B.M. v. Allstate Insurance, 2019 CanLII 101616

Citation: B.M. vs. Allstate Insurance, 2019 ONLAT 18-008410/AABS

Date: September 24, 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:

B.M. Applicant

and

Allstate Insurance Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

For the Applicant: Neisha Moses and Nicole Walker, Counsel

For the Respondent: Jonathan Schrieder, Counsel

HEARD: In writing on: April 29, 2019

OVERVIEW

1B.M. (“the applicant”) was injured in an automobile accident (“the accident”) on August 9, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claim for an additional medical benefit because it was determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline² (“the MIG”), and are subject to a $3,500.00 cap on treatment.

ISSUES

3The following issues are in dispute for this hearing:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and therefore subject to treatment within the MIG?

ii. If the applicant’s injuries are not within the MIG, then the Tribunal must determine the following issue:

a. Is the applicant entitled to the cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Prime Healthcare Inc. in a treatment plan (OCF-18) dated June 11, 2018, and denied on June 27, 2018?

iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

4I find that the applicant’s injuries are outside of the MIG due to chronic pain.

5The applicant is entitled to the cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Prime Healthcare Inc. in a treatment plan dated June 11, 2018 and denied on June 27, 2018.

6The applicant is not entitled to an award under Regulation 664.

7The applicant is entitled to interest on any overdue payment of benefit.

ANALYSIS

The Minor Injury Guideline

8Section 3(1) 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.”

9Section 18(1) limits an insured person’s entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

10The onus is on the applicant to show that her injuries fall outside of the MIG.

Does the applicant suffer from chronic pain?

11The applicant’s evidence and submissions indicate that she has developed a chronic pain condition as a result of the accident. It is on this basis that she argues that her impairments fall outside of the MIG.

12An insured can be removed from the MIG for chronic pain. I agree with the reasoning in T.S. v. Aviva General Insurance Canada³ that a finding of chronic pain takes one out of the MIG.

13I find that the applicant suffers from chronic pain that would take her out of the MIG based on the following medical evidence:

i. I accept that this applicant experiences severe and persistent pain in her right shoulder and neck regions. On March 30, 2015 (approximately two-and-a-half years after the accident), Dr. Krystyna Prutis (physiatrist) referred to the applicant’s pain as chronic pain in the right shoulder and neck. On November 30, 2015 (approximately three years after the accident), Dr. Franco Tavazzani (orthopaedic surgeon) examined the applicant and opined that she has developed chronic pain syndrome. The clinical notes and records of Dr. Abdullahi Berih (family physician) on May 6, 2016 (more than three-and-a-half years after the accident), indicate that the applicant has chronic right shoulder pain.

ii. On November 6, 2017 (approximately 5 years after the accident), the applicant had an assessment related to her chronic pain with Dr. Stefan Konasiewicz (neurosurgeon). Dr. Konasiewicz concluded that the applicant appears to have sustained pain in her right shoulder, arm and neck as per her own account after her accident. He opined that she is a candidate to be placed on a muscle relaxant and to entertain interventional treatments with nerve blocks, joint blocks, muscle blocks and trigger points to the affected areas.

iii. The applicant’s pain affects her life in a significant way. Her employer, [a physician], who also happens to be her family physician, wrote in a letter dated October 20, 2015, that she works as a front desk administrator. She still retrieves paper files from the back of the office; however, she has been instructed not to retrieve heavy files. The applicant told Dr. Tavazzani that she is able to prepare small meals and perform light cleaning but is performing all other housekeeping activities at reduced capacity. Additionally, she requires the assistance of her son to complete her chores. She told Dr. Richard Gladstone (neurologist) during an assessment on December 9, 2015, that she cannot scrub the floor or do repetitive activities with her right arm and therefore uses her left hand to wash her hair and dry her hair.

iv. The applicant’s pain has not improved with treatment. During the assessment on November 6, 2017, the applicant told Dr. Konasiewicz that she has undergone physiotherapy, applied hot and cold packs and completed laser treatment without resolution of the pain.

v. Furthermore, the applicant reported to a number of assessors that her sleep is disturbed as a result of pain. She told Dr. Tavazzani that the pain is present at night, which frequently interrupts her sleep. She told Dr. Gladstone that she has difficulty sleeping.

vi. The insurer’s examination (“IE”) assessor, Dr. Jacqueline Auguste (orthopaedic surgeon), examined the applicant for an orthopaedic surgery assessment on October 9, 2015 (approximately three years after the accident). Although Dr. Auguste concluded that the applicant sustained minor injuries, she indicated she could not validate and/or account for the applicant’s complaints due to the applicant’s demonstration of self-limitation and nonorganic behaviour during the examination of her right shoulder. Therefore, I find that Dr. Auguste was not able to assess the applicant’s right shoulder pain and has not provided contrary evidence regarding this pain.

14I find that all of the challenges listed above point to the fact that the accident caused chronic pain. The applicant is removed from the MIG for chronic pain.

Is the chronic pain assessment reasonable and necessary?

15The goals of the chronic pain assessment recommended by Dr. Grigory Karmy (chronic pain specialist) include evaluating the extent of the applicant’s chronic injuries and psychological complaints, and to provide a prognosis and recommendations for recovery. The assessment will be conducted by a chronic pain physician and will focus on determining a tissue-specific diagnosis, the nature of the chronic pain and the extent of the injuries. Furthermore, recommendations for future care can be made and an appropriate treatment regime can be determined. The objective goals of this assessment are reasonable and necessary in improving the applicant’s level of functioning and reducing factors which may be barriers to her recovery.

16The respondent’s view is that this chronic pain assessment is a duplication of service because the applicant already completed two Ontario Health Insurance Plan-funded chronic pain assessments with Dr. Konasiewicz (neurosurgeon) and Dr. Anthony Di Fonzo (chronic pain specialist). I do not agree because Dr. Konasiewicz’s assessment dated November 6, 2017, has been produced and is not as comprehensive of an assessment as the proposed chronic pain assessment. For example, the applicant submitted that she seeks the chronic pain assessment to determine all of the symptoms of her chronic pain, both physical and psychological. Dr. Konasiewicz’s assessment only has a brief notation regarding her psychological status. As noted by the respondent, the applicant has not produced the records from Dr. Di Fonzo’s assessment. Therefore, I am not able to comment on the sufficiency of Dr. Di Fonzo’s assessment.

17The chronic pain assessment is reasonable and necessary, and the applicant is entitled to this treatment plan.

Is the applicant entitled to an award under Regulation 664?

18Pursuant to section 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.

19In her submissions, the applicant did not provide any submissions as to why she is entitled to an award under Ontario Regulation 664.

20There is nothing in the evidence that suggests that the respondent was unreasonably withholding payment or delaying payment. I deny the applicant’s request for an award.

CONCLUSION

21The applicant is not subject to the MIG funding limit of $3,500.00 due to my finding that she suffers from chronic pain that takes her outside of the MIG.

22The applicant is entitled to the chronic pain assessment in the amount of $2,000.00.

23The applicant is not entitled to an award under Regulation 664.

24The applicant is entitled to interest on any overdue payment of benefit.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (Reconsideration).