Citation: S.T. vs. Dominion of Canada General Insurance Company (Travelers) 2020 ONLAT 19-002148/AABS

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:

S.T.

Applicant

and

Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the Applicant: Ramy Akladios, Counsel

For the Respondent: Sarah Baum, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant, S.T., was involved in an automobile accident on March 29, 2017 (the “accident”) when he was crossing the street with the lights as a pedestrian and was struck from behind by a third-party vehicle. S.T. sought benefits pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), from the respondent, Dominion of Canada General Insurance Company (“Travelers”).

2Travelers denied S.T.’s claims because it had determined that his injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).¹ As a result, S.T. submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on July 10, 2019 and the matter proceeded to a written hearing.

ISSUES

4The disputed claims in this hearing are:

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

ii. Is S.T. entitled to a medical and rehabilitation benefit in the amount of $3,067.54 for chiropractic treatment recommended by Toronto Healthcare Clinic Inc.in a treatment plan (OCF-18) submitted on May 4, 2017, and denied on May 10, 2017?

iii. Is S.T. entitled to a medical and rehabilitation benefit in the amount of $1,186.45 for physiotherapy /chiropractic treatment recommended by Toronto Healthcare Clinic Inc.in an OCF-18 submitted on October 31, 2017, and denied on November 8, 2017?

iv. Is S.T. entitled to a medical and rehabilitation benefit in the amount of $239.71 for physiotherapy/chiropractic treatment recommended by Toronto Healthcare Clinic Inc.in an OCF-18 submitted on June 12, 2018, and denied on June 22, 2018?

v. Is S.T. entitled to the cost of a psychological assessment prepared by Toronto Healthcare Clinic Inc.in the amount of $2,000.00 dated September 22, 2017, and denied on December 15, 2017?

vi. Is S.T. entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

vii. Is S.T. entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me, and on a balance of probabilities, I find that:

i. S.T. sustained predominately minor injures as a result of the accident and he is not removed from the MIG as a result of his alleged chronic pain/chronic pain syndrome or his alleged psychological impairment;

ii. S.T. is not entitled to the disputed treatment plans, an award, or costs. S.T.’s claim is therefore dismissed.

ANALYSIS

Did S.T. sustain predominately a minor injury?

The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) 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 the Schedule.

7Section 18(1) of the Schedule limits entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

8The onus is on S.T. to prove that his injuries fall outside of the MIG.²

9S.T.’s position is that the injuries he sustained as a result of the accident warrant his removal from the MIG. These alleged injuries are the development of chronic pain or chronic pain syndrome and a psychological impairment.

10Travelers argues that, as a result of the accident, S.T. sustained soft tissue injuries which do not warrant removing him from the MIG. Travelers submitted that it has approved benefits up to the $3,500.00 MIG limit, and that treatment beyond the MIG limit is not available as S.T.’s injuries do not fall outside the MIG.

Chronic Pain

11S.T. has failed to prove on a balance of probabilities that he suffers from chronic pain or chronic pain syndrome and, therefore, he is not removed from the MIG on this basis.

12In the Tribunal’s reconsideration decision in T.S. v. Aviva General Insurance Canada,³ Executive Chair Lamoureux found that a “minor injury” does not encompass chronic pain because chronic pain is not included in the definition of “minor injury” and, likewise, does not fit into the MIG’s 12-week treatment program. S.T. also relies on Executive Chair Lamoureux’s acceptance of the definition of chronic pain as a condition persisting longer than three-to-six months after an initial trigger or injury.⁴

13S.T. argues that he suffers from ongoing pain more than two years post-accident, which is well beyond the six-month recovery period set out in T.S. v. Aviva General Insurance Canada. He also relies upon the diagnosis of chronic myofascial pain in the report issued by Dr. R. Elinson, chronic pain specialist.⁵ I am not persuaded by Dr. Elinson’s report for the following reasons:

i. Dr. Elinson issued a two-page report (the “Elinson report”) dated December 20, 2017 based upon a referral from S.T.’s family doctor, Dr. Y. Tharmaratnam. The Elinson report is based on S.T.’s subjective complaints and a physical examination and makes no reference to any documentation having been reviewed by Dr. Elinson. Dr. Elinson noted that S.T. had a normal range of motion in his neck, shoulders, and hips. Tenderness was noted in these areas and in the lumbar back, and both knees. Further, it was noted that S.T. had limitations on prolonged standing and walking, as well as on work/employment, and that his pain adversely affects his mood. However, I am not persuaded that S.T. suffers from chronic pain, or chronic pain syndrome based on what Dr. Elinson has noted as it does not align with further documentary evidence. Specifically, S.T. lost no time from work beyond the one week period initially following the accident as a result of his alleged injuries from the accident. As discussed below, the fact that S.T. lost at most one week from work was referenced in the letter of Dr. L. Majl, neurologist, along with the two insurance examination (“IE”) reports of Dr. M. Mandel, psychologist, and Dr. A. Naiman, physician. No further evidence was produced to support that S.T.’s alleged injuries resulting from the accident have impaired his ability to perform his job duties.

ii. Dr. Elinson diagnosed S.T. with chronic myofascial pain in multiple areas as a result of trauma, and he noted there was no evidence of cervical or lumbar radiculopathy. However, the Elinson report does not explain how he reached this conclusion. As a result, I afford little weight to this report.

14Further documentary evidence produced for the hearing noted that S.T. works two jobs: a full-time job as an e-commerce processor, and a part-time job as math tutor. A letter from Dr. Majl noted S.T. reported he had not missed any time from work as a result of the accident.⁶ The psychological IE report of Dr. Mandel⁷ referenced S.T. reporting he missed one week from work following the accident and then returned to regular hours and work duties. The physician IE report of Dr. Naiman⁸ noted S.T. reported missing one week of work immediately following the accident and that he has not missed any further time from work and currently works 10 hours per day, four days per week. The applicant did not refute this evidence. I find this evidence supports, on a balance of probabilities, that S.T. is able to perform his regular job duties and that he missed a maximum of one week of work following the accident.

15S.T. relies on an April 15, 2017 clinical note and record (“CNR”) from Dr. Tharmaratnam to suggest he suffers from chronic pain. I place little weight on this note for the following reasons. It is the only CNR confirming post-accident attendance with the family doctor, and this attendance was two weeks after the accident. The CNR noted bilateral knee and low back pain. It also noted S.T. had difficulty sleeping, cleaning the house, and that he was scared when crossing the street. Dr. Tharmaratnam referred S.T. to a neurologist and a pain clinic. I find this time period when S.T. saw Dr. Tharmaratnam represents the acute phase following the accident and, as a result, I do not accept that S.T.’s injuries were chronic at that point. There are no further CNRs produced of any subsequent visits to the family doctor. As a result, there is no further corroborating evidence that S.T. continued to see his family doctor relating to his alleged pain resulting from the accident.

16I am also not persuaded by Dr. Minella’s chiropractic report,⁹ upon which the applicant relies. The report was issued two days following the accident. I find the injuries diagnosed by Dr. Minella to be soft tissue injuries, which are captured within the MIG.

17I find the letter of Dr. Majl, neurologist, dated February 6, 2018 supports that S.T.’s back pain had resolved. Dr. Majl noted that S.T. reported he no longer suffers from back pain and that his back pain had resolved about three months earlier. His report further noted that no headaches or neck pain were reported by S.T. Although S.T. reported bilateral knee pain, Dr. Majl reviewed the x-rays of both knees from March 29, 2017 and, as a result, noted a small joint effusion on both knees. I do not find the applicant suffers from chronic pain in his knees as there was no functional impairment reported by S.T. to Dr. Majl, nor was any noted by Dr. Majl. Indeed, no further neuroimaging was recommended.

18I am persuaded by Dr. Naiman’s October 10, 2019 IE report. I accept that her findings support S.T. sustained soft tissue injuries as a result of the accident for the following reasons. Dr. Naiman concluded that the strains/sprains in S.T.’s right shoulder, knee, and lumbar area of his back had resolved and that he had reached maximum medical recovery. I find her report supports her findings because she referenced there were no physical symptoms reported by S.T. at the time of the assessment and that S.T. did not endorse any ongoing limitation or impairment as a result of the accident. Further, Dr. Naiman conducted a physical examination and noted S.T. had 100% normal flexion in the range of motion of his neck and 90% in his lower back. She further noted that no pain was reported in his neck or back with movement. Examination of both shoulder joints noted they were within normal limits. No tenderness in his knees was reported, and no swelling in the knees noted. I find this evidence supports that Dr. Naiman found no evidence of any functional impairment, nor was there any reported by S.T. I find this evidence corroborates the findings noted by Dr. Majl 20 months earlier. I also find this information consistent with the diagnosis of the strains noted by Dr. Minella two days following the accident and accept that, at the time S.T. was assessed by Dr. Naiman, his soft tissue injuries from the accident had resolved.

19The applicant submitted that, at the time he underwent the IE assessments with Dr. Naiman and Dr. Mandel, these assessors had not been provided with the applicant’s CNRs/medical reports. The applicant further submitted that these documents had never been requested by the respondent. The respondent submitted that, at the time these assessments were scheduled, it did not have the records of S.T.’s treating physicians. Based on the evidence of Dr. Tharmaratnam, Dr. Minella, and Dr. Elinson, I did not accept that S.T. suffered from chronic pain as a result of the accident. I already found that the diagnoses within Dr. Minella’s report noted the injuries sustained by S.T. were soft tissue injuries which fell within the MIG. Further, S.T. underwent chiropractic/physiotherapy treatment with Dr. Minella from March 31, 2017 to January 7, 2018 but no records were produced outlining further treatment beyond that date.

20The onus remains with S.T. to establish his injuries are outside of the MIG. S.T. offered no explanation as to why he had not produced his medical documents to the respondent prior to the 2019 IE’s being scheduled, other than the respondent never requested them.

21I do not find S.T. has met his onus that he suffers from chronic pain, or chronic pain syndrome as a result of the accident and therefore he is not removed from the MIG on that basis.

Psychological Impairment

22On a balance of probabilities, S.T. has failed to prove that he should be removed from the MIG as a result of any psychological impairment from the accident.

23I do not accept the applicant suffers from a psychological impairment based on the CNR of Dr. Tharmaratnam which noted S.T. reported being scared when he crosses the road. This was also reported by S.T. to Dr. Minella and noted within his April 1, 2017 report. S.T. only produced one CNR of April 15, 2017 to support visiting his family doctor post-accident. The information noted by Dr. Tharmaratnam and Dr. Minella was based on S.T.’s self-reporting and a physical examination within two weeks following the accident. There was no referral made for psychological intervention, even though Dr. Tharmaratnam did make referrals for S.T. to see a neurologist, and a pain clinic. Dr. Elinson noted the applicant’s pain is adversely affecting his mood. I do not accept this supports that S.T. suffers from a psychological impairment as it would have been based only on the applicant’s self-reporting.

24I afford little weight to the psychological pre-screen interview report conducted by Dr. A. Shaul, psychologist.¹⁰ The pre-screen report was based upon S.T.’s self-reporting and there was no objective testing conducted and no psychological diagnosis was provided. Dr. Shaul noted S.T. reported feelings of pain, frustration, sleep difficulties, and nervousness when traveling in a vehicle. Dr. Shaul recommended a comprehensive psychological examination which would utilize objective measures to better understand S.T.’s current functioning and his symptoms in order to determine if a psychological diagnosis is warranted. While S.T. had reported previously to Dr. Minella and Dr. Tharmaratnam that he was nervous when crossing the street, this was different than what he reported to Dr. Shaul. Further, these are self-reported complaints, which, on their own, do not establish that S.T. suffers from a psychological impairment. To date, S.T. has received no psychological diagnosis.

25I find Dr. M. Mandel’s September 16, 2019 psychological IE report persuasive for the following reasons. The assessment results relied on information from S.T.’s self-reporting and objective testing. I find this more reliable than information obtained from S.T.’s self-reporting alone, which is the only evidence the applicant has relied on to support his position that he suffers from a psychological impairment as a result of the accident. I accept there was consistency with the information Dr. Mandel obtained between S.T.s’ self-report and the psychometric test results noted by Dr. Mandel. This was supported within his report when he noted the self-reported information as follows: not experiencing any pain at this time, no issues with sleep/fatigue, and appetite, does not feel sad, no lack of interest or pleasure in most of his activities, and no issues with memory and concentration. Dr. Mandel noted that the only residual difficulty S.T. experienced was that he reported being anxious as a pedestrian when crossing the street and noted he is cautious but not avoidant when doing so. The three administered psychometric test results were reliable, and Dr. Mandel found them to be within acceptable ranges. Dr. Mandel concluded that there was a lack of consistent objective clinical information present to warrant a psychological diagnosis under the DSM V criteria. I find this conclusion is supported by his findings he noted within his report.

26Based upon the analysis above, I do not find on a balance of probabilities that S.T. suffers from chronic pain/chronic pain syndrome, or a psychological impairment as a result of the accident which would warrant his removal from the MIG.

Disputed Treatment Plans

27As I have found that S.T.’s injuries as a result of the accident fall within the MIG, I do not need to determine whether or not the treatment plans in dispute are reasonable and necessary as the respondent has submitted they have already approved the maximum of $3,500.00 for medical and rehabilitation benefits within the MIG which has been conceded by the applicant.

Applicant’s claim for an award

28I find S.T. is not entitled to an award. I do not find he has met his burden of proof that Travelers acted unreasonably or delayed payment of any accident benefits. I will address the reasons for this finding below.

29It is noted within O. Reg. 664 that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

30S.T.’s claim for an award is based on the respondent initially denying his benefits prior to scheduling him to attend any IE assessments. Further, S.T. argues that Travelers further denied him benefits and held him within the MIG based on its reliance on two IE reports conducted two years after the accident. S.T. further argues that these IE assessors did not review any of his CNRs, nor were these documents requested by Travelers through a s. 33 request. As a result, it was submitted by S.T. that Travelers and its IE assessors failed to give any weight to documents including: the emergency room report, hospital records, CNRs of the family doctor, chronic pain specialist, initial chiropractic report, and the psychological pre-screening report. Travelers submitted that S.T. failed to attend the scheduled IE assessments on two occasions and when the IEs with Dr. Naiman and Dr. Mandel were scheduled, the respondent did not have S.T.’s CNRs in its possession.

31I do not agree with S.T.’s submission that the onus remains with Travelers to request the relevant medical documentation through a s. 33 request. The applicant has not provided an explanation why it did not produce the CNRs, or other medical evidence from 2017 to Travelers to support its position that his injuries fall outside the MIG. I find the onus remains on the applicant, not the respondent, to prove that his injuries fall outside the MIG. Further, S.T. agreed to attend these IE assessments with the knowledge that none of the CNRs were before these assessors as the information had not been produced to Travelers. As a result, I do not find that Travelers has withheld relevant medical information from its IE assessors. I find there is no basis for a claim for an award.

Applicant’s claim for costs

32I find S.T. is not entitled to his claim for costs as I do not find that the conduct of Travelers has risen to the level of being unreasonable, frivolous, vexatious, or in bad faith.

33Rule 19.1 of the Safety Licensing Appeals & Standards Tribunals Ontario Common Rules of Practice and Procedure, October 2, 2017 provides that a party may make a request to the Tribunal for costs where that party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. I did not accept S.T.’s submission that because the IE assessors had not reviewed S.T.’s medical evidence from 2017 and that Travelers had not requested it through a s. 33 request that this equates to Travelers acting in a manner that is unreasonable, frivolous, vexatious, or in bad faith. S.T. had this medical information available to him for two years and could have produced it to the respondent. I do not accept it was required to be requested through a s. 33 request.

34S.T. requested an award for costs in its written submissions. It is submitted by S.T. that Travelers has been unreasonable through its handling of the claim and that its conduct was unreasonable, frivolous, vexatious, or in bad faith by not acknowledging S.T.’s medical evidence. S.T. further submitted that as a result, he has spent resources to adjudicate this matter before the Tribunal. I find that it was S.T.’s choice to dispute the respondent’s denial of benefits through the Tribunal. As explained above, he was not successful. I do not find he has met his onus that a costs award against Travelers is justified.

CONCLUSION

35For the reasons I outlined above, I find:

i. S.T. sustained predominately minor injures as a result of the accident and he is not removed from the MIG as a result of chronic pain/chronic pain syndrome, or psychological impairment;

ii. S.T. is not entitled to the disputed treatment plans, an award, and costs. S.T.’s claim is therefore dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.), para. 24.
3. 317-000835 T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT)
4. 4Ibid. at para 20
5. 5Tab 4 of the applicant’s submissions. Report of Dr. Elinson, dated December 20, 2017
6. 6Tab 6 of the respondent’s submissions – letter of Dr. Majl, dated February 6, 2018, at para 1
7. 7Tab 13 of the respondent’s submissions - Psychological IE report of Dr. Mandel, dated September 16, 2019, at 3
8. 8Tab 14 of the respondent’s submissions - Physician IE report of Dr. Naiman, dated October 10, 2019, at 5
9. 9Tab 5 of applicant’s submissions, chiropractic report of Dr. Minella, dated March 31, 2017
10. 10Tab 6 of applicant’s submissions- psychological pre-screen report of Dr. Shaul conducted on August 1, 2017