Mehta v. Coseco Insurance Company, 2020 CanLII 123811

Citation: Mehta v. Coseco Insurance Company, 2022 ONLAT 20-011025/AABS

Licence Appeal Tribunal File Number: 20-011025/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:

Upma Mehta

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Nicole Elizabeth Walker, Counsel

For the Respondent:

Patrick Baker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Upma Mehta (“Ms. Mehta”) was involved in an automobile accident on October 17, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Ms. Mehta was the sole driver of a vehicle which was sideswiped by another vehicle which was pulling out of a parking spot. She visited her family doctor eleven days following this accident with complaints of back pain.

ISSUES

3The issues to be decided in this hearing are as follows:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”), as defined in subsection 3(1) of Schedule?

ii. Is the applicant entitled to a cost of examination expense in the amount of $2,200.00 for a chronic pain assessment, recommended by Prime Health Care in a treatment plan (OCF-18”) submitted on December 10, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is not removed from the MIG on the basis of pre-existing conditions or chronic pain/chronic pain syndrome.

5The applicant is not entitled to the treatment plan in the amount of $2,200.00 for a chronic pain assessment.

6As no benefits are payable, no interest is owing.

ANALYSIS

Did Ms. Mehta sustain a predominately minor injury?

The Minor Injury Guideline (“MIG”)

7The 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.

8Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

9The onus is on Ms. Mehta to show that her injuries fall outside the MIG.²

Pre-existing conditions

10Pursuant to s. 18(2) of the Schedule, for the removal of an insured person from the MIG on the basis of a pre-existing condition, it must be documented by a health professional prior to the accident and the pre-existing condition must preclude the insured person from achieving maximal medical recovery within the $3,500.00 MIG limit.

11Ms. Mehta submits she was in a prior motor vehicle accident in 2010 (“2010 MVA”) and she sustained injuries to her back and legs. Her pre-existing conditions are documented prior to the 2016 subject accident in the family doctor’s clinical notes and records (“CNRs”). These pre-existing conditions include back and leg pain, right shoulder bursitis, obesity, hypothyroidism, and vitamin B12 deficiency. The applicant’s position is that due to these pre-existing conditions, she is precluded from achieving maximal medical recovery (“MMR”) within the MIG limit.

12The CNR of Dr. S. Kohli, family doctor dated November 7, 2013 notes complaints of increasing weight gain and pain in her legs due to a sitting job.³ On March 8, 2015⁴ she reported ongoing back pain at work and requested a sitting back support. The CNRs reference a 2010 motor vehicle accident and complaints of back pain.⁵ Back pain is noted as worsened on June 14, 2016⁶ and it has been reported on and off since the 2010 MVA.

13Ms. Mehta submits she was diagnosed with chronic knee pain by Dr. S. Batra, family doctor on December 13, 2015.⁷ Dr. Batra recommends weight loss for treatment. An X-ray of both her knees was completed in May 2016 and she was diagnosed with right suprapatellar bursitis in a morbidly obese female.⁸

14The respondent submits Ms. Mehta’s complaints of back pain were following another motor vehicle accident which occurred in November 2014 in which she was hit from behind as noted in the CNRs of Dr. Batra.⁹ In March 2016, she reported right hand/wrist pain and leg pain. Her family doctor prescribed a hand splint for carpal tunnel syndrome and compression stockings for her leg pain. Bilateral crepitus at the knee joint is noted.¹⁰ On August 17, 2016, her family doctor diagnoses varicose veins as the cause of Ms. Mehta’s longstanding leg pain and obesity is noted.¹¹

15The respondent relies on an insurer’s examination (“IE”) report of Dr. S. Baker, physiatrist dated February 11, 2019.¹² The report notes a review of medical documents, a clinical interview and a physical examination was performed. Dr. Baker concludes Ms. Mehta sustained minor cervical and lumbar strains from the accident and her injuries fall within the MIG. He concedes she has pre-existing conditions but concludes they do not preclude her from recovering from her minor accident related injuries under the MIG.

16It is the respondent’s position that the mere existence of a pre-existing condition will not exclude an insured person’s impairment from the MIG, and the standard is strict. The respondent submits Ms. Mehta has not produced medical or other evidence to support that she would be unable to achieve MMR from the low back strain caused by the 2016 subject accident as a result of her pre-existing conditions.

17The respondent relies on two Tribunal decisions. In M.A. v. Co-operators General Insurance Company¹³ and EB v. Primmum Insurance Company¹⁴, the adjudicators conclude that a pre-existing condition must be shown to prevent MMR within the MIG limit and there must be compelling medical evidence which supports this.

18I accept Ms. Mehta has a number of pre-existing conditions documented in the CNRs of the family doctor. However, I agree with the respondent and find the cases of M.A. and EB persuasive. I find the physiatry of IE report of Dr. Baker to be a thorough assessment and accept the findings of the report that her pre-existing conditions do not preclude her from achieving MMR within the MIG. This is because Ms. Mehta has not produced compelling evidence which supports that these pre-existing conditions preclude her from achieving MMR within the MIG. Therefore, Ms. Mehta is not removed from the MIG based on her pre-existing conditions.

Post-accident injuries – Does the applicant suffer from chronic pain?

19Ms. Mehta submits she suffers from chronic pain as a result of the 2016 subject accident and her injuries cannot be treated within the MIG. The CNR of her family doctor dated October 28, 2016 notes she reported this accident and low back pain commenced 3-4 days following the accident.¹⁵ It is also noted that she denied experiencing any leg pain. No muscle spasm/spinal tenderness is noted, but tenderness is noted across her lumbar area. Full range of motion (ROM) is also noted.

20The next time Ms. Mehta saw her family doctor and reported back pain relating to the 2016 subject accident was on January 16, 2017. The respondent relies on a CNR of the family doctor dated August 11, 2017 which notes she was involved in a further motor vehicle accident in April 2017 (“April 2017 MVA”) and notes complaints of finger swelling, left wrist pain wrist pain for 3 weeks, and aggravation of low back pain.

21Ms. Mehta denies being in a subsequent MVA in April 2017. A consultation note written by Dr. R. Yufe, neurologist¹⁶ notes complaints of pain from her left elbow to her wrist which commenced 3-4 weeks earlier with no numbness/tingling. Dr. Yufe further notes she reported the same with the right wrist, but it is less affected than the left wrist. Dr. Yufe notes evidence of mild bilateral carpal tunnel syndrome, the right greater than the left. Dr. Yufe notes evidence of stress pain over the left metacarpal joint and recommended a hand x-ray.

22An addendum was issued by Dr. Yufe¹⁷ which notes that Ms. Mehta telephoned Dr. Yufe’s office advising there was an error in the dictated consultation note of September 14, 2017 and that she reported that the pain from her left elbow to her wrist started in October 2016.

23A consultation note from Dr. M. Tran, rheumatologist¹⁸ notes pain in the bilateral forearms and more recently at the right side. Dr. Tran notes that Ms. Mehta was in an MVA in April 2017. Dr. Tran also notes that she may have mild bilateral carpal tunnel syndrome.

24Ms. Mehta relies on a Certificate of Health Status issued by Dr. Kohli¹⁹ which notes that the April 2017 MVA was incorrectly documented in her records and that she has not had an MVA since October 2016.

25I find on a balance of probabilities that Ms. Mehta was not involved in an April 2017 MVA. I accept the Certificate of Health Status issued by her family doctor that the April 2017 MVA was incorrectly documented in her CNRs and that she has not been involved in any further MVAs since October 2016. The rheumatologist consultation note notes the April 2017 MVA, but it is unclear how the rheumatologist obtained this information. The consultation note does not reference whether it was obtained from a review of the family doctor’s CNRs or whether it was reported to the rheumatologist based on Ms. Mehta’s self-reporting. There has been no further evidence proffered by the respondent which establishes she was involved in the April 2017 MVA and based on the medical records; I am not persuaded she was involved in an April 2017 MVA.

26During the time period of August - September 2017, there are references within the CNRs from three different doctors noting complaints of left wrist pain commencing approximately 3 - 4 weeks earlier.²⁰ I am not persuaded by the addendum issued by Dr. Yufe, neurologist which notes that Ms. Mehta advised following the neurologist consultation that the pain in her left wrist started following the accident in October 2016. I do not find this to be supported by the CNRs of the family doctor as left wrist pain is noted for the first time following the 2016 subject accident in a CNR dated August 11, 2017. Therefore, I accept that her left wrist pain started occurring approximately 3 - 4 weeks prior to August – September 2017 and therefore I do not find it is related to the 2016 subject accident due to it being noted in the CNRs of the family doctor for the first time, 10 months following the 2016 subject accident.

27On September 27, 2017²¹, Ms. Mehta saw Dr. Kohli for follow-up regarding her neurologist consultation. Dr. Kohli notes that she reported that the neurologist advised that her right hand pain may be partly due to the accident she had in 2016. I find this is not what was noted in the neurological consultation note or addendum of Dr. Yufe. Dr. Kohli notes a diagnosis of mild bilateral carpal tunnel syndrome confirmed by the EMG studies and notes morbid obesity. I find these to be unrelated to the accident.

28Complaints of left hip/leg pain are reported to Dr. Kohli in November 2017 and Ms. Mehta reports she may have pulled a muscle at the gym.²² In December 2017 she reports limitations with bending and that she is unable to work due to pain.²³ Complaints of left hip/leg and back pain are noted throughout 2018 and chronic low back pain is noted in July 2018.²⁴ In August 2018, Dr. Kohli notes that he questions if the pain is due to her weight, the accident, or other causes and orders an MRI.²⁵ Dr. Kohli notes in September 2018²⁶ that she cancelled the MRI as she found hot yoga somewhat helpful.

29Ms. Mehta is referred by Dr. Kohli to a chronic pain clinic in June 2019 due to ongoing complaints of left leg pain.²⁷ An MRI of her left knee is completed on September 14, 2019 and an oblique tear in the medial meniscus is noted.²⁸

30A consultation report of Dr. D. McGonigal, orthopedic surgeon dated January 6, 2020²⁹ notes Ms. Mehta reported the 2016 subject accident, left knee pain, and that she has gained significant weight since the 2016 subject accident. Dr. McGonigal notes that she walks with a left-side limp but reported that she is not missing time from work, practices yoga and is planning to return to her gym exercises. Dr. McGonigal further notes she is taking two prescribed medications and opines that her symptoms are due to early arthritis in her left knee. Dr. McGonigal prescribes an anti-inflammatory and recommends yoga and a strengthening exercise program.

31Ms. Mehta submits she continued to receive physiotherapy/chiropractic treatment and was prescribed medication in an attempt to manage her pain as evidenced in the CNRs of the family doctor. The CNRs note she attended the gym as the family doctor recommended weight loss.

32The respondent submits Ms. Mehta does not meet any of the criteria for chronic pain as set out with the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (the “AMA Guides”) and her claim that she suffers from chronic pain should be assessed in accordance with the criteria set out within the AMA Guides. The respondent relies on two Tribunal decisions, 17-007825 v. Aviva Insurance Canada and A.V. v. Certas Home and Auto Insurance Company³⁰ which rely on the criteria within the AMA Guides to determine the existence of chronic pain.

33The AMA Guides stipulate that at least three out of the six criteria must be met to establish a diagnosis of chronic pain. The criteria are as follows:

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.

34Ms. Mehta does not contest the criteria set out within the AMA Guides. I accept the criteria set out in the AMA Guides in assessing Ms. Mehta’s claim that she suffers from chronic pain and find the two Tribunal decisions referenced by the respondent, 17-007825 v. Aviva Insurance Canada and A.V. v Certas Home and Auto Insurance Company helpful in assisting me with reaching my determination whether Ms. Mehta suffers from chronic pain as a result of the injuries she sustained from the 2016 subject accident. I find Ms. Mehta has failed to establish on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain. I will address the reasons for reaching this conclusion below.

35Ms. Mehta relies on the family doctor’s CNRs which note ongoing pain complaints since the 2016 subject accident in support of her position that she suffers from chronic pain. The CNRs of the family doctor support prescribed medications for pain up to June 2018. Following that time period, the CNRs note that she took over the counter medications for pain including Naproxen and Tylenol. No CNRs of the family doctor were produced beyond August 1, 2019. The orthopedic consultation note of Dr. McGonigal dated January 6, 2020 note she was previously prescribed two medications unrelated to pain. Dr. McGonigal prescribed an anti-inflammatory. Weight loss was also advised, along with recommendations for yoga and an exercise strengthening program. I find this evidence supports that Ms. Mehta did not use prescription drugs beyond the recommended duration and/or abuse them, or other substances.

36I find Ms. Mehta did not experience secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. I accept that Ms. Mehta reported ongoing pain in her back, left hip/leg, bilateral knees, and wrists. However, I am not persuaded the pain complaints to all of these areas are accident-related. Therefore, I do not find that the ongoing complaints of pain have resulted in excessive dependence on health care providers for pain resulting from the accident. Ms. Mehta has not proffered any evidence that she is dependant on her spouse and family. While the CNRs of the family doctor address ongoing issues with her weight, I do not conclude this is as the result of the accident. For example, the June 17, 2017 CNR of Dr. Kohli notes she is working two jobs and hardly has time to exercise and that she is not watching what she eats. I find this evidence supports that excessive weight gain post-accident is not solely attributable to her reported pain complaints.

37The February 2019 physiatry assessment report of Dr. Baker notes she is independent with her personal care tasks, performs her household chores, attends the gym, albeit less frequently due to pain. The family doctor CNRs reference that she works two jobs which involve sitting and standing for prolonged periods and she also attends yoga and the gym.

38I do not accept the bilateral wrist pain is accident-related. This is because there is no mention of wrist pain in the family doctor’s CNRs until August 2017. Ms. Mehta is then referred to a neurologist and a rheumatologist and both of these specialists provide a diagnosis of carpal tunnel syndrome, also noted in the CNRs of Dr. Kohli in September 2017.

39Regarding the applicant’s bilateral leg pain, I am not persuaded this impairment was caused by the accident for the following reasons. The CNR of Dr. Kohli in November 2017 notes complaints of left hip/leg pain and notes that she reports she may have pulled a muscle while at the gym. The complaint of left hip/leg pain is reported for the first time 13 months post-accident. Based on the self-reported information contained in this CNR, I find it supports that she was able to attend and exercise at the gym and that her pain did not cause a functional impairment. While I accept that Ms. Mehta continued to report ongoing left hip/leg pain to her family doctor which led to a referral to a chronic pain clinic in June 2019, I do not accept this is related to the accident for the reasons noted above.

40I accept the CNRs note ongoing complaints of back pain. However, a diagnosis of chronic pain resulting the accident is not noted within the family doctor’s CNRs. I find the CNR entry made by Dr. Kohli on August 11, 2018 supports that Dr. Kohli is not convinced that her ongoing back pain is a result of the accident and notes it may be due to her weight, or other causes. The September 2018 CNR of Dr. Kohli notes that Ms. Mehta did not attend the MRI ordered by Dr. Kohli as she found hot yoga beneficial. I find this supports that her pain did not rise to the level that she suffered from a functional impairment as she continued attending hot yoga.

41I am not persuaded that the MRI completed in September 2019 noting an oblique tear in the medial meniscus of her left knee was the result of the accident. This is because the applicant has not produced a medical opinion linking this diagnosis to the accident and the MRI was completed nearly 3 years since the 2016 subject accident.

42I do not accept that Ms. Mehta suffers from withdrawal from social milieu, including work, recreation, or other social contacts. It is noted by Dr. Baker in the physiatry IE report that Ms. Mehta reports that prior to the accident she enjoyed going out with family and friends but reports since the accident, she rarely goes out to events.³¹ There is no further evidence which corroborates this. Based on this single reference which is solely based on Ms. Mehta’s self-reporting, I do not find it persuasive.

43I find Ms. Mehta has not established that she sustained a disability which prevents her from returning to her pre-accident function. The CNRs of her family doctor reference she returned to both jobs post-accident. Dr. Baker’s physiatry IE report notes she reports a return to her pre-accident activities, albeit with some pain. I find the orthopedic consultation note of Dr. McGonigal dated January 6, 2020 supports that she does not suffer from a functional impairment. While Dr. McGonigal notes she reports physical activity aggravates her left knee pain, it is further noted that she is not missing time from work, practices yoga and is planning to return to her gym exercises. I find this evidence supports she is not functionally impaired as a result of the injuries sustained from the 2016 subject accident.

44Ms. Mehta has not produced objective medical evidence which suggests the development of psychosocial sequelae subsequent to the 2016 subject accident.

45Ms. Mehta has not produced a medical report or opinion which provides a diagnosis of chronic pain/chronic pain syndrome as a result of the injuries she sustained from the 2016 subject accident.

46For all of the reasons above, I find Ms. Mehta has not established on a balance of probabilities that she sustained injuries which are outside of the MIG as a result of chronic pain/chronic pain syndrome. Further, she has not demonstrated how her ongoing pain has adversely impacted her well-being, taking the six factors set out in the AMA Guides into account.

Is Ms. Mehta entitled to a chronic pain assessment and interest on this treatment plan?

47As I have found that Ms. Mehta’s injuries are within the MIG, I do not find the chronic pain assessment is reasonable and necessary. As I have found Ms. Mehta is not entitled to the chronic pain assessment, no interest is payable.

CONCLUSION AND ORDER

48The applicant is not removed from the MIG on the basis of a pre-existing condition or chronic pain/chronic pain syndrome.

49The applicant is not entitled to the treatment plan in the amount of $2,200.00 for a chronic pain assessment.

50As no benefits are payable, no interest is owing.

51The applicant’s claim is dismissed.

Released: February 15, 2022

Kimberly Parish, Adjudicator

A.V. v. Certas Home and Auto Insurance Company, 2020 CanLII 19562 (ON LAT), at paras 23-25.

Footnotes

1. 1Ontario Regulation 34/10, as amended.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.), at para 24.
3. 3Tab D of applicant’s submissions and evidence, CNR of Dr. Kohli dated November 7, 2013 at page 4.
4. 4Ibid, at page 10.
5. 5Ibid, CNR entries of Dr. Batra, family doctor dated August 29, 2015 and October 10, 2015, at pages 13, 14,
6. 6Ibid, CNR of Dr. Kohli dated June 14, 2016, at 18-19.
7. 7Ibid, CNR of Dr. Batra dated December 13, 2015, at pages 15-16.
8. 8Ibid, CNR of Dr. Kohli dated May 17, 2016, at page 18.
9. 9Tab 2 of respondent’s submissions, CNR of Dr. Batra dated November 12, 2014, at page 9.
10. 10Ibid, CNRs of Dr. Batra dated March 19, 2016 and Dr. Kohli March 23, 2016, at pages 17-18.
11. 11Ibid, CNR of Dr. Kohli dated August 17, 2016, at page 20.
12. 12Tab 1 of respondent’s submissions, physiatry IE report of Dr. Baker.
13. 13M.A. v. Co-operators General Insurance Company, 2020 CanLII 69919 (ON LAT), at para 13.
14. 14EB v. Primmum Insurance Company, 2019 CanLII 76977 (ON LAT), at para 14.
15. 15Ibid, CNR of Dr. Price dated October 28, 2016, at pages 22-23
16. 16Tab F of applicant’s submissions and evidence, consultation note of Dr. Yufe dated September 14, 2017, at page 110.
17. 17Tab G of applicant’s submissions and evidence, addendum of Dr. Yufe, at page 113.
18. 18Tab 4 of respondent’s submissions, rheumatology consultation note of Dr. Tran dated September 14, 2017.
19. 19Tab M of applicant’s submissions, Certificate of Health Status dated October 15, 2018.
20. 20Supra, note 9, CNR of Dr. Kachroo dated August 11, 2017, at pages 29-30. Supra, notes 17-18, neurology note and addendum at pages 108-114, and Supra, note 19, rheumatology consultation note.
21. 21Supra, note 9, CNR of Dr. Kohli dated September 27, 2017, at page 31.
22. 22Ibid, CNR of Dr. Kohli dated November 29, 2017, at page 35.
23. 23Supra, note 3, CNR of Dr. Kohli dated January 19, 2018, at page 87.
24. 24Ibid, CNR of Dr. Kohli dated July 14, 2018, at page 93.
25. 25Ibid, CNR of Dr. Kohli dated August 11, 2018, at page 94.
26. 26Ibid, CNR of Dr. Kohli dated September 21, 2018 at page 94.
27. 27Ibid, CNR of Dr. Kohli dated June 29, 2019, at pages 103-104.
28. 28Ibid, MRI report dated September 14, 2019, at pages 122-123.
29. 29Tab 5 of respondent’s submissions, consultation note of Dr. McGonigal dated January 6, 2020.
30. 3017-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT), at paras 6-8.
31. 31Supra, note 12, at page 5.