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:
W.C.P.
Appellant(s)
and
Certas Hame and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Thérèse Reilly
Appearances:
For the Appellant:
Gordon Harris, Counsel
For the Respondent:
Jason Duyck, Counsel
Heard in writing:
November 5, 2019
OVERVIEW
1The applicant was involved in an automobile accident on September 23, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant submitted a treatment plan to the respondent seeking the cost of an in-home assessment which was denied by the respondent on the basis that the applicant has not proven he has any pre-existing injuries that would impede maximal recovery and his injuries fell within the Minor Injury Guideline.
2The applicant maintains his injuries are not within the Minor Injury Guideline (MIG). He complains of ongoing pain and limitations in movement. He alleges the respondent failed to assess the treatment plan in dispute and remove him from the MIG. The respondent maintains the applicant has failed to prove his injuries take him outside of the MIG.
ISSUES
a. Did the applicant sustain a predominantly minor injury as defined under the Schedule and, thus, is he limited to the $3,500 limit on treatment?
b. Is the applicant entitled to the cost of an examination for $1,788.10 for an in-home attendant care assessment (an OCF-18 dated October 18, 2016) recommended by Functionability Rehabilitation Services in a treatment plan submitted on October 27, 2016 and denied by the respondent on November 8, 2016?
c. Is the applicant entitled to an award under section 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons set out below, I find that the applicant’s impairment falls within the Minor Injury Guideline. The cost of the assessment is not payable as under section 25 (2) an applicant is not entitled to an in-home attendant care assessment if his injuries are within the MIG. The claim for an award is dismissed. Interest is not payable as there is no overdue payment of benefits.
THE MINOR INJURY GUIDELINE
5Based on the totality of the evidence before me, and for the reasons that follow, I find the applicant has not proven on a balance of probabilities that he sustained injuries that are other than predominantly minor injuries, as defined under the Schedule.
6As the applicant’s injuries are within the Minor Injury Guideline, it is not necessary to determine if the applicant is entitled to the cost of the in home assessment as, pursuant to section 25 (2) of the Schedule, an insurer is not required to pay for an assessment or examination conducted in a person’s home unless an insured has sustained an impairment that is not a minor injury.
7The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. I find the injuries sustained fall within the definition of MIG. As such, the amount the applicant is entitled to receive for medical benefits is limited to $3,500.
PRE-EXISTING INJURIES
8The applicant submits that the injuries sustained in the accident are not minor since, as a result of the accident, he had pre-existing medical conditions including diabetes and an injury to left pinky finger and right arm and wrist that take him out of MIG.
9Section 18(2) of the Schedule makes a provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 limit. To access the increased benefits, the applicant has to present compelling evidence that he has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the amount in MIG.
10The applicant’s physical pain complaints after the accident as set out in the physiotherapy clinic records include whiplash, lumbar sprain and strain, and shoulder strain. The family doctor records refer to pre-existing conditions prior to the accident of diabetes and right hand third finger injury.
11The medical information from the family doctor notes indicate that at the time of the accident the applicant was on long term disability due to Type 2 diabetes and depression. The applicant claims Type 2 diabetes may result in difficulty with healing and blood flow. The applicant refers to diabetes as a prior medical condition2but offers no evidence of how this medical condition was affected by the accident which will prevent the injured person from achieving maximal recovery.
12The applicant also refers to pre-existing repetitive strain injuries to his left pinky finger, and right arm and wrist. The family doctor notes however refer to the “triggering of the left ring finger” as a pre-existing injury. As to the injury to the wrist, this does not appear to be accident related and arose after the accident. The family doctor provided a sick note for the applicant’s employer indicating the applicant in June 2017 had to be off work for one week due to an injury to the right wrist. WSIB records show he was off work in 2017 as a machine operator due to a repetitive injury (his wrist) and on modified duties. After the accident the applicant was diagnosed with Tenosynovitis in his right arm and given steroid injections to assist with flexing the left pinky finger. He was placed on modified duties at work due to these impairments.
13The applicant neither makes nor provides any medical evidence to establish pre-existing conditions were affected by the accident. There is no reference in either the family doctor clinical notes, or the records of Waterloo Physiotherapy, to the applicant’s pre-existing conditions interfering with his recovery from injuries sustained in this accident. On the contrary the Waterloo Physiotherapy report indicates that the applicant, on discharge on October 3, 2017, 3had regained full function. There is no mention in the family doctor or the physiotherapy notes of any injury to the wrist as a result of the accident. The physiotherapy records state there is no neurological condition.
14The family doctor notes of July 6, 2016 and ultrasound taken at the time reveal the applicant had a bulging in the left scapular which was reported in the doctor’s notes, 5 months prior to the accident so this is not accident related.
15I find the applicant did not present any compelling medical evidence as required under section 18(2) that show these pre-existing conditions prevent him from recovering under the MIG. Based on the evidence, I find that the applicant does not suffer from any pre-existing conditions, which prevents him from achieving maximal recovery under the MIG.
OTHER INJURIES
16The applicant claims4 ongoing pain complaints in the lower back, and decreased range of motion in the cervical, thoracic and lumbar spine and his left shoulder as well as difficulty sleeping as injuries from the accident. He refers to a concussion sustained in the accident and chronic pain sufficient to take him out of the MIG.
17The clinical notes and records of the family doctor in September 27, 2016 and November 1, 2016 refer to the applicant’s complaints of low back pain and he was diagnosed with acute musculoskeletal back pain. The family doctor referred the applicant for treatment for physiotherapy and massage.5 The notes specifically state there was no sign of any pain radiating down the applicant’s legs. There is no mention in the family doctor notes of a concussion or concussion like symptoms sustained by the applicant as a result of the accident.
18The applicant began attending physiotherapy at Waterloo Physiotherapy Massage & Rehabilitation on October 11, 2016 6 and continued throughout 2017. Waterloo Physiotherapy documented his injuries as including whiplash, lumbar and shoulder sprain and strain, which would, under section 18, be minor injuries. A Discharge Report dated October 3, 2017 states the applicant had regained full function.7
19Diagnostic imaging taken after the accident, including the X-ray taken of the cervical and lumbar spine, did not reveal any fractures. X-rays, ultrasounds and an MRI were taken of the applicant in 2016. The X-ray of November 1, 2016, revealed no fractures. An ultrasound taken November 1, 2016 indicated mild degenerative disc disease in the lumbar spine with small osteophytes at multiple levels, and an otherwise normal exam8. An MRI in November 2016 also noted mild degenerative changes in the lumbar spine.9Mild degenerative changes in the lumbar spine are not sufficient to take the applicant out of MIG.
20The treatment plan in dispute is an OCF-18 dated October 18, 2016 which recommends an an-home attendant care assessment and was completed by Karyne Lapensée, occupational therapist (OT). The OT was to evaluate the physical, psychosocial and safety requirements of the applicant with a goal of putting in place an occupational therapy program. The treatment plan however stated the treatment goals were unknown. No prior or concurrent conditions were noted in the OCF-18. No barriers to recovery were noted. There is not sufficient information in the in-home attendant care assessment on the applicant’s injuries and pre-existing injuries.
21The applicant obtained an in-home assessment (Form 1) in a report dated Feb 13, 2017 10 completed by the OT based on an examination of the applicant on February 2, 2017 and self reports from the applicant. The applicant maintains the Form 1 (which is not in dispute in this appeal) outlines the need for an attendant care benefit and his need for assistance to get out of bed, with walking, making his bed and tidying the bedroom. The Form 1 indicates the applicant required some assistance to move in and out of bed but this is stated as due to “stiffness,” not pain, and he needed some help to make his bed. But otherwise, it is noted the applicant had returned to work although his hours were reduced from 12 hour shifts to 8, and he was able independently to 1) walk 2) stand 3) bend from a seated position 4) do partial squats, 5) shower and 6) sit for up to 40 minutes. He had a decreased ability to bend, twist and carry a heavy object. He was however able to do some housework such as washing dishes, prepare meals and laundry. A review of the Form 1 does not support the applicant’s claim for attendant care and the need for assistance with walking, standing, bending, squatting and sitting for up to 40 minutes. The Form 1, contrary to the applicant’s claim, shows that the applicant can do these activities independently.
22The family doctor notes refer to ongoing mild back pain on May 9, 2017. The family doctor’s notes make no reference to any pain complaints of accident related injuries after July 2017. The Discharge Report from the physiotherapy clinic dated October 3, 2017 stated the applicant had regained full function. The explanation of benefit dated November 24, 2017 from the respondent after a review of the family doctor notes is that the medical information was insufficient to take the applicant out of the MIG or to find he suffers from pre-existing injury. I concur.
CHRONIC PAIN COMPLAINTS
23The submissions state the applicant is suffering ongoing pain complaints and they are “chronic” but this claim I find is not supported by the applicant’s medical evidence. The same finding applies to the claim that he may have sustained a concussion. There is no medical evidence presented of that.
24I find the applicant has provided no medical evidence to support the claim that his ongoing complaint is chronic pain. He has not been diagnosed with chronic pain. None of the applicant’s treating medical professionals suggests he suffers from chronic pain. A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain which takes him or her out of the MIG. 11 Although a diagnosis of chronic pain is not required, there must be compelling evidence of symptoms that are continuous, and of a severity that they cause suffering and distress accompanied by functional impairment or disability. There is no evidence that the applicant was diagnosed with chronic pain syndrome or needed to consult with a chronic pain clinic.
25The applicant suggests that he has suffered from a possible concussion, and that this concussion exacerbated his pre-existing conditions. The family doctor notes do not refer to any concussion sustained by the applicant. There was some confusion in the records of the respondent to suggest a possible concussion but the records show the concussion, if any, was sustained by the son and not the applicant. I find the medical records do not support a claim that the applicant sustained a concussion in the accident.
26I find the applicant’s injuries are within the MIG. The applicant is not entitled to the payment of any benefits outside of the MIG limits and therefore he is limited to a maximum of $3,500 for medical and rehabilitation benefits. As a result, the cost of the in-home assessment in dispute is not payable by the respondent under section 25 (2).
FAILURE TO ASSESS THE TREATMENT PLAN
27The applicant maintains the insurer failed in its obligation towards the applicant as the applicant was not sent to any section 33 examination or section 44 insurer examination (IE) assessment regarding the issue of MIG and the treatment plan in dispute. He also states the respondent did not assess the Form 1 submitted in February 2017, and the respondent failed to schedule an IE examination of the applicant after it was provided the evidence of ongoing pain complaints including on chronic pain and a possible concussion. He argues—based on the existing condition, compounded by the injuries sustained in this accident, including a possible concussion, and ongoing pain and limitations—that attendant care, occupational therapy services as well as treatment should have been made available to him.
28I do not agree with the applicant that the respondent in these circumstances would be obliged to schedule an assessment to evaluate the applicant’s condition. It would have been helpful but is not obligatory. First, the Form 1 is not in dispute in this appeal. Second, the applicant has an obligation to present medical evidence to support his position that the injuries are outside of MIG. While the respondent does have an obligation to continually adjust the file as new information and evidence is provided to them, the applicant bears the burden to prove his injuries fall out of the MIG. Further, section 33 and section 44 enable but do not oblige the insurer to schedule an examination of the applicant. A section 33 examination is not obligatory or required if the injuries are MIG. The insurer may request that the applicant attend for an assessment. The same applies to a section 44 examination. Although these examinations may have been useful, neither are obligatory.
Interest
29Since I did not find any benefit to be payable, no interest is applicable. Therefore, the applicant is not entitled to any interest.
An Award under Ontario Regulation 664 (O/Reg 664)
30Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. As I have found nothing payable, the respondent cannot have unreasonably withheld or delayed payments. The award is not granted.
CONCLUSION
31For the reasons outlined, I find that the applicant’s injuries are predominantly minor injuries. The applicant is not entitled to the cost of the assessment. The applicant is not entitled to interest, or an award pursuant to Section 10 of Ontario Regulation 664.
Released: February 26, 2020
Thérèse Reilly
Adjudicator
Footnotes
- The applicant lists in his submissions a claim for a medical benefit for an OCF 18 for $1,945.52 dated February 14, 2017 for occupational therapy services. This treatment plan is not in dispute. The applicant advised the Tribunal by letter dated April 29, 2019 that the issue was withdrawn. The issue was listed as withdrawn in the case conference Order of Adjudicator Fricot, dated April 25, 2019.
- Written submissions of the applicant, paragraph 6.
- Written submissions of the respondent, paragraph 6.
- Written submissions of the applicant, paragraph 8.
- Clinical notes and records of the family doctor, tab 3.
- Clinical Notes Waterloo Physiotherapy, tab 7.
- Waterloo Physiotherapy Discharge Report dated October 3, 2017, tab 9.
- Victoria Westmount Ultrasound, Mammography & X-Ray Report dated November 1, 2016. Tab 5
- KMH Labs MRI Report dated November 19, 2016. Tab 6.
- In Home Assessment Report dated February 13, 2017 (the Form-1) by Functionability Rehabilitation Services, written submissions of the respondent, Other tab 9.
- Neither party referred me to the Supreme Court of Canada decision in Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543, in which it was held an actual diagnosis is not required.