A.H. v. TD General Insurance Company, 2020 CanLII 12773

DECISION AND ORDER

Citation: [A.H.] vs. TD General Insurance Company, 2020 ONLAT 18-011072/AABS

Released Date: February 19, 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.H.]

Applicant

and

TD General Insurance Company

Respondent

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Kate Logushova, Counsel

For the Respondent:

Oliver Gorman-Asal, Counsel

HEARD: In Writing

June 10, 2019

OVERVIEW

1A.H. ("the applicant") was injured in an automobile accident on September 30, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). TD General Insurance Company (the "respondent") deemed her 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 thus 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 determine whether the proposed treatment plans are reasonable and necessary.

4If the respondent is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether the claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.²

ISSUES

5Pursuant to the amended Tribunal Order released on May 9, 2019, the issues to be decided are:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,848.77 for physiotherapy treatment, recommended by Ajax Medical Centre in a treatment plan dated January 4, 2018, and denied by the respondent on April 26, 2018?

iii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,900.00 for a functional abilities evaluation, recommended by Assessment Rehabilitation Treatment Centre in a treatment plan dated January 3, 2018, and denied by the respondent on January 11, 2018?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $1,997.64 for a psychological assessment, recommended by Ajax Medical Centre in a treatment plan dated January 4, 2018, and denied by the respondent on April 26, 2018?

v. Is the applicant entitled to payments for the cost of examinations in the amount of $1,997.64 for chronic pain assessment, recommended by MediAssess Evaluation Inc. in a treatment plan dated September 19,2018, and denied by the respondent on September 25, 2018?

vi. Is the applicant entitled to receive a medical benefit in the amount of $7,454.63 for a chronic pain management program, recommended by MediLife Care in a treatment plan dated February 13, 2019, and denied by the respondent on February 28, 2019?

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

RESULT

6I find that the applicant's injuries are predominantly minor as defined by the Schedule and subject to the $3,500.00 limit.

7Accordingly, her entitlement to medical benefits is capped at $3,500 under the MIG. Her appeal is denied, and no interest is payable as no benefits are owing.

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 and includes any clinically associated sequelae to such an injury."

9The onus is on the applicant to show that her injuries fall outside of the MIG.³

10In summary, A.H. argues that she should be removed from the MIG because of her neck pain, back pain, head pain, along with her related headaches, sleep disturbances, and psychological sequela (anxiousness, pain, depression and fatigue). The applicant did not advance any argument that she should be removed from the MIG because of a pre-existing medical condition. All of the evidence pointed to the applicant being relatively healthy before the accident with no previous motor vehicle accident, work-related injuries, operations, or need for medication. She has never been diagnosed with mental health problems.

Does A.H. suffer from chronic pain that would remove her from the MIG?

11I agree with the applicant that chronic pain, if established, removes one from the MIG, since the prescribed definition of "minor injury" does not include chronic pain.

12Pain is subjective and cannot be measured objectively and, thus, assessing chronic pain can be complex. Unfortunately, the phrase "chronic pain" is not defined in the Schedule. A simple starting point that everyone can understand is that chronic or persistent pain is pain that continues long after it should not. I also note that chronic pain was recently recognized by the World Health Organization (WHO), the global institution responsible for setting health policy standards, as a disease in its own right.⁴ As a result, chronic pain is more than a symptom – it is now a recognized as a disorder or disease. I also do not believe that a formal diagnosis of 'chronic pain syndrome' is necessary to remove an insured from the MIG and the focus should be on the applicant's symptoms and their effects rather than concern with a diagnosis. In other words, all that is required is to prove chronic pain based on the entirety of the evidence. This approach is consistent with the Supreme Court's emphasis in Saadati v. Moorhead that the trier of fact's inquiry should be directed to the level of harm that the claimant's particular symptoms represent, not to whether any particular label, such as 'chronic pain syndrome,' could be attached to them.⁵

13On a balance of probabilities and for the following reasons, however, I find the applicant does not suffer from chronic pain that would remove her from the MIG.

14The applicant did not provide me with any definition of "chronic pain." In assessing the applicant's claim of chronic pain, in addition to the above, I have also applied the following well accepted criteria:

i. The insured person suffers severe and constant pain – more than simple ongoing or recurrent, intermittent pain.

ii. The insured person's pain has persisted well beyond the normal healing times for the injuries sustained.

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

iv. The insured person's pain causes functional impairment and disability. It significantly disrupts or disables pre-accident activities of daily living.⁶

15In support of her position, A.H. relies upon Dr. I. Wilderman's January 14, 2019 report. In that report, Dr. Wilderman, physician, opines that A.H. "has developed a chronic pain disorder [among many other diagnoses] that prevents her from partaking in daily activities as she did prior to the accident."⁷ Dr. Wilderman describes chronic pain as pain that persists for more than 3 to 6 months, or pain that lasts longer than expected after an injury or illness. Dr. Wilderman further explains that chronic pain is associated with significant and reliable impairment of functional status as experienced by a patient and that the degree of functional impairment typically exceeds or occurs in the relative absence of medical or physical findings. Dr. Wilderman concludes that the applicant's injuries fall outside the MIG because she has developed a chronic pain condition with a psychological component which can not be treated within the allotted $3,500.00.

16The respondent argues that I should place little weight on Dr. Wilderman's report because:

i. Dr. Wilderman diagnosed A.H. with "severe PTSD," something outside of his area of expertise as a physician since he is not a clinical psychologist; and

ii. Dr. Wilderman made an unsupported diagnosis of radiculopathy and disc herniation despite acknowledging that he had no diagnostic test results.

17I agree with the respondent and place limited weight on Dr. Wilderman's conclusions for the following additional reasons:

i. In arriving at his diagnosis, Dr. Wilderman explains that he utilized the six diagnostic criteria or characteristics based on the American Medical Association ("AMA") Guides (the "Guides").⁸ I am not bound by the Guides and do not make any finding as to appropriateness of these factors in assessing whether a chronic pain syndrome exists. Strictly speaking from a legal perspective, the definition of a "minor injury" or "Minor Injury Guideline" in the Schedule does not reference any version of the Guides. I do note that prior Tribunal decisions have accepted their criterion as persuasive in assessing chronic pain.⁹ My only other comments here are that utilizing the Guides to determine if a chronic pain condition exists should at the minimum: (i) ensure a proper citation of the Guides with reference to the applicable Chapter; (ii) be consistent by evaluating the entire group of enumerated factors (ie. the Eight Ds) or explaining why certain factors were disregarded; (iii) recognize that the presence of the listed characteristics only establishes a "presumptive" or probable diagnosis of chronic pain syndrome (see page 308 of Guides) and the assessor still has to come to their own conclusion. In other words, it seems to me, simply meeting the minimum number of factors (ie. two or more) alone is not enough.

ii. As a starting point, Dr. Wilderman does not explicitly conclude in his report which of the six criteria were met (or not met). This is important, as at least three of the six criteria must be met (as Dr. Wilderman writes in his report that the patient must exhibit three or more characteristics) to come within the ambit of a chronic pain diagnosis. I presume that at least three were met as the physician does go on to conclude that A.H. met the criteria.

iii. Related to the above, Dr. Wilderman explains that he relied upon the diagnostic criteria set out in the "4th edition as well as the more recent 6th edition" of the Guides. It is not clear to me which version of the Guides was relied on and why both editions were referenced. There is no reference to a Chapter or any citation in his report. This is important as both versions are quite different and there are widely varied topics and methods. Further, in terms of Dr. Wilderman's application of the factors, my reading of the 4th edition of the Guides,¹⁰ and in particular Chapter 15 entitled "Pain", suggests that the presence of two or more (not three) of the eight (not six) characteristics is considered sufficient to establish the diagnosis of chronic pain. Indeed, the 4th edition refers to the diagnosis criteria as the "Eight Ds".¹¹ I am not certain the reason for these discrepancies in Dr. Wilderman's report and why his six criteria did not align exactly with the "Eight Ds" in the Guides, 4th (reference to 'Duration' and 'Dramatization' appears to have been omitted) or why he said three factors must be met when the Guides speak to only two being required.

iv. I also reviewed the 6th ed. of the Guides and there is no separate chapter on pain or similar type criteria to diagnose chronic pain syndrome, so I queried what part of this edition was ever relied upon to construct his report. In any event, these inconsistencies, or at least a lack of explanation, weakened Dr. Wilderman's opinion as the methodology used was apparently not in accordance with the Guides but appeared to be some form of variation.

v. In his report, Dr. Wilderman defines chronic pain as pain that persists for "more than 3 to 6 months, or…longer than expected after an injury" (citing Merskey & Bogduk, 1993). As I already mentioned, he references the diagnostic criteria in the Guides, 4th ed., which reads that a more current description of chronic pain syndrome "can be diagnosed as early as 2 to 4 weeks after its onset" (under heading 'Duration'). Again, I could not reconcile how Dr. Wilderman references the Guides to support his diagnostic criteria for a chronic pain syndrome yet relies on a totally different description regarding how long one must wait to diagnosis chronic pain syndrome after the onset of symptoms (especially since the Guides clearly tell you that in the past the term chronic pain has been applied to pain greater than 6 months duration however current opinion is now different).

vi. Perhaps what is even more important in terms of assessing Dr. Wilderman's report is whether the six factors that he cited to support his opinion have been adequately analyzed. In other words, an assessor can not come to a reliable or accurate conclusion if the individual criteria themselves are vague and lacking in basic details one would expect to be addressed or are not consistent with the evidence as a whole. It is for this reason that Dr. Wilderman's diagnosis of chronic pain syndrome is ultimately unreliable. For example, under criteria # 2 (dependence on healthcare providers, spouse or family), Dr. Wilderman merely concludes that A.H. depends on family members to perform physically demanding tasks, such as housekeeping/home maintenance, but does not specify which family member and what activities he is referring to. Similarly, under criteria # 3 (avoidance of physical activity due to pain), there is only a general reference to "sports and exercising" without explaining what sport activity he is referring to and whether this was an activity that A.H. participated prior to the accident. It seems to me that a proper in-depth analytical approach would consider the applicant's specific activities and life circumstances before the accident as compared to her current levels and explain how the pain practically prevents the applicant from performing those activities.

vii. Further, under criteria # 5 (failure to restore pre-injury function to pursue work, family, or recreational needs), Dr. Wilderman explains that A.H. was administered a pain questionnaire to assess the degree to which her daily activities are affected by her chronic pain. A.H. scored 37/60, indicating "severe impairment of her family/home functions…moderate impairment of her academic/occupational functions". I was not certain what the score of 37 meant – if this was a pass or what the measured levels of impairment (i.e., severe or moderate) indicated and if this criterion was in fact met as far the chronic pain diagnosis. My reading of this characteristic is that it would have been more helpful to discuss whether A.H. was working and, if so, for how many hours, or does she have any functional limitations that prevented her from returning to work. However, on his critical point, Dr. Wilderman's analysis omits any reference to A.H.'s work as a lab technician and how many hours a week she was working. This was also especially important because Dr. Wilderman noted that A.H. was working part-time at her uncle's restaurant at the time of the accident, whereas the Disability Certificate (completed only a few weeks after the accident) noted A.H. was not working. I found the physicians analysis of this criteria too cursory and not supported by the facts of this case.

viii. Finally, Dr. Wilderman does not provide any specific evidence that the applicant has a significant functional impairment and how it disrupts or disables her pre-accident activities of daily living. Again, the evidence was that the applicant has largely returned to her pre-accident activities, was driving and resumed school one-week post accident, graduated from college and is now working in her chosen field. I was also not certain what testing methods Dr. Wilderman used to evaluate A.H. functional capacity other than very basic objective examination which noted normal gait, walking on toes/heels is normal, normal range of motion (neck, back), all reflexes are intact. There was no reference to evaluating A.H. as she performed her everyday activities or in a structured setting to see what in fact she can do. In contrast, Dr. Halabi (as part of an IE) described that A.H. started working in February 2018 was required to type (patient information, tests/blood work), doing EEG studies, sorting specimens, standing and taking to patients. Notably, A.H. reported to Dr. Halabi that she was able to perform all of these activities. Dr. Halabi described that A.H. wakes at 6:30 am starts work at 7:30 am and stays there till 2:00pm, drives back, relaxes, cooks, does dishes, and sometimes goes to the gym. I do note that Dr. Wilderman did review Dr. Nathanson's Assessment of Function report dated January 23, 2018 but did not discuss it in his report. Consequently, Dr. Wilderman's descriptions of functional impairment are vague and therefore unpersuasive.

18The applicant also refers to a series of clinical notes and records from her family physician, Dr. Sharrif, with complaints of her accident injuries. However, my review of these entries is that they reveal very few pain complaints or reference any level of pain or how it affects on her function. For example, a letter dated September 14, 2018 references "ongoing complaints" related to the accident and that Dr. Shariff believes that "patient is less symptomatic." A note on December 4, 2018 indicates that A.H. is no longer attending physio. I did not see any references to "chronic pain" anywhere in Dr. Shariff's notes, let alone a referral to a chronic pain clinic or a specialists or further investigations for control of her pain. It seems that Dr. Shariff did not diagnosis A.H. with chronic pain.

19The applicant submitted a Disability Certificate (OCF-3) completed by P. Tam, chiropractor, on October 17, 2016. All of the injuries listed on this form reference sprain/strain type of injuries and acute pain that fall under the definition of a minor injury. Notably, the Disability Certificate notes that A.H. was not working at the time of the accident. This was in direct contrast to what Dr. Wilderman wrote in his report that A.H. was working part-time at her uncle's restaurant in a fast-paced environment prior to the accident. Another Disability Certificate dated January 4, 2018, diagnosed headaches and sprain/strain of the cervicothoracic and lumbar spine.

20On January 23, 2018, the applicant underwent an assessment of function and impairment with J.A. Nathanson, chiropractor, who concluded that the applicant suffers from chronic pain and her injuries fall outside the MIG. I note that Mr. Nathanson is a chiropractor and I assign limited weight to his opinion as he is not a physician who can diagnose chronic pain or provide a psychological diagnosis. The stated purpose of his assessment was to assess function or make a finding regarding the MIG. Moreover, Mr. Nathanson relies on definition of "chronic pain" by referencing web site, and not actually stating the definition, and cites a FSCO decision without naming the case or providing citation.

21To dispute the applicant's position that he did not suffer predominantly minor injuries in the accident, the respondent relies on a Multidisciplinary Assessment Report dated April 25, 2018, which contains a Physiatry Assessment by Dr. A. Oshidari, and Psychological Assessment by Dr. M. Nikkou. Dr. Oshidari found sprain/strain and soft tissue injuries and concludes that from a physical point of view the applicant's injuries fell within the MIG. Dr. Oshidari noted that, at present, she remains independent in all activities of daily living and on a bad day, when pain is pronounced, she requires some assistance. Dr. Oshidari completed a physical examination and did not detect any radiculopathy or any signs of lumbar stenosis or joint dysfunction.

22Overall, the applicant's medical evidence provides no persuasive proof of a chronic pain condition. The respondent's rebuttal evidence persuades me that A.H. does not have an accident-related chronic pain condition.

Did A.H. suffer a psychological injury that would remove her from the MIG?

23Psychological injuries, if established, fall outside the MIG because the MIG relates only to "minor injuries", as defined in s. 3(1) of the Schedule, and the definition does not include psychological injuries. This is uncontested by the respondent. However, the respondent takes issue with the applicant's medical evidence on this point.

24The applicant relies on the Initial Psychological Assessment of Dr. G. Gronkowska dated April 30, 2018. The report is based on a clinical interview, presentation and history but not any psychological testing. Dr. Gronkowska diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and some features of pain disorder (somatic symptom disorder).

25The respondent relies on the Psychology Assessment report by Dr. M. Nikkhou, neuropsychologist, to rebut A.H.'s claim. Dr. Nikkhou found no significant current psychological impairments or disorders that would result in the applicant's needs to exceed the limits of the MIG. Dr. Nikkou found some evidence of persistent pain and Subclinical Features of Adjustment Reaction explaining that A.H. is experiencing some mild emotional concern due to her pain and physical limitation but there is no indication from her current daily functioning or from her testing results that would indicate that her problems are of a substantive nature.

26Overall, I prefer the conclusion of Dr. Nikkou to that of Dr. Gronkowska because I found Dr. Nikkou's report more comprehensive, objective and reliable as it included several psychological and symptom validity tests. For example, the Standalone Symptom Validity Test suggested an "invalid profile with significant tendency to exaggerate the symptoms overall." During the in-person assessment, Dr. Nikkou noted that A.H. was hesitant to give more details (when discussing a typical day). Dr. Gronkowska conducted no psychological testing and her conclusions are essentially based on A.H.'s self-reports to confirm the accuracy her results. Pain is subjective and psychological testing is an integral part of evaluating pain. I was also not certain why Dr. Gronkowska labelled her report as "Initial," which indicated to me this was a preliminary assessment and not final. No follow up report was ever provided.

27I noted that A.H. does question Dr. Nikkhou's report (as well as Dr. Oshidari's report) on the basis that neuropsychologist and a physiatrist could not comment whether further treatment was reasonable and necessary. I did not accept this argument for two reasons. First, the preliminary issue is whether the applicant's injuries are predominantly minor, so this point seems to be moot. Also, a physiatrist is a physician who specializes in physical medicine and rehabilitation and would be in a good position to comment on an insured's accident-related injuries and functional abilities. Dr. Oshidari was a psychologist and his credentials and methodology were unchallenged.

28The applicant's other objection is that the respondent's two assessment were completed in over a year ago in early 2018 when A.H.'s life circumstances were completely different. I did not know what circumstances, if any, have changed since that time – this evidence was not before me. The evidence was that A.H. did complete her school and was working at the time of the hearing. This evidence was uncontested and unchallenged.

29After reviewing the applicant's submissions and all of the evidence, I conclude that A.H. has not met the evidentiary onus on her to show that she suffers from chronic pain or a psychological condition as a result of the accident. I reached this conclusion for the following reasons:

i. Although Dr. Wilderman diagnosed chronic pain syndrome, for the reasons cited, I did not accept his finding and preferred the conclusion of Dr. Oshidari, who found that the applicant's injuries fell within the MIG. The respondent's multidisciplinary report and rebuttal evidence persuades me that A.H. on balance, does not have an accident-related chronic pain condition.

ii. The applicant argues that she suffers from of significant back and spine pain over her entire back but there were no diagnostic studies including any x-rays or MRI's of her back to indicate any accident-related pathology or symptoms or to connect the applicant's pain complaints to the accident.

iii. The applicant has not sought any psychological intervention since the accident. The applicant's own assessor, Dr. Nathanson, confirmed that post-accident the applicant was not taking any medication.

iv. Most of the applicant's written submissions do not address in any detail whether her injuries fall within the MIG. Rather, the focus is on the disputed treatment plans and that A.H.'s injuries have regressed due to the respondent's denials of proposed treatment and rehabilitation. The applicant did not submit any case law to support her position. The applicant also did not submit an affidavit to describe how her pain causes any functional impairment or disability or how her life circumstances have changed (since the IE's were done in 2018). Pain is subjective and cannot be measured objectively and thus direct evidence from the applicant is sometimes crucial, especially in a written hearing format such as this. In the absence of evidence demonstrating the impact and extent of her pain, especially addressing how A.H. was able finish her full-time studies at [a college] (missing approximately only one week) and in 2018 began working as a lab technician in her chosen field, I was unable to appreciate whether her pain is of a chronic nature.

30As the result of my findings, I conclude that A.H.'s injuries fall within the MIG. Accordingly, it is unnecessary for me to address the OCF-18s in this dispute.

ORDER

31A.H.'s injuries are minor, her entitlement to medical benefits is governed by the MIG and appeal is denied. As no benefits are owing to A.H., no interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Para. 59 of Respondent's Submissions indicates insurer has paid the MIG limit of $3,5000.00.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para. 24.
4. 4The ICD-11 is scheduled to go into effect in the year 2022. See: https://www.who.int/news-room/detail/25-05-2019-world-health-assembly-update.
5. 5Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543 at para. 31.
6. 6See YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) para. 24-29.
7. 7Independent Medical Evaluation Report under heading "Clinical Opinion", page 3 (not numbered).
8. 8(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances. (2) Excessive dependence on health care providers, spouse, or family. (3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. (4) Withdrawal from social milieu, including work, recreation, or other social contacts. (5) 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. (6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
9. 9See 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT).
10. 10Guides, 4th edition, Chapter # 15, page 15/308.
11. 11Duration, Dramatization, Diagnostic Dilemma, Drugs, Dependence, Depression, Disuse, and Dysfunction (the "8 Ds").