[N.B.] v. The Personal Insurance Company, 2019 CanLII 101612

Citation: [N.B.] vs. The Personal Insurance Company, 2019 ONLAT 18-002476/AABS

Date: September 12, 2019

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:

[N.B.]

Appellant(s)

and

The Personal Insurance Company

Respondent

DECISION AND ORDER

VICE CHAIR: Susan Mather

Appearances:

For the Appellant: Elena J. Steinberg, Counsel

For the Respondent: Andrea R. Lim, Counsel

Heard: In Writing Hearing: December 18, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant was involved in an automobile accident on March 26, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The appellant was denied various benefits and submitted an appeal to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties disagree about the applicability of the Minor Injury Guideline (“Guideline”) to the appellant’s injuries and whether the treatment and assessment plans (“treatment plans”) submitted by the appellant are reasonable and necessary.

3At the case conference on August 13, 2018, the issues in dispute were identified and a written hearing was agreed to by the parties.

ISSUES

4The issues in dispute at this hearing are as follows:

(i) Did the appellant sustain predominantly minor injuries as defined under the Schedule?

(ii) Is the appellant entitled to a cost of examination in the amount of $1696.11 for a psychological assessment by Brampton Civic Care Centre Inc. submitted on August 18, 2016, and denied on August 19, 2016?

(iii) Is the appellant entitled to a medical and rehabilitation benefit in the amount of $3454.30 for chiropractic services and TENs unit accessories by Brampton Civic Care Centre Inc. submitted on October 13, 2016, and denied on October 17, 2016?¹

(iv) Is the appellant entitled to interest for the overdue payment of benefits?

RESULT

5For the reasons provided below, I find that the appellant did not sustain more than predominantly minor injuries in the accident and for that reason she is not entitled to medical and rehabilitation benefits that exceed $ 3,500.00. I also find that the treatment plans in dispute are not reasonable and necessary.

THE MINOR INJURY GUIDELINE

6The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 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 section 3.

7Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the Guideline.

8Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment costing more than the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the Guideline cap.

9In her hearing submissions, the appellant does not claim to have any pre-existing medical conditions documented before the accident that will prevent her from achieving maximal recovery if benefits are limited to the Guideline cap.

10The onus of establishing entitlement to medical and rehabilitation benefits beyond the Guideline cap rests with the appellant. To be entitled to benefits beyond the cap, she must prove on the balance of probabilities that he suffered from more than predominantly minor injuries in the accident.²

11The applicant argues that she suffered more than predominantly minor injuries in the accident because her accident related pain persisted for two and one-half years after the accident. ³ She relies on the following evidence to substantiate her on-going pain:

i. Clinical notes and records (CNRs) from Brampton Civic Care Centre Inc⁴;

ii. The fact that she submitted a Treatment and Assessment Plan for a chronic pain assessment⁵;

iii. CNRs of Dr. Gupta her family physician⁶;

iv. Prescription summaries⁷.

12The respondent (“Personal”) argues that that appellant has not shown that she sustained more than predominantly minor injuries in the accident and that the on-going pain the applicant suffered after the accident is a sequelae of her predominantly minor injuries. Personal also argues that the appellant did not sustain psychological injuries in the accident which would take her out of the Guideline. The appellant, however, does not argue that she sustained psychological injuries in the accident that take her out of the Guideline. She only asks for approval of a treatment plan for a psychological assessment.

13The Guideline provides for a 12-week treatment program for those injured in car accidents that sustain minor injuries. Chronic pain is a recognized medical condition which is not included in the Guideline definition of minor injury.

14The appellant does not use the term “chronic pain” in referring to her injuries from the accident and there is no diagnosis or use of the term “chronic pain” in the CNRs of her family physician or the Brampton Civic Care Centre. She simply argues that her persistent pain takes her out of the Guideline.

15Personal argues that chronic pain alone does not automatically take an insured out of the Guideline and that for chronic pain to take an insured out of the Guideline the chronic pain must be separate from their initial soft tissue injuries and not a sequelae thereof.⁸⁹

16I do not agree with Personal that chronic pain can be a sequelae of a “minor injury”. in my view the definition of “minor injury” in the Guideline does not include chronic pain because chronic pain by its nature is not treatable within the Guideline’s 12-week program.

17However, or the reasons provided below I am not satisfied on the balance of probabilities that the appellant suffered from chronic pain as a result of the accident that takes her out of the Guideline and I am satisfied on the balance of probabilities that the injuries the appellant suffered in the accident were predominantly minor injuries.

18The CNRs of the Brampton Civic Care Centre document the applicant’s visit to the clinic for treatment under the Guideline¹⁰. There is no mention of the applicant suffering from chronic pain in the chiropractic or physiotherapy records. I note that the last entry on October 27, 2016 states that the appellant was doing well.

19The initial physiotherapy assessment¹¹ rates the appellant’s pain level for headaches, thoracic spine, cervical spine, lumbar spine and shoulder pain as being between five and seven out of ten. There is, however, no follow-up physiotherapy rating of the appellant’s pain level. The initial chiropractic pain assessment provides no indication of her pain levels. The follow-up chiropractic assessments on June 27, 2016 and Oct 27, 2016 also do not provide any indication of the appellants level of pain. I find nothing in these records to support a finding that the pain the appellant experienced was more than a sequelae of the minor injuries she sustained in the accident.

20I give little weight to the appellant’s argument that she submitted a treatment plan for a chronic pain assessment. The treatment plan is dated October 17, 2018 over two and one-half years after the accident and after this appeal was filed with the Tribunal. In light of the medical records, I am of the view that evidence that the appellant applied for a chronic pain assessment so long after the accident is not enough to show on the balance of probabilities that she suffers from chronic pain.

21The CNR’s of the family physician document that the applicant visited her family physician on the day of the accident suffering from pain in the right-hand side of her head radiating to her arm and pain in her right knee and the right hand side of her arm.¹² She was prescribed pain medication. On May 10, 2016, her third visit after the accident she reported ongoing neck and back pain and that she was not using pain medication.

22While the CNRs document that the appellant continued to report some neck and back pain more then 12 weeks after the accident they also indicate that she did not always require medication for her pain. There is no mention of chronic pain in the CNRs and no indication that the applicant asked for or the family physician recommended a referral to a pain specialist. The appellant returned to work shortly after the accident and the CNRs provide no evidence that her pain impacted her life.

23Her complaint in September 2016 was of left breast pain and a left headache which differs from the right-hand side issues she reported after the accident. From November 7, 2016 until October 2017 the family physician’s CNRs make no mention of pain from the accident. The June 13, 2018 entry also documents pain on her left-hand side not the right- hand side pain she reported after the accident.

24I do not find anything in the family physician’ s CNRs to support a finding that the appellant suffered more than predominantly minor injuries in the accident.

25While the prescription summaries confirm that the appellant took pain medication the CNRs of the family physician confirm that she did not take it on a regular basis. I am unable to find any record of any prescriptions for pain medication being filled by the appellant between October 26, 2016 and November 11, 2017. This evidence does not support the appellant’s argument that she still experienced pain from the accident in 2018 or a finding that the appellant suffered more than predominantly minor injuries in the accident.

26Dr. Ahmad Belfon conducted an Insurance Examination (“IE”) on November 14, 2016. Dr. Belfon’s report does not mention chronic pain. His conclusion was that the applicant sustained a cervical, thoracic, and lumbar spine sprain/strain and a right knee contusion. He found that there was no indication that the appellant would benefit from further facilities based treatment.

Conclusion

27After reviewing the evidence, I am not satisfied that the applicant suffered from more than predominantly minor injuries in the accident. While the appellant reported some pain beyond 12 weeks after the accident I am not satisfied on the balance of probabilities that the pain she reported was more than pain associated with her predominantly minor injuries. I have no evidence that the pain the appellant reported was the medical condition known as chronic pain.

28In reaching this conclusion I have considered the facts that the appellant received treatments at Brampton Civic Health Care until October 2016 and that between November 7, 2016 and October 2017 the applicant made no further pain complaints to her family physician. I have also considered the fact that the applicant returned to work following the accident and that there is no evidence that the pain she experienced from the accident interfered greatly with her life.

29My conclusion is supported by the IE conducted by Dr. Belfon.

30Given that the appellant’s impairments are predominantly minor, the sum of the medical and rehabilitation benefits payable shall not exceed $3,500 less the sum of all amounts paid. I do not know if the appellant has received $3500 in medical and rehabilitation benefits and for that reason I must determine if the treatment plans in dispute are reasonable and necessary.

31The Schedule requires an insurer to pay for medical benefits and costs of examinations to the limits of the coverage provided by the Schedule that are reasonable and necessary. The burden of proof to show that a cost of examination or medical benefit is reasonable and necessary is on the appellant.

Is the Appellant entitled a cost of examination in the amount of $1696.11 for a psychological assessment by Brampton Civic Care Centre Inc. submitted on August 18, 2016, and denied on August 19, 2016?[^13]

32This treatment plan proposes a mental health assessment and mental health and addiction testing. The appellant relies on an Occupational Therapy Paper Review Report (“OT Report”) dated November 1, 2018 to address the issue of whether the treatment plans were reasonable and necessary.¹⁴

33For the reasons that follow I am not satisfied on the balance of probabilities that this treatment plan is reasonable and necessary.

34I give little weight to the OT Report. The author of the report provides the opinion that the treatment plans in dispute are reasonable and necessary. She did not meet the appellant and her opinion is based on a paper review of the appellant’s records. According to her resume she has experience in doing Home Assessments, Attendant Care Needs Assessments and Future Cost Analyses. I find nothing in her resume that suggests she is qualified to provide an opinion as to whether a mental health assessment or chiropractic treatment was reasonable and necessary.

35I also give little weight to the treatment plan itself. There is no indication in the CNR’s of the appellant’s family physician that she was experiencing any psychological issues following the accident. There is no evidence to connect the proposed treatment plan with independent psychological complaints of the appellant following the accident.

36Dr. Chan, a clinical psychologist who saw the appellant for an IE reported that the appellant appeared to be unaware a treatment plan for a psychological assessment had been submitted on her behalf. The appellant told Dr. Chan that she did not believe she required any psychological treatment.¹⁵

37Dr. Chan found that the appellant did not have a psychological diagnosis.

Is the appellant entitled to a medical and rehabilitation benefit in the

amount of $3454.30 for chiropractic services and TENs unit accessories by Brampton Civic Care Centre Inc. submitted on October 13, 2016, and denied on October 17, 2016?

38For the reasons provided below I am not satisfied on the balance of probabilities that this treatment plan is reasonable and necessary.

39The appellant relies on the OT Report as evidence that this treatment plan is reasonable and necessary. I give little weight to this report because in my view an occupational therapist is not qualified to provide an opinion that a chiropractic treatment plan and TENs accessories are reasonable and necessary.

40The treatment plan proposes 14 sessions of chiropractic treatment over seven weeks for stimulation of muscles of the back, hyperthermy, and stimulation and exercises for multiple body sites. The goals of the plan are pain reduction, increase in strength and increase in range of motion.

41I have reviewed the CNR’s of the Brampton Civic Care Centre.¹⁶ The CNRs indicate the same subjective complaints for essentially all of the sessions and the same objectives for the therapy. The last entry on October 27, 2106 was that the appellant was doing well.

42I am not satisfied that seven months after the accident more facilities-based treatment was reasonable and necessary. I have no evidence that the treatment proposed in this plan was any different from the treatment the appellant had been receiving. The IE of Dr. Belfon confirms that the appellant was unlikely to receive further sustainable gains from facilities-based therapy.

INTEREST

43Having determined that none of the benefits claimed in this application are payable, there is no interest owing.

ORDER

44For the reasons provided above, I dismiss the application.

Footnotes

1. 1The case conference Order dated October 23, 2018 lists the issue as: Is the appellant entitled to a medical and rehabilitation benefit in the amount of $3454.30 for psychological services by Brampton Civic Care Centre Inc. submitted on October 13, 2016, and denied on October 17,2016? After reviewing the treatment plan and the submissions of the parties I am satisfied that the issue was misstated as psychological services.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635
3. 3Paragraphs 6-10 appellants submissions
4. 4Tabs I.F and I.J, appellant’s submissions
5. 5Tab 1.L, appellant’s submissions
6. 6Tab 1.B appellant’s submissions
7. 7Tabs 1.D and 1.E, appellants submissions
8. 8Aviva Canada v. Sheep
9. 9The applicant v. Aviva Insurance Canada
10. 10Tab 1.M, appellant’s submissions
11. 11April 2, 2016
12. 12March 26, 2016 entry, Tab 1.B appellant’s submissions
13. 14Tab 1.A appellant’s submissions
14. 15Tab P, respondent’s book of documents
15. 16Tab I.J appellant’s submission
16. 13Tab 1.I appellant’s submissions