J.R. v. RSA Insurance, 2019 CanLII 9631

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.

Date: January 23, 2019

Between:

J.R.

Applicant

and

RSA Insurance

Respondent

DECISION

PANEL:

Billeh Hamud, Adjudicator

APPEARANCES:

For the Applicant:

Linda To, paralegal

For the Respondent:

Loretta De Thomasis, counsel

HEARD:

In Writing on: August 7, 2018

BACKGROUND

1The applicant was injured in an automobile accident on June 26, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). The applicant sought benefits from the respondent (“RSA Insurance”) for several treatment and assessment plans and payment for examinations.

2RSA Insurance denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” as defined by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (“the Tribunal”) when his claims were denied by RSA Insurance.

ISSUES TO BE DETERMINED

3The following are issues to be determined:

a) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the MIG?

b) Is the applicant entitled to receive a medical benefit for the following:

i) $3,626.25 for physiotherapy treatment set out in a treatment plan by Mackenzie Rehab Centre dated July 5, 2016, denied by the RSA Insurance on July 15, 2016;

ii) $1,977.05 for physiotherapy treatment recommended by Mackenzie Rehab Centre dated November 3, 2016, denied by the RSA Insurance on November 14, 2016;

iii) $1,384.70 for physiotherapy treatment recommended by Mackenzie Rehab Centre dated December 5, 2016, denied by the RSA Insurance on December 22, 2016.

c) Is the applicant entitled to payment for the following examinations:

i) $2,960.00 for chronic pain assessment recommended by Dr. Stephen Brown in a treatment plan dated September 8, 2017, denied by RSA Insurance on July 6 2017.

d) Is the applicant entitled to interest for the overdue payment of benefits?

4In his submissions, the applicant withdrew his claims for income replacement benefits.

RESULT

5I find that the applicant has proven on a balance of probabilities that, as a result of the accident, he suffers from chronic pain syndrome and this impairment is a result of an injury that is not predominately minor. As a result, the applicant is not subject to the MIG.

6The applicant is entitled to each of the treatment plans in dispute. The applicant has proven that they are reasonable and necessary. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

7The applicant is entitled to the cost of a chronic pain assessment.

ANALYSIS

The Minor Injury Guideline

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) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

10The onus is on the applicant to show that his/her injuries fall outside of the MIG.³

Did the applicant sustain predominantly minor physical injuries?

11The applicant has proven on a balance of probabilities that as a result of the accident, he suffers from chronic pain syndrome and this impairment is as a result of an injury that is not predominately minor. As a result, the applicant is not subject to the MIG.

12The MIG is a limit on an insurer’s liability with respect to minor injuries sustained in a car accident.

13I find the applicant’s physical injuries are not predominately minor and not subject to the treatment cap of $3,500.00 under the MIG.

14I find that the applicant’s complaints with chronic pain have been consistently reported to his physician and specialists. Specifically, I find that the applicant has proven that he suffers from chronic pain syndrome through a chronic pain assessment report from Dr. Stephen Brown dated September 8, 2017. Dr. Brown’s diagnosis is based on a number of physical and psychological testing methods, including range of motion testing, a physical examination and an interview. Dr. Brown’s examination revealed lumbar flexion and left and right rotation elicited pain and lumbar extension caused the applicant the most discomfort. I also find that the applicant’s chronic pain has impacted his activities of daily living. Specifically, Dr. Brown’s examination of the applicant revealed that he reports restrictions performing household tasks involving bending or prolonged standing and his low back pain restricts his ability to perform household duties such as cleaning, laundry, food preparation, dishes and vacuuming. Furthermore, Dr. Brown noted that the applicant’s pain symptoms have persisted long after the expected time for normal healing and recovery. Dr. Brown also reviewed the applicant’s clinical notes and records of Dr. O’Hara Rampersad, the applicant’s family doctor, prior to authoring his report.

15I accept Dr. Brown’s diagnosis of chronic pain syndrome because it is supported by the results of the applicant’s range of motion tests, interview answers and Dr. Rampersad’s clinical notes and records. I also note that the applicant consistently reported pain in his lower back in his initial appointment with Dr. Rampersad on June 28, 2016, two days after the accident and in his follow up appointments on July 14, 2016, August 25, 2016, and September 8, 2016.

16RSA Insurance submits that the applicant does not suffer from any chronic injury. Instead, RSA Insurance states that the applicant suffers from injuries which are predominately sprain and strains. RSA also relies on the physiatry report from Dr. Steven Baker dated March 20, 2017.

17I prefer Dr. Brown’s analysis over Dr. Baker’s for several reasons. First, Dr. Baker’s examination of the applicant does not correlate with his findings and recommendations. Although Dr. Baker’s report acknowledges that the applicant “continues to experience pain in his neck, upper back, lower back and right thigh”, Dr. Baker still concludes that the applicant’s injuries fall within the definition of a minor injury. More surprisingly, even though Dr. Baker found a general correlation with his objective findings and the applicant’s reported complaints, Dr. Baker notes that “active range of motion limitations” and “reports of pain” are by definition “subjective in nature”.

18Second, Dr. Baker’s report did not address the clinical notes and records from Dr. Rampersad which demonstrated that the applicant consistently reported pain in his lower back in his initial appointment with Dr. Rampersad on June 28, 2016, two days after the accident, and in his follow up appointments on July 14, 2016, August 25, 2016, and September 8, 2016. I find that this medical evidence was not refuted or even addressed by Dr. Baker. As a result, I place less weight on Dr. Baker’s analysis as a result.

19Furthermore, I also find that the applicant’s chronic pain is not a “clinically associated sequelae” to his injuries. Dr. Brown noted at p. 8 of his report that the applicant’s “pain symptoms have persisted long after the expected time for normal healing and recovery” and that he experienced “psychological distress, sleep disturbances, cognitive impairments, declining work performance and has adopted a sedentary lifestyle”. Based on the duration and impact of the applicant’s chronic pain on his activities of daily living, I do not believe that his chronic pain is a “clinically associated sequelae” to his injuries.

Issues 3b.) i, ii, and iii: The applicant is entitled to payment for physiotherapy

20The applicant is entitled to payment for the treatment plans listed in paragraph 3 b.) under issues i, ii, and iii. The treatment plans all relate to physiotherapy and they are reasonable and necessary. Each treatment plan identifies as its goals pain reduction, increase in strength and increased range of motion. Pain reduction which increases strength is a reasonable treatment goal for chronic pain syndrome. Since the applicant suffers from chronic pain syndrome, it is reasonable and necessary that he receive physiotherapy to lessen his pain and facilitate his rehabilitation.

Issues c.)i: The applicant is entitled to payment for a chronic pain assessment

21Given my reasons above for accepting that the applicant suffers from chronic pain syndrome, I find that the chronic pain assessment is reasonable and necessary in determining that diagnosis.

INTEREST

22The applicant is entitled to interest on each of the treatment plans in dispute in accordance with s. 51 of the Schedule.

CONCLUSION

23The applicant is not subject to the MIG and is entitled to each of the treatment plans in dispute as well as payment for a chronic pain assessment. The applicant is entitled to interest in accordance with s. 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