[L.V.K.] v. TD General Insurance Company, 2019 CanLII 110125

Citation: [L.V.K.] vs. TD General Insurance Company, 2019 ONLAT 18-008640/AABS

Date: October 15, 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:

[L.V.K.]

Appellant(s)

and

TD General Insurance Company

Respondent

DECISION

VICE CHAIR: Dawn J. Kershaw

Appearances:

For the Appellant: [L.V.K], Applicant Lauren Cullen, Counsel

For the Respondent: Thomas J. Madison, Counsel

Heard: In-Person: Hearing: July 9-11, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on May 5, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

2The applicant was rear ended at a stoplight. Shortly after, because of neck, back and shoulder pain, he contacted his family doctor who was not available because it was later in the day. He then contacted his chiropractor, Dr. Hildebrandt, whom he ended up seeing for 45 sessions.

3The applicant sought benefits for occupational therapy, physiotherapy and cannabis, which the respondent denied on the basis that the applicant’s injuries were minor injuries as defined in section 3 of the Schedule.

4I find the applicant sustained a predominantly minor injury and is subject to the $3,500 limit set out in the Minor Injury Guideline (the “MIG”) and therefore is not entitled to the treatment set out in the treatment plans.

ISSUES

5The issues in dispute are as follows:

i. Did the applicant sustain predominantly minor injuries as defined in the Schedule?

ii. Is the applicant entitled to a medical benefit for occupational therapy in the amount of $1,471.82 recommended by Pursuit Health Management in a treatment plan submitted on May 23, 2017 and denied on June 15, 2017?

iii. Is the applicant entitled to a medical benefit for physiotherapy in the amount of $1,513.27 recommended by Pursuit Health Management in a treatment plan submitted on February 19, 2018 and denied on March 20, 2018?

iv. Is the applicant entitled to a medical benefit for physiotherapy $2187.50? recommended by Cheryl Richardson in a treatment plan submitted on July 12, 2018, 2018 and denied on July 31, 2018?

v. Is the applicant entitled to $2,456.82 in medical expenses for cannabis medication submitted in an expense claim form on July 20, 2018 and denied on July 26, 2018?

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

LAW

6The MIG establishes a treatment framework available to injured persons who sustain a predominantly minor injury as a result of an accident. A “minor injury” is defined in s. 3 (1) of the Schedule and includes, among others, sprains and strains. The MIG provides that a strain is an injury to one or more muscles and includes a partial but not a complete tear.

7Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. There are two ways an applicant can obtain medical treatment outside the MIG, one of which the applicant in this case claims applies to him, namely that he can establish that he sustained accident-related injuries that fall outside the MIG. Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

8If the applicant’s injuries are determined not to be minor injuries, then sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary¹.

ANALYSIS

Did the applicant sustain any accident-related injuries which fall outside the MIG?

9The applicant claims there are four reasons his injuries fall outside the MIG, which are:

i. Concussion;

ii. Chronic pain syndrome or chronic back pain/annular tear;

iii. Psychological impairment; and

iv. Pre-existing condition.

10By way of background, the applicant testified that when he was rear ended, his car jumped ahead 7 to 8 feet, though he also said he did not understand why when he looked up his car was closer to the car in front of him than it had been. He testified he did not think he hit the steering wheel. He felt disoriented getting out of the car, and felt pain in his neck, shoulders and back shortly after.

11The photos of the damage to the car show very little to no damage, and if any, it is a slight indentation of the licence plate. The applicant testified he did not get the car repaired because it was solely an extra car.

12I will discuss in turn each of the applicant’s four arguments for why he falls outside the MIG.

i. Concussion

13The only evidence that the applicant sustained a concussion in the accident came from Dr. Gillis, the applicant’s family doctor, whom the applicant did not tell about the accident until more than a year after it occurred.

14Dr. Gillis’ June 2, 2017 clinical note says that the applicant told him he previously would learn languages while working with “ear muffs” and now could not do so because he had discomfort and had to focus on his movements more. Six days later when he did a more in-depth examination, Dr. Gillis diagnosed the applicant with post-concussion syndrome, but provided no additional details with respect to the concentration or focus issues or how these complaints might relate to his diagnosis.

15Dr. Sequeira, who saw the applicant at the request of his lawyer, testified that the applicant was not complaining of concussion symptoms when he saw him on April 19, 2018.

16Given the lack of evidence, the applicant has not satisfied me that he suffered a concussion as a result of the accident.

ii. Chronic back pain/Annular tear/Chronic pain syndrome

17The best evidence with respect to the applicant’s back pain is from the chiropractor, Dr. Hildebrandt, as he is the treatment provider to whom the applicant turned after the accident. The applicant first saw him the day after the accident, and in total saw him 45 times. The applicant called Dr. Hildebrandt “my guy”, in other words the person to whom he goes when he has pain. Dr. Hildebrandt completed the Disability Certificate, dated June 11, 2016, and indicated that the applicant had whiplash associated disorder with complaint of neck pain, sprain/strain of the shoulder joint and cervical brachial syndrome. There was no mention of back pain. There was also no indication that the applicant could not work or do his housekeeping activities.

18On the day after the accident, the applicant was reported in Dr. Hildebrandt’s notes to have a dull aching across the thoraco-lumbar spine into the lower back. There continued to be some references to aching, stiffness and/or soreness in the applicant’s lower back on and off until January 20, 2017 when he described himself as having mild tenderness and tightness across his lower back, but “feeling relatively decent”. A week later, the notes say that he reported he was getting back to a more regular working schedule and that he was working on a ceiling. By February 7, 2017, he reported feeling quite good and sleeping better and soundly. The notes stated that the applicant was still aware of occasional increased stiffness and tightness in the upper thoracic region and minor increased tenderness in the “SB-R SI jt” area.

19On March 9, 2017, the applicant reported to Dr. Hildebrandt that he had driven down south and described his back as being a bit stiff from sitting and driving. However, in his testimony he said the road trip was awful. He testified he told Dr. Hildebrandt he was only a bit sorer than usual because he did not want him working on his back anymore. He also denied telling Dr. Hildebrandt that he had a great time visiting during his road trip, though this is what is written in Dr. Hildebrandt’s notes.

20The insurer inquired of Dr. Hildebrandt about the applicant’s status on March 17, 2017 and was told he was recovering well and had no complications. The applicant last saw the chiropractor on March 21, 2017 and reported feeling quite good and reported no back pain. Dr. Hildebrandt wrote in his note of that date that the applicant was doing most of his normal activities. Despite this, the applicant testified that he stopped seeing Dr. Hildebrandt because the chiropractor was not able to help his back pain, an assertion that I do not accept after having reviewed Dr. Hildebrandt’s notes, and given that the applicant had continued to report steady improvement from January 2017 onward. The applicant last saw Dr. Hildebrandt on June 2, 2017.

21It was not until more than two months later (then 13 months after the accident, after having shown steady improvement since January 20, 2017) that he told his family doctor, Dr. Gillis, that he was having constant back pain. Even at this point, Dr. Gillis wrote in the June 29, 2017 Disability Certificate that the applicant was not unable to perform the essential duties of his employment. The applicant then appears to have had a slip and fall on July 28, 2017. The massage therapy notes between then and September 15, 2017 indicated that the applicant was getting acute treatment and was being treated “post slip and fall”. The applicant also reported causing further injury to his back when he reached under the bathroom counter on September 20, 2017.

22In light of the continuous improvement as evidenced by Dr. Hildebrandt’s notes, and the fact that the applicant did not see his family doctor until 13 months after the accident and over two months after he stopped seeing Dr. Hildebrandt, I am not convinced that the applicant’s back pain was more than a minor injury. There appear to have been one or more intervening incidents unrelated to the accident that caused the applicant’s back pain to flare up.

23The applicant saw Dr. Sequeira at the request of his lawyer. Dr. Sequeira testified that there would have had to have been an intervening event between the time the applicant improved at the 10 month mark (during chiropractic treatment) and when he apparently deteriorated at the 13 month mark when he saw his family doctor. This supports my finding that the applicant did not have chronic back pain or chronic pain syndrome, as opined by Dr. Sequeira, that was caused by the accident, and that I find were caused by one or both of the intervening events. While Dr. Sequeira attributed the cause of the applicant’s back pain directly to the accident, he did not see him until almost two years after the accident.

24I note that both parties spent a considerable amount of time eliciting evidence from doctors with respect to the applicant’s marijuana use. However, despite his use, I find that it does not change my opinion. The applicant was referred to Dr. Bothma, the doctor who prescribed marijuana, only when he saw his family doctor 13 months after the accident, and there was no in-depth examination or investigation of the applicant by the marijuana clinic doctors.

25The applicant also claimed that he should not be subject to the MIG limits because of the annular tear that was seen on an MRI dated September 2018. Dr. Boucher, whom the applicant saw for an insurer’s examination, and Dr. Sequeira both gave evidence with respect to the annular tear. Dr. Boucher testified that in his view this was not suffered in the motor vehicle accident as it normally would be caused by a front end or side impact collision or be degenerative. Dr. Sequeira testified that it could have been caused by the accident, but also could have been caused by an intervening event. In light of the other evidence about the applicant’s back pain and its improvement, particularly from Dr. Hildebrandt, who was the primary treatment provider, I accept Dr. Boucher’s opinion that the annular tear was not caused by the accident. Dr. Boucher’s evidence supported the annular tear being either degenerative or by an accident that did not occur like this one did.

26In addition to the above, the applicant was also the subject of surveillance in March 2019. The surveillance showed him both skiing and carrying his then 30 pound daughter down the steps of his home in the winter, at times carrying her with one arm while hurrying down the sidewalk. Ms. Chrapko, an occupational therapist, opined that in order for the applicant to be able to do this, he would have had to have had significant improvement from the time he reported to her in July 2017 that he could not carry his then 20 pound daughter for a metre. Ms. Chrapko also agreed that in order for the applicant to be able to ski, he must have had an improvement in his condition that was “not a minor improvement” since she saw him. She admitted that when she assessed him for the limitations he had because of back pain, she relied on his self-report that he had been hit at high speed.

27I find that the applicant did not have chronic pain syndrome, chronic back pain or an annular tear caused by the accident such that he should not be subject to the MIG limits.

iii. Psychological Impairment

28The applicant asserted that he should not be subject to the MIG limits because of psychological impairment.

29As indicated, the applicant did not see his family doctor until more than a year after his accident. His affect was reported as normal.

30The applicant had an insurer’s examination by a psychiatrist, Dr. Peter Cobrin, on May 10, 2018 who reported that the applicant is not suffering from a psychological diagnosable condition. This information was determined two years after the accident, but consistent with this, the applicant did not seek psychological counselling or advice, nor report any psychological problems to his family doctor. He reported 13 months after the accident only that he was having trouble sleeping. The applicant has not satisfied the burden on him of proving that he had a psychological impairment that would remove him from the MIG.

iv. Pre-Existing Injuries

31The applicant asserted that pre-existing injuries meant that he should not be subject to the MIG limits.

32The applicant had gone to Cuba and contracted a virus that caused him pain in his hands and feet. While Dr. Sequeira opined that this might have delayed his recovery, he also stated that it would not have had a meaningful impact on his accident related injuries. In addition, just prior to the accident, the applicant’s virus had improved to the point that he had returned to work. Finally, Dr. Hildebrandt, who was seeing the applicant in the first year after the accident and who completed the Disability Certificate dated June 11/2016, stated that the applicant did not have any pre-existing disease, condition or injury that affected his ability to perform his employment, his activities of normal life or housekeeping.

33I also note that with respect to pre-existing back pain, the applicant reported to Dr. Sequeira that although he had seen a chiropractor for pain in his spine before the accident, he had not seen one in 8 years.

34The applicant has not satisfied the burden on him of proving that he had any pre-existing injury that would have prevented him from achieving maximal recovery such that he should be removed from the MIG.

CONCLUSION

35The applicant is subject to the MIG limit of $3,500.

36The applicant is not entitled to the recommended treatment in the treatment plans because they exceed the MIG limits.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635