Z.L. v. Northbridge Personal Insurance Corporation, 2019 CanLII 58161

Date: 2019-05-22

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:

Z.L.

Appellant

and

Northbridge Personal Insurance Corporation

Respondent

DECISION

ADJUDICATOR: Nathan Ferguson

APPEARANCES:

For the Applicant: Sunish Uppal, Counsel

For the Respondent: Bevin Shores, Counsel

Written Hearing on: April 1, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on November 16, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when her claims for benefits were denied by the respondent, Northbridge Insurance.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (MIG). The applicant’s position is the opposite.

3If the applicant’s position is correct, then I must address the issue of whether 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 medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

5Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

6If the applicant’s injuries are not within the MIG, then:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,877.00 for physiotherapy services recommended by [Rehab] in a treatment plan (OCF-18) submitted on April 13, 2016 and denied on August 8, 2016?

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

RESULT

7I find that the applicant’s injuries fall outside of the MIG.

8I find that the applicant is entitled to a medical and rehabilitation benefit in the amount of $1,877.00 for physiotherapy services recommended by [Rehab] in a treatment plan (OCF-18) submitted on April 13, 2016 and denied on August 8, 2016 and to interest on any overdue payment of benefits.

ANALYSIS

The Minor Injury Guideline

9Section 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

10Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident. The onus is on the applicant to show that her injuries fall outside of the MIG³

11The applicant argues that her diagnosis of chronic pain syndrome, provided by her family physician (Dr. C) along with previously existing factors or co-morbidities, remove her from the MIG. The respondent, on the other hand, argues that the applicant’s injuries fall squarely within the definition of a minor injury, and that the treatment proposed by the applicant is not reasonable and necessary in any event because the applicant has reached maximal medical recovery.

Does the applicant have pre-existing medical conditions?

12Although the applicant reported pain to her family physician prior to the accident and was treated for the same, the pain appears to have resolved in approximately June 2015. This was the last treatment note provided by the physician indicating the applicant complained of, or was treated for, pain before the accident several months later. There is no documented pre-existing condition that accounts for the applicant’s function or symptoms after the accident.

Does the applicant suffer from chronic pain?

13The applicant claims to experience chronic pain and directed me to Dr. C’s February 5, 2018 report, which states: “It would appear she now has a chronic pain syndrome in relation to her accident and it would be my opinion that appropriate treatment of her condition not only including medical care but also some form of physiotherapy… I would predict that [the applicant] will require intermittent physiotherapy/massage therapy for the foreseeable future and the request for ongoing therapy appears reasonable”. This is the only reference in the provided medical assessments and reports to Chronic Pain Syndrome.

14The respondent relies on the notion that chronic pain is a sequelae of a minor injury following the logic outlined in 17-002337 v. Wawanesa Mutual Insurance Company⁴, however, I note that this case indicates that “Chronic pain takes an applicant out of the MIG if it causes functional impairment and disability”.

15I find that chronic pain, if established, removes a claimant from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions. Moreover, chronic pain, if established, should not be included in the MIG definition as a sequelae to minor injuries.⁵

16Chronic pain does not fit into the 12-week functional restoration model outlined in the MIG⁶ – chronic pain by definition is pain that persists three to six months after the initial trigger or injury.⁷ Further, chronic pain is not captured by the term “clinically associated sequelae”.

17The respondent argues this is not a clear diagnosis because the clinical or diagnostic basis was not provided. I do not agree with this position. I find that the balance of medical evidence plainly describes the presence of pain on an ongoing and persistent basis, which lasted longer than anticipated as a result of the applicant’s injuries. Dr. C appears to have considered the same in arriving at the conclusion that this amounts to Chronic Pain Syndrome. It would be preferable if the underlying clinical indicia were provided and expanded upon, but this is not a requirement to establish injury or impairment.⁸ In this instance the applicant’s pain was documented and has lasted more than three to six months from the date of the initial trigger or injury and thus is in keeping with the definition of chronic pain adopted by the Supreme Court⁹.

18In assessing the applicant’s claim of chronic pain, I have applied the following criteria:

i. The applicant suffers significant and constant pain -- more than simple ongoing or recurrent, intermittent pain.

ii. The applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The applicant’s pain causes functional impairment and disability specifically with respect to her ability to clean cooks, lift and sleep on the left side according to Dr. C.

19The history provided by Dr. C in the narrative report as well as the clinical notes and records corroborates that the applicant experiences ongoing pain as a result of this accident for more than two years at the time the report was written. In finding that the applicant’s chronic pain is outside the MIG, I preferred the evidence provided by the family physician, Dr. C, because of the duration and consistency of the applicant’s treatment with Dr. C, the extensive notes provided in the course of treatment by Dr. C, and Dr. C’s reflection on the totality of the applicant’s circumstances rather than the more isolated focus on organic pathology or diagnosis utilized by the medical professionals cited by the respondent.

20The respondent’s written submissions confirm there is no dispute that the applicant continues to report pain. The respondent stressed Dr. M’s September 14, 2016 report concluding that “…100% pain control is not possible…” and that cortisone injections ought to be attempted. The applicant did not wish to pursue injections, but self-reported consistently that her physiotherapy relieves her pain on a short-term basis. The Insurer’s Examination report prepared by Dr. Z on August 5, 2016 also confirms the applicant’s ongoing residual pain which has no specific pathology, but is not questioned in terms of subjective experience.

21Dr. M described the applicant’s pain as worse with cleaning, cooking, lifting and sleeping on the left side. In addition, Dr. M confirmed that the applicant reported improvement with the use of medication and physiotherapy.

22I appreciate the respondent’s position that the applicant had pain before the accident and that this may not be related to the accident. I do not agree with this because while the applicant reported pain consistent until June 2015, there was no report of pain made between June and November of 2015, when the accident occurred. I find it likely that the applicant’s pre-accident pain subsided or was controlled until the accident either caused a new source of pain or considerably exacerbated her existing (and controlled) pain.

23It follows that I find the applicant’s injuries fall outside of the MIG. Because I have found the applicant’s injuries fall outside of the MIG, I must now determine whether the claimed treatment plan is reasonable and necessary. The onus is on the applicant to show that the treatment plan is reasonable and necessary.

Is the treatment plan in dispute reasonable and necessary?

24I agree with the applicant that a treatment plan for physiotherapy services in the amount of $1,877.00 is reasonable and necessary because it provides the applicant with temporary pain relief which temporarily improves her function.

25The applicant’s pain is reduced and her function is increased by the treatment in question. I find maintaining the applicant’s current level of function and providing pain relief are valid goals.

26Dr. Z concluded that since there is no further organic pathology or injury to treat, no future treatment or assessment plan could be considered reasonable or necessary. This discounts the functional impairments reported by the applicant and her subjective pain, notwithstanding that this was also observed and reported by Dr. Z.

27I do not accept the respondent’s position that further treatment will not help the applicant on the basis that 100% pain control is not likely or possible, or that a specific organic source for pain cannot be found or corrected. I find that even short-term pain relief is beneficial and, according to the applicant, restores some function even if not permanently. In other words, incomplete relief is preferable to no relief. I find that the reduction or management of this pain is a reasonable and necessary treatment goal.

28The applicant is functionally limited by her pain. She is now 73 years of age. Her pain continues despite ongoing treatment for a period of more than three years. The pain is improved with the use of medication and physiotherapy. Thus, I find the treatment plan proposed is likely to improve her overall function. There is no dispute that her pain is genuine or that the treatment she has followed to date improves her function.

Is the applicant entitled to interest?

29Having found that the treatment plan is reasonable and necessary, I further find that the applicant is entitled to interest on any amounts incurred to-date for the issues in dispute pursuant to section 51 of the Schedule.

CONCLUSION

30For the reasons outlined above, I find that:

i. The applicant did not sustain predominantly minor injuries that fall within the MIG.

ii. The applicant is entitled to a treatment plan for physiotherapy services in the amount of $1,877.00.

iii. The applicant is entitled to interest on any amounts incurred to date for the issues in dispute pursuant to section 51 of the Schedule.

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. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 42017 CanLII 99137 (ON LAT)
5. 5See TS v. Aviva, 2017 CanLII 59495 (ON LAT) Reconsideration Decision issued by Executive Chair L. Lamoureux.
6. 6Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 4, Part 2(g), which defines “functional restoration. See also part 8(a), page 8, “The Treatment Phase”.
7. 7See Nova Scotia (Workers’ Compensation Board) v. Martin 2003 SCC 54, [2003] 2 SCR 504 and definitions of chronic pain in Applicant's Reply Book of Authorities: Chronic Pain Syndrome: What is Chronic Pain Syndrome, Institute for Chronic Pain, Murray J. McAllister (PsyD), Executive Director of the Institute for Chronic Pain [date of publication April 27, 2012; date of modification September 8, 2016]; American Chronic Pain Association, Glossary; What is Chronic Pain, Australian Pain Management Association.
8. 8Saadati v. Moorhead, [2017] 1 SCR 543, 2017 SCC 28
9. 9See Nova Scotia (Worker’s Compensation Board) v. Martin 2003 SCC 54, [2003] 2 SCR 504.