Released Date: January 27, 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:
[T.B.]
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Cezary Paluch
APPEARANCES:
For the Applicant:
Taser Shah, Counsel
For the Respondent:
Paul Omeziri, Counsel
HEARD: In Writing
August 19, 2019
OVERVIEW
1T.B. (“the applicant”) was injured in an automobile accident on May 24, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). Wawanesa Mutual 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 her injuries fell within the MIG and 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 whether the proposed treatment plans are reasonable and necessary.
4If the respondent is correct, then T.B. 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.
ISSUES
5Pursuant to the Tribunal Order dated April 9, 2019, the issues to be decided are:
i. Are the applicant’s injuries predominantly minor injuries as defined in the 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 a medical benefit in the amount of $3,133.06 for physiotherapy services recommended in a treatment plan submitted on October 4, 2016 and denied by the respondent on December 14, 2016?
iii. Is the applicant entitled to a medical benefit in the amount of $2,907.44 for physiotherapy services recommended in a treatment plan submitted on December 28, 2016 and denied by the respondent on January 10, 2017?
iv. Is the applicant entitled to a medical benefit in the amount of $2,681.82 for physiotherapy services recommended in a treatment plan submitted on August 9, 2017 and denied by the respondent on August 17, 2017?
v. Is the applicant entitled to an examination expense in the amount of $2,260.00 for a psychological assessment recommended in a treatment plan submitted on January 18, 2018 and denied by the respondent on January 25, 2018?
vi. Is the applicant entitled to an examination expense in the amount of $2,260.00 for a neurological assessment recommended in a treatment plan submitted on March 2, 2018 and denied by the respondent on March 18, 2018?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6T.B.’s injuries are predominantly minor as defined by s. 3 of the Schedule. Accordingly, 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
7Section 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.
8The onus is on the applicant to show that her injuries fall outside of the MIG.2
9T.B. argues that she should be removed from the MIG because she suffers from chronic pain as the result of the accident. Her main complaints are leg pain, knee pain, back pain, neck pain, chest/shoulder pain, muscle pain, and numbness, headaches, insomnia, depression and anxiety. Furthermore, she says, she has developed severe obstructive sleep apnea which exacerbated her chronic cough. She also argues that she now suffers from neurological components experiencing numbness, tingling, and cramping in her lower limbs.
Does T.B. suffer from chronic pain that would remove her from the MIG?
10Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.
11Neither party provided me with any definition of “chronic pain”. The applicant cited the decision of 17-002624 and Aviva Insurance Canada, as support that chronic pain syndrome is not a minor injury. I find this decision persuasive but distinguishable on the facts. In that case, there was a chronic pain diagnosis by a physiatrist who specialized in the management of pain and disability. Moreover, the claimant in that case was not able to return to work since the accident due to the pain (unlike T.B. who has returned to work and lacks a formal diagnosis of chronic pain syndrome).
12In assessing the applicant’s claim of chronic pain, 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.3
13T.B. refers to a series of clinical notes and records (“CNRs”) from her family physician Dr. R. Wyman. A clinic note entry from May 25, 2016 (only two days after the accident) states she “was fine yesterday, no head injury, no back pain.” Dr. Wyman also noted she had full flexion of her left knee and slight effusion was noted without any bruising. She was diagnosed with a contusion/joint effusion and referred x-rays of her left knee were normal.
14Dr. Wyman referred T.B. to Dr. Petrascu, neurologist, regarding her ongoing numbness complaints to her lower legs. A consultation note dated September 27, 2017, specified the possibility of a component of lumbosacral radiculopathy, most likely spondylotic, given the circumstances surrounding the onset of symptoms and the associated low back pain, and to further investigate for any structural components to the suspected lumbosacral radiculopathy, specifically focused on the L5-S1 level of distribution of symptoms, an MRI of the lumbosacral spine was recommended.
15An MRI of the lumbar spine was done on December 2, 2017, noting heterogenous region in the anterior perithecal fat at L4 and otherwise no significant spinal canal stenosis. Dr. Petrascu reassessed T.B. on December 22, 2017 and reviewed the results of the MRI. He noted longstanding low back pain and improving intensity and frequency of calf cramping but continues to have a normal neurological examination, and while her lower limb symptoms is likely multifactorial, with a possibility of a neurological component such as sitting related, an irritative component from the anterior parathecal tissue at L4 cannot be entirely excluded at this time while it is not clear what the nature of this tissue is. To further investigate this, an MRI of the lumbosacral spine with gadolinium was recommended reassuring absence of systemic symptoms and the reassuring spontaneous improvement in the calf cramping.
16On January 3, 2018, another MRI of the lumbar spine was completed to further asses abnormal signal anterior perithecal fat at L4. noting (comparing December 2, 2017 results) and finding “normal in appearance with no abnormal enhancement. The remainder is unremarkable. Finding on the prior study may have represented artifact.”
17In another follow up neurology consultation note dated August 3, 2018 Dr. Petrascu again describes gradual improvement in frequency and intensity of calf cramping, and the applicant denies low back pain, weakness in lower limbs and symptoms in feet and lower limbs. On examination, lower limbs, bulk, tone and power is normal in both legs. There is no significant right large fibre neuropathy in her right leg. In summary, Dr. Petrascu concludes in this note that given T.B.’s improvements in symptoms and the MRI from January 2018 further compromise of the lumbosacral roots has been reassuringly investigated and discounted and there was a low likelihood of a sinister etiology from her symptoms such as sciatic neuropathy or right lumbosacral plexus lesion and no further neurological investigations are indicated.
18The applicant also refers to a series of clinical notes and records of Michael Garran Hospital’s Toronto East Health Network Sleep Laboratory. Dr. Wyman’s note refers to a respiratory report dated September 20, 2017, by Dr. D. Bain noting that T.B. has severe obstructive sleep apnea, and this has been aggravated by her chronic cough and recommendations for a CPAP. Again, there is no evidence if this is accident related.
19To dispute the applicant’s position that she did not suffer predominantly minor injuries in the accident, the respondent relies on the opinions provided by its insurance examiners (“IE”), Dr. Silver, Dr. Dumitrascu’s and Dr. John (although he does not directly address the MIG issue).
20Dr. E. Silver, family physician, in his s. 44 IE report dated December 1, 2016, concludes that T.B. sustained uncomplicated soft tissue injuries as a result of the motor vehicle accident and that her injuries are minor. However, T.B. reported that she did not start having significant complaints in these areas until approximately one to two months after the accident and there appears to be some other pathology responsible for her recent and progressive symptoms. He reports that T.B. has not missed work since the accident, is fully independent with all personal care tasks, and has returned to driving without any difficulties. He noted T.B.’s complaints of inability to stand for long periods, back pain, sleep difficulties, and difficulty with food digestion. When asked to rate her overall improvement since the accident, T.B. estimated a 50% overall improvement (although many of her symptoms started before the accident). The physical examination was normal and the applicant displayed full range of motion. Notably the examination of the left knee was unremarkable. Dr. Silver’s report is thorough, detailed persuasive and contradicts chronic pain.
21Dr. Dumitrascu’s IE psychologist’s report dated March16, 2018, indicates that T.B. does not meet the DSM-5 criteria for a psychological disorder as a result of the accident and no psychological intervention is warranted. Most importantly, Dr. Dumitrascu concluded that T.B. did not endorse or report any clinically significant symptoms of anxiety, depression, or post-traumatic stress. During this examination Dr. Dumitrascu did not notice any excessive pain behaviours (aside that T.B. switched from siting to standing a couple of times). T.B. reported that her mood was normal, she denied having any excessive worries, and she works in a fast-paced environment and performs her duties well. She did report that her energy level is low because of her pain and she has occasional difficulties focusing because of pain. She drives to work 50 minutes away. T.B.’s administered psychometric test scores were within normal range including: the Beck Anxiety Inventory (“BAI”) suggesting she does not experience significant symptoms of anxiety; the Clinical Assessment of Depression (“CAD”) to measure presence of depression symptoms; and the Trauma Symptom Inventory to assess psychological symptoms (there was a slight elevation here on the pain scale).
22Dr. John’s s. 44 IE neurologists’ report dated May 10, 2018, diagnosed post traumatic tension type headaches. He noted that T.B. did not show any signs of focal deficits and there was diffuse weakness in her light leg (although it is antalgic and does not correlate with any particular nerve). Dr. John did not recommend any further treatment from a neurological perspective. On July 26, 2018, Dr. John conducted another paper review report after being provided with new documentation (family doctor records including MRI results, hospital records and Dr. Petrescu consultation notes) which did not change his original diagnosis and opinion.
23The applicant argues in her reply submissions that objective diagnostics indicate chronic pain with radiculopathy and neurological components but does not specify what diagnostic testing specifically she is referring to. Perhaps, more importantly, the applicant has not submitted any medical evidence or expert evidence to support that any of the diagnostic testing results, including the MRI, were accident related or the cause of any significant pain or symptoms.
24I do note that on October 20, 2016, the diagnostic scan of the T.B.’s lumbar spine noted that disc heights are well maintained, no fracture and mild scoliosis is appreciated. The opinion stated: “No significant degenerative change.” Similarly, nothing was observed in the diagnostic scan of the T.B.’s left knee completed on May 27,2016 which found a normal examination with joint spaces preserved, no fractures, no definite joint effusion or abnormalities of the patella. Finally, in January 3, 2018, an MRI of T.B.’s lumbar spine also appeared normal with no abnormal enhancement (finding on prior study may have represented an artifact). As a result, I disagree with the applicant that the diagnostic test results support a finding of chronic pain, To the contrary, my review of the testing results is that there is no connection to the accident or if there is anything that is pain related.
25After reviewing the applicant’s submissions and all of the evidence, I conclude that T.B. has not met the onus on her to show that she suffers from chronic pain as a result of the accident. I reached this conclusion for the following reasons:
i. T.B.’s medical evidence provides no persuasive proof of a chronic pain condition or diagnosis of chronic pain syndrome. My own reading of the CNRs and reports is there is no explicit linkage between T.B.’s pain complaints and the accident, and some suggestions as to alternative causes.
ii. The available diagnostic testing, discussed above, fail to find any accident related objective injury. T.B.’s last visit with Dr. Petrascu on August 3, 2018 confirms T.B.s improvements of her symptoms. Based on T.B.’s most recent MRI from January 2018, Dr. Petrascu concludes that there is a low likelihood of a sinister etiology from her symptoms such as sciatic neuropathy or right lumbosacral plexus lesion and no further neurological investigations were required.
iii. Wawanesa’s rebuttal evidence persuades me that T.B. on balance, does not have an accident-related chronic pain condition. I prefer the conclusions of Dr. Silver, Dr. Dumitrascu and Dr. John to that of the applicant’s evidence because their examinations were thorough and detailed. Their credentials were not questioned. I note that T.B. does not address their conclusions and methodology.
iv. The applicant asserts that she suffers from depression and anxiety but has not been diagnosed with any psychological impairments. Again, Dr. Dumitrascu in his report concluded that T.B. did not endorse or report any clinically significant symptoms of anxiety, depression, or post-traumatic stress. The administered psychometric test scores supported his conclusion. This evidence was uncontested and unchallenged.
v. The applicant focuses on her sleep apnea (suggesting that her cough is not the cause of her sleep apnea) but there is no medical opinion linking the sleep apnea to the accident, and some suggestions that this may be due to her other pre existing factors. T.B.’s own doctor, Dr. Petrescu, confirms that she has had chronic cough since 2013 and history of hypertension, asthma, and sleep apnea.
26Because I conclude that T.B. has not met the onus on her to show that she suffers from chronic pain as a result of the accident (after I considered whether she should be removed from the MIG on any other basis), it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.
Pre existing condition
27Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG and must be documented by a health practitioner. In order to ensure that T.B.’s appeal is fully considered, I will address it too.
28The applicant did not argue at the hearing that she should be removed from the MIG on the basis of a pre-existing condition. More to the point, the applicant’s main submissions concede that before the accident, T.B. was a “predominantly healthy woman with a history of chronic cough, asthma and hypertension.”4
29I note that Dr. Silver in his report stated prior to the motor vehicle accident T.B. was diagnosed with high blood pressure which was well managed with medications and a chronic cough for past approximately two years. As well, Dr. John noted pre-existing history of migraines although she has not been formally diagnosed with migraines. Dr. Petrascu noted seasonal allergies for which she is being managed. In a note dated February 22, 2018, Dr. Petrescu writes he met with T.B. on this day regarding a chronic cough since 2013 aggravated by exercise and objective evidence of asthma which has improved with medication. In his note dated August 3, 2018, he notes history of hypertension, asthma, and sleep apnea. However, none of the IE assessors found any evidence of a pre-existing condition that would remove her from the MIG. As well, there is no evidence whatsoever that her high blood pressure, migraines, allergies, chronic cough, asthma, hypertension and sleep apnea would prevent maximal recovery within the MIG limit.
30As such, T.B. is also not removed from the MIG because of a pre-existing condition.
31I conclude that T.B.’s injuries fall within the MIG. Accordingly, it is unnecessary for me to address the OCF-18s in this dispute.
CONCLUSIONS
32T.B.’s injuries are minor, her entitlement to medical benefits is governed by the MIG and her appeal is denied. As no benefits are owing to T.B., no interest is payable.
Released: January 27, 2020
___________________________
Cezary Paluch
Adjudicator
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
- Applicant’s Main Submissions, page 2.