M.D. v. Certas Home and Auto Insurance Company, 2020 CanLII 14473

Licence Appeal Tribunal

Citation: M.D. v. Certas Home and Auto Insurance Company, 2020 CanLII 14473 Released Date: 02/24/2020

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:

M.D. Applicant

and

Certas Home and Auto Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Barbara Opalinski, Counsel

For the Respondent: Samuel Davies, Counsel

HEARD: In Writing August 19, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant ("M.D.") was involved in a motor vehicle accident on December 15, 2017 ("the accident"). M.D. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ ("the Schedule") from the respondent, Certas Home & Auto Insurance Company ("Certas") and applied to the Licence Appeal Tribunal (the "Tribunal") when his claims were denied.

2Certas argues that M.D.'s injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline ("the MIG").² M.D.'s position is the opposite.

3If Certas is correct, M.D. is then subject to the $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 benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

4I must, therefore, decide whether M.D.'s injuries are predominantly minor as defined by the Schedule. If they are not, I must then determine whether the disputed medical and rehabilitation benefits, and the associated fees and expenses, are reasonable and necessary.

ISSUES

5The issues to be determined are as follows:

a. Did M.D. sustain predominantly minor injuries as defined under the Schedule?

6If M.D. did not sustain predominantly minor injuries,

a. Is the medical benefit in the amount of $1,837.70 (less $1,707.70 approved) for physiotherapy services provided by European Physiotherapy as set out in a treatment plan ("OCF-18") submitted on September 25, 2018 and denied on September 25, 2018, reasonable and necessary?

b. Is the cost of an examination in the amount of $2,200.00 for a chronic pain assessment provided by Recovery Rehabilitation, as set out in an OCF-18 submitted on November 12, 2018 and denied on November 12, 2018, reasonable and necessary?

c. Is M.D. entitled to interest on any overdue payment of benefits?

FINDING

7Based on a review of the evidence, I find that M.D. is entitled to the treatment plans, and interest.

ANALYSIS

Section 44 non-compliance

8Section 44(1) of the Schedule states in order for an insurance company to determine entitlement or continued entitlement to a benefit under the Schedule, they may require the applicant to attend an examination by one or more persons, chosen by the insurer, who are regulated health professionals or who have vocational rehabilitation expertise. This is known as an insurer examination or IE.

9Under s. 44(9)(2)(iii), where the attendance of the applicant is required, the applicant shall submit to all reasonable examination requests by the person conducting the examination. The decision regarding the September 25, 2018 OCF-18 turns on this very section.

10Section 37(7)(b) states that if the applicant refuses to comply with the reasonable examination requests from the assessor, the insurance company may refuse to pay the specific benefit(s) during the period the applicant fails or refuses to comply with the request.

11Provided that the IE complies with the Schedule, Section 55(1)2 of the Schedule prohibits an insured person from applying to the Tribunal under s. 280(2) of the [Insurance Act]³ if they have not complied with an insurer's request for an IE under section 44 of the Schedule.

12M.D. contends that the obligations under s. 44 do not apply to the disputed issues. I find that the notices of examinations are not in relation to the issues in dispute but are for subsequent OCF-18s which are not before me. As a result, I find that M.D. is not in breach of his obligations under s. 44 of the Schedule.

The Minor Injury Guideline

13Section 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."

14Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

15The onus is on M.D. to show that his injuries fall outside of the MIG.⁴ In the event that I find that M.D.'s physical injuries are "minor injuries" as prescribed by the Schedule, M.D. argues in the alternative that he should be removed from the MIG because he has been diagnosed with chronic pain as a result of the accident.

Chronic Pain

16For the reasons that follow, I find that M.D. has proven on a balance of probabilities that his injuries from the accident are not predominantly minor injuries due to chronic pain.

17Certas submitted various previous Tribunal decisions⁵ which reference considerations for determining if an insured suffers from chronic pain:

a. ongoing pain alone is insufficient to take an insured person out of the MIG; rather, ongoing pain must be accompanied by some functional impairment;

b. chronic pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability; and

c. an insured person will not meet his or her burden of showing that chronic pain is more than mere sequelae without discussions as to the level of pain, its effects on the person's function and whether the pain is bearable without treatment.

18M.D. argues that he is removed from the MIG as a result of his chronic pain. M.D. relies upon Dr. Karmy's Chronic Pain Assessment Report dated May 7, 2019.⁶ In his report, Dr. Karmy describes chronic pain as pain that persists beyond the normal healing time after a tissue injury and adversely affects the function and well-being of an individual and continues for more than the normal recovery period despite appropriate therapy and reasonable accommodations.⁷ More specifically, Dr. Karmy states that pain is usually regarded as "chronic" when it lasts or recurs for more than 3 to 6 months.⁸ Dr. Karmy notes that chronic pain is a condition that is very complex and multifactorial in origin, is often resistant to medical treatments and substantially interferes with all daily activities of the individual. Dr. Karmy further explains that chronic pain is also associated with psychological problems, such as anxiety, depression and sleep disturbances.⁹

19Following his assessment of M.D. on April 30, 2019, Dr. Karmy diagnoses M.D. with numerous impairments as a result of the accident.¹⁰ Dr. Karmy also opined that M.D.'s injuries fall outside of the MIG and that M.D. could not reasonably be expected to reach maximum medical recovery within the MIG monetary limit of $3,500.00.¹¹

20As part of his assessment, Dr. Karmy noted that M.D.'s current complaints included the following:

a. Constant low back pain, which reaches a pain intensity of 4-6/10, that is aggravated by repetitive bending, twisting, heavy lifting, pushing/pulling, prolonged walking and standing as well as lying down on the back;

b. Intermittent upper and mid-back pain, rated at 6/10 and aggravated by bending forward, twisting, heavy lifting, and lying down on his back, as well as by prolonged sitting and standing;

c. Bilateral shoulder pain, which reaches a pain severity of 6/10 (left) and 4/10 (right), that is exacerbated by movement and lying down on either side. Physical activities involving lifting, carrying, pushing, pulling and reaching overhead also aggravate the shoulder pain;

d. Neck pain and left arm pain rated at 3/10 and 2-3/10, respectively. The neck pain is aggravated by sitting for extended periods, flexion and hyperextension. The left arm pain is aggravated by movement and by activities associated with holding, grasping and reaching forward or overhead, as well as with lifting and carrying;

e. Intermittent chest wall pain rated at 3/10 and aggravated by repetitive upper limb movements, reaching overhead, pulling and pushing, as well as by heavy lifting and carrying; and

f. Sleep disturbances, as M.D.'s 6 to 8 hours of non-restorative sleep per night post-accident is interrupted by pain and the need to adjust positions.¹²

21Dr. Karmy also reported the effects of M.D.'s pain on his employment, housekeeping, caregiving, self-care, social and leisure activities. Dr. Karmy reported that M.D.'s limitations from the injuries that he sustained in the accident interfere with his ability to fully perform his job-related duties as a self-employed contractor installing flooring and backsplash tiles. M.D. returned to approximately one week after the accident but, at the time of Dr. Karmy's report, M.D. continued to have difficulties lifting heavy objects and with prolonged sitting and standing.

22Dr. Karmy further reported that post-accident, M.D. has been unable to return to all of his housekeeping duties that require endurance, heavy lifting and repetitive bending due to pain aggravation to his upper limbs. M.D. reported that while he can perform his self-care tasks independently with pacing, he cannot do so at the same fast pace or level of ease as prior to the accident. Finally, Dr. Karmy reports that M.D. has lost pleasure in the activities that he used to enjoy as a result of his pain, such as parties, picnics, swimming and skiing, and that M.D. was forced to curtail most of his recreational and social activities post-accident.¹³

23Certas submits that I should put little weight on Dr. Karmy's report because:

a. Dr. Karmy failed to provide any commentary, or a list, of the medical documentation reviewed in support of his opinion. The failure of the assessing physician to document and rely on any clinical notes and records of treating physicians, or physiotherapy records or other medical records in support of his diagnoses undermines the assessor's report and diminishes the credibility of his conclusions, including causation;

b. The report failed to indicate the length of the assessment; and

c. The assessment was conducted without the use of an interpreter. Dr. Karmy noted that the Applicant had difficulty speaking English.

24I do not agree with Certas' submissions for the following reasons:

a. Dr. Karmy provided a detailed definition of chronic pain in his report and explained how M.D.'s pain meets this definition. Dr. Karmy reported that M.D.'s pain has persisted well past the 3 to 6-month time frame to become classified as "chronic," Dr. Karmy noted the areas of M.D.'s life that his pain affects, and that M.D. also suffers from sleep disturbances. I also find that Dr. Karmy outlined the severity, intensity and duration of M.D.'s pain symptoms as M.D.'s pain ratings and frequency are all noted in Dr. Karmy's report.

b. Further, as a Chronic Pain Specialist, Dr. Karmy was most qualified to conduct the necessary tests to determine whether M.D. suffers from chronic pain. Despite Dr. Karmy not indicating that he reviewed any medical documentation, I find this does not change the outcome of the report. There are reports from M.D.'s family physicians and from the treating facility that recommend a chronic pain assessment in order to determine the severity of M.D.'s pain complaints.

c. I do not agree with Certas that a lack of indication of the length of the assessment determines that a chronic pain finding is erroneous. Certas provided me with no evidence that establishes the absence of the indication of time spent conducting the assessment has any bearing on the findings or diagnosis provided in the report.

d. Lastly, although Dr. Karmy's report indicated that M.D. had difficulty speaking English, the report also noted that an interpreter was not required. Much of the report relies on M.D.'s self-reporting, and I find that Dr. Karmy was able to clearly opine on the severity of M.D.'s pain complaints, based on the self-reporting. As such, I am not persuaded that an interpreter was necessary for the purposes of conducting the chronic pain assessment.

e. For all of these reasons, I accept and place weight on the findings and diagnoses of M.D. in Dr. Karmy's report.

25Certas did not conduct any s. 44 assessments of its own regarding the disputed OCF-18s, nor did they direct me to any other persuasive reports that refute Dr. Karmy's findings.

26I accept Dr. Karmy's findings that M.D. suffers from chronic pain as a result of the accident. Dr. Karmy's report notes M.D.'s functional impairment as a result of chronic pain, the severity of the chronic pain and M.D.'s ability to function as a result of chronic pain. Further, Dr. Karmy's report notes that M.D.'s chronic pain will not be bearable without treatment. As a result, I find that M.D. has met his burden of proving on balance of probabilities that he did not sustain a minor injury as defined in the Schedule. Therefore, he is removed from the MIG.

M.D. did not sustain predominantly minor physical injuries

27M.D.'s evidence and submissions indicate that he has developed a chronic pain condition as a result of the accident. It is on this basis that he argues that his impairments fall outside of the MIG.

28I find that M.D. is removed from the MIG for chronic pain.

29As I have found that he is removed from the MIG for chronic pain, I do not need to address whether he had any pre-existing medical condition or psychological impairments as a result of the accident that would remove him from the MIG, pursuant to section 18(2) of the Schedule.

M.D. is entitled to the chronic pain assessment

30Based on the length and history of M.D.'s pain complaints, an OCF-18 submitted November 12, 2018 was submitted claiming the cost of a chronic pain assessment. I find the OCF-18 to be reasonable and necessary.

31The OCF-18 for the chronic pain assessment sets out the purpose of the assessment is for pain reduction and increased range of motion. The OCF-18 author, Chiropractor Marissa Lee noted M.D. has not fully recovered yet and still suffers from pain and functional limitations that have prevented him from resuming normal activities of daily living. Based on the reported symptoms by M.D. in the 15 months since the accident, Ms. Lee opines a chronic pain assessment is warranted. I am persuaded by the medical evidence that M.D. has established he is entitled to the chronic pain assessment.

M.D. is entitled to the physiotherapy treatment plan

32M.D. submits that the goal of the OCF-18 is to reduce pain and to facilitate his return to his activities of normal living. The OCF-18 for physiotherapy services submitted September 25, 2018 recommends treatment with the goals of pain reduction, increase in strength, increased range of motion, return to activities of normal living, return to modified work activities and return to pre-accident work activities.

33I find that the OCF-18 is reasonable and necessary for the following reasons:

a. M.D. has submitted medical documentation to establish that he has pain in various parts of his body as a result of the accident. I have found that he suffers from chronic pain as a result of the accident.

b. M.D. told Dr. Karmy during the chronic pain assessment that he found the physiotherapy treatment beneficial in alleviating his pain; however, their effects were temporary, and M.D. has not experienced long-term improvement in his symptoms and functionality. I find that M.D.'s reports of pain is indicative that, due to M.D.'s chronic pain condition, he continues to suffer from pain as a result of the accident.

34M.D. is therefore entitled to the payments for the OCF-18 for physiotherapy, as pain relief is a reasonable goal, even on a temporary basis.

CONCLUSION

35For the reasons outlined above, I find that M.D.'s injuries fall outside of the MIG due to his chronic pain. M.D. is entitled to the OCF-18 for physiotherapy as well as the OCF-18 for a chronic pain assessment. M.D. is entitled to interest on any overdue payment of benefits.

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. 3R.S.O. 1990, c. I.8.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Y.M.Y. and Certas Home and Auto Insurance Company, 17-004982/AABS, 2018 CanLII 13154 (ON LAT), Tab 5 - Respondent's Brief of Authorities at para 25; A.P. v Aviva Canada, 16-000045/AABS, 2016 CanLII 60728 (ON LAT), Tab 7 - Respondent's Brief of Authorities at paras 17-18; and Applicant v TD Insurance Meloche Monnex, 17-000640/AABS, 2018 CanLII 13142 (ON LAT), Respondent's Brief of Authorities at Tab 6 paras 39-42.
6. 6Applicant's Written Submissions, tab 9.
7. 7Ibid. at page 2.
8. 8Ibid
9. 9Ibid
10. 10Ibid at page 9.
11. 11Ibid at page 11.
12. 12Applicant's written submissions, tab 9 at pages 4-5.
13. 13Ibid at page 7.