week/40 hours a day. Further, the applicant’s employer indicated that that modified duties/hours cannot be accommodated for the applicant’s position.

66In Dr. Abram’s addendum report dated April 10, 2017, she reviewed additional documentation, including, but not limited to the applicant’s section 25 reports and a MRI of the applicant’s right shoulder showing a tear at the base of the rotator cuff. Dr. Abram relied on Mr. Ramos’ FAE and stated that she found minimal findings on examination to support a “substantial inability” to perform the essential tasks of his employment. Dr. Abram did not provide any further analysis as to why she maintained her findings. It would have been helpful to me if Dr. Abram stated why she rejected the section 25 reports and explained the significance, if any, of the MRI of the right shoulder dated May 10, 2016, which showed a tear.

67In Dr. Rockman’s addendum psychological report dated April 10, 2017, she too does not explain, given the additional information, why her opinion remains unchanged. An analysis as to why the information provided did not affect her opinion and conclusions as outlined in report dated December 29, 2015 would have been helpful to identify what she viewed as problems/inconsistencies in the additional information provided.

68Based on the applicant’s section 25 reports, which is supported by Dr. Tan’s CNRs, I find that the applicant has met his onus that he meets the test for IRBs up until the 104 week mark.

V. Order:

69I order the following:

a. The applicant’s injuries are not minor and thus not subject to a $3,500.00 limit under section 18 of the Schedule.

b. The applicant is entitled to a weekly IRB in the amount of $400 per week from January 12, 2016 to the 104 week mark in accordance with the Schedule.

c. The applicant is not entitled to receive a medical benefit for physiotherapy services in the remaining amount of $125.49, (in a treatment plan for $1,300 of which $1,174.51 had been approved), provided by Dynamic Health Sports Injury Clinic.

d. The applicant entitled to receive the cost of a psychological assessment in the amount of $2,000.00 by Dr. Romeo Vitelli.

e. The applicant is entitled to interest on all approved benefits.

Footnotes

1. 1Dr. Nancy Abram, General practitioner, reports dated December 3, 2015, January 6, 2016, and April 10, 2017; Dr. Hannah Rockman, Psychologist, reports dated December 29, 2015 and April 10, 2016; and Dr. Edwin Urovitz, Orthopaedic surgeon, report dated May 26, 2017.
2. 2Dr. Nancy Abram, General practitioner, reports dated December 3, 2015 and April 10, 2017; Dr. Hannah Rockman, Psychologist, reports dated December 29, 2015 and April 10, 2016; and Dr. Edwin Urovitz, Orthopaedic surgeon, report dated May 26, 2017; Mr. Peter Ramos, Kinesiologist, Job site analysis report dated December 3, 2015; Mr. Peter Ramos, Kinesiologist, Functional Abilities Evaluation Report dated December 3, 2015.
3. 3I do note that there is no information before me about whether a psychiatrist treated the applicant.
4. 4I did not hear evidence or receive submissions regarding the applicant’s entitlement to post 104 IRBs.