S.U. v. The Co-Operators Insurance Company, 2020 CanLII 40338

Citation: S.U. vs. The Co-Operators Insurance Company, 2020 ONLAT 18-006922/AABS

Date: May 21, 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:

S. U.

Appellant(s)

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: D. Gregory Flude

Appearances:

For the Appellant: Alexei Antonov, Counsel

For the Respondent: Amanda Lennox, Counsel

Heard: In Writing Hearing: January 2, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, S. U., was involved in an automobile accident on August 26, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10 (the ''Schedule''). She was denied benefits by the respondent, The Co-Operators Insurance Company (“The Co-Operators”) and submitted an application to the Licence Appeal Tribunal -Automobile Accident Benefits Service (“Tribunal”).

2S.U. asserts that The Co-Operators is obliged by the Schedule to pay for eight treatment and assessment plans (“OCF-18”) submitted by her healthcare providers for various treatments and assessments. She also alleges that The Co-Operators unreasonably withheld approval of these OCF-18s and she is entitled to an award under section 10 of O. Reg. 664 of up to 50% of the unreasonably withheld amounts plus interest from the date they became due at the rate of 2% monthly, compounded monthly.

3The Co-Operators takes the position that S.U. suffered only minor injuries as defined in section 3 of the Schedule. If I find that is the case, then, by virtue of section 18 of the Schedule, the maximum amount of treatment The Co-Operators is obliged to pay for is $3,500 (the “coverage limit”). Since The Co-Operators has approved treatment to the coverage limit, The Co-Operators asserts it is not liable to make any further payments. In the alternative, The Co-Operators submits that the OCF-18s are not reasonable and necessary.

ISSUES

4The issues in dispute are set out in a direction of the tribunal dated March 26, 2019 and a motion order dated May 9, 2019. They are 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 $1,112.48 for physiotherapy treatment recommended by Prime Health Care in a treatment plan (OCF-18) dated January 25, 2018, submitted on February 23, 2018, and denied on March 8, 2018?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,136.60 for physiotherapy treatment recommended by Prime Health Care in a treatment plan (OCF-18) dated April 5, 2018, submitted on April 6, 2018, and denied on April 18, 2018?

iv. Is the applicant entitled to payment for the cost of an examination in the amount of $2,000.00 for a psychological assessment recommended by Prime Health Care in a treatment plan (OCF-18) dated March 15, 2018, submitted on March 22, 2018, and denied on April 2, 2018?

v. Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,000.00 submitted September 25, 2018 and denied by the respondent on September 28, 2018?

vi. Is the applicant entitled to a rehabilitation benefit in the amount of $1,749.28 submitted September 20, 2018 and denied by the respondent on September 28, 2018?

vii. Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,000.00 submitted November 21, 2018 and denied by the respondent on December 3, 2018?

viii. Is the applicant entitled to a rehabilitation benefit in the amount of $11,693.41 submitted February 22, 2019 and denied by the respondent on March 5, 2019?

ix. Is the applicant entitled to the cost of a neurology assessment in the amount of $2,000.00 submitted March 22, 2019 and denied by the respondent on April 3, 2019?

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

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

RESULT

5In approaching the resolution of this dispute, the first step is to determine if S.U. is subject to the coverage limit of $3,500. If that question is answered in the affirmative, then, given that The Co-Operators has approved treatment up to the coverage limit, S.U. is not entitled to payment for further treatment. If S.U. is not subject to the coverage limit, then the enquiry shifts to a determination of whether the OCF-18s are reasonable and necessary.

6Having considered the evidence and submissions of the parties, I find that S.U. is subject to the coverage limit. The predominant nature of her injuries is minor as defined in section 3 of the Schedule. She has failed to lead compelling evidence of a pre-existing medical condition, documented by a healthcare practitioner prior to the accident, that would prevent her from achieving maximal recovery if she were subject to the coverage limit.

REVIEW OF COVERAGE LIMIT PROVISIONS

7Section 18 of the Schedule establishes three coverage limit levels depending on the nature of the impairments sustained in the accident. The coverage limit in dispute in this case is found in a section 18(1): “The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable.” The term “minor injury” is defined in section 3 of the Schedule to mean: “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.”

8Section 18(2) addresses those situations where an injured party’s ability to recover from minor injuries sustained in a motor vehicle accident is complicated by a pre-existing condition. To trigger the provisions of s. 18(2), S.U. must satisfy three conditions: she has a pre-existing condition; that pre-existing condition was identified by a healthcare practitioner prior to the accident; and the evidence is compelling that she cannot achieve maximal recovery because of that pre-existing condition if subject to the coverage limit.

9While section 18 limits recovery based on the nature of the injuries sustained, The Co-Operators obligation to pay for medical benefits is not based on the nature of the injuries, but on the nature of any impairments sustained in the accident. This obligation is set out in section 14, which states:

Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:

1. Medical and rehabilitation benefits under sections 15 to 17

10This distinction is important in this case because there is a great deal of focus on pain as the basis for entitlement to recovery in this case. In 16-000438 v The Personal Insurance Company, 2017 Canlii 59515 (ON LAT), the tribunal stated that the chronic pain complained of:

“must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. 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.”

I find that this paragraph neatly synthesizes the tension between the focus on the nature of the injury arising from the definition of minor injury and the obligation of the insurer to pay for benefits to assist in recovery from an impairment.

MEDICAL EVIDENCE

Nature of Physical Injuries immediately post-Accident

11The evidence discloses that S.U.‘s physical injuries a result of the accident were minor. S.U. attended her family doctor, Dr. Shabana Sikander, on August 29, 2016, three days after the accident. Dr. Sikander diagnosed her with neck strain and back strain. She recommended physiotherapy, use of non-steroidal anti-inflammatory drugs, and warm pads. This diagnosis supports The Co-Operator’s position that S.U. suffered minor injuries in the accident.

12Dr. Sikander also ordered x-rays of S.U.’s cervical, thoracic, and lumbar spine and the sacrum and coccyx. X-rays were also taken of S.U.’s knees. The x-ray report of Dr. Haroun is the basis of much discussion between the parties. In particular, S.U. argues that Dr. Haroun found “evidence of acute fracture” in the lumbar spine. The x-ray report found mild disc degeneration in the spine, particularly in the C5-C6 and L5-S1 level. It also found mild osteoarthritis of both knees.

13The Co-Operators argues that there is a typographical error in the report regarding a fracture of the lumbar spine. The full sentence reads “There is evidence of acute fracture. Nil acute.” In its submission, The Co-Operators argues that the report should read “There is no evidence of acute fracture.” It submits that otherwise the sentence makes no sense. I agree.

14The first, and perhaps the most significant factor in supports of The Co-Operators submission is the failure of Dr. Haroun to identify the site of the fracture or the nature of the fracture, e.g. compression fracture L4, displaced fracture etc. If taken at face value, the report states simply that there is an acute fracture somewhere in the lumbar spine. In addition to being unlikely, it stands in contrast to the discussion around disc degeneration which identifies the specific areas where the disc degeneration is most notable.

15I also find that the report did not uncover a previously undiagnosed fracture of the lumbar spine. In addition to the considerations set out above, there is no notation that there was pre-existing, fully healed or partially healed fracture.

16It is clear that Dr. Sikander understood that the x-rays did not find a fracture of the lumbar spine. During S.U.’s follow-up visit on September 14, 2016, Dr. Sikander notes that she discussed the x-ray report “in detail” with S.U. She reiterates the earlier diagnosis of neck and back strain and goes on to discuss the newly identified findings of degenerative disc disease and osteoarthritis. There is no mention of a finding as significant as a fractured lumbar vertebra.

17Dr. Wilderman, S.U.’s pain specialist, reviewed the x-ray report in the preparation of his December 7, 2018 expert report. With respect to the section addressing the lumbar spine, Dr. Wilderman states: “Lumbar spine: Mild degree of disc degeneration of the lumbar spine most noted at L5-S1 level.” He clearly understood that the report did not find a fractured lumbar vertebra.

18Similarly, Dr. Jaroszynski, The Co-Operators expert orthopaedic surgeon, in his report dated March 29, 2019, draws the same conclusions as Dr. Wilderman. Dr. Jaroszynski quotes from OCF-18s prepared by S.U.’s treatment providers noting that the only issue disclosed by the x-ray report is mild disc degeneration of the lumbar spine, most notable around L5-S1. In his review of the accident he states: “[S.U.] was sent for x-rays which did not show any fractures.”

19Thus, the total failure of any of the treating or examining healthcare practitioner to consider that S.U. suffered a fractured lumber vertebra, either as a result of or before the accident leads me to conclude that The Co-Operators is correct and there is a typographical error in the x-ray report. The report was dictated but not read by Dr. Haroun. Had the doctor read it, this error may have been corrected. All other healthcare practitioners read the report to indicate “Nil acute.”

20There is no evidence that S.U. visited Dr. Sikander again with respect to this accident after September 14, 2016. At that time, S.U.’s diagnosis consisted of neck strain, back strain, degenerative disc disease most noted in the cervical and lumbar spine and osteoarthritis of the knees: these last two being degenerative and long term in nature were not accident related. There is no evidence that she sought further treatment until 2018.

21Dr. Sikander’s diagnosis and the lack of S.U.’s further visits to Dr. Sikander supports the conclusions reached by Dr. Greg Jaroszynski, orthopaedic surgeon, in his expert report dated March 29, 2019.

The accident is compatible with producing soft tissue injury to the lumbar spine (sprain/strain). This is a self-limiting condition that would have healed over 8-12 weeks without formal treatment. The injury is minor and, as such, none of the Treatment and Assessment Plans; (0CF-l8's) in dispute are reasonable and necessary. [S.U.'s] current symptoms are in keeping with what quite likely is the presence of degenerative/arthritic changes. unrelated to the index accident.

Chronic Pain

22S.U. relies on the report of Dr. Wilderman for the proposition that she suffers from chronic pain disorder. He concludes that as a result of this condition, S.U. suffers from impairments which do not fall within the definition of minor injury. I have difficulty accepting Dr. Wilderman’s report for this proposition.

23My major difficulty with Dr. Wilderman’s report is that it fails to address S.U.’s degenerative condition in her lumber spine/sacrum and knees. He assumes that all of S.U.’s pain complaints are accident-related without attempting to distinguish between her diagnosed post-accident injuries, neck sprain and back sprain, from her degenerative disc disease particularly marked at L5-S1 and osteoarthritis in the knees.

24There also seems to be tension between Dr. Wilderman’s extensive finding of serious impairment of function in housekeeping, caregiving, cooking, socializing and work-related activities with S.U.’s reality. Between the accident date and Dr. Wilderman’s examination of her, S.U. returned to work, did not visit her doctor for pain medication or because of depression and continued to act as the primary caregiver to her ailing husband and her two younger children. When she did give up work, it was because her husband required fulltime care, not because she was functionally unable to work due to accident-related impairments.

25While I recognize that S.U. is suffering from pain up to the present time, I prefer Dr. Jaroszynski’s finding that her pain is due to her degenerative condition and that her accident related sprains have healed. For example, S.U. complains of an inability to kneel to pray because of pain in her knees. I find on a balance of probabilities that this limitation is more likely to be caused by her osteoarthritis than an injury 18 months before Dr. Wilderman’s examination and for which she sought no treatment. I find that S.U. does not have chronic pain disorder as a result of the accident.

26A great deal of Dr. Wilderman’s report focussed on psychological factors. He addressed driving anxiety, depression, fibromyalgia and post-traumatic stress disorder (PTSD). On the last two issues he noted no evidence of fibromyalgia and mild PTSD. While Dr. Wilderman practices in the area of pain management which may have a psychological component, I prefer to defer the psychological discussion to the reports of the two psychologists, Dr. Andrew Shaul and Dr. Terra Seon below. Firstly, these two practitioners are more qualified to address psychological issues. Secondly, other than vehicular anxiety, depression and related symptoms, which Dr. Wilderman notes rather than diagnoses based on S.U.’ self-report, he ruled out significant impairment from PTSD and he ruled out fibromyalgia entirely,

Psychological Injuries in relation to the Accident

27During the period from September 14, 2016 until she apparently underwent a psychological pre-screen by Dr. Andrew Shaul, a psychologist, on February 15, 2018, S.U. struggled with a difficult personal situation in having to look after her ailing husband who suffers from Amyotrophic Lateral Sclerosis (“ALS”) an insidious degenerative disease. Despite these circumstances, there is no evidence that she sought medical help. As stated above, during the intervening 17 months she did not visit her family physician and seek either medication or a referral for psychological treatment. Indeed, there is no record of anything suggesting a deteriorating psychological condition before the report of Dr. Shaul.

28The puzzle of a lack of a psychological referral is further compounded by S.U.’s self-report to The Co-Operators psychological assessor, Dr. Terra Seon. Dr. Seon notes the following in her March 29, 2019 report:

“[S.U.] denied having been referred to a psychiatrist or a psychologist following her involvement in the subject accident. She reported she was unaware of the current Treatment and Assessment Plan (OCF-18) and declined the need for or want to engage in individual psychological services at the present time.”

29Dr. Seon subjected S.U. to validity testing which she found to produce valid and interpretable results. She formed the opinion that S.U. was not exaggerating symptoms and her reported symptoms were in-line with clinical observations. She concluded that S.U. did not suffer from a diagnosable psychological condition. In Dr. Seon’s view, there was nothing from a psychological perspective that would warrant a finding that S.U.’s injuries are not minor injuries as defined in the Schedule.

30In her self-report to Dr. Seon, S.U. reported that she still carries on an active social life, has no difficulty initiating or maintaining sleep, and did not use prescription pain medication. She continues to be the primary caregiver for her husband and cooks and cleans her home for her family. She described the regimen she and her family have established to care for her ailing husband. Her daughters wake up at 2:00 a.m. and 4:00 a.m. and she wakes at 6:00 a.m. to turn him onto his left side, right side and back. The major difficulty she expressed was an inability to kneel for prayer.

31In contrast, Dr. Shaul notes a wide range of physical and emotional difficulties, as follows:

Ms. Uzzaman stated that she wants to return to her pre-accident lifestyle and is motivated to overcome her current psychological and emotional difficulties. Ms. Uzzaman feels that psychotherapy may be beneficial to her overall recovery….

In summary, Ms. Uzzaman reported feelings of pain, irritability, frustration, and lack of sleep since her motor vehicle accident on August 26, 2016. She is experiencing difficulty engaging in many of her pre-accident activities of daily living. It is strongly recommended that Ms. Uzzaman's case be thoroughly reviewed and that an assessment be approved in order to support her overall recovery and return to her pre-accident status.

32These two self-reports are so starkly different that they are hard to reconcile. While I note that feelings of hope, frustration and despair may vary from day to day and be reflected in the way a patient presents, what is being described is a history and an outline of activities of daily living, factors which are not so variable. In resolving the difference, I prefer the report and conclusions of Dr. Seon.

33Dr. Seon referred to S.U.’s medical history in preparing her report. There is no equivalent medical history review in Dr. Shaul’s report. He states that he based his report solely on a series of questions. As stated above, S.U.’s medical history prior to Dr. Shaul’s report indicates no psychological issues. Dr. Seon administered validity tests and determined that S.U. was not exaggerating her symptoms.

34As in Dr. Wilderman’s report, the list of complaints in Dr. Shaul’s report would seem to indicate symptoms that stands in sharp contrast to the reality of S.U.’s lifestyle. S.U. returned to work immediately following the accident and continued until her caregiver duties rendered her ability to work outside the home impossible. She reported that pain, not psychological factors, sometimes limits her ability to carry out her caregiving activities but she is assisted by her adult children. Dr. Shaul does not even address the stress of looking after her husband.

35Even if I accept Dr. Shaul’s findings, which I do not, the evidence of function indicates that S.U. does not suffer any significant functional impairment as a result of the accident.

36Based on the evidence, I find that S.U. did not suffer from a diagnosable psychological condition as a result of the accident. It follows, that her accident related injuries are minor.

Pre-existing Condition

37S.U. does not fall within the pre-existing condition parameters. As set out in s. 18(2) of the Schedule, there are three conditions to trigger the pre-existing condition exception to the $3,500 coverage limit: the applicant has a pre-existing condition, that the pre-existing condition was documented by a healthcare practitioner prior to the accident, and that because of the pre-existing condition S.U. will not reach maximum recovery if subject to the $3,500 coverage limit. I am prepared to accept for the purpose of this analysis that there is evidence that S.U. suffered from degenerative changes in her spine and knees before the accident. These were not documented as she was asymptomatic. Thus, she does not satisfy the second condition.

38She also fails the third condition. There is no evidence before me to show how the pre-existing degenerative condition will inhibit her recovery in any way. In the accident, S.U. suffered from neck and back strain. In section 4 of his conclusions, Dr. Jaroszynski finds that because of S.U. suffered from lumber spine soft tissue injuries that had resolved, there was no need for treatment beyond the $3,500 limit. Her problems in that area were as a result of her degenerative condition.

Reasonable and Necessary

39While my analysis above has focussed on whether S.U.’s injuries fall within the definition on minor injuries as set out in the Schedule, there remains the question whether the proposed treatments and assessment are reasonable and necessary. Since I have accepted Dr. Jaroszynki’s opinion that S.U.’s physical injuries as a result of the accident have resolved and Dr. Seon’s opinion that S.U. suffers from no diagnosable psychological condition, it flows from these findings that the proposed treatments and assessments are not reasonable and necessary.

CONCLUSION AND ORDER

40I find that S.U. sustained minor injuries as defined in the Schedule and is subject to the $3,500 treatment limit set out in S. 18(1). There is no compelling evidence that she has a pre-existing condition, documented by a healthcare practitioner prior to the accident that she cannot achieve maximal medical recover if subject to the $3,500 limit. Her application for the benefits set out in the Issues section above is dismissed.

INTEREST AND AN AWARD

41Interest is payable under s. 51 of the Schedule on any amount not paid in accordance with the Schedule. Given that I have found that the $3,500 limit is applicable and The Co-Operators has approved treatment in that amount, no interest is payable.

42Section 10 of O. Reg 664 provides that, if I were to find that The Co-Operators unreasonably withheld or delayed payment of a benefit, I may order a payment up to 50% of the amount unreasonably withheld or delayed plus interest at 2% per month compounded monthly. There is no evidence that The Co-Operators unreasonably withheld or delayed any benefit payment. Accordingly, no award is payable.