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:
[J.S.]
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION AND ORDER
ADJUDICATOR: Claudette Leslie
Appearances:
Counsel for the Appellant: Anastasiya Chepak
Counsel for the Respondent: Matthew Sutton, Ryland Macdonald
Heard IN WRITING: June 10, 2019
OVERVIEW
1The applicant was involved in an automobile accident on July 22, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits by the respondent insurer Cooperators General Insurance Co. The appliant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on March 5, 2019, and consequently the matter proceeded to a written hearing.
ISSUES
3The following are the issues to be decided:
i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $168.41 per week for the period of December 20, 2016 to date and ongoing?
ii. Are the applicant’s injuries predominantly minor injuries as defined in the s. 3 of the Schedule, subject to treatment within the $3,500.00 limit under the Minor Injury Guideline (MIG)?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,660.00 for physiotherapy services, recommended by Back to Life Physiotherapy in a treatment plan submitted on September 20, 2018, and denied by the respondent on September 21, 2018?
iv. Is the applicant entitled to payments for the cost of examinations in the amount of $1,838.42 for a functional abilities assessment, recommended by Medex Assessment, in a treatment plan submitted on June 16, 2017, and denied by the respondent on July 4, 2017?
v. Is the applicant entitled to interest on any overdue payment of benefits?
ISSUES IN DISPUTE
RESULT
4For the reasons that follow, I find that, on a balance of probabilities:
(i) the applicant is not entitled to income replacement benefits for the period specified;
(ii) the applicant sustained predominantly minor injuries as defined in the Schedule. I also find no compelling evidence that the applicant’s pre-existing condition was exacerbated by the accident; or any other condition that would prevent her from recovering within the minor injury treatment limit of $3,500.00;
(iii) consequently, she is not entitled to payment of the two disputed medical benefits claimed under the non-MIG treatment limit since the $3,500 MIG limit has been exhausted; and
(iv) no overdue interest is payable to the applicant, as she is not entitled to the benefits claimed.
BACKGROUND
5On July 22, 2016 the applicant was the front seat passenger in a 2008 Mazda. The vehicle had slowed/stopped while in the process of making a left turn into a plaza, when it was rear-ended by a 2007 Dodger Charger. The air bags did not deploy and the indication is that the applicant did not lose consciousness. The applicant was assessed by paramedics, before being taken by ambulance to Rouge Valley Hospital with complaints of neck and lower back pain.
6X-rays of the applicant’s cervical and lumbar spine were conducted at the hospital revealed no “fractures, dislocations or acute abnormalities.” The applicant was prescribed painkillers before being discharged from the hospital. The applicant subsequently saw her family physician several times who recommended that she attend therapy. She applied for and received medical benefits for treatment which she started receiving within a week of the accident at Back to Life Physiotherapy, and continued to do so for approximately 6 months, up to January 2017. Medical benefits paid totals, $3,465 00 ($35 less than the MIG treatment limit of $3,500).
7At the time of the accident, the applicant worked at an auto parts factory. Her responsibilities involved packing auto parts that reportedly each weighed between 3-4 pounds. The applicant had been employed in this capacity since February 8, 2016 (approximately 5 months before the accident occurred). She did not return to work after the accident.
8Reportedly, damages to the vehicle in which the applicant was travelling were centred around the right, rear bumper. It was repaired at a total cost of $5,479.86, comprising taxable parts in the amount of $2,258 and the balance attributed to, labour taxes and to markup.
THE LAW, EVIDENCE AND ANALYSIS
Issue (i): Whether the applicant is entitled to Income replacement benefits (IRB)
9To be entitled to an IRB, as set out under ss. 5(1)1 of the Schedule, the applicant must establish, on a balance of probabilities, that she 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“. Subsection 6 (2) (b) further states that the insurer is not required to pay an income replacement benefit after the first 104 weeks of disability ”unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience”.
10The applicant seeks a weekly income replacement benefit in the amount of $168.41 per week for the period of December 20, 2016 to date and ongoing. There is no dispute with regards to the weekly amount of IRB sought. The only issue to be determined is whether or not the applicant is entitled to receive the benefit from December 2016 onwards.
11The applicant is 44 years old; who at the time of the accident worked as a packager and was specifically responsible for packaging auto parts for delivery and sale. The parts were reportedly between 3-4 pounds in weight. The applicant submits that due to various accident-related injuries she was unable to return to the company in any capacity; and although she submits that she attempted to work as a cleaner, she was physically unable to meet the task. The applicant received income replacement benefits from the insurer up to December of 2016, when the respondent terminated the benefits following an Insurer’s Examination (IE) conducted by Physiatrist, Dr. Zabielauskas. It is the respondent’s position that the applicant has provided no evidence of impairment that would warrant payment of the benefit beyond December 2016.
12In keeping with the provisions of the Schedule as indicated above, to determine whether the applicant is entitled to IRBs for all or part of the specified period, I must determine whether during the first 104 weeks (2 years) after the accident and as a result of the accident she suffered a substantial inability to perform the essential tasks of her pre-accident employment, which she had been doing for approximately 5 months. Given that the accident occurred more than 3 years ago, I must also determine whether after the first 104 weeks/2 years she sustained a complete inability to engage in any employment or self- employment for which she is reasonably suited by education, training or experience.
13To determine this issue, I must answer two questions. First, what are the essential tasks of the applicant’s employment? Second, is the applicant substantially unable to perform the essential tasks of her employment? For the post 104-week IRB period, I must answer the question as to whether the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
14I find no evidence indicating that her pre-existing, degenerative disc/osteoarthritis condition was worsened by the accident; and for the reasons that follow, I find the applicant has not established that, on a balance of probabilities, she is substantially unable to perform the essential tasks of her employment, for both the two-year and post-two-year period following the accident.
i. What are the essential tasks of the applicant’s employment?
(a) The applicant states that her job as a packager required her being on her feet for long periods, and it was physical in nature. According to the Employer’s Confirmation form (OCF-2) completed by the business development manager, dated July 20, 2016, the applicant’s job is described as “packing auto parts”. The employer provides no further information under the request for the “essential tasks of job” nor did the employer attach “a physical demand analysis if available” as presented.
(b) In the Employer Confirmation form, I note here that the employer also indicates the applicant’s gross earnings for the 4 weeks prior to the accident as follows: week 1 was $690.31; week 2 gross income is indicated as $584.56; week 3 was $188; and for week 4 gross earnings are indicated as $737.31. I note that in response to the question of whether the applicant was absent at any time during the aforementioned, pre-accident, 4-week period, the employer indicates she was not.
(c) A July 26, 2016 X-ray report indicates that the applicant complained of upper and lower back pain as well as pain in her neck and back shoulder and headaches. By way of check marks, the form identifies that her packaging duties involved: bending/twisting, pushing/pulling, carrying/lifting, mostly walking and mostly standing/bending
ii. Is the applicant substantially unable to perform the essential tasks of her Employment, that is, the packaging of auto parts?
15As indicated above, the applicant’s packaging responsibilities were largely physical in nature, involving: bending/twisting, pushing/pulling, carrying/lifting, mostly walking and mostly standing/bending. While I have considered the information indicating that the applicant complained of headaches, as the tasks of her employment appear to turn on her physical ability, I must therefore determine the applicant’s physical condition. What is the applicant’s physical condition? I have considered the following.
i. Ambulance report at the scene of the accident indicates: “no neck pain or palpation, no dizziness, no sensitivity to light, abdomen, soft and non-tender; extremities/ back and pelvis- no obvious trauma; no pain on palpation; chest clear”.
ii. Rouge Valley emergency report of July 22, 2016 indicates that the applicant complained of headaches, nausea and there was no vomiting. The applicant was discharged to home from the hospital with a prescription for painkillers.
iii. Disability Certificate (OCF-3) dated September 9, 2016, signed by the applicant on the earlier date of August 26, 2016, was completed by family physician, Dr. Vimal Amarasekera. The doctor indicates that the applicant had diffused injuries to her head, shoulder, neck and back. The physician checks the box indicating that the applicant had sustained a complete inability to carry on her normal life; and projects a recovery period of 9-12 weeks. The physician also indicates that the applicant had no previous diseases. Dr. Amarasekera refers the applicant to undergo diagnostic imaging/X-rays and that she attend therapy, which she pursued at Back to Life Physiotherapy.
iv. At Back to Life Physiotherapy, the applicant was assessed by Ms. Mina Panah, Physiotherapist, on August 1, 2016. The physiotherapist completed a Treatment Confirmation Form (OCF- 23) in which she notes the accident related injuries as, a cervical strain WAD I, a lumbar strain. and tension type headaches. Documentation from the clinic indicates that the applicant attended from July 26, 2016 to Jan 27, 2017 (approximately 6 months); she frequently complained of headaches; and she reportedly received various physiotherapeutic treatments including, massage therapy, as well as stretching and strengthening exercises, in addition to use of the stationary bicycle. The applicant also reported she was shown 10- 15 minutes, at-home exercises.
v. Insurer’s Examinations (IE): On December 10, 2016, the applicant was assessed by Dr. Zabieliauskas, physiatrist. Based on his observations and clinical examination, the doctor indicates that among other things, the applicant sat quietly without any overt signs of discomfort, throughout the examination; she
“…exhibited good alignment to the entire spinal column and lower extremities… reported no tenderness to palpation over the nuchal musculature but reported tenderness to palpation over the proximal left trapezius musculature bilaterally… all other upper extremity joint movements were full and reported to be pain free…presented with a full range of motion in her neck and extremities and a good range of motion in her lumbar spine and lower extremities…reported tenderness to palpation over the lower lumbar spinous processes but did not report any tenderness to palpation over the paralumbar musculature…”
The doctor’s report indicates that any soft tissue injuries or strains that occurred at the time of the accident would have healed by the date of the assessment; and that the applicant did not suffer a substantial inability to engage in the essential tasks of her pre-accident employment because all of her accident-related impairments had resolved. The doctor further observes that,
“While I do not discount the fact that Ms. [S.] continues to experience some residual pain, she must be reassured that her current symptoms are benign (non-threatening) as they are not manifesting themselves in any overt organic pathology suggestive of any ongoing physical impairment or physical disability attributable to the motor vehicle accident of July 22, 2016 Ms. [S.] is safe to resume all aspects of her life that she was engaged in prior to the accident of July 22, 2016, including returning back to work on a full-time basis, immediately, without any physical restrictions or functional limitations. The only barrier for her returning to work at the present time appears to be the fact that she is receiving some income replacement benefits.”
vi. On October 14, 20 17, almost a year later, Dr. Zabieliauskas re-assessed the applicant. She reported that she continued to experience tingling and intermittent headaches over the forehead and top of her head;.”ongoing pain over the nuchal musculature with radiation of pain along the spine and across the upper paralumbar musculature, with occasional pain into the right upper extremity as well as into the right lower extremity beginning at the knee and below “ She reported the severity as being generally “between an 8 up to a 9/10 in intensity, in comparison to pain in the range of 6-7/10 in intensity when I last saw her…” He concluded that she did not sustain a substantial inability to perform the essential tasks of her employment as his examination did not find any "residual objective pathology attributable to the motor vehicle accident".
vii. Various pre-accident, diagnostic imaging and reports indicate, among other things, as follows:
September 7, 2011 - cervical, thoracic, lumbar spine, pelvis X·ravs – “…comparison with lumbar spine x·ray from January 2011 and cervical spine x ray from November 2010 cervical spine there is new mild dod at c4-c5. there are small enthesophytes from c4 to c7 posteriorly. remainder of the disc spaces, vertebral body heights, alignments, and neural foramina are normal...conclusion: new mild degenerative changes…thoracic spine…there is moderate dish in the mid thoracic spine. disc spaces, vertebral body heights, and alignments are otherwise w maintained…conclusion: dish…lumbar spine, pelvis - …there is increased moderate disc space narrowing at ls-l6.the sixth vertebral body is a transitional vertebra. remain of the disc spaces, vertebral body heights, and alignments are well maintained. the transitional vertebra is unchanged…conclusion: progressed dod, lower lumbar spine”;
May 28, 2012 - Dr. T. Sooriabaian of Rouge Valley psychiatric care unit: “This patient presented with severe headaches, crying spells, depressed mood, lack of motivation, loss of interest, poor anger control, irritability, etc. or more than one-year duration. She informs me that a CT scan done to exclude any organic cause for headaches was normal…”
November 2012 letter of Dr. Vimal Amarasekera, the applicant’s family
physician confirms that she had been under his care “since January 20,
- She has osteoarthritis, major depression, bronchial asthma and
hypothyroidism. Her osteoarthritis has progressed since October 2011. It is likely to become progressively worse. Her depression has remained a major and permanent disability, in spite of multiple medications, and psychiatric care. In my opinion, her disability is total and permanent…”
July 17, 2013 cervical, thoracic spine x-rays -“…dish change is seen in the mid and lower thoracic spine that is stable…no fracture, no focal lesion. conclusion: scoliosis and dish…”
Sept 16, 2015 – lumbar spine and pelvic x-ray. “conclusion: stable transitional vertebra at the lumbosacral junction…”.
February 29, 2016 CNRs - of One Stop Medical Clinic notes that the
applicant complained of “…Left shoulder pain since Thursday (5 d) Spreading to pt arm, back & chest - unable to turn head and lift left arm and carry objects Last night was very painful…headache…”
March 1, 2016, shoulder MRI, neck ultrasound – “clinical history of pain and swelling, impression: no significant abnormality detected…”
April 28, 2016 - “At the C6-C7 level is a small broad-based osteochondral bar present. This is causing minor central spinal stenosis but no evidence of cord compression…”
16The evidence largely indicates that the applicant had a long-standing history of headaches, degenerative disc disease and growing osteoarthritis, as confirmed by her family physician in his letter of 2012. As well, the evidence reveals that for more than a decade the applicant had been intermittently monitoring her degenerative disc/spine condition by way of various diagnostic imaging procedures.
17With regards to the tasks of her employment, as in everyday activities the applicant’s work activities required bending, turning, ambulating and twisting. In the absence of any further details of the nature of her tasks, I am not led to believe that her work as a packager of light-weight auto parts was physically demanding beyond the physical demands of everyday routine activities, or that it was strenuous in nature. While I do not discount the fact that as claimed, her work required long periods of standing, there is no indication that the job could not be done from a sitting position, or that the applicant attempted to mitigate the circumstances by attempting to conduct her packaging responsibilities from an intermittent, seated position.
18With regards to her physical capabilities, I find no compelling evidence that would lead me to make a finding that the applicant was physically incapacitated as a result of the accident, or to an extent that she was unable to conduct the tasks involved in the packaging of 3-4 pounds, auto parts.
19Specifically, neither the ambulance nor hospital records, immediately following the accident, indicated or reported any physical impairments. The evidence indicates that two to three months post-accident, the family physician generally finds that the applicant’s injuries had circulated to her head, shoulder, neck and back; and the physiotherapist at the clinic found that the applicant had sustained the least severe form of whiplash injury, WAD1 sprains/strains. Notwithstanding, the family physician’s projected recovery within a 9-12 week/ (a 3-month period) the applicant received treatment for well beyond the projected recovery period.
20The IE physiatrist’s examination of the applicant, conducted 5 months after the accident, found no physical (neck and extremities, lumbar spine and lower extremities) restrictions/disability related to the accident. In fact, the assessor found that the applicant “presented with a full range of motion in her neck and extremities and a good range of motion in her lumbar spine and lower extremities…reported tenderness to palpation over the lower lumbar spinous processes but did not report any tenderness to palpation over the paralumbar musculature…” The physiatrist concluded that the applicant’s symptoms were non-threatening and did not manifest themselves “in any overt organic pathology suggestive of any ongoing physical impairment or physical disability attributable to the accident” He further surmises that she was safe to resume all aspects of her life, “including returning back to work on a full-time basis, immediately, without any physical restrictions or functional limitations.”
21Almost a year later on October 14, 2017, Dr. Zabieliauskas re-assessed the applicant, and despite the applicant’s complaints of ongoing pain which according to her reporting had increased from a severity of 6-7/10 in intensity when he last saw her, to an 8 up to a 9/10 in intensity, he again found she did not sustain a substantial inability to perform the essential tasks of her employment as his examination did not find any "residual objective pathology attributable to the motor vehicle accident". In my view the applicant’s reporting that the severity of pain she was experiencing had increased since she was last examined by the physiatrist, lacks credibility, given that in the interim, for close to 6 months, she had also been receiving various forms of physiotherapy to reduce her pain and restore her health.
22In making my findings, the cost of repair parts for the vehicle in which the applicant was a passenger, of over $2,000, bears consideration. Based on this cost of repair parts, and while there was no indication regarding the speed at which the Dodge Charger was travelling at the time her vehicle was hit, the fact that the applicant’s vehicle had slowed/stopped before making the turn, it appears she did not hit any part of her body upon impact, leads me to believe that the impact was minimal in severity and trauma. In fact, a few weeks after the accident, the applicant’s physiotherapist diagnosed her as having sustained the least severe Whiplash Associated Disorder, WAD 1, strains/sprains.
23The IE assessor, in his report observed that “the applicant had not returned to work since the accident, not because of any physical barriers, based on his examination, but rather in his estimation, because she had been receiving income replacement benefits at the time. Having considered the evidence provided, including several years’ history of income tax assessment, in keeping with the assessor’s observation, I am not persuaded that on a balance of probabilities, the applicant did not return to her employment because of accident related injuries. The evidence indicates a pattern that leads me believe, that she may have had other reasons for not returning to work. I base my findings on the following.
a. The evidence indicates she had been experiencing both headaches, and other physical/degenerative conditions, for which she was being monitored intermittently over the years, and prior to the accident. Notwithstanding she started working as a packager 5 months prior to the accident;
b. There is no evidence that she attempted to return to work, even on a modified basis to test her ability, even though the evidence indicates she had only started the job a few months earlier;
c. Her then employer indicates in the Employment Confirmation Form, that the applicant had not been absent from work during the 4 weeks preceding the accident. Yet, I find it questionable that as a full time employee, who had not been absent from work, her gross income for each of the 4 weeks indicated varies considerably: week 1 she earned $690.31; week 2 gross income is indicated as $584.56; week 3 was $188; and for week 4 gross earnings are indicated as $737.31; and
d. Canada Revenue Agency, income tax returns provided for several years indicate that the applicant was only employed in 2016; and as indicated she did not return to her job after the day of the accident. The 2016 return is the only year in which the applicant reported income earnings. For the years prior to the accident, 2014 and 2015, the indication is that the applicant garnered income from sources other than employment, including, social assistance payments and child care benefits.
24I have considered all of the relevant evidence provided and find it unlikely that any impairments sustained as a result of the accident, would have rendered the applicant physically unable to execute her packaging tasks. The evidence does not indicate any accident related injuries that would render her substantially unable to perform the essential tasks of her employment, packaging light-weight items of auto parts. There is also no evidence that the applicant tested her ability to return to the job. Accordingly, I find she is not entitled to income replacement benefits beyond the period paid by the insurer, almost 2 months more than the recovery period projected by the applicant’s physician.
Issue (ii): Whether the applicant’s injuries are predominantly minor injuries as defined in the s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (MIG)
The applicability of the Minor Injury Guideline
25The MIG 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. Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.
26Subsection 18(2) of the Schedule provides that some injured persons may receive medical benefits in excess of the $3,500 MIG limit, for example, if they have a pre-existing medical condition. To access the increased benefits, the injured person must provide compelling medical evidence indicating that he/she has a pre-existing medical condition, documented prior to the accident, which will prevent them from achieving maximal recovery under the MIG maximum.
27In order for the applicant to be entitled to further medical and rehabilitation benefits as claimed, she must prove, on a balance of probabilities, that she sustained injuries that are not defined as minor which would then allow her to apply for enhanced medical benefits. In addition, the applicant still has to prove that the medical/cost of examination benefits she claims are reasonable and necessary.
Did the applicant sustain predominantly minor injuries?
28I must first determine whether the applicant’s injuries are predominantly minor as defined in the Schedule, and consequently, subject to the $3,500 treatment limit, as the respondent asserts. If I find this is not the case, as the applicant claims, then I must then determine whether the denied treatment plans are reasonable and necessary. Otherwise, it will be unnecessary for me to determine the reasonableness and necessity of the treatment plans, given that the applicant has exhausted the $3500 treatment limit.
29The applicant submits that her longstanding, pre-existing, pre-accident, diagnoses including osteoarthritis, scoliosis, and degenerative disc disease major depression as evidenced by the various diagnostic imaging (X-rays, MRIs), doctors’ notes/reports provide compelling evidence that recovering from the accident-related symptoms, under the MIG treatment limit would be difficult. The respondent, on the other hand maintains that the applicant’s evidence does not substantiate treatment of accident related impairments, outside of the MIG limit,
30For the reasons set out below, I find no compelling evidence that would support a finding that the applicant sustained anything other than minor injuries as a result of the accident; or that her medical diagnosis had changed or worsened during the period in question to prevent recovery under the MIG treatment limit or within the 9-12 weeks projected for recovery by her physician in the disability certificate provided.
31Firstly, I have considered the applicant’s accident related impairments as diagnosed and find they are consistent in keeping within the definition of minor injuries as set out in the Schedule (strain, sprain, whiplash associated disorder, contusion, abrasion, laceration, etc.). What are the applicant’s accident related injuries? The evidence indicates as follows.
i. The ambulance report notes “no neck pain or palpation, no dizziness, no sensitivity to light, abdomen, soft and non-tender; extremities/ back and pelvis- no obvious trauma; no pain on palpation; chest clear”.
ii. The hospital emergency report of the date of the accident indicates that the applicant complained of “headaches, nausea…no vomiting”;
iii. The Disability Certificate (OCF-3) dated September 9, 2016(approximately 2 months post accident), completed by family physician, Dr. Vimal Amarasekera indicates that the applicant had diffused injuries to her head, shoulder, neck and back;
iv. Physiotherapist Panah, at Back to Life Physiotherapy clinic notes the accident related injuries as, a cervical strain WAD I, a lumbar strain. and tension type headaches.
v. Physiatrist, Dr. Zabieliauskas examines the applicant on December 10, 2016, and finds she “presented with a full range of motion in her neck and extremities and a good range of motion in her lumbar spine and lower extremities…reported tenderness to palpation over the lower lumbar spinous processes but did not report any tenderness to palpation over the paralumbar musculature…” The doctor also reports that at the time of the assessment, approximately 5 months after the accident, any soft tissue injuries or strains that occurred at the time of the accident would have healed by the date of the assessment. The doctor maintains this diagnosis in his reassessment almost a year later.
32Given the nature of the accident, coupled with the subsequent diagnoses including of the least severe injuries such as WAD 1, and based on the evidence indicated above, I find the applicant’s injuries fall within the definition of MIG. The applicant has not met her burden to prove otherwise.
33As indicated above, subsection 18(2) of the Schedule provides that some injured persons may receive medical benefits in excess of the $3,500 MIG limit, for example, if they have a pre-existing medical condition. Given that I have found the applicants injuries meet the MIG definition as set out in the Schedule, I must now turn my mind to the issue of whether the applicant had a pre-existing condition. At the same time, it is reasonably understood that nothing turns on the existence of a medically diagnosed pre-existing condition alone; but rather whether the pre-existing condition prevents the applicant from achieving maximum recovery under the $3500 MIG treatment limit; including whether her condition was exacerbated by the accident.
Did the applicant have a pre-existing medical condition?
34Dr. Vimal Amarasekera, the applicant’s family physician makes it clear in his November 2012 letter that the applicant had pre-existing health conditions. He states that she had been under his care “since January 20, 2010. She has osteoarthritis, major depression, bronchial asthma and hypothyroidism. Her osteoarthritis has progressed since October 2011. It is likely to become progressively worse. Her depression has remained a major and permanent disability, in spite of multiple medications, and psychiatric care. In my opinion, her disability is total and permanent…”
35Other ongoing, medical, diagnostic imaging conducted confirm the family physician’s pre-accident diagnosis. Specifically, as indicated above:
(1) September 7, 2011 - cervical, thoracic, lumbar spine, pelvis X·ravs – “…comparison with lumbar spine x·ray from January 2011 and cervical spine x ray from November 2010 cervical spine...conclusion: new mild degenerative changes…thoracic spine… conclusion: dish…lumbar spine, pelvis…conclusion: progressed dod, lower lumbar spine”; Degenerative disc disease was noted at the C4-C5 portions, along with enthesophytes from C4 to C7… Increased moderate disc space narrowing was also noticed at the L5-L6 portion of the lumbar spine.
(2) May 28, 2012 - Dr. T. Sooriabaian of Rouge Valley psychiatric care unit: “This patient presented with severe headaches, crying spells, depressed mood, lack of motivation, loss of interest, poor anger control, irritability, etc…She informs me that a CT scan done to exclude any organic cause for headaches was normal…”
(3) July 17, 2013 cervical, thoracic spine x-rays -“…dish change is seen in the mid and lower thoracic spine that is stable… conclusion: scoliosis and dish…”
(4) Sept 16, 2015 – lumbar spine and pelvic x-ray. “conclusion: stable transitional vertebra at the lumbosacral junction…”.
(5) March 1, 2016, shoulder MRI, neck ultrasound – “clinical history of pain and swelling, impression: no significant abnormality detected…” The MRI report noted that the findings were likely consistent with tendinopathy and bursitis.
(6) April 28, 2016 - “At the C6-C7 level is a small broad-based osteochondral bar present. This is causing minor central spinal stenosis but no evidence of cord compression…”
Evidence of the applicant’s post accident medical condition
36Post-accident Imaging/diagnostic procedures conducted indicate as follows:
(1) Cervical spine, Lumbar spine, Pelvis X-rays of January 3, 2017 as compared to “cervical spine radiograph from February 29, 2016. Lumbar spine radiograph from September 16, 2015”. Findings are indicated as follows: “There is moderate degenerative disc space narrowing at C6-C7, unchanged from the previous study. Remainder of the disc spaces are maintained. Vertebral body heights are normal. There is mild left foraminal stenosis at C6-C7, unchanged from the previous study…no significant change compared to the previous studies. Moderate disc space narrowing is noted at C6-C7 with mild left foraminal stenosis. There are minor degenerative changes in the lumbar spine. “
(2) Thoracic spine and Lumbar spine X-Ray, dated October 10, 2017 makes comparison with July 2013 and January 2017 X-Rays, and indicates: “Thoracic Spine -“There is mild DISH change anteriorly in the mid and lower thoracic spine. There is no fracture, no focal lesion”; Lumbar Spine - A transitional vertebra is again noted at the lumbosacral junction with pseudoarthroses bilaterally and severe disc space narrowing…Remainder of the disc spaces, vertebral body heights, and alignment are well maintained…Conclusion – No significant change.”
(3) MRI Cervical Spine dated October 1, 2018 makes comparison to an April 28, 2016 MRI and among other things indicates, “…No compression deformities or focal bony lesions are identified. Minimal disc bulging at C3-C4 with no effect on the thecal sac or the neural foramina. At C8-C7 there is prominent focal disc degeneration with disc bulging and a prominent left uncovertebral osteophyte or far lateral protrusion. This leads to significant left foraminal stenosis with suspected impingement on the left exiting C7 nerve root. Cord is unaffected. Other levels are unremarkable. Visualized paravertebral soft tissues are normal. Impression: Focal disc degeneration at C6-C7 with a prominent left uncovertebral osteophyte or far lateral protrusion, leading to left foraminal narrowing and suspected exiting nerve root impingement. This is stable or some what worse than on previous April 2016 study. No cord compression.”
37Based on the above, it is clear to me that the applicant had diagnosed, pre-existing medical conditions, specifically related to her spine (thoracic, lumbar and cervical area), including osteoarthritis and degenerative disc disease; as well as persistent headaches. In fact, medical notes of February 29, 2016, 5 months before the accident, indicates, “S: Left shoulder pain since Thursday (5 d) spreading to pt arm, back & chest - unable to turn head and lift left arm and carry object Last night was very painful.” The notes also indicate that the applicant had experienced a “4 day b/1 headache raver…” The evidence indicates that the applicant’s medical condition was monitored on an on-going basis as evidenced by the number of X-Rays/MRIs conducted in the years prior to the accident and the 3 above-mentioned after the accident of July 2016. This raises the question of whether the applicant’s pre-existing condition was aggravated by the accident.
Was the applicant’s pre-existing condition exacerbated by the accident/prevented maximum recovery under the MIG?
38The applicant’s family physician, Dr. Vimal Amarasekera confirmed in his letter of 2012 that he had been caring for the applicant’s “osteoarthritis, major depression, bronchial asthma and hypothyroidism.” He notes that “her osteoarthritis has progressed since October 2011. It is likely to become progressively worse.” It is clear that the applicant’s condition was being medically monitored and managed, including as indicated by the above post-accident X-rays/MRIs. In my view as indicated in the documents themselves, the imaging was compared to various previous imaging as a way of monitoring the progress of the applicant’s pre-existing medical condition, especially in light of the fact that her family physician expected it would likely become progressively worse” over time. I find no medical evidence, including the degenerative conditions noted in the post-accident imaging, signifying that her condition was attributable to the accident, or that would lead me to make a finding that the accident caused her pre-existing condition, including her headaches, to become worse or prevented maximum recovery.
39Considering all of the relevant evidence provided, on a balance of probabilities, I find that the applicant’s:
(a) accident-related injuries are consistently in keeping with the definition of predominantly minor as defined in the Schedule; “diffused injuries to her head, shoulder, neck and back”- family physician Amarasekera; Physiotherapist Panah, diagnosis was cervical strain WAD I, a lumbar strain. and tension type headaches; IE physiatrist’s examination of the applicant, conducted 5 months after the accident, found no physical (neck and extremities, lumbar spine and lower extremities) restrictions/disability related to the accident; X-Rays/MRIs of January 2017, October 10, 2017 and October 1, 2018 makes comparative observations of the applicant’s degenerative disc/ ostheoarthritis;
(b) pre-existing medical condition of degenerative disc/ostheoarthritis and headaches, were not affiliated with or exacerbated by the accident, or evidence that the accident caused further degeneration or headaches; or
(c) pre-existing condition prevented her from achieving maximum recovery under the MIG treatment limit; or that the six months of treatment indicated was insufficient for her recovery especially given that her family physician projected a recovery period of 9-12 weeks (2-3 months).
Issues (iii) and (iv): Whether the applicant is entitled to the treatment plans for physiotherapy services and a functional abilities assessment
40The treatment plans in question, total over $3,498.42. As indicated above, I find that the applicant has sustained minor injuries. The maximum provided for treatment of minor injuries is $3,500. The indication is that the applicant has already exhausted the MIG treatment limit. It is therefore unnecessary for me to determine whether the treatment plans in question, are reasonable and necessary, since the relevant evidence provided by the applicant does not prove, on a balance of probabilities, that she is entitled to treatment outside of the MIG limit.
Issue (v): Whether the applicant is entitled to interest
41Section 51 of the Schedule prescribes that the insurer must pay interest on overdue payments to insured persons. I find no interest is owed, as there is indication of overdue payments under the MIG treatment limit.
CONCLUSION/ORDER
42While both parties submitted Tribunal decisions for consideration, I note here that I am not bound by another member’s decision. At the same time, while I recognize that the issues determined in these decisions may be similar, the circumstances, including the mechanics of the accident and the evidence provided, vary in each case. For this reason, in determining the merits of this matter, I have focused my attention primarily on the particulars, facts and the relevant evidence provided, in this case.
43I order that:
(a) The applicant is not entitled to income replacement benefits for the period specified, other than that already paid;
(b) The applicant sustained predominantly minor injuries subject to treatment within the MIG;
(c) The applicant’s claims for medical benefits and the cost of examination are not payable, as they exceed the MIG treatment limit;
(d) There is no evidence of overdue payments, under the MIG; and there is no interest due.
44The application is dismissed.
Released: January 14, 2020
___________________________
Claudette Leslie
Adjudicator