A.R. v. Unifund Assurance Company, 2019 CanLII 76969

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:

A.R.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Appellant: Andrej Rondas, Paralegal

For the Respondent: Ken Yip, Counsel

HEARD IN WRITING: February 25, 2019

OVERVIEW

1The applicant, (“A.R.”), was injured in an automobile accident on January 18, 2014 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Unifund Assurance Company (“Unifund”), the respondent.

2Unifund denied A.R.’s claims because it had determined that all of A.R.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (the “MIG”).¹ As a result, A.R. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on October 22, 2018 and the matter proceeded to a written hearing on February 25, 2019.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Did A.R. sustain predominately minor injuries as defined under the Schedule?

(ii) Is A.R. entitled to payment for the cost of a chronic pain assessment in the amount of $2,460.00 recommended by [Treatment Centre] in a treatment plan submitted on February 5, 2018, and denied by Unifund on February 8, 2018?

(iii) Is A.R. entitled to payment for the cost of an occupational therapy assessment in the amount of $1,612.63 recommended by [Treatment Centre] in a treatment plan submitted on May 26, 2018, and denied by Unifund on June 5, 2018?

RESULT

5I find that A.R. did not sustain a minor injury as defined in the Schedule because he suffers from chronic pain syndrome as a result of the accident. Therefore, he is removed from the MIG. Additionally, A.R. is entitled to payment for the cost of a chronic pain assessment, but he is not entitled to payment for the cost of an occupational therapy assessment and treatment.

Did A.R. sustain predominately minor injuries as defined under the Schedule?

a) The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) 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 defined in the Schedule.

7Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

8The onus is on A.R. to show that his injuries fall outside of the MIG.² In the event that I find that A.R.’s physical injuries are “minor injuries” as prescribed by the Schedule, A.R. argues in the alternative that he should be removed from the MIG because he has been diagnosed with chronic pain syndrome, had a pre-existing condition and/or sustained psychological injuries as a result of the accident.

b) Physical Injuries

9As a result of the accident, A.R. was diagnosed with the following physical injuries: sprain and strain of shoulder joint, rotator cuff (capsule); subluxation complex (vertebral), cervical, thoracic, lumbar and sacral regions; dislocation, sprain and strain of joints and ligaments of knee; low back pain; sprain and strain of lumbar spine;³ headache; sprain and strain of thoracic spine;⁴ lumbosacral musculoligamentous strain/persistent mechanical back pain; whiplash associated disorder, grade 1; bilateral knee contusion;⁵ dorsalgia; cervicalgia; pain in joint, lower leg; pain in upper limb; and chest pain, unspecified.⁶

10I find that the physical injuries that A.R. sustained as a result of the accident are included in the definition of “minor injuries” as defined in the Schedule. Therefore, I must now consider whether A.R.’s is removed from the MIG as a result of chronic pain syndrome, a pre-existing condition and/or psychological injuries.

c) Chronic Pain

11For the reasons that follow, I find that A.R. has proven on a balance of probabilities that his injuries from the accident are not predominantly minor injuries because of his chronic pain syndrome.

12Both parties submitted and relied upon the decision of Arruda v. Western Assurance Co.,⁷ and Unifund also submitted various other previous Tribunal decisions for the following propositions concerning chronic pain:

(i) ongoing pain alone is insufficient to take an insured person out of the MIG; rather, ongoing pain must be accompanied by some functional impairment;

(ii) chronic pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability; and

(iii) an insured person will not meet his or her burden of showing that chronic pain is more than mere sequelae without discussions as to the level of pain, its effects on the person’s function and whether the pain is bearable without treatment.

13Neither party, however, referred to Executive Chair Linda Lamoureux’s reconsideration decision in T.S. v. Aviva General Insurance Canada,⁸ in which the insured person was removed from the MIG as a result of being diagnosed with chronic pain syndrome following the reconsideration. Executive Chair Lamoureux found that the Tribunal erred in its interpretation of section 3 of the Schedule and found that chronic pain, if established, should not be included in the MIG’s definition as a sequelae to minor injuries.

14A.R. argues that he is removed from the MIG as a result of his chronic pain syndrome. A.R. relies upon Dr. G.K’s Chronic Pain Assessment Report dated November 8, 2018.⁹ In his report, Dr. K. describes chronic pain as pain that persists beyond the normal healing time after a tissue injury and adversely affects the function and well-being of an individual and continues for more than the normal recovery period despite appropriate therapy and reasonable accommodations.¹⁰ More specifically, Dr. K. states that pain is usually regarded as “chronic” when it lasts or recurs for more than 3 to 6 months.¹¹ Dr. K. notes that chronic pain is a condition that is very complex and multifactorial in origin, is often resistant to medical treatments and substantially interferes with all daily activities of the individual. Dr. K. further explains that chronic pain is also associated with psychological problems, such as anxiety, depression and sleep disturbances.¹²

15Following his assessment of A.R. on October 12, 2018, Dr. K. diagnoses A.R. with chronic mechanical lower back pain, chronic mechanical bilateral knee pain, myofascial pain syndrome, chronic pain syndrome, sleep disorder and post-traumatic symptoms as a result of the accident.¹³ Dr. K. also opined that A.R.’s injuries fall outside of the MIG and that A.R. could not reasonably be expected to reach maximum medical recovery within the MIG monetary limit of $3,500.00.¹⁴

16As part of his assessment, Dr. K. noted that A.R.’s current complaints included the following:

(i) daily intermittent low back pain, which reaches a pain intensity of 9/10, that is aggravated by repetitive bending, twisting, heavy lifting, pushing/pulling, prolonged walking and standing as well as exercising;

(ii) intermittent bilateral knee pain, which reaches a pain severity of 8/10, that is exacerbated by prolonged walking on flat surfaces, prolonged standing, walking up and down stairs and exercising; and

(iii) sleep disturbances, as A.R.’s 6 to 8 hours of non-restorative sleep per night post-accident is interrupted by pain and the need to adjust positions.¹⁵

17Dr. K. also reported the effects of A.R.’s pain on his employment, housekeeping, caregiving, self-care, social and leisure activities. Dr. K. reported that A.R.’s limitations from the injuries that he sustained in the accident interfere with his ability to fully perform his job-related duties as both a lab technician at The University of Toronto and as a front desk employee at a condominium. A.R. returned to work 2 days after the accident but, at the time of Dr. K.’s report, he continued to have difficulties lifting heavy objects and with prolonged sitting and standing.

18Dr. K. also reported that post-accident, A.R. has been unable to return to all of his housekeeping duties that require endurance, heavy lifting and repetitive bending due to pain aggravation to his lower back. A.R. also reported challenges in bending down and sustaining a stooped position to play with his two young children. A.R. reported that he can perform his self-care tasks independently with pacing and requires extra time for completion. Finally, Dr. K. reports that A.R. has lost pleasure in the activities that he used to enjoy as a result of his pain, such as playing with his children, walking, jogging, playing soccer and cricket, and that A.R. was forced to curtail most of his recreational and social activities post-accident.¹⁶

19Unifund requests that I put little weight on Dr. K.’s report because:

(i) Dr. K. diagnosis A.R. with chronic pain syndrome 5 years post-accident and, in doing so, failed to explain what supporting evidence there is and the criteria that he used to reach his conclusion;

(ii) Dr. K. failed to note when A.R.’s pain began, how it evolved, the intensity/severity and duration of the symptoms, the treatment (or lack thereof) sought by A.R.; and

(iii) Dr. K.’s diagnosis of chronic pain syndrome is inconsistent with the clinical notes and records (CNRs) of A.R.’s family doctor, Dr. K.S., and the OHIP Summary as A.R. only complained of accident-related injuries on two occasions post-accident.

20I do not agree with Unifund that Dr. K. failed to outline the criteria that he used in arriving at his diagnosis of A.R. Dr. K. provided a detailed definition of chronic pain in his report and explained how A.R.’s pain meets this definition. For example, Dr. K. reported that A.R.’s pain has persisted well past the 3 to 6 month time frame to become classified as “chronic,” Dr. K. noted the areas of A.R.’s life that his pain affects and that A.R. also suffers from sleep disturbances. I also do not agree with Unifund that Dr. K. failed to outline the severity, intensity and duration of A.R.’s pain symptoms as A.R.’s pain ratings and frequency are all noted in Dr. K.’s report. Finally, both parties submitted as evidence Dr. S.’s CNRs and I agree with Unifund that the CNRs, along with the OHIP Summary, only contain two accident related entries. However, an absence of information in the CNRs and in the OHIP Summary is not inconsistent with Dr. K.’s findings – silence or an absence of information does not equate to an inconsistency. For all of these reasons, I dismiss Unifund’s criticisms and, instead, I accept and place weight on the findings and diagnoses of A.R. in Dr. K.’s report.

21Unifund relies upon the insurer’s examination (IE) Independent Medical Evaluation report by Dr. S.D., general practitioner, dated May 26, 2016¹⁷ to dispute A.R.’s claims of chronic pain. Although the underlying assessment to this report was conducted on A.R. on May 5, 2016, over two years after Dr. K. completed his assessment of A.R., Dr. D. still reported then that A.R. demonstrated signs of residual myofascial strain symptoms of the cervical spine and lumbosacral spine and had pain complaints in his low back, neck and bilateral knee pain.¹⁸ Dr. D. noted continued pain complaints from A.R. 28 months post-accident and diagnosed A.R. with lumbosacral musculoligamentous strain/persistent mechanical back pain, whiplash associated disorder, grade 1 and bilateral knee contusion (resolved/possible patellofemoral pain syndrome).¹⁹ Despite these diagnoses and A.R.’s pain complaints, Dr. D. still opined that A.R.’s injuries fell within the definition of a minor injury as defined in the Schedule.²⁰

22I place little weight on Dr. D.’s opinion that A.R.’s injuries fall within the minor injury guideline as I agree with A.R. that Dr. D. failed to address A.R. ongoing pain complaints and whether or not A.R. suffered from chronic pain. I also disagree with Unifund that Dr. K.’s report contains inconsistent information from A.R. when compared to A.R.’s reports to Dr. D. in terms of his employment, personal care, housekeeping and driving. Unifund argues that A.R. reported a return to these activities to Dr. D. “without difficulty” whereas A.R. reported a return but with limitations and pain to Dr. K. I do not find A.R.’s self-reporting inconsistent between these two reports. A.R. has consistently maintained that he returned to his pre-accident employment and other activities and Dr. D. fails to explain what he means by “without difficulty.” Certainly, Dr. D. did not say that A.R. has returned to them without pain and, therefore, there is no inconsistencies between his report and Dr. K.’s.

23As I accept Dr. K.’s findings that A.R. suffers from Chronic Pain Syndrome as a result of the accident, I find that A.R. has met his burden of proving on a balance of probabilities that he did not sustain a minor injury as defined in the Schedule. Therefore, he is removed from the MIG.

d) Pre-Existing Condition and Psychological Injuries

24As I have found that A.R.’s injuries from the accident are not “minor injuries” as defined by the Schedule and, therefore, he is removed from the MIG, there is no need to determine whether or not A.R. is removed from the MIG on any additional grounds.

Assessments

25Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

26A.R. bears the onus of proving his entitlement to the claimed chronic pain assessment and occupational therapy assessment are both reasonable and necessary on a balance of probabilities.

a) Chronic Pain Assessment

27The treatment and assessment plan (OCF-18) completed by Azrah Lavji, occupational therapist, and Robyn McMackin, occupational therapist, submitted February 5, 2018 recommends a chronic pain assessment to determine A.R.’s current recovery status, diagnosis and prognosis. The assessment would also recommend treatment and services to further assist in A.R.’s recovery and involvement in daily living activities including work, home and leisure. Ms. McMackin explained that a screening was conducted via telephone on January 30, 2018 where A.R expressed that he continued to experience ongoing pain symptoms in his mid and low back and bilateral knees as well as impaired sleep due to pain. Ms. McMackin outlines the limitations A.R. was experiencing with bending, lifting, carrying, standing and sitting and notes his challenges with his employment and other areas of his life as a result. Additional goals of this treatment plan included pain reduction and a return to activities of normal living.

28Unifund advised A.R. of its denial of this treatment plan on February 8, 2018 via an Explanation of Benefits (EOB). Unifund maintained its position that A.R.’s physical injuries fall within the MIG by relying upon Dr. D.’s May 26, 2016 report. Unifund also advised that it was relying upon an IE Impendent Psychological Evaluation report dated May 26, 2016 completed by Dr. Shahriar Moshiri, psychologist, which found that A.R. did not sustain a psychological condition. Unifund did not request A.R. to attend a section 44 IE or request to complete a paper review.

29Both parties made very little submissions on the reasonableness and necessity of the treatment plans in dispute. A.R. argued that because of his chronic pain syndrome, and a corresponding removal from the MIG, that he has proven that he is entitled to the cost of the chronic pain assessment. Unifund, on the other hand, argues that the OCF-18 is not reasonable or necessary given the evidence.

30Dr. K.’s report was not in existence at the time the OCF-18 was submitted. Therefore, while I accept Dr. K.’s diagnosis that A.R. suffers from chronic pain syndrome, I cannot take it into consideration when determining the reasonableness and necessity of this OCF-18.

31I find that A.R. has proven on a balance of probabilities that the OCF-18 for the chronic pain assessment is both reasonable and necessary because:

(i) A.R. reported ongoing pain to Ms. McMackin during his telephone screening in his mid and low back and bilateral knees. A.R. also reported impaired sleep due to pain;

(ii) the location of A.R.’s pain sites reported to Ms. McMackin were consistent with the reports A.R. made to Dr. Dhatamshi, and were also consistent with Dr. Dhatamshi’s May 2016 findings that A.R. demonstrated signs of residual myofascial strain symptoms of the cervical spine and lumbosacral spine and had pain complaints in his low back, neck and bilateral knee pain; and

(iii) Given the consistency in the location of A.R.’s pain complaints and his reports of ongoing pain so long after the accident, a chronic pain assessment was reasonable and necessary to achieve the goals of determining A.R.’s current recovery status, his diagnosis and prognosis, and to recommend treatment and services to further assist in A.R.’s recovery.

b) Occupational Therapy Assessment and Treatment

32The OCF-18 completed by Robyn McMackin, occupational therapist, submitted May 26, 2018 recommends an initial assessment and 10 sessions of occupational therapy. The goals of this treatment plan were pain reduction, occupational therapy education (including hurt verses harm principles, proper body mechanics, etc.) to increase safety, independence and participation in daily tasks. Additional goals included a return to activities of normal living and to facilitate safe and functional participation in activities of daily living. Ms. McMackin also noted that occupational therapy services can remediate and compensate for identified occupational performance issues in order to increase A.R.’s safety, his participation in daily tasks and to promote social integration.

33Unifund advised A.R. of its denial of this OCF-18 by way on an EOB dated June 5, 2018. Unifund again maintained its position that A.R.’s physical injuries fall within the MIG by relying upon Dr. D.’s May 26, 2016 report and Dr. Moshiri’s May 26, 2016 report. Unifund did not request A.R. to attend a section 44 IE or request to complete a paper review.

34A.R. relies upon the recommendations contained in Dr. K.’s Report to support his entitlement to an occupational therapy assessment and treatment. Unifund argues that the OCF-18 is not reasonable or necessary given the evidence.

35I find that A.R. has not proven on a balance of probabilities that an occupational therapy assessment and treatment as outlined in the OCF-18 are reasonable and necessary. Even though Dr. K.’s report was not in existence at the time this OCF-18 was submitted, Dr. K. has subsequently recommended a multidisciplinary approach to improve A.R.’s function, his quality of life and to management his pain that includes a combination of active rehabilitation with passive physical modalities such as physiotherapy, acupuncture, massage therapy, chiropractic treatment, spinal decompression therapy and psychological treatment. At no time does Dr. K. recommend an occupational therapy assessment or treatment. The treatments recommended by Dr. K. should be the starting point for any future treatment for A.R.

CONCLUSION

36For the reasons outlined above, I find:

(i) A.R. suffers from Chronic Pain Syndrome as a result of the accident, and, therefore, he has met his burden of proving on a balance of probabilities that he did not sustain a minor injury as defined in the Schedule;

(ii) A.R. is removed from the MIG;

(iii) A.R. has proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary and, therefore, is entitled to payment for this assessment; and

(iv) A.R. has failed to prove that the OCF-18 for an occupational therapy assessment and treatment is reasonable and necessary and, therefore, is not entitled to this benefit.

Released: June 20, 2019

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Disability Certificate (OCF-3) dated January 28, 2014 by Dr. Christian Jay, chiropractor, Applicant’s Written Submissions, tab 2.
4. 4Treatment and Assessment Plan (OCF-18) dated July 29, 2014 completed by Dr. Jay, Applicant’s Written Submissions, tab 4.
5. 5Insurer’s Examination Independent Medical Evaluation by Dr. S. D., general practitioner, dated May 26, 2016, Respondent’s Submissions, tab 8, page 8.
6. 6Treatment and Assessment Plan (OCF-18) dated February 5, 2018 completed by Azrah Lavji, occupational therapist, and Robyn McMackin, occupational therapist, Applicant’s Written Submissions, tab 9.
7. 7[2015] O.F.S.C.D. No. 177 (FSCO).
8. 82018 CanLII 83520 (ON LAT).
9. 9Applicant’s Written Submissions, tab 11.
10. 10Ibid. at page 2.
11. 11Ibid.
12. 12Ibid.
13. 13Ibid. at page 7.
14. 14Ibid. at pages 8-9.
15. 15Ibid. at page 4.
16. 16Ibid. at page 6.
17. 17Supra note 5.
18. 18Ibid. at page 7.
19. 19Ibid. at page 8.
20. 20Ibid.