[K.L.] v. CAA Insurance, 2020 CanLII 14479

Citation: [K.L.] vs. CAA Insurance, 2020 ONLAT 19-000029/AABS

Released Date: January 22, 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:

[K.L.]

Applicant

and

CAA Insurance

Respondent

DECISION

ADJUDICATOR: Cezary Paluch

APPEARANCES:

For the Applicant: Matthew Wasserman, Counsel

For the Respondent: Anju Sharma, Counsel

HEARD: In Writing July 22, 2019

OVERVIEW

1KL (“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''). CAA Insurance (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 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 proposed treatment plans are reasonable and necessary.

4If the respondent is correct, then KL 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

5The issues to be decided are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. If the applicant did not sustain predominantly minor injuries:

a) Is the applicant entitled to a medical benefit in the amount of $1,230.81 for chiropractic services provided by Toronto Medical Centre, as set out in a treatment and assessment plan submitted on January 13, 2017 and denied by the respondent on February 22, 2017?

b) Is the applicant entitled to a medical benefit in the amount of $1,904.51 for chiropractic services provided by Toronto Medical Centre, as set out in a treatment and assessment plan submitted on October 6, 2016 and denied by the respondent on February 3, 2017?

c) Is the applicant entitled to a medical benefit in the amount of $1,371.81 for chiropractic services provided by Toronto Medical Centre, as set out in a treatment and assessment plan submitted on December 18, 2016 and denied by the respondent on December 29, 2016?

d) Is the applicant entitled to the cost of an examination in the amount of $1,131.44 for an attendant care assessment with a Form 1 dated October 6, 2016 provided by Toronto Medical Centre, as set out in a treatment and assessment plan submitted on October 6, 2016 and denied by the respondent on February 3, 2017?

e) Is the applicant entitled to the cost of an examination in the amount of $1,995.33 for a psychological assessment dated February 17, 2017 provided by Toronto Medical Centre, as set out in a treatment and assessment plan submitted on March 10, 2017 and denied by the respondent on March 28, 2017?

iii. 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 fall within the MIG because:

(i) they fit within the definition of minor injury prescribed by the Schedule; and

(ii) there is no compelling evidence of a pre-existing medical condition that would remove the applicant from the MIG.

7Accordingly, his entitlement to medical benefits is capped at $3,500.00 under the MIG. His 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.”

9Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

10The onus is on the applicant to show that his injuries fall outside of the MIG.³

11The applicant argues that he should be removed from the MIG because of his pre-existing health issues, together with a “diagnosed psychological condition and chronic back pain” but has not produced any evidence to substantiate his claims.

Does the applicant have a pre-existing condition that would take his injuries out of the MIG?

12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 MIG cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

13The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG clearly requires that a pre-existing condition must be shown with “compelling evidence” to prevent maximal medical recovery within the cap imposed by the MIG.⁴

14The applicant appears to argue that he should be removed from the MIG based on a pre-existing condition referencing a prior motor vehicle accident in 2014 and a broken rib in 2015 in his written submissions (page 6 references chest pain) as a result of a sports injury. However, there is not a lot of detail in the evidence regarding these accidents and resulting injuries or how these conditions prevent him from achieving maximal recovery under the MIG.

15A clinic note from the applicant’s family physician, Dr. S. Mathai, dated October 13, 2015, describes cracked ribs after falling on a table tennis table. An x-ray/digital image showed a 9th undisplaced lateral rib fracture. A further note on October 19, 2015, states that the pain is improving, and that the applicant is not taking any medication. It appears that the applicant was off work because of this injury from October 5 to October 26, 2015.⁵ On October 23, 2015, Dr. Mathai wrote that the rib fracture has clinically improved and the applicant was able to return to work as tolerated. There seemed to be no further complications from this injury. Notably, nowhere in the clinical notes and records of Dr. Mathai is there any comment about the applicant being unable to recover under the MIG.

16The presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG. I agree with the respondent that the applicant must adduce evidence to demonstrate that these pre-existing conditions prevent him from achieving maximal medical recovery within the MIG.⁶ It appears from Dr. Mathai’s notes that the rib fracture healed, and the applicant was able to return to work before the subject automobile accident occurred.

17I was also not provided with any information documented by a health practitioner regarding the applicant’s 2014 car accident or what injuries he suffered. The applicant’s OHIP summaries from September 30, 2013 to October 21, 2016, reveal only one doctor visit during that time apparently for “other viral disease.” During an IE assessment with Dr. J. Choi, family physician, on February 2, 2017, although the applicant did report that he was involved in a minor motor vehicle accident in 2014, he denied that he sustained any injuries. As well, he denied being involved in any vocation accident prior to this motor vehicle accident or that he suffered from any ailments including chronic illness and denied taking any medication prior to the subject accident. Dr. Choi also commented there was no compelling evidence of pre-existing conditions and concluded that “based on a review of the enclosed documentation and the current assessment there was no compelling evidence of a pre-existing condition identified.” Dr. Choi’s report was totally uncontested and not challenged by the applicant. Similarly, during the assessment with Dr. Moshiri, the applicant referred to a minor auto accident in 2014, in which he sustained no injury and did not require any physiotherapy.

18Therefore, I find that the applicant has failed to provide any compelling evidence of a pre-existing condition and how those conditions prevent him from recovery to remove him from the MIG.

Does the applicant suffer from chronic pain or a psychological impairment that would remove his injuries from the MIG?

19The applicant submits that his ongoing neck related pain complaints and continued doctor’s visits sufficiently demonstrate that his neck pain has become chronic. I agree with the applicant that chronic pain, if established, removes a claimant’s injuries from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

20Neither party provided me with any definition of “chronic pain”. However, in assessing the applicant’s claim of chronic pain, I have applied the following 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.⁷

21The applicant submitted a Disability Certificate (OCF-3) completed by K. O’Hare, chiropractor, on October 6, 2016. All of the injuries listed on this form reference sprain/strain type of injuries that fall under the definition of a minor injury (although there is reference to acute pain, low back pain and pain in thoracic spine).

22The applicant also refers to a series of clinical notes and records from his family physician Dr. Mathai that apparently “demonstrate that his neck pain has become chronic.” However, my review of these records is that they reveal very few complaints related to neck pain and how this was more than simple ongoing or recurrent, intermittent pain. For example, a note from Dr. Mathai dated October 3, 2016 (only three days after the accident) references: neck pain, denies dizziness, has not taken any medication, had some nightmares and anxious when he started driving again, no skin bruising. Similarly, on January 28, 2017, Dr. Mathai writes “lower back pain and right elbow pain since the accident, can’t sleep x 4 months… believes pain is getting better.” Dr. Mathai also noted that the applicant is doing physical work and offered the applicant an x-ray of his back to rule out degenerative changes after the accident, but he declined. On January 30, 2017, Dr. Mathai again references intermittent neck and low back pain and elbow pain (which started after the accident 4 months ago) and difficulty sleeping intermittently. The applicant declined medication or referral for therapy. From these notes, it appears that the applicant only saw his family doctor four times post accident with his last visit on January 30, 2017 almost 2 years ago.

23To dispute the applicant’s position that he did not suffer predominantly minor injuries in the accident, the respondent relies on the opinions provided by its insurance examiners, Dr. J. Choi (family physician), and Dr. S. Moshiri, psychologist.

24Dr. Lee in his s. 44 IE report dated February 2, 2017, concludes that the applicant sustained uncomplicated soft tissue injuries (specifically spine, shoulder, right elbow and lumbar spine strain as a result of the motor vehicle accident that fall with the MIG. In the report, under the heading, “Current Complains” Dr. Lee notes: intermittent neck pain (occurs approximately once a week intensity rated at 2/10), intermittent shoulder pain, intermittent achy low back pain (intensity rated 4/10) and some sleep difficulty and anxiety during driving. It was noted that TL was performing his personal care tasks, household tasks and employment.

25The applicant’s submission refers to psychological injuries but provides no evidence of any diagnosis of any such disorders. The Treatment Plan (OCF-18) dated October 6, 2016, completed by K. Ohare, under Part 9, references a cognitive injury (reduced memory and focus). However, again I was not referred to any diagnosis of a psychological impairment. In Dr. Mathai’s clinic note of January 30, 0217, under the heading “PSYCH” the physician observed that the applicant was alert oriented, appropriately dressed, groomed, calm, not restless, good eye contact, goal directed, fair insight and judgment appears to be good. During this visit, the applicant denied anxiety and depression.

26The applicant was assessed by Dr. S. Moshiri on February 4, 2017 who concluded in his IE report that the applicant did not suffer any diagnosable psychological condition. During the assessment the applicant denied depression but complained of fear of driving. He stated that he did not need any psychological treatment and that the accident did not affect his activities of daily living. The applicant stated that his physical movements have not been restarted and he can do everything with pain. Psychometric testing was completed and reflected a mild level of depression and anxiety. Dr. Moshiri concluded that from a psychological perspective, the applicant’s injuries fall within the MIG.

27After reviewing the applicant’s submissions and all of the evidence, I conclude that the applicant has not met the evidentiary onus on him to show that he suffers from chronic pain or a psychological condition as a result of the accident. I reached this conclusion for the following reasons:

i. The applicant’s medical evidence provides no persuasive proof of a chronic pain condition or diagnosis of chronic pain syndrome. My own reading of the applicant’s CNRs is that the pain was intermittent and not severe and constant pain. It certainly did not cause any functional impairment or disrupt or disable the applicant’s pre-accident activities of daily living.

ii. There were no diagnostic studies including any x-rays or MRI’s to indicate any accident related pathology or symptoms or to connect the applicant’s pain complaints to the accident.

iii. CAA’s rebuttal evidence persuades me that the applicant on balance, does not have an accident-related chronic pain condition. I prefer the conclusions of Drs. Choi and Moshiri to that of the applicant’s very limited evidence because their examinations were thorough and detailed. Their credentials were not questioned. I note that the applicant does not address their conclusions and methodology.

iv. The applicant in his submissions asserts that he suffers from psychological or cognitive injuries but has not been diagnosed with any psychological impairment or condition. The applicant denied depression during his assessment with Dr. Moshiri. Again, Dr. Moshiri administered psychometric test scores which supported his conclusion. Despite the applicant’s fear of driving he continued to drive. He has returned to work full time as a carpenter without complications. This evidence was uncontested and unchallenged.

28As the result of my findings, I conclude that the applicant’s injuries fall within the MIG. Accordingly, it is unnecessary for me to address the OCF-18s in this dispute.

ORDER

29The applicant’s injuries are predominantly minor, his entitlement to medical benefits is governed by the MIG and the appeal is denied. As no benefits are owing to the applicant, no interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2The respondent confirms that the applicant has consumed the monetary limit receivable under the MIG. See para. 3 and 40 of Respondent’s Written Submissions.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4EB vs. Primmum Insurance Company, 2019 ONLAT 18-005376/AABS
5. 5See ‘Sick Note’.
6. 616-000642 v Wawanesa Mutual Insurance Company, 2016 CanLII 93132 (ON LAT) para. 15.
7. 7See YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) para. 24-29.```