[P.T.] v. Unica Insurance Inc., 2019 CanLII 130378

Citation: [P.T.] vs. Unica Insurance Inc., 2019 ONLAT 17-008427/AABS

Tribunal File Number: 17-008427/AABS

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:

[P.T.]

Applicant

and

Unica Insurance Inc.

Respondent

AMENDED DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the applicant: Elena Steinberg

For the respondent: Modupe Egunjobi Domenic Nicassio

Written Hearing on: July 25, 2018

(Subsequent Written Submissions filed by the Applicant on October 17, 2018 and by the Respondent on October 29, 2018)

OVERVIEW

1The applicant was injured on September 25, 2015 when his vehicle was rear-ended (“the accident”). The applicant sustained strain and sprain injuries to his neck and back.

2The applicant sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for various assessments and treatment were denied by the respondent.

3The applicant submits that he suffers from chronic pain and psychological impairments and that therefore the Minor Injury Guideline (“the MIG”)² does not apply. The respondent submits that the applicant’s injuries are predominantly minor, that the MIG applies, and that the assessments and treatment sought by the applicant are not reasonable and necessary.

4If the applicant’s injuries fall outside the MIG, then I must address whether the assessments and treatment claimed are reasonable and necessary. If I determine that the applicant sustained predominantly minor injuries, then I need not assess whether the treatment plans are reasonable and necessary as the $3,500.00 prescribed by s. 18(1) of the Schedule has been exhausted.³

ISSUES

5The following issues⁴ are before the Tribunal:

(i) Did the applicant sustain predominantly minor injuries as defined by the Schedule?

(ii) If the applicant’s injuries are not subject to the MIG, then I must determine the following issues:

1. Is the applicant entitled to the cost of the following examinations recommended by Toronto Healthcare Clinic Inc.:

a. a chronic pain assessment, in the amount of $2,000.00 (treatment plan submitted on August 30, 2017, and denied on September 7, 2017);

b. an orthopaedic assessment, in the amount of $2,000.00 (treatment plan submitted on October 18, 2017, and denied on October 27, 2017);

c. a psychological pre-screening assessment, in the amount of $200.00 (treatment plan submitted on November 30, 2015, and denied on November 30, 2015); and/or

d. a psychological assessment, in the amount of $2,000.00 (treatment plan submitted on March 8, 2016, and denied on March 18, 2016)?

2. Is the applicant entitled to a medical benefit in the amount of $1,611.02 for chiropractic, massage and acupuncture treatment, recommended by Toronto Healthcare Clinic Inc., in a treatment plan submitted on August 23, 2017, and denied on August 28, 2017?

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

RESULT

6I find that the applicant sustained predominantly minor injuries and that the MIG applies. It is therefore unnecessary to determine whether the assessments and treatment sought are reasonable and necessary or whether interest is payable, as the MIG limit has been exhausted.

ANALYSIS

The Minor Injury Guideline (MIG)

7The MIG applies if the applicant sustained predominantly “minor injuries”. Section 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.”

8Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits to $3,500 for impairments that are predominantly minor injuries.

9The onus is on the applicant to show that his injuries are not subject to the MIG⁵.

Did the applicant sustain predominantly minor injuries to which the MIG applies?

10I find, on a balance of probabilities, that the applicant sustained soft tissue injuries that are predominantly minor injuries, that his chronic back pain is clinically associated sequelae to those injuries, and that the MIG applies.

11The applicant submits that he suffers from chronic pain and that therefore the MIG does not apply.

12The respondent submits that the MIG applies unless there is objective evidence, obtained through diagnostic testing, that supports a reliable diagnosis of chronic pain⁶. The respondent further submits that in cases where chronic pain has taken an applicant out of the MIG, there has also been evidence of consistent reporting to medical practitioners of continuous pain and functional impairment for an extended period of time.⁷ The respondent submits that the evidence in this case falls short and that the MIG applies.

13The evidence regarding the applicant’s ongoing pain is limited and is found in the treatment plans, records and reports completed by health care practitioners who treated or assessed the applicant.

14The applicant relies on an undated report (“Report”) prepared by his treating chiropractor, Dr. D. Minnella (who last examined him in August 2017). Much of the information in the Report is also contained in other forms completed by Dr. Minnella. However, the source of some of the information in the Report, for example, details regarding specific pain levels on different evaluation dates is unknown. Other than when it is corroborated by other evidence, I have given the information contained in the Report little weight. The opinions expressed by Dr. Minnella have been given little weight as those opinions are based on the limited information referred to in the Report and they do not consider all of the relevant evidence.

15When the applicant saw a doctor, Dr. Balakrishnan, on October 1, 2015 he reported having right sided back pain and neck pain since the accident. Dr. Balakrishnan recommended that he use ice, massage and attend physiotherapy, and prescribed a month’s supply of naproxen. He advised the applicant to follow up with him in 1-2 weeks if there was no improvement. There is no evidence that the applicant returned to see Dr. Balakrishnan, or any other doctor other than his chiropractor Dr. Minnella, for accident related injuries at any time after October 1, 2015.

16The applicant was initially evaluated by Dr. Minnella, chiropractor, on October 8, 2015. The treatment plan listed the following accident related injuries: strain/sprain of the lumbar, cervical and thoracic spine and of the right shoulder girdle; and sprain/strain of the joints and ligaments of the hip and thigh. The treatment plan also states that the applicant’s symptoms were aggravated with prolonged sitting, standing and walking. After receiving treatment from Dr. Minnella, he was re-evaluated on February 4, 2016, at which time Dr. Minnella noted that all of the same complaints continued. The applicant received his final chiropractic treatment on February 18, 2016.

17Dr. Williams, a physiatrist, conducted an insurer’s examination (IE) on May 24, 2016. The applicant reported to the doctor that he had discontinued his therapy due to lack of insurance funding. He advised that he very often had low back pain, that was aggravated with standing and walking, that was relieved by taking Advil. Dr. Williams noted that during his physical examination of the applicant, he reported right sided pain in the cervical spine, lumbar spine, hip and shoulder. Dr. Williams concluded that the applicant had sustained minor uncomplicated soft tissue injuries that could be treated within the parameters of the MIG. As Dr. Williams neither addressed the continuing pain reported by the applicant nor recommended further investigation, his conclusion that the MIG applies has been given little weight.

18The applicant was re-evaluated by Dr. Minnella most recently on August 16, 2017. The following accident related injuries were noted: low back pain; dislocation, sprain and strain of joints and ligaments of the lumbar spine and pelvis; and other chronic pain. Dr. Minnella’s clinical notes contain no details regarding the nature, frequency, duration or severity of the applicant’s pain in August 2017, and no details of any resulting functional limitations.

19Treatment plans were completed by Dr. Howard Jacobs on August 30, 2017 recommending a chronic pain assessment; and by Dr. Tarjedin Getahun on September 11, 2017 recommending an orthopaedic assessment. Both treatment plans refer to the applicant’s chronic pain but neither provide any details of that pain or specifics of the functional limitations caused by the pain.

20Dr. Challis, a psychologist, conducted an IE on October 18, 2017. The applicant advised Dr. Challis that the pain and discomfort in his right arm and leg had fully resolved. The applicant’s self-reporting of some discomfort and pain in his lower back, particularly when he was required to stand for long periods at work, is consistent with his previous self-reporting to Dr. Minnella and Dr. Williams. The applicant reported taking over the counter medication for his back pain, as needed, and that his pain was somewhat limiting with regards to standing at work or completing household chores. No further details of the frequency, duration or severity of the pain was noted.

21The applicant returned to his full-time position as a cashier at a gas station within a week of the accident. There is some evidence that the applicant may have returned to modified duties, but there is no evidence regarding the details or duration of any modified duties. The applicant advised Dr. Minnella and Dr. Williams that he did not return to his second job as a line cook following the accident due to pain he experienced with prolonged standing. There is no evidence regarding the specifics of the applicant’s job as a line cook. The applicant advised Dr. Challis in October 2017 that he had returned to work at a different work location that was less busy and required less physical exertion. Other than the applicant’s self-reporting, there is no evidence regarding these occupational changes or that these changes were as a result of injuries or functional limitations resulting from accident related injuries.

22The respondent relies on the clinical notes of Dr. Somasundaram, a doctor the applicant saw in February 2018. Those clinical notes refer to the applicant as a “34 healthy man” and make no reference to the accident or related injuries. As it is not possible to determine from the evidence the context in which the comment was made, this does not disprove that the applicant suffered from chronic pain. When all of the evidence is considered, however, it is apparent that the applicant did seek medical attention when he felt it was necessary, as he did on October 1, 2015 following the accident and in November 2017 for acute sinusitis. The applicant’s failure to seek medical care for ongoing pain after funding for his chiropractic treatment ceased in February 2016, suggests that the chronic pain he was experiencing was not severe enough to warrant medical attention.

23Although there is evidence that the applicant continued to experience some back pain until at least October 2017 when he was assessed by Dr. Challis, there is insufficient evidence to determine the frequency, duration or severity of that back pain or whether the applicant’s pain caused or continues to cause functional impairment or disability.

24The applicant submits that the Reconsideration Decision⁸ of T.S. v. Aviva General Insurance Canada⁹ determined that a finding of chronic pain is sufficient to take an applicant out of the MIG. I do not agree that the Reconsideration Decision stands for the proposition that every finding of chronic pain will automatically take an applicant out of the MIG. Failure to consider the nature, duration and severity of the pain and whether the pain causes disability or functional impairment, would disregard the need to consider the context and purpose of the Schedule and the MIG, which the Reconsideration Decision held is an essential part of the required analysis.

25The cases relied upon by the applicant¹⁰ do not support the proposition that chronic pain will in all cases result in the MIG not applying. The facts in Ali and Ferozuddin and Certas Direct Insurance Company¹¹ are distinguishable. In that case the applicants had repeatedly and continuously sought medical attention for pain following the accident. In Y.X.Y. and The Personal Insurance Company (“Y.X.Y.”)¹², the Adjudicator concluded that even if the applicant’s pain had not fully resolved after the accident, as there was no evidence of disability, distress or impairment arising from the pain, the MIG applied. The Adjudicator noted:

“For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.”¹³

26Whether it is necessary for an applicant to file objective evidence of chronic pain, obtained through diagnostic testing, in order to establish that the MIG does not apply need not be decided in this case. In this case there is insufficient evidence of consistent and ongoing reporting of pain, and only limited and vague evidence regarding the frequency, duration and severity of the applicant’s pain. Additionally, the evidence does not establish that the applicant’s chronic pain is severe enough to cause functional impairment or disability.

27I find the applicant’s back pain is clinically associated sequelae to his soft tissue injuries and that the MIG therefore applies.

Did the applicant sustain psychological injuries?

28I find, on a balance of probabilities, that the applicant did not sustain psychological injury or impairments, and I therefore find that the MIG applies for the following reasons.

29The applicant relies upon the undated Report, clinical notes and forms completed by his treating chiropractor, Dr. Minnella, in support of his claim that he suffers from a psychological impairment as a result of the accident. In his Report, Dr. Minnella opines that the applicant suffered several physical injuries as well as “emotional sequelae” which fall outside the MIG. As Dr. Minnella’s area of expertise is not psychology, his opinions regarding the applicant’s “emotional sequelae” and psychological conditions and whether the same are subject to the MIG, have been given little weight.

30The applicant also relies on the treatment plan completed on March 4, 2016 by Dr. Andrew Shaul that recommends a full psychological assessment. The psychological injuries identified in the treatment plan are vaguely referred to as unspecified emotional shock and stress, behavioural symptoms, unspecified behavioural syndromes and limitations of activities due to disability. In Part 8 of the treatment plan, under the heading “Activity Limitations”, Dr. Shaul states “continued symptom aggravation with lifting, bending, carrying and overhead activities; prolonged sitting, standing”. There is no indication in the treatment plan of the nature or effect of the behavioural and emotional symptoms referred to.

31The respondent relies on the psychological IE of Dr. Chiallis which notes that the applicant reported minimal psychological symptoms as a result of the accident. The applicant denied any: intrusive, impairing or disabling psychological symptoms; hyper vigilance and nervousness while driving; symptoms associated with depression, generalized anxiety disorders or driving phobias; or feeling helpless, hopeless or suicidal. Dr. Challis states that the applicant did not feel that he required any psychological therapy at that time. Dr. Chiallis concluded that the applicant did not meet the criteria for a DSM-five diagnosis and did not require clinical treatment or intervention.

32Shortly after the accident the applicant returned to work, albeit while still experiencing some pain. There is little evidence that he suffered from any psychological impairment as a result of any emotional symptoms experienced following the accident. Dr. Balakrishnan’s clinical notes do not mention the applicant having behavioural or emotional symptoms or complaints on October 1, 2015, nor did Dr. Balakrishnan refer the applicant for further follow-up by a psychologist or psychiatrist.

33I find Dr. Challis’ opinion is consistent with the other evidence and more persuasive than Dr. Shaul’s. Dr. Shaul did not provide sufficient information in the treatment plan to establish the nature of any symptoms or that the applicant suffered from any psychological impairment. In contrast, the information provided in the IE report of Dr. Challis, establishes that the applicant did not sustain psychological injuries or impairment as a result of the accident.

34The evidence does not support a finding that the applicant suffered psychological injuries that would result in the applicant not being subject to the MIG.

CONCLUSION

35For the reasons outlined above, I find that the applicant sustained predominantly minor injuries and that the applicant’s accident related impairments fall within the MIG. It is therefore unnecessary to consider whether the assessments and treatment sought are reasonable and necessary or the applicant’s claim for interest as the MIG limit has been exhausted.

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. 3Document Brief of the Respondent, Document “L”, Notice from the Respondent dated October 27, 2017.
4. 4The applicant withdrew his claim for an award under Ontario Regulation 664 in his the applicant’s Written Submissions, paragraph 3.
5. 5Scarlett v. Belair, 2015 ONSC 3635 para.24.
6. 6S.S. v. Aviva General Insurance Company, 17-005998/AABS; reported at 2018 CanLii 81957 (ON LAT)
7. 7Applicant v. Aviva Insurance Canada, 17-005667, reported at 2018 CanLII 81893 (ON LAT); and Applicant v. Aviva Insurance Canada,17-004847/AABS, reported at 2018 CanLII 81912 (ON LAT).
8. 8Reconsideration Decision, 17-000835/AABS, T.S. and Aviva General Insurance Canada, 2018 CanLii 83520 (ON LAT).
9. 917-000835/AABS; reported at 2017 CanLii 59495 (ON LAT)
10. 10Ali and Ferozuddin and Certas Direct Insurance Company, 2016 FSCO 4865; Y.X.Y. and The Personal Insurance Company, 2017 CanLii 59515 (ON LAT).
11. 11Supra.
12. 12Supra.
13. 13Y.X.Y. and The Personal Insurance Company, supra, at paragraph 28.