Datlin Wint v. Sonnet Insurance Company, 2020 CanLII 122399

Licence Appeal Tribunal

Citation: Wint v. Sonnet Insurance Company, 2021 ONLAT 20-004234/AABS

Licence Appeal Tribunal File Number: 20-004234/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Datlin Wint

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Patrick Sinclair, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, Datlin Wint, was injured in an automobile accident on July 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Sonnet Insurance Company, the respondent.

2The respondent took the position that all of the applicant’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 (MIG).² The respondent also denied the applicant’s claims for various physical treatment, assistive devices, and a physiatry assessment. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on September 18, 2020 and the matter was originally scheduled for a written hearing. The matter was rescheduled to proceed by way of a combination hearing following a motion by the applicant. On February 12, 2021, however, the Tribunal vacated the videoconference portion of the combination hearing on consent of the parties and the matter ultimately proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:³

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

(ii) Is the applicant entitled to $2,520.93 for chiropractic treatment, exercise therapy, hyperthermy, massage therapy, and various assistive devices recommended by Physiotherapy Fix and Fitness in a treatment plan (OCF-18) dated January 26, 2019?

(iii) Is the applicant entitled to $2,589.95 for a physiatry assessment, recommended by Excel Medical Diagnostics Inc. in an OCF-18 dated March 1, 2019?

(iv) Is the applicant entitled to $16,358.27 for a multidisciplinary chronic pain treatment program recommended by Excel Medical Diagnostics Inc. in an OCF-18 dated July 30, 2020?

(v) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. Nonetheless, I find that the applicant is entitled to payment for the March 1, 2019 OCF-18 plus interest in accordance with s. 51 of the Schedule as a result of the respondent’s failure to comply with s. 38(8) of the Schedule. The applicant is not entitled to the January 26, 2019 or the July 30, 2020 treatment plans.

ANALYSIS

The 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.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of chronic pain.

8I find that the applicant has not met her burden of proving on a balance of probabilities that her accident-related impairments require treatment beyond the MIG on the basis of chronic pain and/or a pre-existing condition.

Pre-existing Condition

9It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: an impairment must be shown to prevent maximal recovery within the cap imposed by the MIG.

10The applicant submitted that her spinal degenerative disc disease, hypertension, and diabetes would prevent her from rehabilitating within the MIG limits.⁴

11The clinical notes and records (CNRs) of Dr. Friesner, the applicant’s former family physician, are largely illegible. However, the applicant was noted as having “HPT,” or hypertension, from May 2015 through to May 2018, but there are no legible notations of degenerative disc disease or diabetes prior to the accident. The absence of such notations in Dr. Friesner’s CNRs is consistent with the applicant only reporting hypertension as her past medical history to all the insurer’s examination (IE) assessors and the s. 25 assessors. However, in the November 14, 2018 Disability Certificate (OCF-3), Dr. Friesner reported that the applicant did have pre-existing spinal degenerative disc disease, hypertension, and diabetes.

12While there is inconsistent evidence before me regarding the nature of the applicant’s pre-existing health conditions prior to the accident, I find there is no evidence before me that any of the conditions of spinal degenerative disc disease, hypertension, and diabetes would prevent the applicant from recovering within the MIG limits. While the applicant relied upon the April 8, 2019 IE Physiatry Evaluation Report by Dr. Alfonse Marchie, physiatrist,⁵ to support her position, Dr. Marchie’s ultimate opinion was that there was no pre-existing medical condition that would prevent the applicant from achieving maximum medical recovery if she were subject to the MIG limits.⁶

13On the evidence, I find that the applicant has failed to prove on a balance of probabilities that she would be prevented from maximal recovery under the MIG based on any pre-existing conditions. Therefore, she is not removed from the MIG on this basis.

Chronic Pain

14In analyzing the issue of chronic pain and the MIG, the applicant relied upon T.S. v. Aviva General Insurance Canada (T.S. v. Aviva).⁷ 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.⁸ The Executive Chair further defined chronic pain 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).”⁹

15In response, the respondent submitted that the Tribunal has consistently held that a functional impairment as a result of chronic pain must be present to remove an injured person from the MIG.¹⁰ The respondent also submitted that the Tribunal has accepted and applied the six criteria set out in the American Medical Association (AMA) Guides¹¹ in assessing claims of chronic pain and the MIG. The AMA Guides state that at least three of the following six 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.¹²

16In my opinion, 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 the applicant 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.

17Based on all the evidence before me, and in consideration of both T.S. v. Aviva and the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

18The applicant solely relied upon the November 4, 2019 Independent Physiatry Assessment Report by Dr. Alice Sau Han Kam, physiatrist,¹³ wherein the applicant submitted that Dr. Kam diagnosed her with chronic pain.

19I place little weight on Dr. Kam’s report as Dr. Kam did not provide a definition of chronic pain in her report. Therefore, it is unclear what criteria Dr. Kam used to arrive at her diagnosis of chronic pain in the applicant’s lumbar spine. The applicant, however, submitted that the July 30, 2020 OCF-18 completed by Dr. Kam, provides a definition of chronic pain, and should be read in conjunction with Dr. Kam’s report. I do not agree because the July 30, 2020 OCF-18 was dated well over eight months after Dr. Kam’s report, and it too provides no information as to how the applicant meets the provided definition of chronic pain.

20Even if I were to agree with the applicant’s position, I find that the applicant would not meet the definition of chronic pain set out in the July 30, 2020 OCF-18. The treatment plan defines chronic pain as pain persisting more than 3-6 months that is associated with “significant and reliable impairment of functional status” and is largely associated with psychosocial difficulties. While there is no dispute that the applicant was reporting pain well beyond the six-month post-accident period,¹⁴ Dr. Kam’s report is inconsistent regarding the applicant’s function. For example, Dr. Kam first reported that the applicant returned to her pre-accident employment in September 2018 at full duties and with no accommodations.¹⁵ Yet later in her report, Dr. Kam opined that the applicant suffered a substantial inability to fully resume her pre-accident employment duties.¹⁶ Dr. Kam provided no other information as to the applicant’s function that would allow a pre- and post-accident functional comparison. Dr. Kam also reported that the applicant had no psychological complaints.¹⁷ Therefore, I find that the applicant would not meet the provided definition of chronic pain in the July 30, 2020 OCF-18 based on the information contained in Dr. Kam’s report.

21In considering the AMA Guides’ criteria in determining whether the applicant’s pain has had an adverse effect on her well-being and function, there is no indication that the applicant withdrew from work or failed to pursue work as she returned to full employment duties in September 2018.

22I also find that there is no evidence that the applicant withdrew from recreation or avoided physical activity post-accident. Dr. Kam reported that the applicant was attending the gym twice per week,¹⁸ and the CNRs from Physiotherapy Fix and Fitness noted that the applicant started mall walking in a February 9, 2019 entry.¹⁹ Further, while the applicant reported to Dr. Ko that she was no longer able to dance post-accident,²⁰ there is no information before me as to how often the applicant participated in dancing pre-accident to allow a comparison regarding the applicant’s pre- and post-accident functionality. There is no other evidence before me regarding any withdrawal from social milieu by the applicant post-accident.

23While Dr. Friesner listed anxiety and nervousness on the November 14, 2018 OCF-3, I give the OCF-3 little weight because I am unable to discern from Dr. Friesner’s illegible CNRs any evidence to support the entry of anxiety and nervousness. Additionally, while the applicant reported to Dr. Ko that she was receiving counselling for her anxiety,²¹ no such records have been submitted as evidence for the hearing. The applicant also made no submissions that she should be removed from the MIG on the basis of suffering from a psychological condition as a result of the accident. Therefore, on all of the evidence before me, I find that the applicant has failed to prove on a balance of probabilities that she developed psychosocial sequelae post-accident.

24There is no evidence before me that the applicant had an excessive dependence on health care providers and the applicant’s evidence regarding her dependence on her family post-accident varies. For example, in the January 26, 2019 Progress Report by Dr. Michael Malatesta, chiropractor,²² the applicant reported having to be cautious in doing some activities around her house, that she had become more independent with her personal care, and that she required assistance from her family to undertake more difficult chores.²³ The applicant reported to Dr. Marchie in April 2019 that she still cleans her home to some degree but has difficulties cleaning the bathroom.²⁴ Conversely, the applicant reported to Dr. Ko in November 2020 that she was completing 0% of the household chores after the accident but that she was independent with eating, grooming, showering, dressing and toileting.²⁵ I am unable to determine the applicant’s level of reliance upon her family members post-accident in regards to housekeeping tasks post accident. Still, even if the applicant was not completing any of the household chores as she reported to Dr. Ko, I find that having family members complete household tasks does not constitute “excessive dependence” in this matter where the applicant remained independent with her other self-care post-accident.

25Finally, while I accept that the applicant was prescribed pain medication in July 2020,²⁶ I agree with the respondent that the applicant did not fill a prescription for pain medication between September 14, 2018 and July 25, 2020. Further, there is no evidence that the applicant was abusing or dependent upon prescription pain medication.

26Therefore, while the applicant reported ongoing pain well beyond the three- to six-month post-accident period, she has failed to prove on a balance of probabilities that her pain adversely affected her well-being and function in light of the AMA Guides criteria. Therefore, the applicant is not removed from the MIG on the basis of chronic pain.

27Sections 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.

28As I have found that the applicant has failed to meet her onus of proving on a balance of probabilities that her accident-related injuries require treatment beyond the MIG limits, I find that it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans despite neither party submitting evidence regarding the amount of medical and rehabilitation benefits paid to the applicant to date. The second pages of the January 26, 2019, March 1, 2019, and July 30, 2020 OCF-18s indicate that each of these treatment plans propose treatment outside the MIG framework which I have found the applicant is not entitled to.

29The applicant, however, raised the issue of the respondent’s non-compliance with s. 38(8) of the Schedule regarding the March 1, 2019 treatment plan.

30Section 38(8) requires an insurer to inform an insured person within 10-business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. In this matter, the applicant submitted that the respondent failed to provide any medical and all other reasons for its denial of the Match 1, 2019 OCF-18.

31The requirement of medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company (T.F. v. Peel),²⁷ in which Executive Chair Lamoureux stated:

[A]n insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.²⁸

32If an insurer has failed to comply with s. 38(8), the consequences in s. 38(11) of the Schedule are triggered. Section 38(11) provides that if an insurer fails to comply with its obligations under s. 38(8), it:

(i) Is prohibited from taking the position, regarding the disputed treatment plan, that the insured person has an impairment to which the MIG applies; and

(ii) Must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule.

33The respondent denied the March 1, 2019 treatment plan by correspondence dated April 8, 2019 which stated:

Unfortunately, we don’t consider this OCF-18 to be reasonable or necessary for the following reasons:

A Physiatry Insurer’s Examination was completed on March 30th, 2019. We are currently awaiting the report from that examination; therefore [sic] a duplicate examination is not necessary.

We are not requesting you to attend an insurer examination under Section [sic] 44 of the SABS in relation to the OCF-18.²⁹

34I agree with the applicant that the respondent failed to provide a medical reason for its denial of the proposed physiatry assessment. There is no mention of the applicant’s condition in this correspondence, and I find that the April 8, 2019 letter is not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. It is also well settled that a proposed assessment under s. 25 of the Schedule is not a duplicate assessment of one completed under s. 44. The April 8, 2019 letter also did not state the respondent’s position that the applicant’s injuries fell within the MIG.

35As a result of my findings of the respondent’s non-compliance with s. 38(8), the consequences set out in s. 38(11) are triggered.

36In this matter, the applicant submitted that her injuries cannot be considered under the MIG given the respondent’s non-compliance with s. 38(8) of the Schedule in denying the March 1, 2019 treatment plan.³⁰ The applicant relied upon the Tribunal’s decision in 17-006967 v. Certas Home and Auto Insurance Company (17-006967)³¹ to support her position. In 17-006967, the Tribunal interpreted s. 38(11)1 of the Schedule to mean that when an insurer does not comply with the notice requirements under s. 38(8), the consequences of s. 38(11) are triggered which includes removing the insured person from the MIG.³²

37I agree with the respondent that the decision in 17-006967 is not the current state of the law. The Divisional Court considered the issue of s. 38(8) non-compliance and the scope of the consequences under s. 38(11) in Zheng, Cai v. Aviva Insurance Company of Canada (Zheng).³³ In Zheng, the Divisional Court held that the language used s. 38(8) refers to the specific treatment plan in question and, as a result, s. 38(11) does not impose a permanent prohibition on the insurer from taking the position that an insured person’s injuries fall within the MIG regarding future treatment plans.³⁴

38Therefore, I find that:

(i) The March 1, 2019 OCF-18 is payable pursuant to s. 38(11) because the respondent:

(a) No longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this benefit; and

(b) Is precluded from taking the position that the MIG applies to the March 1, 2019 OCF-18; and

(ii) The applicant is not entitled to the January 26, 2019 and July 30, 2020 OCF-18 because:

(a) The s. 38(11) consequences from the respondent’s failure to comply with s. 38(8) do not extend to these treatment plans; and

(b) These OCF-18s proposed treatment outside of the MIG limits which I have found the applicant not entitled to.

Interest

39The applicant is entitled to interest in accordance with s. 51 of the Schedule for the March 1, 2019 OCF-18.

CONCLUSION

40For the reasons outlined above, I find that the applicant:

(i) Has not met her onus of proving that her accident-related impairments warrant removal from the MIG;

(ii) Is entitled to payment for the March 1, 2019 OCF-18 plus interest in accordance with s. 51 of the Schedule as a result of the respondent’s failure to comply with s. 38(8) of the Schedule; and

(iii) Is not entitled to the January 26, 2019 or to the July 30, 2020 treatment plans.

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. 3In her submissions, the applicant withdrew the issues of whether she was entitled to an award under Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments of benefits.
4. 4Submissions of the Applicant, para. 23.
5. 5Submissions of the Applicant, tab 14.
6. 6Ibid. at page 10.
7. 72018 CanLII 83520 (ON LAT).
8. 8Ibid. at para. 20.
9. 9Ibid. at para. 23.
10. 10A.G. v. heartland Farm Mutual Insurance, 2020 CanLII 42675 (ON LAT) at para. 11, Respondent’s Brief of Authorities, tab 5, and G.V. v. Wawanesa Insurance Company, 2020 CanLII 34454 (ON LAT) at para. 18, Respondent’s Brief of Authorities, tab 6.
11. 11American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.
12. 12Ibid. at pages 23-24.
13. 13Submissions of the Applicant, tab 10.
14. 14November 25, 2020 Insurer’s Examination (IE) Physiatry Evaluation report by Dr. Yong-Kyong Michael Ko, physiatrist, Submissions of the Applicant, tab 32, page 8. Dr. Ko reports that the applicant has been symptomatic for more than a year now.
15. 15Supra note 13 at page 12.
16. 16Ibid. at page 12.
17. 17Ibid. at page 6.
18. 18Ibid. at page 4.
19. 19Submissions of the Applicant, tab 15.
20. 20Supra note 14 at page 7.
21. 21Supra note 13 at page 6.
22. 22Supra note 19.
23. 23Ibid. at page 1.
24. 24Supra note 5 at page 7.
25. 25Supra note 14 at page 7.
26. 26Clinical Notes and Records of Dr. Ramesh Seegobin, the applicant’s current family physician, Respondent’s Brief, tab 5.
27. 272018 CanLII 39373 (ON LAT Reconsideration Decision).
28. 28Ibid. at para. 19.
29. 29Submissions of the Applicant, tab 26.
30. 30Submissions of the Applicant, para. 27.
31. 312018 CanLII 95582 (ON LAT).
32. 32Ibid. at para. 14.
33. 332018 ONSC 5707.
34. 34Ibid. at para. 21.```