A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719

Citation: A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719

Released Date: February 3, 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:

A.A.

Applicant

and

Technology Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Paul Barrafato, Counsel

For the Respondent:

Kadey Schultz, Counsel

HEARD: In Writing

May 27, 2019

OVERVIEW

1A.A. (“the applicant”) was injured in an automobile accident on February 16, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). Technology Insurance Company (the “respondent”) deemed his injuries to fall within the Minor Injury Guideline (the “MIG”), which caps medical and rehabilitation benefits at $3,500.00.

2The applicant disputed that his injuries fell within the MIG and, to that end, applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to dispute the denials.

3If the applicant’s position is correct, then I must address if the two proposed treatment plans are reasonable and necessary.

ISSUES

4Pursuant to the Tribunal’s Order of June 12, 2017, the issues to be decided are:

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

ii. Is the applicant entitled to receive a medical benefit in the amount of $3,825.60 for chiropractic services as recommended by Dr. Shawn Roy at Alliance Diagnostics in a treatment plan submitted on October 30, 2017 and denied by the respondent on November 13, 2017?

iii. Is the applicant entitled to receive a cost of examination in the amount of $8,000.00 for various assessments for the purpose of preparing a rebuttal report recommended by Dr. Rhuel Maana at Alliance Diagnostics in a treatment plan submitted on January 3, 2017 and denied by the respondent on March 23, 2017?

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

RESULT

5I find that the applicant’s injuries fall outside of the MIG.

6The applicant is entitled to the medical benefit in the amount of $3,825.60 for chiropractic services submitted in a treatment plan on October 30, 2017, as the proposed plan is reasonable and necessary.

7The applicant is not entitled to the cost of examination in the amount of $8,000.00 for various assessments submitted in a treatment plan on January 3, 2017, as the proposed plan is not reasonable and necessary.

8Interest is payable on overdue payments.

ANALYSIS

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 Schedule also defines what these terms for injuries mean.

10The onus is on the applicant to show that his injuries fall outside of the MIG.²

11The applicant submits that the accident left him in intense pain which has developed into serious spinal changes and chronic pain.

12The respondent, on the other hand, submits that the applicant has not been specifically diagnosed with chronic pain syndrome, but rather has reported chronic pain that is a clinically associated sequelae captured by definition of “minor injury”. As a related matter, the respondent argues that, with respect to the MRI showing disc bulges and protrusion, the applicant has failed to submit any medical evidence that the disc protrusion is accident-related or has caused any significant pain or other symptoms.

Does the applicant suffer from chronic pain that would remove him from the MIG?

13I find that A.A. has a chronic pain condition arising from the accident that places him outside of the MIG.

14Chronic 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, should not be included in the MIG definition as a sequela to minor injuries.

15My reading of the Schedule is that chronic pain syndrome, or chronic pain, if caused by soft-tissue injuries, falls within the MIG, because the language of s. 3(1) of the Schedule itself expressly includes “clinically associated sequelae” to soft tissue injuries of the type sustained by the applicant. The term “clinically associated sequelae” is not defined in s. 3 of the Schedule. However, of assistance is the Reconsideration Decision of 17-000835 and Aviva, in which Executive Chair Lamoureux concluded that chronic pain is not captured by the Schedule’s minor injury impairment level.³ This leads me to believe that the applicant must argue the issue of whether the chronic pain symptoms he reports are or are not clinically associated sequelae to his minor injuries, and/or his medical reports must provide me with evidence on this question.

16Unfortunately, the phrase “chronic pain” is not defined in the Schedule. In assessing the applicant’s claim of chronic pain, I have applied the following criteria or characteristics:

i. Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

ii. Whether the applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. Whether the pain is not a clinically associated sequela to minor injuries.

iv. Whether the applicant’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.⁴

17The applicant claims to experience chronic pain, and directed me to Dr. J. Chen’s August 28, 2017⁵ consultation reporting letter, which states as follows: “Mr. A.A. 30 year old male present with chronic neck, shoulders, back and left knee pain. Acute precipitating event – MVA – 16th Feb 2016…In view of his chronic pain pattern one will need to review his previous diagnostic investigation findings prior to making clinical treatment decision.” A more recent consultation report of Dr. Chen completed on July 17, 2018,⁶ notes essentially the same findings.

18The applicant also relies on the assessment note of Dr. M. Pflug, a rheumatologist, dated August 27, 2018, who reports: ”chronic low back pain since MVA, the left knee is also still hurting… trigger point injection one a week very [sic] week help some :pain day and night and more pain after sitting more than half an hour, he has trouble bending and lifting and had trouble getting on and off? the examine table today. …He is unfit to return to work as a Taxi driver.” Dr. Pflug provided “injections” to A.A.’s lower back and prescribed pregabalin and Tylenol #3.

19The respondent relies on the decision in 17-007825 and Aviva⁷ to argue that for chronic pain to take the applicant out of the MIG, it should be assessed against six criteria described in the American Medical Association (“AMA”) Guides, which state that at least three of them must be met for a diagnosis.

i. Use of prescription drugs beyond the recommended duration and/or abuse 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;

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

20I am not bound by the AMA Guides or these criteria and acknowledge that these are not incorporated into the Schedule and that they are not determinative. However, I do accept the AMA criteria as persuasive guiding factors in assessing A.A.’s claim of chronic pain.

21Here, in terms of the above six criteria, I note that there is evidence that the applicant has tried opioids,⁸ there is ample evidence of the use of prescription drugs including pain medication. A.A. has been unable to return to work because of pain for a significant period of time.⁹ He can not do household chores and has not gone shopping with his wife (previously he reported to Dr. D. Mula that before the accident he shopped for groceries).¹⁰ Moreover, the records of the applicant’s family doctor mentions sleeping difficulty. Similarly, Dr. Chen mentions poor sleep and snoring. Also, A.A. reported to Dr. A. Rubenstein that he feels nervous when driving with Dr. Rubenstein noting in his IE report that A.A. appears to have “become demotivated” (although Dr. Rubenstein did not diagnose any psychological impairment as a result of the accident). On February 27, 2017, Dr. Shamin referred A.A. to a psychiatrist to address anxiety and stress.¹¹ In summary, it appears that the applicant has met most of the criteria in the AMA Guides.

22The respondent also argues that, in assessing the applicant’s claim of chronic pain, the definition of chronic pain in 17-007825 and Aviva provides a clear descriptive understanding of the difference between someone who is suffering from a diagnosable condition of Chronic Pain Syndrome, as opposed to someone who simply has chronic reports of pain (which are associated sequelae to the minor injuries). The respondent goes on to submit that the applicant does not have a qualified expert medical opinion which specifically diagnoses him with chronic pain syndrome or explains why he would qualify for such a diagnosis.

23I do not agree with this position that a clear or actual diagnosis of chronic pain syndrome is required to take a claimant out of the MIG. Perhaps it would be preferable if the specific clinical diagnosis of “Chronic Pain Syndrome” or “Chronic Pain Disorder’’ was provided and expanded upon, but this is not a requirement to establish injury or impairment.¹² Chronic Pain Syndrome and a diagnosis of chronic pain are often used interchangeably, even by doctors, because, it seems to me, the symptoms including the resultant effects are similar. In my view, claimants ought not to be denied access to accident benefits based on mere semantics or imprecise labelling of a particular impairment. The focus throughout has to be on the actual symptoms and whether they fit within the definition of a “minor injury.” As the Supreme Court stated in Saadati v. Moorhead, the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them.¹³

24I am also supported in my conclusion by the Reconsideration Decision inf17-000835 and Aviva, in which the Executive Chair explained that a plain reading of the definition of “minor injury” reveals a glaring absence of any reference to “Chronic Pain Syndrome” in the list of enumerated injuries that are included in s. 3.

25In this case, A.A. has met the burden on the balance of probabilities that his injuries fall outside the minor injury framework by providing compelling evidence that he has suffered injuries that, due to their persistence in the years since the accident, fall outside the framework by virtue of his chronic pain.

26I find that the balance of medical evidence plainly describes the presence of persistent and ongoing pain which lasted longer than anticipated. Dr. Chen appears to have considered the same in arriving at the conclusion that this amounts to chronic pain pattern. Similarly, Dr. Pflug described chronic pain and administered pain injections noting partial immediate relief. The applicant is open to interventional pain management such as needles and nerve blocks.

27In this case the applicant’s pain was well-documented and has lasted more than two years post-accident. This is consistent with the definition of “chronic pain” set out in 17-007825 and Aviva that described 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. A simpler definition for chronic or persistent pain is pain that continues when it should not.”¹⁴

28As well, I find that the applicant’s pain was not a clinically associated sequela to his minor injuries as it was separate from his soft tissue injuries. This is most evident in A.A. being functionally impaired and unable to return to work. His pain is nocturnal and has negatively impacted his sleeping. He has difficulty walking because of his knee pain and range of motion including bending and lifting. His pain is debilitating and also significantly disrupts and limits A.A.’s pre-accident activities of daily living, such as shopping and household chores. There was also evidence of A.A. having difficulty urinating with pain radiating from his left loin to his personal parts.

29Overall, I also preferred the evidence provided by the family physician at Warden Woods Medical Centre, Dr. Chen and Dr. Pflug because of the duration and consistency of the applicant’s treatment and the extensive notes provided in the course of treatment rather than the more restricted focus utilized by the medical professionals relied on by the respondent. I also note that some of the IE assessors (e.g., Dr. Mula) did not have the results of the MRI results.

30Finally, I found the respondent’s attempt to challenge the applicant’s credibility in a written hearing without cross-examining the applicant to test the veracity of his evidence unconvincing because the documentary objective evidence including the objective imaging results aligned with the applicant’s pain complaints. As well, the respondent’s own assessor Dr. Selerno when he conducted his assessment on July 20, 2016, noted that A.A. “exhibited pain behaviour today.”¹⁵ Despite the credibility concerns, I find the evidence as a whole overwhelmingly supports my findings.

Did the applicant suffer from physical injuries that remove him from the MIG?

31In terms of physical injuries, I find overwhelming evidence that, as a result of the accident, A.A. sustained disc bulges, a protrusion, and canal stenosis which are not minor injuries. The results of MRIs are objective, unequivocal and clear.

32The applicant underwent two MRIs on his lumbar and cervical spines and provided the testing results. First, an MRI of his lumbar spine on February 21, 2018 revealed: “Mild to moderate spondylosis. Greatest involvement at L4-5 with moderate canal stenosis. There may be tiny disc protrusion lateral to the right neural foramen.” The MRI report under the heading ‘History’ also notes “constant lower back pain” and under the heading ‘Findings’ notes “disc bulging”. Second, the applicant also completed a second MRI of his cervical spine on November 11, 2018, which revealed small disc protrusions or osteochondral complex at C5-6. The MRI report under the heading ‘History’ notes: MVA with arm and leg numbness.

33The two MRI reports both taken after the accident are clear objective evidence supporting the applicant’s pain complaints he indicated to all of the assessors. There is also evidence of an ultra sound report by Warden Woods X-Ray & Ultrasound dated March 16, 2016, showing trace amounts of fluid lateral in the left knee, adjacent to the lateral collateral ligament. The Ambulance Call Report dated February 17, 2017 (one day after the accident) notes “severe left knee pain”. This is the same knee that A.A. has continuously complained of to several of his doctors. The Disability Certificate (OCF-3) completed on September 12, 2017, by Dr. A. Arif notes “both knee pain.” Perhaps, the most significant example that this was not a minor injury is that Dr. Pflung in his August 27, 2018, letter confirming that “the left knee is also still hurting” and he is treating A.A. with trigger point injections. This was more than two years after the accident and not a minor complication.

34The respondent argues that the applicant has failed to submit any medical evidence that the disc protrusion was accident-related or caused any significant pain or other symptoms. I disagree for several reasons. First, the applicant immediately after the accident complained of intense pain to his back and leg and sought treatment for his injuries including pain-specific medication. This was supported by the clinical notes and records of his family physician including the Ambulance Call Report and hospital Emergency Record. Dr. Godfrey in the IE Physiatry report notes that A.A. was in a “great deal of pain and rested at home because he was unable to get up and walk around.”

35Second, it was essentially uncontested that, prior to the accident, the applicant was healthy and did not have any pre-existing medical problems or pain. Indeed, A.A. worked as a taxi driver reportedly working 12 hours a day, seven days a week, and was working the very day this accident occurred. Dr. F. Salerno, the respondent’s own assessor, did not find any pre-existing psychological conditions. Similarly, Dr. Godfrey, who completed a Physiatry assessment, concluded that AA “never had any history of trauma prior to the current episode, had not had any significant illness in the past.”

36Therefore, by all accounts, the evidence demonstrated that before the accident the applicant was healthy, worked full-time and was relatively pain free. I am comfortable inferring that the intervening act of the motor vehicle accident is responsible for the alleged impairments. In other words, but for the motor vehicle accident he would not suffer the impairments which cause the complaints he puts forward as the basis for his claim to be removed from the MIG and the two treatment plans.

37As the result of my findings related to A.A’s chronic pain and physical injuries, I conclude that A.A.’s injuries fall outside the MIG. Accordingly, it is necessary for me to address the two OCF-18s in this dispute.

Are the two treatment plans in dispute reasonable and necessary?

38Pursuant to s. 15 of the Schedule the respondent is liable to pay for all reasonable and necessary medical expenses incurred by or on behalf of the applicant. I understand that both of these treatment plans were denied by the respondent because the applicant reached his MIG limits and no funding was available for the requested treatment.¹⁶ An independent IE was never scheduled by the respondent to address these two treatment plans.

i) $3,825.60 for chiropractic services recommended by Dr. Shawn Roy at Alliance Diagnostics in a treatment plan submitted on October 30, 2017 and denied by the respondent on November 13, 2017?

39I agree with the applicant that the treatment plan for chiropractic services in the amount of $3,825.60 is reasonable and necessary because it provides the applicant with pain relief which temporarily improves his function. Pain relief is a legitimate medical and rehabilitative goal.

40In its response, the respondent does not address the treatment plans aside from stating they are unreasonable.

41The proposed treatment includes 16 sessions of chiropractic treatment and 16 sessions of massage therapy treatment. The applicant’s family doctor, Dr. Chen, and Dr. Pflug supported the continued need for rehabilitation. For example, Dr. Chen’s Consultation Report under the heading “Plan” recommends a rehabilitation program and to seek attention if worsening of symptoms. As well, as noted above A.A.’s left knee is still hurting and there appears to be fluid which the therapy may assist with.

42Based on the objective evidence of the MRI and the corroborating medical opinions of the three medical practitioners discussed above, I find that the treatment plan in dispute in the amount of $3,825.60 is reasonable and necessary.

ii) Cost of an examination in the amount of $8,000.00 for various assessments for the purpose of preparing a rebuttal report recommended by Dr. Rhuel Maana at Alliance Diagnostics in a treatment plan submitted on January 3, 2017 and denied by the respondent on March 23, 2017?

43The applicant submits that the treatment plan for a multi disciplinary assessment inclusive of documentation, preparation of service, interpretation services, total body examination, and mental and health addiction assessment is reasonable and necessary. However, the applicant has not provided enough information for me to conclude further assessments are reasonable and necessary. The applicant merely submits that the applicant’s family doctor stated that A.A. is in need of psychiatric treatment but does not explain how this treatment plan will satisfy that recommendation. I find this position requires supporting evidence and, outside the treatment and assessment plan itself, the applicant has not provided any for the period on or around the time this treatment plan is proposed. The OCF-18 fax back and letter dated March 12, 2017, from N. McConnell, adjuster references that the various assessments are for the purpose of preparing a “rebuttal” report. I am not certain based on the limited submissions and evidence what the purpose of the rebuttal report is and why such a report is necessary as this point.

44It is the applicant’s responsibility to prove that the cost of examination is reasonable and necessary. The written submissions, and medical records provided by the applicant fail to satisfy this requirement and why a whole-body assessment is necessary. I note that no medical doctor has found that the applicant suffers from a psychological impairment.

45As a result, I find the applicant is not entitled to this disputed treatment and assessment plan as it is not reasonable and necessary.

Interest

46Interest is only payable on overdue benefits pursuant to section 51 of the Schedule.

CONCLUSION

47For the reasons outlined above, I find that:

i. The applicant’s injuries fall outside of the MIG.

ii. The applicant is entitled to the medical benefit in the amount of $3,825.60 for chiropractic service submitted in a treatment plan on October 30, 2017, as the proposed plan is reasonable and necessary plus interest pursuant to section 51 of the Schedule.

iii. The applicant is not entitled to the medical benefit in the amount of $8,000.00 for various assessments submitted in a treatment plan on January 3, 2017, as the proposed plan is not reasonable and necessary.

Released: February 3, 2020

___________________________

Cezary Paluch

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 317-000835 and Aviva General Insurance Company, 2018 CanLii 83520 (OON LAT) at para. 16.
4. 4The criteria set out are derived largely from the decisions of other adjudicators. See for example YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) and 17-006136 v Aviva Insurance Canada, 2018 CanLII 95571 (ON LAT).
5. 5This is the date of the consultation conducted by Dr. J. Chen. The letter appears to be undated.
6. 6Applicant’s Submissions at Tab 14.
7. 717-007825 and Aviva, 2018 CanLii 98282 (ON LAT) (July 3, 2018).
8. 8Dr. J. Chen Consultation Report under heading “Previous Treatment.”
9. 9Dr. J. Chen Consultation Report under heading “Identification Data.” and Dr. Godfrey’s Physiatry IE dated December 12, 2017.
10. 10Dr. M. Pflug Consultation Note dated August 27, 2018 and Dr. D. Mula IE Report dated November 16, 2018, p 8.
11. 11Applicant’s Submissions, Tab 10.
12. 12Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543/
13. 13Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543 at para. 31.
14. 1417-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) at para. 23.
15. 15Dr. Salerno
16. 16See letter dated November 13, 2017 from N. McConnell adjuster at Tab 24 of the Applicant’s Submissions.```