H.S. v. TD Insurance Meloche Monnex, 2020 CanLII 37655

Citation: H.S. vs. TD Insurance Meloche Monnex, 2020 ONLAT 19-002081/AABS

Released Date: 05/25/2020

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:

H. S.

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

[H.S], Applicant

Lawrence H. Calenti, Counsel

For the Respondent:

Francine Papadopoulos, Counsel

Alex Wilkins Claims Adjuster

HEARD: In-Person:

December 9, 2019

In-Writing

OVERVIEW

1The applicant was involved in an accident on February 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal -Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2The issues in dispute were identified and agreed to as follows:

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

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,688.32 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on March 5, 2018 and denied on April 2, 2018?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,840.34 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on April 25, 2018, and denied on May 18, 2018?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $225.62 ($1583.72 partially approved for $1358.10) for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on July 4, 2018?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,892.15 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on August 1, 2018, and denied on August 14, 2018?

vi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,779.34 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on August 30, 2018, and denied on September 13, 2018?

vii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,553.72 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on October 3, 2018, and denied on November 5, 2018?

viii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,328.19 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on November 8, 2018, and denied on November 26, 2018?

ix. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,440.91 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on January 12, 2019, and denied on March 8, 2019?

x. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,328.10 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on March 8, 2019, and denied on April 24, 2019?

xi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,215.29 for chiropractic treatment recommended by North Toronto Rehab in a treatment plan submitted on May 16, 2019, and denied on June 28, 2019?

xii. Is the applicant entitled to payments for the cost of examination in the amount of $2,486 for a physiatry assessment recommended by Dr. Yenn-Fu Chen submitted on September 6, 2019, and denied on September 18, 2018?

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

RESULTS

3The applicant sustained predominantly minor injuries, as defined under the Schedule.

4The applicant is not entitled to the treatment plans recommending chiropractic treatment.

5The applicant is not entitled to the costs for an examination for a physiatry assessment.

6The applicant is not entitled to interest.

BACKGROUND

7The applicant was involved in a rear end collision while stopped on February 13, 2018. Her car was pushed into the car ahead of her. The repairs for the damage caused to her car was $7,684.00.¹ The airbags did not deploy. The applicant never went to the hospital. Her husband came and took her home due to the damage to her car. She complained at the time of low back pain.

8The applicant attended at her family doctor, Dr. P. Nijmeh, on February 14, 2018. She reported low back pain and low neck pain radiating to her shoulders. She also reported headache, right shoulder, and right knee pain. Dr. Nijmeh put her on Naprosyn and referred her to physiotherapy. She attended physiotherapy during 2018.

9The applicant worked at [the communications company] as an account consultant and was off work for two months until April 16, 2018. She went back to work on modified hours and then on regular hours as of May 21, 2018.

10The report from North Toronto Rehabilitation and Physiotherapy Centre on February 14, 2018, does not note any swelling, intense pain or bruising in the coccyx region.²

11Dr. Ian Kai, a chiropractor, completed an x-ray of the applicant’s back on February 24, 2018 and found that the “very lower end of coccyx shows sharp anterior angulation, cannot rule out subtle and un-displaced fracture at this region”.³

12Dr. Nijmek completed an OCF-3 Disability Certificate dated March 5, 2018. Dr. Nijmek concluded that the applicant was substantially unable to perform the essential tasks of her employment suffered a complete inability to carry on a normal life or perform the housekeeping services that she normally performed prior to the accident.⁴

13Dr. Oleg Safir, orthopaedic surgeon on an Insurer’s Examination (“IE”) assessment, on September 10 2018, concluded that the applicant’s injuries were predominantly minor and within the Minor Injury Guideline (the “MIG”).⁵ Dr. Safir did a file review after reviewing the clinical notes of Dr. Nijmek and reported on January 3, 2019, February 13, 2019, and July 18, 2019 confirming his original conclusions. Dr. Nijmek’s clinical notes reference the applicant’s neck, back and shoulder symptoms.⁶

14Dr. Chen, physiatrist, in his report dated January 14, 2019, concluded that there may be a “possible fracture in the coccyx,” and that the applicant had constant neck pain, right shoulder pain and sacral and low back pain. There was no analysis in his report of how the pain affected the applicant’s functioning.

ANALYSIS

MIG

15I find that the applicant sustained predominantly minor injuries, as defined under the Schedule for the reasons set out below.

16Section 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 injury. The $3,500.00 limit on medical and rehabilitation injuries can be increased, if the applicant shows that she suffered from a pre-existing medical condition that prevents her from reaching maximum medical recovery.

17Chronic pain can be a sequelae of soft tissue injuries.⁷ However, chronic pain can also remove an insured from the MIG. In order to be removed from the MIG on the basis chronic pain, the applicant is required to prove that his or her chronic pain is not merely sequelae of the soft tissue injuries but that it is the applicant’s predominant injury.⁸ A diagnosis of chronic pain without any discussions of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that chronic pain is more than a sequelae.⁹

18The applicant’s position is that she sustained a fracture in the coccyx area that takes her out of the MIG because of the pain caused. The respondent’s position is that there is no fracture in the coccyx area and even if there was, it would fall within the definition of a minor injury, specifically a subluxation.

19There is no definite evidence presented to the Tribunal that there was a fracture in the coccyx area. Dr. Kai’s report did not confirm that there was an actual fracture at the lower end of the back. The x-ray completed on February 24, 2018, did not confirm that there was a fracture. The report from [the Medical Centre] on February 14, 2018, does not note any swelling, intense pain or bruising in the coccyx region. Dr. Safir does not confirm the existence of a fracture in his reports. While Dr. Kai opined that an un-displaced fracture cannot be ruled out, Dr. Kai did not conclude that the applicant did in fact sustain a fracture at the lower end of the coccyx.

20Dr. Chen, physiatrist in his report dated January 14, 2019, did not discuss how the applicant’s pain affected the applicant’s functioning which is required to take the applicant out of the MIG.

21Dr. Nijmek, the family doctor, March 5, 2018 concluded the applicant to be substantially unable to perform the essential tasks of her employment and to suffer a complete inability to carry on a normal life or perform the housekeeping services that she normally performed prior to the accident.¹⁰ His report did not explain how he reached that conclusion. Further, that conclusion is contradicted by the applicant’s own actions; She returned to work on modified hours, and then on regular hours as of May 21, 2018.The applicant also did not attend her family doctor between August 2018 and December 2018 for any accident related injuries, which is unusual if there is chronic pain that requires prescribed medical treatment.

22The applicant attended an IE with Dr. Safir, orthopaedic surgeon, on September 10, 2018. Dr. Safir indicated that there was no objective evidence of any musculosketal impairment and concluded that the applicant’s injuries fell within the MIG.¹¹ Dr. Safir completed three addendums dated January 3, 2019, February 13, 2019 and July 18, 2019 and came to the same conclusions that the injuries were in the MIG.¹²

23The applicant reported to Dr. Safir that she returned to work post- accident and was able to do cleaning, cooking, laundry, shopping, driving and swimming.¹³ The applicant also went on vacations.

24The applicant did not have a CT scan to determine if there was such a fracture which would have provided clarity on this issue.

25There is no evidence of pre-existing injuries that prevents the applicant from reaching maximum medical recovery under the MIG guidelines. In fact, the applicant denied any history of significant pre-existing injury.¹⁴

26The applicant must prove her case on a balance of probabilities. There is not enough evidence before the Tribunal to show that the applicant suffered anything other than minor injuries or should be removed from the MIG.

Chiropractic Treatment Plans

27As the respondent’s injuries fall under the MIG, the respondent is not required to spend more money beyond the limits of the MIG on Treatment plans.

28The plans proposed are also not reasonable and necessary. Dr. Safir concluded that the treatment plan submitted on July 4, 2018, was not reasonable and necessary. He concluded that the applicant had achieved maximum therapeutic benefit. The applicant indicated that she had only a 40% improvement in her symptoms.¹⁵ Dr. Nijmeh the family doctor concluded the same findings as the applicant, that she reported temporary relief.¹⁶

29The respondent also raises the issue of collateral benefits. Section 47(2) of the Schedule requires the insured to seek coverage through collateral benefits, before relying on the no fault scheme in the Schedule. The insurer must establish that there is a collateral benefits policy that provides coverage for disputed treatment.¹⁷

30Once the insurer has established that the insured has collateral coverage, then the insured has the onus of showing that further collateral benefits are not available. The insured has admitted having $1,379.64 paid by the collateral benefits provider, but there has been no evidence put forward as to whether or not further funding is available. The applicant’s claim therefore would also fail on the collateral coverage issue, as there has been no evidence put before this Tribunal that there is no further collateral benefit coverage.

Is the applicant entitled to payments for the cost of examination in the amount of $2,486 for a physiatry assessment recommended by Dr. Yenn-Fu Chen submitted on September 6, 2019, and denied on September 18, 2018?

31On the basis that the Tribunal has found that the applicant’s injuries are within the MIG, the respondent is not required to pay for benefits over $3,500.00 as set out in the Schedule. The maximum benefits have been paid.

32I also find that the treatment plan is not reasonable and necessary, because one of its goals is to determine if the injuries are within the MIG. I have already found that the injuries are within the MIG.

Interest

33As no benefits are owed, I find that there is no interest owing.

CONCLUSION

34For the reasons above, the application is dismissed

Released: May 25, 2020

__________________________

Robert Watt

Adjudicator

Footnotes

1. 1Property Damage File Applicant’s Brief of Documents.
2. 2Clinical notes and records of [Medical Centre] p.130-131 Tab 14.
3. 3X-ray February 24, 2018 Tab 7.
4. 4OCF-3 Dr. P Nijmeh dated March 5, 2018 Tab 8.
5. 5S. 44 report Dr. O.Safir September 10, 2018 Tab 9.
6. 6Dr. Paul Nijmeh, clinical notes February 14, 2018 to June 25, 2019 Tab 10.
7. 7B.U. v. Aviva 2015 CanLII 96167 (ONT Lat) Tab 9.
8. 8LJ v. TD Insurance 2018 CanLII 13142(ONT LAT) Tab 10.
9. 9YXY v. The Personal 2017 CanLII 59515 (ONT LAT) Tab 11.
10. 10OCF-3 Dr. P Nijmeh dated March 5, 2018 Tab 8.
11. 11Insurer’s examination by Dr. Oleg Safir dated September 10, 2018 p 21 Tab 4.
12. 12Paper reviews by Dr. Oleg Tab 5.
13. 13IE report by Dr. Oleg dated September 20, 2018 p.18 Tab 4.
14. 14Tab 13- Independent Physiatry Assessment by Dr. Chen dated January 7, 2019 p113
15. 15Tab 4-IE report by Dr. Oleg Safir dated September 10, 2018 at pages 17 and 21
16. 16Tab 3-Clinical Notes and Records of Dr. Nijmeh p 9-13
17. 17G.T. Unifund Assurance Company 2017 CanLII 81567 (ONT LAT) para 25, 27