EB v. Primmum Insurance Company, 2019 CanLII 76977

Citation: EB vs. Primmum Insurance Company, 2019 ONLAT 18-005376/AABS

Date: June 25, 2019

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:

EB

Appellant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Counsel for the Applicant: Alexei Antonov, Counsel Jaspreet Dhaliwal, Counsel

Counsel for the Respondent: Carol-Anne Wyseman, Counsel

HEARD in Writing on February 25, 2019

REASONS FOR DECISION

OVERVIEW

1The appellant EB was involved in an automobile accident on October 12, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“the Schedule'').

2EB applied to the Licence Appeal Tribunal (“the Tribunal”) when the disputed benefits were denied by Primmum.

3Primmum denied EB’s claims because it determined that all of her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline¹ (MIG). EB’s position is the opposite.

4If Primmum is correct, then EB 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.

5If EB is correct, then I must address the issue of whether the medical benefits claimed are reasonable and necessary.

ISSUES

6Did EB sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

7If EB’s injuries are not within the MIG, then I must determine the following issues:

i Is EB entitled to a medical benefit of $2,075.48 for physiotherapy, recommended in a treatment plan (“OCF-18”) by HealthMax Physio submitted on September 15, 2017, denied by the respondent on September 22, 2017?

ii Is EB entitled to medical benefits of $9,102.88 for a variety of medical services, recommended by Downsview Healthcare, in a claim submitted on October 30, 2017, denied by the respondent on November 9, 2017?

iii Is EB entitled to the cost of a chronic pain assessment (CPA) in the amount of $2,000.00, recommended in an OCF-18 by Downsview Healthcare submitted September 8, 2017, denied by the respondent on September 22, 2017?

iv Is EB entitled to receive interest on any overdue benefit payments?

FINDINGS

8EB’s injuries are minor as defined by s.3 of the Schedule; accordingly, her entitlement to medical benefits is not capped at $3,500 under the MIG. Her appeal is denied, and the issue of interest is thereby extinguished.

REASONS

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.

11The onus is on EB to show that her injuries fall outside of the MIG.²

12EB argues that she should be removed from the MIG because:

i She had a pre-existing condition.

ii She suffers from chronic pain as the result of the accident.

Does EB have a pre-existing condition that would take her out of the MIG?

13Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

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

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

14The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG clearly requires that a pre-existing condition must be shown with “compelling evidence” to prevent maximal medical recovery (MMR) within the cap imposed by the MIG.³

15EB relies on the clinical notes and records (CNRs) of her family physician, Dr. Gregory Pugen, to substantiate her claim that she suffered from mechanical neck and back pain and spasms – the first notation being in a CNR dated July 18, 2012. Dr. Pugen’s CNRs go on to chronicle continuing neck and back pain, a motor vehicle accident in November 2012, continuing neck and back complaints in 2013 and 2014, and the subject accident in 2016.

16Dr. Pugen’s CNRs post-accident notes from June 2016 to November 2017 continue to indicate back pain and related issues, with the physician prescribing pain medications and physiotherapy and ordering a back brace and orthotics for EB’s use.

17I find that EB has failed to make a prima facie case for pre-existing condition because:

i The gap in Dr. Pugen’s CNRs between complaints noted in 2014 and the onset of accident-associated complaints in 2016 suggests to me that pre-existing conditions were resolved before the accident.

ii EB provides me with no explanation or evidence to show me how or why the claimed pre-existing condition impairs her ability to reach MMR within the MIG. A statement of pre-accident problems does not suffice to meet the burden of proof.

18EB also fails to explain why she denied any pre-existing conditions to Dr. Karmy, her own examining chiropractor and to two insurer’s examination assessors Dr. Williams and Dr. Murray during clinical interviews.⁴ Unexplained contradictions serve to undermine the credibility of a claim such as EB’s claim of pre-existing condition.

Does EB suffer from a chronic pain condition that would remove her from the MIG?

19Chronic 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, is not be included in the MIG definition as a sequela to minor injuries.⁵

20Neither party provides me with any definition of “chronic pain” but EB relies on a chronic pain assessment report by Dr. Grigory Karmy⁶, which helpfully provides some criteria which I accept for the purposes of determining this dispute. The criteria are:

i Pain persisting beyond the normal, expected healing or recovery time (in this case six months) despite appropriate treatment and accommodations.

ii Chronic pain “substantially interferes with all daily activities of the individual”.

iii Chronic pain is also associated with “psychological problems such as anxiety, depression and sleep disturbances which may further increase the severity of the pain experience.”

21As noted, to establish her claim, EB relies on the chronic pain report by Dr. Karmy, which concludes with diagnoses of chronic mechanical neck, right shoulder and lower back pain, and chronic post-traumatic headache. The report is based on a clinical interview, clinical physical examination and a review of some IE reports – not the reports provided in submissions by Primmum.

22Primmum relies on the following evidence to rebut EB’s claim:

i Dr. William’s IE physiatry report concludes that EB’s injuries are minor. He reports that EB confirmed a return to regular work duties two weeks post-accident, to driving and that she was independent in all self-care activities. He noted normal, easy movement and tolerance for prolonged sitting by EB during the clinical examination. He noted EB’s complaints of regular intermittent moderate pain in the neck, lower back and headaches, which responds to various treatments and stretching. Neurological and musculoskeletal examinations were unremarkable and there was no abnormal movement by way of fasciculations. His report is persuasive and contraindicates chronic pain.

ii Dr. Murray’s IE psychology report indicates that EB suffers from no diagnosable psychological condition and his description of EB’s state does not indicate chronic pain complaints: although they do include EB’s complaints of ongoing pain, the description is of localized pain, with varying degrees of persistence. In a subsequent paper review report dated December 5, 2017, Dr. Murray opines that EB “does not have a Chronic Pain Disorder or a DSM-5 diagnosis of a Somatic Symptom Disorder with Predominant Pain”.

iii Surveillance evidence gathered by Primmum, which included photographs of described activities and is uncontested by EB indicates that she was observed to sweep, shovel snow, carry bags of salt, salt her driveway, scrape ice from her car’s windshield, stand at retail outlets and drive to and from work. There was no observed difficulty in performing these manoeuvres.⁷

23I find that EB has failed to meet the onus on her to show that she has a chronic pain condition that would remove her from the MIG. My reasons are:

i I prefer the conclusions of Dr. William and Dr. Murray to that of Dr. Karmy because of their expertise and because their examinations were thorough and in Dr. Murray’s case, included validity testing. I note that EB does not question the methodology of the IEs or the credentials of Primmum’s experts; indeed, she does not address their conclusions.

ii Dr. Murray opines that EB “does not have a Chronic Pain Disorder or a DSM-5 diagnosis of a Somatic Symptom Disorder with Predominant Pain” simply outweighs Dr. Karmy’s views on EB’s psychological state. I find that the psychological criteria for chronic pain are absent in this case.

iii Dr. Karmy’s criterion that chronic pain “substantially interferes with all daily activities of the individual” is not met in this case. The uncontested surveillance evidence in my view undermines EB’s credibility in claiming a chronic pain condition. In addition. EB’s self-reporting to IE assessors conspicuously lacks description of functional impairment, despite invitations to provide more information. The “substantial interference” criteria is, on balance, not proven to be met because the unexplained discrepancies between EB’s self-reporting to Dr. Karmy and the evidence proffered by Primmum.

iv Dr. Karmy’s report was rendered less credible in my view by his making diagnoses of psychological disorders and post-concussive syndrome without providing any persuasive evidence that he is qualified to make those diagnoses.

24As the result of my findings, I conclude that EB’s injuries fall within the MIG. Accordingly, it is unnecessary for me to address the OCF-18s in this dispute.

CONCLUSIONS

25EB’s injuries are minor, her entitlement to medical benefits is governed by the MIG and appeal is denied. As no benefits are owing to EB, no interest is payable.

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
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
4. 4IE reports of Dr. Ryan Williams, physiatrist (at page 5) and Dr. James Murray, psychologist, (at page 8), both dated November 20, 2017.
5. 5TS v. Aviva General Insurance Canada, 2018 CanLII 83520, para 20, 23-24, (“TS”)
6. 6Chronic pain assessment report, dated October 10, 2017, Dr. Grigory Karmy
7. 7Surveillance Report dated December 29, 2017 from Intrepid Investigations