N.M. v. Intact Insurance Company, 2019 CanLII 76972

Tribunal File Number: 18-005618/AABS

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:

N.M.

Applicant

and

Intact Insurance Company

Respondent

DECISION

PANEL:

Kimberly Parish, Adjudicator

APPEARANCES:

For the Applicant:

Kalin Stoykov

For the Respondent:

Barrie Rosenthal and David Persall, Lawyers

HEARD:

In Writing on: February 25, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on May 21, 2014 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.

2The respondent argues 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 Guideline (“the MIG”). The applicant’s position is exactly the opposite.

3The applicant’s written submissions were 10 pages, and their final reply was 3 pages. The respondent written submissions were 16 pages. The applicant requested that, I only consider 10 pages of the respondent’s written submissions as the applicant’s written submissions were only 10 pages. No page limit was specified within the Tribunal’s case conference order dated October 3, 2018. I have considered the respondent’s total written submissions. I find there is no prejudice to the applicant as the applicant was provided the opportunity of a final reply to address anything raised within the respondent’s submissions.

ISSUES

4Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the MIG?

5The other substantive issue to be decided is:

(i) Is the applicant is entitled to payments for the cost of medical benefit for physiotherapy services in the amount of $3,030.78, recommended in a treatment plan dated May 7, 2018, and denied by the respondent on May 22, 2018?

RESULT

6I find the applicant’s injuries are classified under the Schedule as predominantly minor in nature and fall with the MIG.

ANALYSIS

The Minor Injury Guideline

7Section 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 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.”

9Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries up to $3,500.

10Section 18(2) of the Schedule provides the provision if an insured provides documented pre-accident medical evidence from a health practitioner which shows a pre-existing medical condition which prevents an insured from achieving maximum medical recovery under the MIG, then the limit of $3,500.00 does not apply. The onus is on the applicant to show that his injuries fall outside of the MIG.²

Did the applicant sustain predominantly minor injuries?

11I find that the applicant’s physical injuries are “minor injuries” as defined by the Schedule because:

(i) The applicant’s pre-existing condition of severe left foraminal narrowing at C6-C7 was not documented prior to the accident. The applicant did not provide compelling medical evidence that he could not reach maximum medical recovery under the MIG as a result of his pre-existing condition.

(ii) The applicant does not suffer from chronic pain as a result of the accident;

(iii) The applicant did not sustain a psychological impairment as a result of the accident and;

(iv) The issuance of the respondent’s correspondence letter dated April 27, 2018 does not warrant the applicant’s removal from the MIG.

12The applicant argues he should be removed from the MIG because:

(v) He has been diagnosed post-accident with the following injuries which warrant his removal from the MIG: left C7 radiculopathy, bilateral carpal tunnel syndrome, severe left foraminal narrowing at C6-C7, wasting/atrophy of the left triceps and latissimus dorsi, severe left stenosis at C6-C7, parathesias;

(vi) The applicant has been diagnosed with chronic pain syndrome;

(vii) The applicant sustained a psychological impairment as a result of the accident and;

(viii) The respondent issued correspondence dated April 27, 2018 to the applicant noting a combined medical, rehabilitation, and attendant care limit of $65.000 is available to the applicant.

13The respondent argues the opposite.

14I find that the applicant’s physical injuries are “minor injuries” as defined by the Schedule because:

(i) The existence of the applicant’s pre-existing condition of severe left foraminal narrowing at C6-C7 does not provide compelling evidence that the applicant has not reached maximum medical recovery within the MIG;

(ii) The applicant does not suffer from chronic pain as a result of the accident;

(iii) The applicant did not sustain a psychological impairment as a result of the accident and;

(iv) The issuance of the respondent’s correspondence letter dated April 27, 2018 does not warrant the applicant’s removal from the MIG.

Does Cervical Disc Disease Remove the Applicant from the MIG?

15First, I do not find that the diagnosis left side C-7 radiculopathy and neuritis diagnosed post-accident remove the applicant from the MIG. Post-accident, the applicant continued to work out at the gym, and did not miss time from work. I find this supports he had no functional impairment. Second, I find there is a significant gap in time since when the subject accident occurred and the onset of the applicant’s severe left trapezius pain in 2016/2017 and I do not find on a balance of probabilities it as a result of the accident.

16The applicant visited Dr. A. Dr. Manohar, general practitioner the day after the accident³ where he reported neck pain and stiffness from the accident. The applicant reported to Dr. Manohar neck pain again and numbness in his fingers on June 20, 2014. The applicant attended treatment with Dr. P. DuPerrouzel, chiropractor prior to, and following the accident and in July 2014, he recommended treatment three times per week for 4 - 6 weeks.⁴ A treatment plan prepared by Dr. DuPerrouzel dated January 21, 2015 noted applicant continued to have unresolved neck, upper and lower back pain with restrictions which limits his ability to resume his full pre-accident life and work activities.⁵

17The applicant saw Dr. T. Wong, general practitioner on February 22, 2017 for back pain and a referral was made March 22, 2017 to Dr. S. Wong, Physiatrist at Bodymed for left trapezius and rhomboid pain, and left triceps atrophy.⁶

18The applicant relies on the April 18, 2017 MRI which revealed mild degenerative central canal stenosis at C5 - C6 and severe left foraminal narrowing at C6-C7. This has led to a diagnosis by Dr. S. Wong, physiatrist of C-7 radiculopathy and brachial neuritis on the left side. The applicant was later diagnosed by Dr. S. Wong with bilateral carpal tunnel syndrome.⁷ Dr. S. Wong referred the applicant for an EMG to address his shoulder pain, muscle wasting and weakness in the rhomboid and triceps muscles.

19The respondent submitted the applicant is a bodybuilder who worked out prior to and after the accident. Prior to the accident the applicant experienced chronic tightness and irritation in his thoracic spine area, difficulty sleeping due to tightness and irritations in his shoulders and lower back.⁸ It is the respondent’s position that the left shoulder pain, and left side neck pain were subsequent to working out at the gym.⁹ The letter of Dr. S. Wong dated March 31, 2017 noted the applicant’s left shoulder pain appeared spontaneously 3 ½ months earlier.

20The respondent relies on the opinion of its insurer’s examination (IE) assessor, Dr. M. Fung, general practitioner who issued a report dated June 25, 2018. The report noted the applicant did not miss any time from work following the accident, was independent with his self-care tasks and activities of daily living. Dr. Fung further noted there was a significant passage of time from when the subject accident occurred and when the issues arose with the applicant’s left shoulder. Dr. Fung opined the cause was the result of the degenerative disc disease in his cervical spine with an impingement on his left C7, combined with the applicant’s workout routine causing C7 radiculopathy and brachial neuritis to occur in 2016/2017 and more recently.

Does the Applicant Suffer from Chronic Pain as a Result of the Accident?

21I do not find the applicant suffers from chronic pain as a result of the accident because he failed to establish that he suffered any functional impairment as a result of his accident-related injuries. I afford little weight to the report of Dr. I. Wilderman, chronic pain specialist and the diagnoses he provided within his report. Dr. Wilderman noted the applicant’s physical and psychological functioning significantly changed following the accident, and attributed this to the accident. I find this to be problematic as it appears Dr. Wilderman reviewed the applicant’s diagnostic imaging results, as well as the CNRs produced for this hearing. However, his report made no reference to the applicant continuing to work-out and the reported injuries he sustained following some of the work-outs as reflected within the applicant’s CNRs.

22I do not accept the applicant’s arguments that the applicant suffers from chronic pain based on the findings of Dr. Y. Chen, physiatrist who concluded the applicant’s symptoms were consistent with C7 radiculopathy and recommended: spinal surgery discussion, epidural steroid injections, pharmacological options, and self-directed exercises. The applicant underwent nerve block injections with Dr. Sandhu at the Toronto Poly Clinic to address his neck pain which radiated down both arms. I have already found the applicant does not have a functional impairment and due to the significant gap in time (almost 3 years) between this diagnosis and the accident, I do not find the C-7 radiculopathy was caused by the accident. I agree with the respondent that the CNRs of MCI the Doctor’s Office support this was related to his work-out regime and not the accident.

23I do not find the applicant suffers from chronic pain based on Dr. Wilderman’s chronic pain assessment report dated September 24, 2018. The applicant was diagnosed with chronic pain syndrome, Chronic Whiplash Associated Disorder (WAD) type II, and chronic cervicogenic headaches. The report fails to address the applicant’s workout routine, prior injuries he sustained from working out, as evidenced within the applicant’s medical records which appear to have been reviewed by Dr. Wilderman. Further, the report does not comment on the timeframe from when the applicant’s current complaints arose and the date of the accident.

Does the Applicant Have a Psychological Impairment?

24I do not find the applicant sustained a psychological impairment as a result of the accident which would warrant removal from the MIG. The applicant relies on his self-reporting of psychological complaints which were four years after the accident.

25The applicant relies on Dr. Wilderman’s report noting the applicant reported feeling distressed with not being able to do the things he did prior to the accident, his pain limitations have affected his social interactions, and the applicant has experienced decreased concentration and memory. The treatment plan in dispute prepared by Navneet Nagpaul, physiotherapist also referenced barriers to recovery and noted: the applicant is psychologically depressed and anxious due to the chronicity of symptoms and their impact on his life.

Does the Respondent’s April 27, 2018 Correspondence Remove the Applicant from the MIG?

26I do not find the correspondence issued by the respondent dated April 27, 2018 advising the applicant he has a combined medical, rehabilitation and attendant care limit of $65,000 available to him warrants removal from the MIG. It was an administrative error which the respondent corrected through the issuance of further correspondence. I find there was no prejudice to the applicant as a result.

27The applicant argues he received correspondence from the respondent dated April 27, 2018 which advised the applicant he has a combined medical, rehabilitation and attendant care limit of $65,000 available to him. The applicant further submitted that the treatment plan in dispute was submitted subsequent to receiving this letter and the respondent has acted in bad faith by taking the position the applicant’s injuries are within the MIG and denying this treatment plan. The applicant has provided case law and jurisprudence addressing consumer protection and ambiguity to be interpreted in favor of the applicant.

28The administrative error noted within the respondent’s April 27, 2018 letter was corrected by the correspondence issued by the respondent dated May 30, 2018 which clearly explained the denial of the disputed treatment plan was based on the applicant’s injuries being within the MIG. Further correspondence dated September 20, 2018 was issued by the respondent noting the April 27, 2018 letter had noted the incorrect date of loss and incorrect limits for the rehabilitation and attendant care benefits. The respondent relied on the Ontario court of Appeal Case of Stranges v. Allstate Insurance Company of Canada¹⁰ which found inadequate notice does not automatically entitle an insured to benefits, the onus still remains on the insured to prove their claim.

29I did not find the cases provided by the applicant were persuasive. I am persuaded by Stranges.

Is the Medical Benefit in the amount of $3,030.78 Reasonable and Necessary?

30I do not find the medical benefit for physiotherapy services in the amount of $3,030.78 is reasonable and necessary because I have already found the applicant sustained predominantly minor injuries as defined by the Schedule as a result of the accident. No further medical evidence has been produced to support further physiotherapy is required to address the applicant’s injuries he sustained as a result of the accident.

31The applicant relies on the goals of the treatment plan which noted: pain reduction, increase in range of motion and strength. The barriers to recovery within the treatment plan noted the applicant was depressed and anxious due to the chronicity of his symptoms.

CONCLUSION

32For the reasons outlined above, I find that:

(i) The applicant sustained predominantly minor injuries that fall within the MIG.

(ii) The medical benefit claimed for physiotherapy treatment is not reasonable and necessary, and the applicant is not entitled to this claimed benefit. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 3CNR of Dr. A. Manohar dated May 22, 2014
4. 4Letter from Dr. DuPerrouzel, dated July 9, 2014
5. 5Treatment plan prepared Dr. DuPerrouzel in the amount of $1,290.00, dated January 21, 2015
6. 6CNRs of Dr. T. Wong, March 22, 2017
7. 7Letters of Dr. S. Wong dated March 31, October 13, 2017, CNR of Dr. S. Wong dated October 28, 2017
8. 8Clinical notes and records of Dr. P. DuPerrouzel, entries dated March 11, April 4, 11, 28, May 15, 2014
9. 9CNRs from MCI the Doctor’s Office (Woodbridge) dated August 26, 2016, January 25, February 22, March, October, 2017
10. 10Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, para 9