Licence Appeal Tribunal
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:
D. O.
Appellant
and
Primmum Insurance Company
Respondent
DECISION
PANEL:
Rupinder Hans, Adjudicator
APPEARANCES:
For the Applicant:
Karl Girdhari, Counsel
For the Respondent:
Patrick M. Baker, Counsel
HEARD:
In Writing on: October 15, 2018
OVERVIEW
1On January 21, 2014, the applicant, D.O., who was seventeen years old at the time, was involved in a motor vehicle accident when his vehicle was struck from behind.
2The applicant applied for medical benefits, specifically physiotherapy set out in two treatment plans denied by the respondent, Primmum Insurance Company. The denial was based upon the respondent’s position that the applicant’s injuries were predominantly minor injuries, and thus, treatment of them fell within the Minor Injury Guideline (the “Guideline” or “MIG”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
3The applicant disagreed, and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”). The applicant submits that he has both physical and psychological impairments as a result of the accident that entitle him to treatment outside of the MIG. He submits that his initial physical impairments were primarily headaches and sprain/strains to his neck, back, shoulder and thorax, some of which became chronic in nature, and that he also developed a psychological impairment. If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES IN DISPUTE
5The issues in dispute in this written hearing are:
a. 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 in the MIG?
b. If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,482.50 for physiotherapy treatment recommended by Oshawa Physio in a treatment plan (OCF-18) submitted on February 16, 2016, and denied on February 29, 2016?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,452.00 for physiotherapy treatment recommended by Oshawa Physio in a treatment plan (OCF-18) submitted on June 6, 2016, and denied on June 15, 2016?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6Based upon the totality of the evidence before me, I find that the applicant’s physical injuries fall outside the Guideline. I further find that the applicant has not established that he developed a psychological impairment that would remove him from the MIG. Nonetheless, as I have found that the applicant’s physical impairments take him outside of the MIG, I reviewed the two treatment plans for physiotherapy. I find that the applicant is entitled to the medical benefits as set out in the treatment plans because the expenses incurred are reasonable and necessary. The applicant is also entitled to interest on the incurred medical benefits as per the Schedule.
ANALYSIS
I. The Applicability of the Guideline
7The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1). Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.
8In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisonal Court reviewed the minor injury provisions in the Schedule, and found that the onus of establishing entitlement beyond the $3,500.00 limit rests with the claimant. Applying Scarlett, the onus is on the applicant to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries.
A. Did the applicant sustain predominantly minor physical injuries?
9I find that the medical evidence shows that the applicant’s physical injuries fall outside the definition of a “minor injury” as listed in section 3(1) of the Schedule. The applicant has met his burden.
10The applicant submits that he suffers from a multitude of medical conditions, including injuries to nerves, changes to pain sensitive structures, fibrositis, and chronic pain as a result of the accident, which do not fall with the MIG and are not clinically associated sequelae. In support of his position, the applicant relies upon three Disability Certificates. The first two Disability Certificates, dated January 28, 2014 and May 14, 2014, list essentially the same impairments: concussion; headache-post traumatic; cervical spine-sprain/strain; lumbar spine-strain/sprain; shoulder girdle-sprain/strain; thoracic-sprain/strain of joints and ligaments; behaviour-symptoms and signs involving emotional state. The third Disability Certificate dated November 24, 2014 notes: chronic cervical spine strain/sprain, chronic shoulder sprain/strain, chronic thoracic sprain/strain, behaviour-symptoms and signs involving emotional state.
11The applicant also relies upon the chronic pain report completed by Dr. Howard Jacobs, pain specialist, dated November 25, 2014. Dr. Jacobs notes that the applicant reports that his neck pain is present on a daily basis, and is made worse by looking down at his computer or when he sits for any length of time, and worsening as the duration increases. He further experiences pain across his low back which is made worse when he sits for long periods of time, and the pain becomes more severe when he has to ambulate.
12Upon examination, Dr. Jacobs notes full range of motion of the applicant’s neck, and palpation of the cervical spine on the left hand side revealed marked tenderness at C4, C5, C6 and C7 on the left hand side both posterior and lateral compartments. With regards to the lumbar spine, full range of motion was maintained but there was tenderness along L3-L4 and L4-L5 areas. Dr. Jacobs concludes that the applicant had developed chronic pain of the cervical and lumbar spine, and likely developed chronic changes to the pain sensitive structures causing him to have this pain. He opines that the applicant falls outside of the MIG because his injuries are not musculoskeletal injuries, but rather injuries of nerves supplying the pain sensitive structures most likely causing neuropathic pain and central nervous system changes. He recommends a more comprehensive pain management program including physical treatments, membrane stabilizing drugs, and paravertebral and cervical nerve blocks.
13The applicant further relies upon the clinical notes and records of his treating family physician, Dr. Robert Paulovic, whose notes include the following:
a) July 2, 2015 – post MVA; still going to PT Q2 weeks; home exercise stopped (rare); limitation – no night symptoms, sitting – feels tension (laying less) need to leave work stations; fibrositis; acupuncture, a massage stretching;
b) December 2, 2015 – no physio; more pain with stress and school; more study, backpacks – more pain; meds nil; sleep – ok; headache nil; no neuro symptoms; neck and shoulder tight bwt upper back shoulder blades; full ROM C-T-L spine; fibrositis; chronic management ergonomics;
c) May 17, 2016 – neck full ROM; back full ROM; no tender trigger; lumbar strain-spasm - quad/buttocks and hamstring imbalance; physiotherapy athletic therapy - lumbar, legs; stretching, ROM strengthening;
d) December 20, 2017 – follow up back, improved, but not 100%; MVA 3 yr ago, slowly better @ 90-95%; rhomboid “fullness” tender; lumbar - episodic, sitting too long, driving; massage temp; PT temp reliev; chiro helping most; tender upper shoulder normal full ROM; shoulder fibrositis – chronic pain.
14The applicant submits that Dr. Paulovic has diagnosed his condition as chronic and fibrosistis and he continues to prescribe physiotherapy. On August 8, 2018, Dr. Paulovic renewed his prescription note for “physiotherapy athletic therapy – neck back shoulder – stretching, ROM strengthening, modalities.” The applicant is currently attending treatment at Bowmanville Chiropractic Clinic, and prior to that received treatment at Toronto Health Care Clinic and Oshawa Physiotherapy and Rehabilitation Centre. The applicant submits that on the advice of his family physician he continues to attend for weekly treatment and pays out of pocket.
15The respondent counters that on January 22, 2014, the day after the accident, Dr. Paulovic diagnosed the applicant with a soft tissue injury and whiplash, and that the only objectively identified injuries arising out of the accident are soft tissue injuries. The respondent points out that the applicant next visited Dr. Paulovic about 9.5 months later on November 4, 2014. Dr. Paulovic also noted the applicant’s January 21, 2014 x-ray of his cervical spine as normal.
16The respondent submits that in a period of about four years the applicant visited Dr. Paulovic nine times, and at least two of those visits were unrelated to the accident, and that there were no specialist referrals or chronic pain referrals. Further, Dr. Paulovic’s notation on December 20, 2017 states that three years post-accident the applicant is better at 90-95 percent.
17The respondent also relies upon the physiatry report of IE assessor Dr. Yong-Kyong Michael Ko, physiatrist, dated October 27, 2014. Dr. Ko diagnoses the applicant with sprain/strain injuries affecting the cervical spine (WAD I/II), and the upper back and lumbar spine region. He asserts that there is no clinical evidence of any organic pathology for the applicant’s ongoing pain. Dr. Ko notes that the applicant demonstrated full range of motion of all major joints, and that there is no objective evidence of any ongoing physical impairment attributable to the accident. He finds that the applicant’s injuries resulting from the accident meet the criteria of a minor injury as described in the Guideline.
18In addition, the respondent submits that the applicant does not assert that he suffers from chronic pain syndrome. Instead, the respondent states that the applicant may be suffering chronic pain but the nature of the pain is evidently sequelae of soft tissue strains, sprains or whiplash.
19I disagree with the respondent’s position. Upon review of the medical evidence, I am persuaded by the report of pain specialist Dr. Jacobs and his conclusion that the applicant does not fall within the MIG and has developed chronic pain of the cervical and lumbar spine, and likely developed chronic changes to the pain sensitive structures causing him to have pain. Dr. Jacob states that the applicant’s injuries are not musculoskeletal injuries, but instead injuries of the nerves supplying the pain sensitive structures most likely causing neuropathic pain and central nervous system changes. This may explain the applicant’s ongoing complaints of pain.
20In addition, I find that a diagnosis of chronic pain syndrome is not required to remove the applicant from the MIG. Although a diagnosis is not required, the evidence around the applicant’s functionality and pain limitation is more clearly set forth in the reports of Dr. Jacobs and Dr. Ko. Specifically, Dr. Jacobs notes that the applicant’s neck pain is made worse by looking down at his computer or when he sits for any length of time. His low back pain is similarly made worse when he sits for long periods of time and becomes more severe when he ambulates. Dr. Ko’s report notes that the applicant complaints of neck pain to be in the range of 6 to 8 out of 10, and that the onset of the pain was immediately after the accident. Dr. Ko also notes that the applicant reports that he is experiencing intermittent but daily episodes of shoulder pain along the shoulder blades and lower back. Intensity is rated 9 out of 10 and the pain is described as ‘excruciating pain’ that lasts about an hour. The aggravating factors for neck, shoulder blades and lower back pain include sitting for more than one hour, and alleviating factors include standing and lying down. I find that the medical evidence establishes that the applicant’s functionality is limited by his pain.
21Additionally, the evidence before me is that the applicant consistently sought medical attention for his physical impairments and pain symptoms, and that he was prescribed continued physiotherapy to assist in his pain management. As noted by Dr. Ko, the applicant continues to attend physiotherapy on a weekly basis receiving electro vibration therapy, laser therapy, manual manipulations, and resistance training.
22I find on a balance of probabilities that the applicant has provided persuasive evidence that his physical impairments are not a predominantly a minor injury. Accordingly, I find that the applicant has injuries that do not fall within the definition of “minor injury” as per the Schedule.
B. Does the applicant have a psychological impairment that would take him outside of the Guideline?
23Although I have found that the applicant falls outside of the MIG with regards to his physical injuries, I do not find that he has sustained psychological injuries as a result of the accident that place his claims outside of the MIG.
24Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. I find that the evidence does not establish that the applicant sustained a psychological impairment as a result of the accident.
25In support of a psychological impairment, the applicant relies upon the psychological report of Dr. Andrew Shaul, psychologist, dated July 4, 2014. Dr. Shaul notes that the applicant was experiencing some emotional distress since the accident, mostly in the form of symptoms of anxiety, and somatic pain, fear and anxiety in a vehicle, physical pain and limitations. Dr. Shaul diagnoses the applicant with specific phobia - travelling in a vehicle. Dr. Shaul submits that the applicant’s psychological condition has increased to the level of an impairment preventing him from performing the activities of daily living or achieving maximal medical recovery within the MIG.
26The respondent counters that the applicant does not suffer from any psychological impairment, and specifically not a driving phobia. The respondent points to Dr. Paulovic’s notation made on November 4, 2014, after Dr. Shaul’s report, wherein he states that the applicant felt some anxiety over driving but continued to drive without limitation.
27The respondent also relies upon the psychological report prepared by IE assessor Dr. Randy Silverman, psychologist, dated October 27, 2014. Dr. Silverman states that the applicant denied symptoms of depression, anxiety, excessive guilt, nightmares, flashbacks, or marked compromise of his overall cognitive functioning. Dr. Silverman notes that the applicant presented with some enduring mild vehicular anxiety and pain-related reduced energy levels, but that the accident had not contributed to the development of ongoing substantive residual post-traumatic symptomatology or clinically significant psychological distress. Dr. Silverman does not make a diagnosis as the applicant’s symptoms and complaints do not satisfy diagnostic criteria for a psychological disorder.
28I find the report of Dr. Silverman persuasive, and prefer it to that of Dr. Shaul. Dr. Silverman’s findings, drawn from the clinical interview, documentation review, behavioral observations, and psychological test data, indicate no evidence to warrant any psychological diagnosis or impairment. I note that a review of the clinical notes and records of Dr. Paulovic also make no reference to symptoms that may be diagnosed as a psychological impairment, nor does he make such a diagnosis. The applicant has not met his burden in this regard.
29On a balance of probabilities, I find that the applicant’s medical evidence does not establish a psychological impairment caused by the accident.
30Nonetheless, as I have found that the evidence demonstrates that the applicant’s physical injuries are not minor, he is not limited to treatment within the MIG. As such, I will need to discuss his entitlement to the treatment plans at issue.
I. Entitlement to the Physiotherapy treatment plans
31I find that the applicant is entitled to the medical benefits for physiotherapy treatment as set forth in the treatment plans in the amounts of $1,482.50 and $1,452.00.
32The test for the payment of medical benefits as set forth in section 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses as a result of the accident. The onus is on the applicant to establish that he meets this test on a balance of probabilities. The applicant has met his burden.
33The applicant submits that he should be entitled to physiotherapy treatment as he is still suffering ongoing pain in his neck, back and shoulder, and is still actively involved in prescribed treatment despite the respondent’s refusal to pay for the treatment. The applicant points out that Dr. Paulovic has continuously recommended that he attend physiotherapy to assist him in his recovery and pain management. In addition, Dr. Jacob also recommends physical treatment and a multidisciplinary pain management program to assist the applicant with his pain management. I am persuaded by these medical professionals, and as set forth above, I find the applicant’s pain complaints credible with the medical evidence presented.
34Under the circumstances, I further find that pain relief and reduction are reasonable and legitimate goal of treatment so that the applicant is able to engage in his daily activities without experiencing ongoing pain.
35I find the applicant has met his burden and persuaded me that the proposed treatment plans are reasonable and necessary to address his physical impairments resulting from the accident.
II. Entitlement to Interest
36As I have found that the treatment plans are reasonable and necessary, the applicant is entitled to interest in accordance with the Schedule on the incurred overdue benefits.
CONCLUSION
37After considering the evidence, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that:
a. The applicant’s injuries fall outside the Guideline.
b. The applicant is entitled to the following:
i. the amount of $1,482.50 for physiotherapy treatment recommended by Oshawa Physio in a treatment plan submitted on February 16, 2016, and denied on February 29, 2016; and
ii. the amount of $1,452.00 for physiotherapy treatment recommended by Oshawa Physio in a treatment plan submitted on June 6, 2016, and denied on June 15, 2016.
c. The applicant is entitled to interest in accordance with the Schedule.
Released: April 26, 2019
___________________________
Rupinder Hans
Adjudicator