D.P. v. The Co-operators, 2020 CanLII 14482

Citation: D.P. vs. The Co-operators, 2020 ONLAT 19-000079/AABS

Released Date: February 20, 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:

D.P. Applicant

and

The Co-operators Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

For the Applicant: Colton M. Leung, Counsel

For the Respondent: Amanda M. Lennox, Counsel

HEARD IN WRITING: September 23, 2019

OVERVIEW

1D.P. (“the applicant”) was injured in an automobile accident on June 8, 2017 (“the accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The respondent denied the applicant’s claims on the basis that all of the applicant’s injuries fit the definition of a “minor injury” as prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3If the applicant’s position is correct, then I must address whether the medical treatments claimed are reasonable and necessary.

4If the respondent’s position 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 benefits are reasonable and necessary will be unnecessary as the $3,500.00 limit for minor injuries has been exhausted.

ISSUES TO BE DECIDED

5The following are the issues to be decided:

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

ii. If the applicant’s injuries are not within the MIG, then I must determine the following issues:

a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,860.00 for chiropractic treatment recommended by Fit for Life Wellness & Rehabilitation Centre in a treatment plan (OCF-18) submitted on October 4, 2017, and denied on October 5, 2017?

b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $5,740.00 for chiropractic treatment recommended by Fit for Life Wellness & Rehabilitation Centre in a treatment plan (OCF-18) submitted on December 21, 2018, and denied on December 27, 2018?

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

RESULT

6I find that the applicant sustained predominantly minor injuries and his pre-existing physical injuries did not prevent maximal medical recovery to remove him from the MIG. Therefore, it is unnecessary to determine whether the treatment plans are reasonable and necessary, or the issue of interest.

ANALYSIS

Applicability of the Minor Injury Guideline

7The term “minor injury” is defined in section 3 of the Schedule 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.”

8Section 18(1) limits the recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

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

Did the applicant sustain predominately minor injuries?

10It is the applicant’s position that, prior to the accident, he suffered from documented pre-existing lower back pain which has since been exacerbated as a direct result of the accident. He submits that this pre-existing lower back pain is preventing him from achieving maximal recovery if benefits are limited to the MIG cap.

11Furthermore, the applicant submits that his accident-related injuries, including, but not limited to, a partial rotator cuff tear, labral tear of the left hip, tendinopathies and bursitis, and meralgia paresthetica, that were sustained or exacerbated by the accident are not predominantly minor injuries as defined under the Schedule.

Does the applicant have pre-existing injuries sufficient to escape 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 cap on benefits. In order to be exempted from the MIG, the applicant must provide compelling evidence meeting all three of the following requirements:

i. There was a pre-existing medical condition;

ii. The pre-existing medical condition was documented by a health practitioner before the accident; and

iii. The pre-existing condition will prevent maximal medical recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.³

13The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. The Schedule requires compelling evidence to be provided using the treatment plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

14The applicant argues that he has the following conditions that were caused or exacerbated by the accident:

i. Soft tissue injuries of the cervical region and lumbar spine with an exacerbation of pre-existing chronic pain;

ii. Partial left shoulder rotator cuff tear;

iii. A labral tear of the left hip, tendinopathies and bursitis; and

iv. Injury to the left lateral femoral cutaneous nerve of his thigh (meralgia paresthetica).

Soft tissue injuries of the cervical region and lumbar spine with an exacerbation of pre-existing chronic pain

15The applicant submits that his pre-existing lower back pain has been exacerbated as a direct result of the accident. The applicant relies on the report of Dr. David Lipson, the applicant’s treating physiatrist, who saw the applicant on August 31, 2018 (approximately one year and two months after the accident). Dr. Lipson noted that the applicant has had long standing issues in his low back and that this exacerbated significantly following his accident. Dr. Lipson’s report also noted that an MRI of the back conducted in 2016 showed degenerative changes but no focal neurologic compromise and an MRI of the back conducted in October of 2017 showed degenerative changes with questionable contact of an exiting L4 nerve root on the right side.

16The respondent disagrees with the applicant and relies on the physiatry IE assessment conducted by Dr. Gihan Perera, physiatrist, to support that the accident did not exacerbate the applicant’s low back pain. Dr. Perera noted in his report, dated August 1, 2018 (the applicant was assessed on July 17, 2018, approximately one year and one month after the accident), that he reviewed the applicant’s medical history pertaining to the mechanical lower back pain, including reviewing lumbar MRI and EMG. Dr. Perera also reviewed the applicant’s post-accident MRI dated October 4, 2017 and he physically examined the applicant. Dr. Perera concluded that the accident-related lumbar injuries are soft tissue in nature and occurred within the setting of pre-existing degenerative disc/joint osteoarthritis. He noted that the applicant reported no significant pre-accident functional limitations.

17The medical evidence indicates that the applicant had pre-existing, medically-documented lower back pain; however, I find that his pre-existing lower back pain did not prevent maximal medical recovery. I accept Dr. Perera’s evidence that the accident did not exacerbate the applicant’s lower back pain. Both Dr. Lipson and Dr. Perera noted that the MRIs of the applicant’s back show degenerative changes. Therefore, I find that the applicant is experiencing pre-existing degenerative lower back pain and there is no indication that trauma from the accident exacerbated the pain.

18I find that the evidence indicates that the applicant is not functionally impaired as a result of the accident, and rather, that he is involved in strenuous physical activities. The applicant was retired at the time of the accident. After the accident, the applicant reported to his cardiologist, Dr. Andrew Klug, that he was able to engage in heavy gardening and landscaping activities. On May 22, 2018, he reported exertional fatigue when working in the garden. On June 6, 2018, he reported that he was currently doing heavy gardening work and resetting interlocking bricks.

Partial left shoulder rotator cuff tear

19The applicant submits that his partial left shoulder rotator cuff tear was caused or exacerbated by the accident. The applicant relies on an ultrasound of the left shoulder dated September 10, 2018 (approximately one year and three months after the accident), which demonstrated a partial thickness rotator cuff tear, as well as Dr. Lipson’s report, dated November 8, 2018, in which he notes that the applicant has new pain in the left shoulder following the accident.

20The respondent disagrees with the applicant and relies on a left shoulder ultrasound the applicant underwent on August 8, 2017 (two months after the accident). The diagnostic imaging report refers to a comparison study from 2013, which demonstrated mild rotator cuff tendinosis. The report otherwise notes a normal examination. Furthermore, the respondent submits that Dr. Perera prepared an addendum report dated October 9, 2018 and opined that the left shoulder finding was unlikely to be a result of the accident.

21I find that the applicant’s partial left shoulder rotator cuff tear is not a pre-existing injury nor was it caused by the accident. Instead, the partial tear developed well after the accident. Imaging taken of the applicant’s left shoulder in 2013 demonstrated mild rotator cuff tendinosis. Imaging taken of his left shoulder after the accident on August 8, 2017, indicated a normal examination. By September 10, 2018, the date of the left shoulder ultrasound, the applicant’s left shoulder had developed a partial thickness rotator cuff tear. Therefore, I find that the partial left shoulder rotator cuff tear was not exacerbated or caused by the accident because there is evidence of imaging taken after the accident which demonstrated a normal examination. Furthermore, a finding of a partial tear comes within the definition of a minor injury.

A labral tear of the left hip, tendinopathies and bursitis

22The applicant submits that his labral tear of the left hip, as well as his tendinopathies and bursitis, were caused or exacerbated by the accident. The applicant relies on an MRI of the left hip on August 13, 2018 (approximately one year and two months after the accident), which demonstrated a degenerative labral tear of the left hip, hamstring tendinopathy/enthesopathy, gluteus minimus tendinopathy and ischial bursitis, as well as Dr. Lipson’s report, dated November 8, 2018, in which he notes that the applicant has new pain in the left hip following the accident.

23The respondent disagrees with the applicant and submits that the applicant made his first complaint of pain related to his left hip to Dr. Lauren Zeilig, his family physician, on October 12, 2017 (approximately four months after the accident). The respondent relies on Dr. Perera’s addendum report dated October 9, 2018, where he opined that the left hip complaint was unlikely to be a result of the accident. Furthermore, the respondent submits that Dr. Lipson does not conclusively state that the tendinopathies or bursitis were caused or aggravated by the accident.

24I find that the labral tear of the left hip, as well as the tendinopathies and bursitis, were not pre-existing injuries nor caused by the accident. I agree with the respondent that the left hip pain appears to be a new pain that was not related to the accident. Prior to the accident, there is no indication that the applicant complained to Dr. Zeilig of left hip pain. Following the accident, the applicant saw Dr. Zeilig on June 22, 2017; July 6, 2017 and August 8, 2017, and reported the pain he was feeling to her. He did not report the left hip pain until his appointment on October 12, 2017.

25Furthermore, the evidence indicates that the labral tear is degenerative rather than a result of the accident. Both Dr. Lipson and Dr. Perera opined that the labral tear was degenerative. Dr. Perera noted in his addendum report that the labral tear was described as degenerative and that typically an injury to the labrum presents with anterior hip or groin pain with associated clicking, locking or catching. He opined that the applicant’s presenting complaints were not consistent with this pattern. Therefore, I find that there is no indication that trauma from the accident caused the tear.

Injury to the left lateral femoral cutaneous nerve of his thigh (meralgia paresthetica)

26The applicant submits that injury to the left lateral femoral cutaneous nerve of his thigh (meralgia paresthetica) was caused or exacerbated by the accident. The applicant relies on reports by Dr. Lipson dated August 31, 2018 and November 8, 2018, which note a sustained injury to the left lateral femoral cutaneous nerve of his thigh (meralgia paresthetica), which Dr. Lipson describes as a common seat belt injury. He also relies on a note, dated June 15, 2017, by Dr. Luciano Di Loreto, the applicant’s chiropractor, that indicates that the applicant reported pain down his left leg to above the back of his knee. The applicant submits that this is a symptom of meralgia paresthetica.

27The respondent disagrees with the applicant and relies on an EMG/nerve conduction study from June 29, 2016, before the accident, that notes that the applicant experienced decreased pinprick sensitivity in the lateral aspect of the left thigh and calf. The respondent submits that it appears that Dr. Lipson did not review the applicant’s medical records from prior to the accident.

28In reply, the applicant submits that in the year prior to the accident, other than the EMG/nerve conduction study dated June 29, 2016, the applicant did not make complaints of experiencing left leg discomfort, as evidenced by Dr. Zeilig's records, which would suggest that his condition had mostly resolved prior to the accident.

29I find that the applicant’s meralgia paresthetica is a pre-existing injury rather than caused by the accident and that it did not prevent maximal medical recovery. I find that the injury was not exacerbated by the accident because applicant’s pre-accident and post-accident left leg pain is so similar that I cannot conclude that that his current symptoms were caused by the accident. I came to this finding based on the medical evidence before me, including:

i. Before the accident, the applicant told Dr. Zeilig at an appointment on May 3, 2016, that he is getting numbness on his lower back and leg.

ii. Before the accident, the applicant told Dr. David Morgenthau (neurologist), the physician who conducted the EMG/nerve conduction study from June 29, 2016, that he experiences pain in the left leg associated with low back pain and this can extend to the posterolateral aspect of the thigh and calf, but does not extend past the ankle into the foot.

iii. As noted above, following the accident, the applicant told his chiropractor, Dr. Di Loreto, on June 15, 2017, he experiences pain down his left leg to above the back of his knee.

iv. Following the accident, in his report dated November 8, 2018, Dr. Lipson notes that there is a well circumscribed region of numbness in the left lateral thigh.

Conclusion

30I find that the applicant sustained predominantly minor injuries and his pre-existing physical injuries did not prevent maximal medical recovery that would result in him being removed from the MIG. Therefore, there is no need for me to conduct an analysis of whether the treatment plans are reasonable and necessary. Accordingly, no interest is payable as there are no overdue benefits owing.

COSTS

31As part of its submissions, the respondent has requested costs. The respondent’s request for costs is denied because there is no evidence that the applicant’s conduct was unreasonable, frivolous, vexatious or in bad faith, so I cannot make an order for costs in this matter. Therefore, no costs will be awarded.

CONCLUSION

32The application is dismissed.

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. 3Minor Injury Guideline, Superintendent’s Guideline No. 01/14, issued pursuant to s. 268.3 of the Insurance Act, page 5, heading 4, “Impairments that do not come within this Guideline.”