Victoria Zappia v. Unica Insurance Inc., 2020 CanLII 101805

Licence Appeal Tribunal

Citation: Victoria Zappia v. Unica Insurance Inc., 2020 CanLII 101805 Released: December 4, 2020

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:

Victoria Zappia

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Peter Cimino, Counsel

For the Respondent: Modupe Egunjobi, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, Victoria Zappia, was injured in an automobile accident on September 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Unica Insurance Inc. ("Unica"), the respondent.

2Unica denied Ms. Zappia's claim for a chronic pain assessment and it determined that all of Ms. Zappia's injuries fit the definition of "minor injury" as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the "MIG").² As a result, Ms. Zappia submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3A case conference was held on March 16, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are Ms. Zappia's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG?

(ii) Is Ms. Zappia entitled to $2,460.00 for a chronic pain assessment recommended by Recovery Rehab & Health Group Corporation in a treatment plan ("OCF-18") dated November 17, 2017, and denied on November 27, 2017?

(iii) Is Ms. Zappia entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Zappia has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain. I also find that Ms. Zappia is not entitled to the November 17, 2017 OCF-18 for a chronic pain assessment and, as a result, no interest is payable.

ANALYSIS

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 s. 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.

7In this matter, Ms. Zappia submitted that she should be removed from the MIG because she suffers from chronic pain as a result of the accident.

8In analyzing the issue of chronic pain and the MIG, Ms. Zappia relied upon the reconsideration decision of T.S. v. Aviva General Insurance Canada.³ In this reconsideration decision, the Executive Chair held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.⁴ In response, Unica highlighted the further description of chronic pain in T.S. v. Aviva by the Executive Chair as, "ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being (my emphasis added)."⁵

9Unica further submitted that the Tribunal has repeatedly adopted the approach of assessing an applicant's claim of chronic pain against the six criteria described in the American Medical Association ("AMA") Guides,⁶ which state that at least three of the following criteria must be met for a diagnosis:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

10Ms. Zappia did not contest the AMA Guides criteria and, in fact, filed no reply submissions for the hearing.

11As I stated in A.V. v. Certas Home and Auto Insurance Company,⁷ which was relied upon by Unica, both the Executive Chair's comments in T.S. v. Aviva and the AMA Guides criteria can be read harmoniously and both are persuasive in determining whether or not Ms. Zappia should be removed from the MIG as a result of chronic pain. In T.S. v. Aviva, the Executive Chair's description of chronic pain encompassed adverse affects on an individual's well-being and the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting an individual's functional capacity.⁸

12Based on all of the evidence before me, and in consideration of both T.S. v. Aviva and the AMA Guides criteria, I find that Ms. Zappia has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

13In support of her position that she should be removed from the MIG, Ms. Zappia primarily relies on the February 16, 2018 Chronic Pain Assessment Report by Dr. Grigory Karmy, physician.⁹ In this report, Dr. Karmy diagnoses Ms. Zappia with chronic mechanical neck pain, left shoulder pain, left calf pain, lower back pain possibly associated with left-sided radiculopathy, myofascial pain syndrome and symptoms of passenger anxiety as a result of the accident.¹⁰ It was Dr. Karmy's opinion that Ms. Zappia's conditions fell outside of the MIG.¹¹

14Ms. Zappia also submitted an AB Orthopaedic Assessment Report by Dr. Michael West, orthopaedic surgeon, dated November 29, 2017. In this report, Dr. West diagnoses Ms. Zappia with, among other conditions, chronic pain.

15In response, Unica relied upon a Physiatry Assessment Report by Dr. Yuri Marchuck, physiatrist, dated February 2, 2018.¹² In his report, Dr. Yuri opined that Ms. Zappia's impairments were predominantly minor injuries.

16What is common throughout all three assessment reports is that Ms. Zappia continued to report pain in her neck, left shoulder, lower back and her left leg. Dr. Karmy also noted that Ms. Zappia reported shooting pain down her left lower limb, down her buttocks and the back of her left thigh and a burning sensation in her right lower calf. In his report, Dr. Marchuck also reported complaints of bilateral calf pain. Dr. West reported complaints of right knee pain and Dr. Marchuck reported that Ms. Zappia complained of headaches.

17Even if I accept that Ms. Zappia was experiencing pain up to two and a half years post accident, as she reported to Dr. Karmy, Dr. West and Dr. Marchuck, this does not conclude the analysis of whether or not chronic pain would remove Ms. Zappia from the MIG. Ms. Zappia must establish on a balance of probabilities that the chronic pain is adversely affecting her well-being.

18In reference to the AMA Guide's criteria to assist with a determination of whether or not Ms. Zappia's pain has an adverse effect on her well-being, there is no evidence that Ms. Zappia used any prescription medication for any accident-related condition. In fact, Ms. Zappia declined prescription analgesics on October 28, 2015, as reported in the clinical notes and records ("CNRs") of Ms. Zappia's family physician, Dr. Wei-Yee Stephanie Wong.

19Prior the accident, Ms. Zappia worked full-time at the Heart and Stroke Foundation as a program planner. The January 11, 2016 Minor Injury Discharge Report ("OCF-24") reported that Ms. Zappia missed no work following the accident and confirmed that she was able to complete her pre-accident work activities at that time at her full pre-accident level. Additionally, Dr. Wong completed a Disability Certificate ("OCF-3") dated June 6, 2016 which did not indicate that Ms. Zappia was substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident. Despite Dr. Karmy reporting that Ms. Zappia had slightly modified employment duties at the time of his assessment, there is no evidence before me that Ms. Zappia withdrew from work or failed to pursue work as a result of any accident-related conditions.

20I also find that Ms. Zappia was not withdrawing from recreation or exhibiting fear-avoidance of physical activity due to pain post-accident. While Dr. Wong noted in her June 6, 2016 CNR entry that Ms. Zappia was not able to exercise five times per week as she regularly did pre-accident, Ms. Zappia returned to this frequency of exercise as of April 28, 2017. In a welcome questionnaire from King City Natural Health Centre completed by Ms. Zappia on April 28, 2017, Ms. Zappia described her physical health as "excellent" and reported that she was exercising five days per week. Thus, I find that Dr. West's statement in his report that Ms. Zappia was not able to resume her full pre-accident exercise program is inconsistent with the evidence before me, as even in a January 30, 2018 CNR entry, Dr. Wong again noted that Ms. Zappia was exercising five times per week.

21While there is little evidence regarding Ms. Zappia's pre- and post-accident socialization, I find that Ms. Zappia's physical capacity post-accident did not preclude her from pursuing family. The decoded OHIP records show that Ms. Zappia had a child on June 24, 2017. Although Ms. Zappia allegedly reported to Dr. West and to Dr. Karmy physical difficulties with respect to caregiving for this child as a result of her accident related injuries, these reports are inconsistent with Dr. Wong's January 22, 2018 CNR entry. At that time, Ms. Zappia only complained to Dr. Wong of exhaustion as her baby was waking every two to three hours during the night. No physical complaints were noted in this CNR entry. Moreover, if Ms. Zappia had any physical difficulties with caring for her baby, these difficulties did not preclude her from pursuing a larger family, as it appears from the OHIP summary that Ms. Zappia was pregnant again in late 2019.

22I also find that the evidence before me does not support a finding that Ms. Zappia had an excessive dependence on healthcare providers, her husband or any other family members. I agree with Unica's position that the last accident-related entry in Dr. Wong's CNRs was June 6, 2016. Further, while all three assessors noted that Ms. Zappia's husband assists her with childcare, heavier housekeeping and home maintenance tasks, there is no evidence of excessive dependence. There is also little information to explain how, if at all, Ms. Zappia's pre-accident dependence upon her husband varied post-accident.

23Finally, while both Dr. West's and Dr. Karmy's reports note that Ms. Zappia complained that she felt anxious and fearful when travelling in a car as a passenger, there is no evidence in Dr. Wong's CNRs of any psychological complaints or any evidence of any psychological complaints from any other treating practitioner. In fact, Dr. Wong's CNRs show the opposite, as Ms. Zappia reported that her mood was okay and she denied depression at a January 22, 2018 visit and further reported her mood as "good" at a January 30, 2018 visit.

24For all of the reasons set out above, I find that, while Ms. Zappia may have reported ongoing pain well beyond the three- to six-month post-accident period, she has failed to prove that this pain adversely affects her well-being in light of the six AMA Guides criteria. Therefore, she is not removed from the MIG.

25As Ms. Zappia has not exhausted the MIG $3,500.00 limit for medical benefits as of the date of the parties' submissions, I must now consider whether or not Ms. Zappia is entitled to the treatment plan for the chronic pain assessment.

26Sections 14 and 15 of the Schedule provide that the insurer shall pay 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.

27Ms. Zappia bears the onus of proving entitlement to the proposed chronic pain assessment by proving it is reasonable and necessary on a balance of probabilities.¹³

28The November 17, 2017 treatment plan in dispute was completed by Dr. Kathryn Monaghan, chiropractor, and sought funding in the amount of $2,460.00 for a chronic pain assessment. The goals of the treatment plan were pain reduction, return to activities of normal living and to address ongoing physical issues.

29A pre-screening report is included in the additional comments portion of the OCF-18 which stated that Ms. Zappia complained of pain in her left leg, right knee, shoulder and low back. The pre-screen report noted that Ms. Zappia missed one week of work post-accident but that she returned to work "full time on non-modified duties." It was noted that at the time of the OCF-18, Ms. Zappia was on maternity leave. The pre-screen report stated that due to the injures from the accident, Ms. Zappia reported ongoing issues with lifting heavy weights, carrying objects, bending, lifting, overhead work, standing, sitting, that walking for prolonged periods increases her pain as well and that she is on a restriction for lifting over 10 kgs or less. The pre-screen report concluded that a chronic pain assessment was warranted for Ms. Zappia based on the combination of her orthopedic, neurological and psychological complaints and because Ms. Zappia, "still suffers from debilitating pain and several ongoing functional and neurological symptoms that have prevented her from resuming normal activities of daily living."

30In addition to there being no indication who authored the pre-screen report, I place little weight on it in determining if the proposed chronic pain assessment is reasonable and necessary for several reasons. First, the pre-screen report is inconsistent with other evidence before me. For example, there is no evidence that Ms. Zappia made any psychological complaints prior to the submission of this treatment plan. There was also no evidence in existence at the time the OCF-18 was submitted for consideration to Unica to support the pre-screen report's statement that Ms. Zappia suffered from "debilitating pain." Ms. Zappia described her physical health as "excellent" as discussed in paragraph [20], above, on April 28, 2017 and the OHIP summary shows only pregnancy-related doctor visits and diagnostic investigations between April 2017 and November 2017. Further, Ms. Zappia attended for six massage therapy sessions at Nobleton Physiotherapy between April 25, 2017and December 7, 2017. There are no reports of pain in the Nobleton Physiotherapy CNRs during this period as Ms. Zappia was only reporting tightness and tension.

31Second, it is unclear what "normal activities of daily living" that Ms. Zappia had failed to return to according to the pre-screen report. The report itself noted that Ms. Zappia had returned to full-time work on non-modified duties. Dr. Wong also stated in a June 6, 2016 CNR entry that Ms. Zappia was able to live her daily life at that time. I also find that as of at least April 28, 2017, Ms. Zappia had returned to exercising five days a week as discussed in paragraph [20] above. Therefore, it is unclear how the proposed chronic pain assessment would achieve the stated goal of returning Ms. Zappia to activities of normal living when the evidence is that she had already done so.

32Additionally, while Dr. West's report was not in existence prior to the date of the disputed OCF-18, I accept that it is evidence from or about the time that Ms. Zappia sought funding for the chronic pain assessment. In his report, Dr. West makes several recommendations, including various physical treatment, a gym membership, various assistive devices, medication and counselling, but he does not recommend a chronic pain assessment. Further, Dr. West's recommendations do not substantially differ from the types of recommendations made by Dr. Karmy after Ms. Zappia underwent the proposed chronic pain assessment. Therefore, given that the recommendations contained in Dr. West's report are substantially similar to those set out in Dr. Karmy's report, I find that the proposed chronic pain assessment was not necessary to meet the stated goal of addressing Ms. Zappia's ongoing physical issues.

33For all of these reasons, I find that Ms. Zappia has failed to prove the reasonableness and necessity of the proposed chronic pain assessment on a balance of probabilities and, therefore, she is not entitled to this OCF-18.

Interest

34As there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

35For the reasons outlined above, I find that Ms. Zappia:

(i) Has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain;

(ii) Is not entitled to the OCF-18 for the chronic pain assessment;

(iii) Is not entitled to interest; and

(iv) The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the "Schedule").
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 32018 CanLII 83520 (ON LAT) ("T.S. v. Aviva").
4. 4Ibid. at para. 20.
5. 5Ibid. at para. 23.
6. 6American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
7. 72020 CanLII 19562 (ON LAT).
8. 8Ibid. at para. 25.
9. 9Submissions of the Applicant, tab 8.
10. 10Ibid. at page 7.
11. 11Ibid. at page 8.
12. 12Document Brief of the Respondent, tab S.
13. 13Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.