A.V. v. The Guarantee Company of North America, 2020 CanLII 34508

Citation: A.V. vs. The Guarantee Company of North America, 2020 ONLAT 19-002222/AABS

Tribunal File Number: 19-002222/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:

A. V.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

PANEL:

Brian Norris, Adjudicator

APPEARANCES:

For the Applicant:

Glen Bushi, Counsel

For the Respondent:

Devon McIntyre, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on June 6, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The respondent determined the applicant’s injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Has the applicant sustained predominantly minor injuries as defined under the Schedule?

2. Is the applicant entitled to medical benefits recommended by Mackenzie Medical as follows;

a. $3,000.28, less $2,800.28 approved by the respondent, for chiropractic and other services recommended in a treatment plan dated June 16, 2018;

b. $1,977.05 for chiropractic and other services recommended in a treatment plan dated September 7, 2018; and

c. $1,384.70 for chiropractic and other services recommended in a treatment plan dated November 10, 2018?

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

RESULT

4The applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.

5The applicant is not entitled to the disputed treatment plans or interest.

PRELIMINARY MOTION

6The respondent submissions included a request to omit two reports by Dr. J. Wong, physiatrist. The respondent submits the reports were not disclosed by the applicant prior to October 1, 2019, as ordered by the Tribunal on August 21, 2019, and the applicant failed to seek leave to amend the order. Although the applicant was provided an opportunity to make reply submissions, she chose not to address the respondent’s submissions on the reports.

7I find the reports relevant to the matter and will include them in the hearing record. The applicant claims to suffer from a pre-existing medical condition and the reports speak to it. However, I note the respondent has been deprived of the opportunity to have the reports reviewed and commented on by their assessors and will consider this as I weigh the evidence.

BACKGROUND

8The applicant was the rear seat passenger of a vehicle which collided with the guardrail on a major highway onramp causing her right side to strike the interior side of the vehicle. She was transported from the scene of the accident to the hospital. The applicant was then examined and given prescription pain medication. X-rays taken at the time found no fractures and the applicant was released with her arm in a sling.

9The applicant visited Dr. R. Urback, family physician, a few days later and was examined again. Dr. Urback diagnosed the applicant with a head injury and right arm contusion but reassured her that she suffered no serious or permanent injuries and advised her to start range of motion exercises.

10The applicant sought funding for treatment pursuant to the Minor Injury Guideline (“MIG”), which was approved by the respondent. The applicant claims the accident has aggravated her pre-existing chronic low back pain, precluding her recovery within the MIG and the $3,500.00 funding limit. As a result, she claims entitlement to benefits beyond the funding limit for minor injuries.

THE MINOR INJURY GUIDELINE

11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

12If an insurer deems an applicant’s injuries to be minor in nature, the onus is on the applicant to establish on a balance of probabilities that the MIG, and the related funding limit, should not apply.

Pre-Existing Chronic Back Pain

13The applicant claims to suffer from pre-existing low back pain and infers it precludes her from recovering within the MIG and the $3,500.00 funding limit for treatment. The respondent submits there is no evidence the applicant’s back pain would preclude her recovery. I agree.

14The applicant led no evidence to show pre-existing back pain would preclude her recovery within the MIG and the $3,500.00 funding limit. The two reports by Dr. Wong, dated November 4, 2013 and December 23, 2015, submitted by the applicant, fail to indicate if or how her pre-existing back pain would preclude her recovery from accident-related injuries about six months later. More importantly, Dr. Urback’s clinical notes and records (“CNRs”) fail to show any concern that the applicant’s pre-existing medical condition would preclude her recovery from the June 2016 accident. As previously noted, the applicant was examined by Dr. Urback a few days following the accident and was mostly concerned with the applicant’s right arm pain and not any back pain. Further, there are no notes from that visit which indicate Dr. Urback had any concern of a prolonged recovery for the applicant. The records show the applicant insisted on returning to work following the accident and, in a later visit, Dr. Urback recommended the applicant exercise instead of treating her pain with medication.

Ongoing Back Pain Following the Accident

15The applicant submits she suffers from chronic back pain following the accident and infer this entitles her to treatment beyond the MIG. The respondent submits chronic pain complaints that are limited to sequelae of soft tissue injuries falls within the MIG. I agree.

16I find Dr. Urback’s CNRs reveal the applicant suffered predominantly soft tissue, or minor, injuries as a result of the accident and the applicant’s pain is sequela of those soft tissue injuries. While there are several instances where the applicant complains of back pain, the complaints are of intermittent pain and are often attributed to her vocational or recreational activities. For example, a January 11, 2017 note states the applicant has chronic low back pain, but Dr. Urback’s main recommendation is to exercise. Similarly, she complained of back pain in a July 31, 2018 visit but it appears to be in conjunction with starting a new job. While Dr. Urback’s records show the applicant was referred to specialists for other, non accident-related issues, there is no record of an accident-related referral. It is also notable that the applicant had a workplace injury in January 2017 which required Dr. Urback to complete forms for the Workplace Safety and Insurance Board. In those forms, Dr. Urback stated the applicant had no known pre-existing medical conditions and was able to work. The functionality demonstrated by the applicant’s return to work and as indicated in Dr. Urback’s CNRs, is atypical for chronic pain cases.

17The IE report of Dr. A. Gwardjan, physiatrist, found the applicant suffered predominantly minor injuries. Dr. Gwardjan examined the applicant and found she had full range of motion in the back, neck, and shoulders despite some pain during testing. Dr. Gwardjan acknowledged the applicant’s pre-accident condition but still concluded she suffered no impairment at the time of the assessment and diagnosed only soft tissue injuries.

18Considering the totality of the evidence, I find the applicant’s injuries are predominantly minor injuries as defined by the Schedule.

THE TREATMENT PLAN DATED JUNE 6, 2018

19I find the applicant is not entitled to the balance of the June 6, 2018 treatment plan because it exceeds the $3,500.00 funding limit provided by the MIG.

20The treatment plan was approved up to the $3,500.00 funding limit provided by the MIG, less $200.00 for the completion of a disability certificate. The applicant previously submitted an employer’s confirmation form in June 2016, which indicated she is claiming income replacement benefits (“IRBs”). A disability certificate was not submitted at that time, although it is required by section 36 of the Schedule to initiate a claim for IRBs. Additionally, the June 6, 2018 treatment plan stated the applicant was unable to work as a result of the accident. Considering the treatment plan and the employer’s confirmation form, it is reasonable for the respondent to seek a disability certificate. A disability certificate was eventually produced and was invoiced on July 22, 2016.

REMAINING DISPUTED TREATMENT PLANS

21The applicant’s injuries are predominantly minor injuries, subjecting her to the MIG and the $3,500.00 funding limit provided by section 18 of the Schedule. The disputed treatment plans are not reasonable and necessary because they propose treatment outside the MIG.

22In addition, as of February 6, 2019, the applicant had consumed only $850.14 in medical and rehabilitation benefits. Considering the applicant’s failure to engage in the approved treatment to mitigate her injuries, it would be unreasonable to approve further chiropractic and other similar treatment until the already approved treatment is consumed.

INTEREST

23Pursuant to section 51 of the Schedule, interest is payable on overdue payments. I see no evidence any payments went overdue and, as a result, no interest is payable.

CONCLUSION

24The applicant suffered predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit on treatment.

25The disputed treatment plans are not reasonable and necessary as they propose treatment outside the MIG.

26No interest is payable.