L.F. v. Allstate Insurance Company of Canada, 2019 CanLII 51308

Date: 2019-05-07

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.F.

Appellant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the applicant: Tal Eshel, Counsel

For the respondent: Lisa Quan, Counsel

Written Hearing on: November 5, 2018

OVERVIEW

1The applicant was injured on February 16, 2016 when an oncoming car crossed the centre line and struck the driver’s side of the van he was driving (“the accident”). The applicant sustained strain and sprain injuries to his neck, left shoulder and back. The 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 medical and assessment benefits were denied by the respondent.

2The applicant submits that he suffers from chronic pain, post-traumatic fibromyalgia, and sleep disorder. He also submits that the injuries sustained in the accident exacerbated his pre-existing low back injury. The applicant therefore submits that the Minor Injury Guideline (“the MIG”)² does not apply. The respondent submits that the applicant’s accident related injuries are predominantly minor and that the MIG applies.

3If the applicant’s injuries fall outside the MIG, then I must address whether the medical and assessment benefits claimed are reasonable and necessary. If I determine that the applicant’s injuries are predominantly minor and subject to the MIG, 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

4The following issues are before the Tribunal:

(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule that are subject to treatment within the MIG?

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

1. Is the applicant entitled to a medical benefit in the amount of $3,739.64 for chiropractic treatment recommended by Life Harmony Rehab Centre in a treatment plan submitted on September 1, 2016 and denied on October 27, 2016?

2. Is the applicant entitled to a cost of examination in the amount of $2,855.60 for a chronic pain assessment recommended by Rehab First in a treatment plan submitted on March 19, 2018 and denied on March 27, 2018?

3. Is the applicant entitled to a medical benefit in the amount of $109.66 for prescription expenses, partially approved in the amount of $30.19, submitted on July 31, 2018 and denied on August 1, 2018?

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

(iii) Is the respondent entitled to costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice & Procedure (“the Tribunal Rules)⁴ because the applicant acted frivolously, vexatiously, or in bad faith in this proceeding⁵?

RESULT

5I find that the applicant sustained predominantly minor soft tissue injuries. The evidence does not establish that the injuries sustained in the accident exacerbated any pre-existing low back injury, or caused post-traumatic fibromyalgia or sleep disorder. I therefore find that the MIG applies. As the MIG limit has been exhausted⁶ it is unnecessary to determine whether the medical and assessment benefits sought are reasonable and necessary or whether interest is payable,

6In the circumstances of this case, I do not find that a cost award is warranted.

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, on a balance of probabilities, that his injuries are not subject to the MIG⁷.

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

10I find, for the reasons set out below, that the applicant sustained soft tissue injuries to his neck, shoulder and back that are predominantly minor injuries and that the MIG applies.

Chronic Pain

11The applicant alleges that he suffers from chronic pain and that he should therefore be excluded for the MIG. When determining whether an individual suffers from pain sufficient to exclude him from the MIG, evidence relating to the nature and extent of the accident related injuries, any resulting functional limitations, as well as the severity of the pain experienced as a result of those injuries, is relevant⁸. I find that the evidence does not support a finding of functional limitations or pain of the severity, frequency or continuity alleged by the applicant, and I find that there is insufficient evidence to exclude the applicant from the MIG on this basis, for the following reasons.

12Prior to the accident the applicant was self-employed at his subcontracting business where he employed two workers. The applicant advised assessors that his job demands prior to the accident had included building walls, putting up drywall and renovating bathrooms, which involved heavy lifting, bending, pulling, pushing, repetitive reaching overhead, as well as prolonged walking and standing⁹.

13Immediately after the accident the applicant reported experiencing pain in his left shoulder, neck, and back. He was diagnosed by Dr. Lui, a chiropractor, with sprain and strain to the cervical and thoracic spine and shoulder joint¹⁰.

14The applicant advised that he returned to work the day after the accident and that he has worked 6 days a week since that time. He reported that when he returned to work, he initially worked reduced hours, working only 8 hours a day, rather than 10-11 hours a day he reported working prior to the accident. The details of the nature and extent of the applicant’s functional limitations provided by him to the assessors and contained in the documentary evidence are vague and inconsistent. The applicant advised one assessor that he had had to hire a person to perform the physical aspects of his job and that he could only supervise after the accident¹¹, but made no mention to a second assessor¹² of limiting himself to supervisory duties. Despite having consented to an Order to provide the respondent with the names and contact information of the person(s) hired to help with his duties after the accident, the applicant later refused to provide that information¹³, alleging that employment details were not relevant to the issues in dispute. Evidence from the person the applicant alleges he hired to assist with duties his accident related injuries and pain prevented him from doing, could have assisted the applicant in proving the functional limitations resulting from his accident related injuries. As the applicant’s evidence regarding the extent to which his injuries prevented him from performing his pre-injury duties is vague and at times contradictory, it has been given little weight.

15The only contemporaneous evidence of the specific nature of the modified duties required or performed by the applicant as of April 22, 2016, is the Minor Injury Treatment Discharge Report¹⁴ which was completed by his treating chiropractor, Dr. Liu and signed by the applicant. It indicates that the applicant was able to return to full pre-accident work activities at that time. On that date, however, Dr. Liu also completed a treatment plan recommending further therapy, which noted that the applicant had limitations including carrying or lifting heavy objects, overhead activities and reaching¹⁵. I therefore find that although the applicant did have some limitations related to those activities, the applicant was able to, and had, returned to many of his construction duties, working 6 days a week, as of April 22, 2016.

16From February 2016 until the end of July 2016 the applicant attended therapy an average of about once a week¹⁶. If the applicant was continuing to experience any significant amount of pain after he stopped attending therapy, he could have sought treatment or medication from his family doctor, as he had done in March 2013 when he had experienced low back pain. There is no evidence that he saw his family doctor until October 2016.

17I find the evidence of the applicant’s family doctor, Dr. Wong¹⁷, to be particularly relevant. The timing and limited number of the applicant’s visits to Dr. Wong, as well as the nature of his complaints at the time of those visits, do not support the scope and severity of the chronic pain the applicant alleges he suffers as a result of accident related injuries. Most significantly, Dr. Wong's clinical notes and records establish that the applicant did not visit Dr. Wong until October 15, 2016, eight months after the accident. At that time he advised Dr. Wong that he had had low back pain for one week. The applicant made no mention of any neck or shoulder pain, nor did he even tell Dr. Wong that he had been in an accident. When the applicant saw Dr. Wong for an annual physical a few weeks later, the applicant did not specifically report any low back pain, nor did the applicant report any pain, stiffness, or problems with range of motion or joints.

18Dr. Rabinovitch, a specialist in Physical Medicine and Rehabilitation, conducted an Insurer Physiatrist Examinations on November 28, 2016. In her report¹⁸, she notes that the applicant advised that he was not taking any prescription or over-the-counter medication; that he was independent with regards to personal care; that he had returned to performing the majority of his pre-accident household duties, with the exception of snow shovelling and washing dishes; that he had returned to driving; that he engaging in his pre-accident social activities; and that his sleep was unaffected. He advised that following the accident he only did supervisory work and that he had hired a person to perform the physical aspects of his job. He further advised that he had intermittent daily “achy” shoulder pain and intermittent back pain. She concluded that the applicant’s injuries fall within the MIG. When Dr. Rabinovitch assessed the applicant again on April 16, 2018, she concluded that the applicant had suffered uncomplicated soft tissue injuries in the accident¹⁹.

19Only intermittent low back pain of short durations was reported Dr. Wong after the applicant’s initial report in October 2016. It was not until on February 15, 2017, a full year after the accident, that applicant advised Dr. Wong for the first time that he had had low back pain since the accident the prior year. The applicant saw Dr. Wong complaining of low back pain again on April 13, 2017 which he reported having had for 1 week; on June 13, 2017 which he reported having had for 2 days; and on December 20, 2017 and on July 25, 2018.

20There is no record of the applicant ever having advised Dr. Wong that he had neck pain.

21It was not until September 8, 2017, more than 18 months after the accident, that the applicant advised Dr. Wong for the first time that he had left shoulder pain as a result of the accident. Dr. Wong referred the applicant to Dr. Hew at the Centre for Pain Care who saw him on September 16, 2017 for shoulder pain and low back pain. He gave the applicant nerve block injections. Dr. Hew noted that the applicant would follow up with both him and with Dr. Wong²⁰. There is no record of the applicant ever contacting Dr. Hew again, nor is there any reference after September 2017 to left shoulder pain in Dr. Wong’s clinical notes and records or in his Report.

22Dr. Wong’s records²¹, prescription receipts²², and the pharmacy records²³ establish that when the applicant consulted Dr. Wong periodically following the accident for intermittent low back pain (as outlined above), Dr. Wong prescribed only short doses (7-10 days) of medication (Robaxisal). On October 15, 2016, a 4 day supply of Robaxisal, with one repeat, was prescribed. The pharmacy records indicate that no repeat of that prescription was ever dispensed. There is no record of any medication ever having been prescribed for the applicant’s shoulder pain.

23The above-noted evidence is dramatically different than the information relied upon by, and the findings of, Dr. Karmy, a physician certified by the Canadian Academy of Pain Management who assessed the applicant more than two and a half years after the accident. In his Report²⁴, Dr. Karmy concludes that the applicant “developed chronic widespread pain, which is predominant in the areas of left shoulder, neck and lower back” as a result of the accident and that “Chronic pain substantially interferes with all daily activities of the individual …”. Dr. Karmy’s opinions have been given very limited weight for the following reasons.

• Dr. Karmy does not note or comment on the late reporting of back and shoulder pain to Dr. Wong, or the intermittent nature of those complaints, nor does he comment on the total absence of any complaints of neck pain to Dr. Wong. This is significant as the information in Dr. Wong’s records is inconsistent with the accident having caused the type of chronic widespread pain of the nature or severity referred to by Dr. Karmy.

• Dr. Karmy states that the applicant developed sleep disturbances since the accident and notes that sleep disturbances “may further increase the severity of the existing pain experience”. This is in contrast to Dr. Wong’s records and Report that make no mention of complaints of sleep disturbances, and contrary to Dr. Rabinovich’s December 2016 Report which specifically states that the applicant reported that his sleep had been unaffected by the accident.

• Dr. Karmy’s Report states that since “the accident the applicant has had to limit his social activities due to chronic pain. He feels uncomfortable whenever he goes out with friends and family as prolong sitting, standing or walking aggravates his lower back pain.” This is contrary to Dr. Rabinovich’s December 2016 and April 2018 Reports that note that the applicant had returned to his pre-accident social activities, and Dr. Tong’s Report which notes that he was unable to find any documentation in his chart “of any social functional disabilities as a result of the MVA.”

24I find that the evidence does not support a finding of pain of the severity, frequency or continuity that is sufficient to exclude him from the MIG.

Pre-Existing Condition

25Section 18(2) of the Schedule provides that an applicant with minor injuries who has a pre-existing medical condition may be exempted from the $3,500 cap on benefits, if the applicant provides compelling evidence that establishes that:

a. there was a pre-existing medical condition that was documented by a health practitioner before the accident; and

b. the pre-existing condition will prevent the maximal recovery from the minor injury if the person is subject to the $3,500 cap on treatment costs under the MIG.

26In his Reply Submissions, the applicant argues that he should not be subject to the $3,500 cap under the MIG because he suffered from documented lower back symptoms prior to the accident. This argument is rejected for the following reason. As noted in Dr. Tong’s clinical notes²⁵, the applicant saw Dr. Tong on March 30, 2013 with a complaint of low back pain that he had had for one month. He was prescribed 10 days of medication. At no time after March 2013 and prior to October 15, 2016 did he see Dr. Tong again for low back pain. The applicant advised Dr. Rabinovitch that he was in good physical condition at the time of the accident. He advised Dr. Karmy that he did not have any chronic musculoskeletal pain prior to the accident. Although it is relevant that the applicant had previously experienced low back pain for reasons unrelated to the accident, there is no evidence that the applicant’s prior low back pain was a pre-existing condition that prevented recovery from his minor injuries within the $3,500 MIG limit.

27I do not find that the applicant is excluded from the MIG as a result of a pre-existing medical condition.

Fibromyalgia

28The only evidence in support of the position that the accident caused the applicant to suffer from post-traumatic fibromyalgia is the opinion of Dr. Karmy. Dr. Karmy concludes that the applicant meets the diagnostic criteria for fibromyalgia and suffers from post-traumatic fibromyalgia based on his interview with, and physical examination of, the applicant. It is not clear how Dr. Karmy reached his conclusion or what specific facts he relied upon in doing so. As noted above, much of the information referred to in Dr. Karmy’s Report is inconsistent with and/or contradicted by other more reliable evidence. For these reasons, I do not find Dr. Karmy’s opinion persuasive. I find that the evidence does not establish that the applicant suffers from post-traumatic fibromyalgia as a result of the accident, nor do I find that he is excluded from the MIG on that basis.

Sleep Disorder

29Dr. Karmy concludes that the applicant has “suffered significant sleep disturbances as a result of the subject accident” and that “therefore, the claimant’s ongoing psychological problems should also exclude him from the MIG”. This is contrary to the evidence of Dr. Tong, who, in his Report noted that “There has been no statement of psychological or cognitive impairments” by the applicant. It is also inconsistent with what the applicant told Dr. Rabinovitch on November 28, 2016, namely that his sleep had been unaffected by the accident. For these reasons, I do not find Dr. Karmy’s opinion persuasive and find that the evidence does not establish that the applicant suffers from a sleep disorder or any other psychological problem as a result of the accident, nor do I find that he is excluded from the MIG on that basis.

Costs

30The respondent seeks costs in the amount of $250.00 as a result of the applicant’s refusal to comply with the production Order and the applicant’s late service of its Written Submission. The respondent alleges that these actions constitute “a blatant disregard for the Tribunal’s authority, and amounts to vexatious behaviour warranting a cost award.”

31Pursuant to Rule 19 of the Tribunal Rules, the Tribunal may award costs where a party “has acted unreasonably, frivolously, vexatiously, or in bad faith”.

32Rule 19.5 of the Tribunal Rules provides:

“In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.”

33In this case the applicant’s Written Submissions were filed one day late as a result of an inadvertence by his legal representatives. The respondent has not alleged any prejudice as a result. I do not find this to be a blatant disregard for the Tribunal’s authority, nor do I find that it warrants a cost award.

34Having consented to the production Order, it was not open to the applicant to subsequently unilaterally decide that the information and documentation sought is not relevant and refuse to provide the same. When notified of the applicant’s refusal to comply with the Order, and despite the applicant’s request that the respondent contact the applicant if there were any questions or concerns, there is no evidence of a an objection or any response from the respondent. For this reason and given the decision reached in this application, in the circumstances of this case I do not find that a cost award is warranted.

CONCLUSION

35For the reasons outlined above, I find that:

1. The applicant has not established that his injuries are not subject to the MIG. As the MIG applies it is unnecessary to determine whether the medical and assessment benefits sought are reasonable and necessary or whether interest is payable, as the MIG limit has been exhausted.

2. No costs are awarded to the respondent.

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, R.S.O. 1990, Chapter I.8.
3. 3Respondent’s Written Submissions, dated October 22, 2018, at paragraph 3.
4. 4Safety, Licensing Appeals & Standards Tribunals Ontario, Common Rules of Practice & Procedure, October 2, 2017, Rule 19.
5. 5In its Written Submissions, at paragraph 7, the respondent seeks its costs in the amount of $250.00.
6. 6Respondent’s Written Submissions, dated October 22, 2018, at paragraph 3.
7. 7Scarlett v. Belair, 2015 ONSC 3635.
8. 8Respondent’s Brief of Authorities, Tab 2, 17-003692 v. Aviva General Insurance, 2018 CanLII 83501 (ON LAT) at paragraph 11.
9. 9Supra at footnotes 8 and 9.
10. 10Applicant’s Production Brief, Tab 3, Disability Certificate (OCF-3), dated February 16, 2016.
11. 11Respondent’s Written Submissions, Dr. Rabinovitch’s Insurer’s Examination Physiatry Assessment Reports (Tab L - Report dated December 12, 2016 and Tab M – Report dated April 27, 2018)
12. 12Applicant’s Production Brief, Tab 25, Dr. Karmy’s Chronic Pain Assessment Report, dated September 25, 2018.
13. 13Respondent’s Written Submissions, Tab C.
14. 14Applicant’s Production Brief, Tab 5, Minor Injury Treatment Report, dated April 22, 2016.
15. 15Applicant’s Production Brief, Tab 6, Treatment and Assessment Plan, dated April 22, 2016.
16. 16Applicant’s Production Brief, Tab 23, Life Harmony Rehab Centre, clinical notes and records.
17. 17Applicant’s Production Brief, Tabs 15 -19, Dr. Wong’s clinical notes and records; and Tab 24, Dr. Tong’s Report dated September 18, 2018.
18. 18Supra, footnote 8.
19. 19Supra, footnote 8.
20. 20Applicant’s Production Brief, Tab 22, Dr. Hew’s Doctor’s Note to Dr. Tong, dated September 16, 2017.
21. 21Supra, footnote 15.
22. 22Applicant’s Production Brief, Tabs 9-12.
23. 23Applicant’s Production Brief, Tabs 31 and 32.
24. 24Supra, footnote 9.
25. 25Applicant’s Production Brief, Tab 15.