18-012221/AABS

Released Date: 05/27/2020

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:

[T.O.]

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

[T.O.], Applicant

Lori Minervini, Paralegal

For the Respondent:

Wawanesa Mutual Insurance Company

Paul Sykes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“TO”) was involved in an automobile accident on August 23, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). TO applied to have several treatment plans funded, interest paid on any overdue amounts, and to be removed from the minor injury guideline.

2The respondent (“Wawanesa”) denied the proposed treatment plans on the basis that TO should not be removed from the minor injury guideline and that the treatment plans are not reasonable and necessary. TO submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.

ISSUES

3The issues in dispute were identified and agreed upon as follows:

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

ii. Is the applicant entitled to receive a medical benefit in the amount of $3,264.00 for chiropractic services, recommended by Islington North Chiropractic Inc. in a treatment plan submitted February 9, 2017 and denied by the respondent on February 22, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,000.00 for psychological services, recommended by Injury Management & Medical Assessments in a treatment plan submitted July 26, 2017 and denied by the respondent on August 8, 2017?

iv. Is the applicant entitled to receive a medical benefit in the amount of $4,640.00 for chiropractic services, recommended by Islington North Chiropractic Inc. in a treatment plan submitted October 3, 2017 and denied by the respondent on October 18, 2017?

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

RESULT

4I find that TO did not demonstrate on the balance of probabilities that he ought to be removed from treatment under the minor injury guideline (“MIG”). Therefore, TO is not entitled to benefits for the treatment plans proposed or to interest on any overdue payment.

ANALYSIS

i. Are TO’s Injuries Minor Injuries as defined in the Schedule and Subject to Treatment Within the MIG?

5The MIG describes a framework regarding the treatment of minor injuries. The term “minor injury” is defined in s. 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.”

6Similarly, the words “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in s. 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

7The Divisional Court held (Scarlett v. Belair Insurance, 2015 ONSC 3635) that the onus to establish entitlement outside (or above) the MIG limits rests with the claimant. Therefore, to qualify for the benefits in dispute, TO must establish his entitlement to coverage beyond the $3,500.00 upper limit on a balance of probabilities.

8TO submits that the injuries he sustained in the accident are not minor injuries and that his psychological impairments along with the chronicity of his pain ought to remove him from the MIG.

9TO argues that further treatment is necessary to maintain his current level of function, reduce his pain, and improve his pain and stamina. He relies on three OCF-18’s, the evidence of his chiropractor (Dr. Agyeman), an orthopedic surgeon (Dr. Tansey) and his family physician’s opinion along with clinical notes and records in support of his argument.

10Wawanesa does not agree, and argues that TO’s injuries fall squarely within the MIG on the basis that the actual injuries from the accident are minor, that causation of some of his injuries was not established by TO (meaning the injuries, or their impact is unrelated to the accident), and that he does not have a valid psychological diagnosis sufficient to remove him from the MIG.

11Wawanesa relies on several s. 44 Insurer’s Examinations, most notably those conducted by Dr. Silver (family physician), Dr. Prendergast (psychologist) and Dr. Zarnett (orthopedic surgeon).

12Having reviewed and considered all of the documentation and the parties’ written submissions, I find on the balance of probabilities that TO’s injuries are predominately minor injuries.

Do TO’s Physical Injuries Remove him from the MIG?

13On a review of the treatment plans provided, the diagnosis of TO’s injuries from the accident appear to be entirely within the definition of minor injuries. They are described as sprains and strains of the mid back and neck along with headaches and muscle spasms. A few weeks after the accident, TO’s family physician, Dr. Solomon, reported that he developed knee pain.

14The OCF-3 dated December 12, 2016 states that TO has cervical strain, myofascial headaches, mid back strain, left knee strain, chondromalacia, tendonitis, meniscus degeneration and anxiety. In a March 22, 2017 note, Dr. Solomon indicated the back pain was now low back, rather than mid, and TO developed shoulder pain as well. The April 4, 2018 imaging report described bilateral mild neuroforaminal narrowing. By October 2016 TO also reported nightmares and anxiousness which will be addressed below.

15When Dr. Tansey evaluated TO on February 17, 2017, mild effusion and moderate arthritis were observed. TO was referred for physiotherapy, and attended the same. TO felt that there was improvement with physiotherapy in his range of motion and experience of pain. The treatment plans indicate a goal of improving stamina in addition to these benefits. However, by August 1, 2018 Dr. Solomon’s notes reveal that the benefit lasted only one or two days.

16TO was prescribed medication for his pain including Tylenol 3 and Hydralazine. On August 23, 2019, Dr. Solomon confirmed that TO had a “partial response [to treatment] including variable degrees of pain reduction and improvement of range of motion”. The clinical notes and records indicate that TO reported significant pain improvement (50%) after initial treatments. This is supported by TO’s ability to continue to work in his previous position and continued independence in his lifestyle at all times after the accident.

17In written submissions, TO stressed that there were no pre-existing conditions which impacted his ability to function and this is consistent with the clinical notes and records provided by Dr. Solomon.

18I find that TO’s injuries, as described by his treating practitioners appear to meet the definition of minor injuries provided in the Schedule. That is, there is evidence of strains, sprains and the sequalae thereof. This also accords with the evidence provided by the insurer’s examiners in the s.44 reports provided.

19For example, on March 22, 2017 Dr. Silver (family physician) reported that TO’s headaches, shoulder pain, knee pain, and tension headaches were minor injuries and/or not related to the accident in any event and did not warrant any treatment out of the MIG. Dr. Zarnett (orthopedic surgeon) also reported on December 29, 2017 that the applicant’s injuries are minor, having evaluated him and that treatment outside of the MIG was not warranted in this instance.

20These physicians concluded that there were likely pre-existing conditions (degenerative conditions related to pain) and that there was no objective evidence that suggested even in light of this that TO was prevented from maximal medical recovery within the MIG. Dr. Zarnett and Dr. Silver considered the source of the applicant’s impairments to be unrelated to the accident in addition to being minor.

21However, there is no dispute that TO continues to experience pain. He has consistently reported pain, especially with use and while working in his physically demanding job, in his back, neck, shoulders and knees along with headaches.

22TO argues that there were no pre-existing conditions and that all of his symptoms must therefore be attributable to the accident. Dr. Solomon supports this argument both by noting in the treatment plans and the clinical notes and records that there was no report of these symptoms before the accident. Although some of TO’s symptoms changed, and appeared, some time after the accident, this can be explained by way of a gradual onset that might have triggered by the accident.

23Although I find that the cause of the impairment is not firmly established in the available evidence, this is of minimal impact in the present application. Regardless of the source, or whether there were pre-existing conditions, I find the balance of evidence simply does not support that the injuries warrant treatment outside of the MIG, or that the treatment plans are reasonable and necessary. In my view the difficulty faced by TO with respect to removal from the MIG is not the cause of the impairments, but the severity of the same.

24The imaging reports, evaluations and notes and records provided indicate that the applicant’s function was relatively minimally impeded by his impairments and that the diagnoses with respect to his ongoing pain were mild. In addition, his treatment was generally passive, with only one reference to surgery in the documents provided (October 30, 2017) at which time Dr. Tansey outlined that the applicant might choose to continue physiotherapy and other conservative measures or might choose to pursue surgery. This was not recommended by Dr. Tansey, but was a possibility explained to TO.

25TO submits that his pain is persistent and well beyond the acute stages of pain contemplated by the MIG and asserts that the pain is chronic and therefore beyond the MIG. Even if his injuries fall within the definition located in the MIG, he can still be removed from the MIG in accordance with s. 18(2) of the Schedule.

26I agree with Adjudicator Lake in 17-005000 v RBC Insurance Company, 2018 CanLII 83511 (ON LAT), that “in order for ‘chronic pain’ to remove the applicant from the MIG, the applicant must prove on a balance of probabilities that [his] chronic pain is more than just sequelae or a symptom arising from [his] minor injuries” (paragraph 31). Adjudicator Lake cited 16-000438 v. the Personal Insurance Company, 2017 CanLII 59515 (ON LAT) para. 11 in determining: “A diagnosis of chronic pain without any discussion 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 mere sequelae”.

27In this instance, TO is not specifically diagnosed with Chronic Pain Syndrome, but the pain has persisted for several years. The presence of ongoing pain is insufficient in isolation to justify removal from the MIG. A related functional impairment must also be described.

28I find that the longstanding nature of TO’s pain and Dr. Solomon’s characterization of the pain as chronic is not sufficient to meet the compelling standard necessary for TO to be removed from the MIG. The preponderance of evidence to the contrary outweighs the mere presence of pain.

29I note that in reporting this pain as significantly life-altering for the applicant, Dr. Solomon did not describe the intensity or frequency of the pain and did not describe any objective testing or data that would corroborate the same. In addition, there is no explanation provided as to the necessity of ongoing treatment or specifically treatment outside the MIG in light of the clinical data suggesting the impairments are generally the result of minimal changes and degeneration and the indication that any benefit experienced is fleeting in any event.

30I find that the injuries and impairments experienced by TO and described by the medical professionals involved in his care and evaluation are consistent with the definition of minor injury found in the Schedule and ought to be treated within the MIG.

Do TO’s Psychological Injuries Remove him from the MIG?

31There is only one psychological evaluation provided in this instance. Dr. Prendergast evaluated TO and determined that there was no evidence of any clinical notes or records related to any treatment for mental health related symptoms, no evidence of valid emotional problems on observation of TO, and no diagnosable psychological condition. TO has no psychological diagnosis.

32TO directs me to the commentary provided by Dr. Solomon in which he was described as having anxiety, nightmares, nervousness and flashbacks on several occasions. Dr. Solomon noted on October 14, 2016 that the applicant might attend psychological treatment of some kind though he does not appear to have been referred to any such treatment by Dr. Solomon. I appreciate that Dr. Solomon reported “anxiety” broadly. In addition, his chiropractor, Dr. Agyemany, recounted that TO discussed symptoms of post-traumatic stress disorder and nervousness during treatments. Neither of these treating professionals is qualified to provide a psychological diagnosis, and neither did so. The information recounted is a description of the applicant’s subjective report of symptoms and is not diagnostic or based on any described observation, testing or clinical evaluation.

33Dr. Wagner (psychologist) proposed treatment in the OCF-18 at issue in this application, but provided no details of any diagnosis, analysis or evaluation of TO. I agree with Wawanesa that there is no evidence that TO was treated, evaluated or observed by any mental health professional with the exception of Dr. Prendergast who considered his symptoms insufficient to support any diagnosable psychological condition. I found Dr. Prendergast’s opinion most persuasive with respect to the applicant’s psychological conditions as this is the only opinion provided by a person with relevant training and experience and who also had the benefit of evaluating TO. This is also in keeping with the abject lack of active treatment for any psychological condition described in the clinical notes and records available to me.

34Having preferred the evidence provided by Dr. Prendergast, I find that TO’s psychological injuries are not sufficient to justify removal from the MIG on a balance of probabilities.

ii. Are the treatment and assessment plans in dispute reasonable and necessary?

35The applicant bears the onus to prove entitlement for the benefits sought. I find that TO did not meet the onus to show that his injuries are outside of the MIG, therefore treatment outside the MIG is not reasonable and necessary.

Should the Disputed Treatment Plans be Approved within the MIG?

Issue iii – Psychological Services

36As noted above, Dr. Prendergast concluded that TO had no diagnosable psychological condition. I found this the most persuasive source of evidence available relating to the applicant’s psychological conditions for the reasons outlined above. Therefore, I found that the treatment plan for psychological services (issue iii) is not reasonable and necessary on the balance of probabilities.

Issues ii and iv – Chiropractic Services

37Dr. Silver stated in the March 22, 2017 Insurer’s Assessment Report that TO had reached maximal medical recovery and did not require additional clinic-based treatment, like the treatments described in the disputed chiropractic services treatment plans (issues ii and iv). In the December 29, 2017 Orthopedic Surgeon’s Report, Dr. Zarnett echoed Dr. Silver’s opinion, concluding that TO reached “maximal medical improvement from facility based treatment” and that the treatment to that point was “excessive therapy” (p.8).

38I agree with Wawanesa that TO did not provide compelling evidence in this instance that the treatment plans in dispute are reasonable and necessary. It is true that the treatment plans propose a physical benefit, but I find that the minimal nature of the impairments described and the overwhelming evidence of mild underlying conditions and resulting functional impediment inconsistent with the notion that the treatment plans are reasonable and necessary. Dr. Solomon, who generally supports TO’s application, reported that TO gains minimal benefit from the existing physical treatment, lasting 1-2 days at most. I find the opinions provided by Dr. Silver and Dr. Zarnett largely in keeping with TO’s ability to continue in most activity independently and with both the symptoms reported over time and recounted by Dr. Solomon in the provided notes and with the details of physical examinations provided, each of which reveal relatively minimal physical findings or limitations. On the whole, the evidence presented is insufficient to persuade me that the chiropractic treatment plans are reasonable and necessary.

iii. Is TO Entitled to Interest on any overdue payments?

39I found that there are no payments overdue in this instance. Therefore, there is no interest owing on any overdue payment.

CONCLUSION

40As outlined above, I find that TO’s injuries are predominately minor injuries as defined by the Schedule, and that the treatment plans proposed are not reasonable and necessary on the balance of probabilities. It follows that I find no benefits are overdue and TO is not entitled to interest. Therefore, the application is dismissed.