Citation: C.G. vs. TD Insurance Meloche Monnex, 2020 ONLAT 19-002140/AABS

Released Date:05/29/2020

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:

C. G.

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Susan Mather

APPEARANCES:

For the Applicant:

Jeremy Magence, Counsel

For the Respondent:

Joseph Hogan, Counsel

Heard By Way Of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on September 18, 2016, 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 (“TD”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2TD denied the applicant’s claim for medical benefits and the cost of an assessment on the basis that the applicant suffered predominantly minor injuries in the accident that were treatable within the Minor Injury Guideline (“the Guideline”). The medical opinions relied on by the parties differ with respect to whether the applicant’s injuries fall within the Guideline.

3Following a case conference on July 9, 2019, the parties agreed to a written hearing.

4For the reasons provided below, I find that the applicant sustained predominantly minor injuries in the accident. I also find that, although the applicant has not yet received the full amount of benefits available under the Guideline, the treatment plans in dispute are not reasonable and necessary.

ISSUES

5The issues before me at this hearing are:

a. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3500.00 limit in the Guideline?

b. Is the applicant entitled to receive a medical benefit in the amount of $1362.00 for chiropractic treatment recommended by Dr. Balkansky in a treatment plan submitted April 21, 2018 and denied on May 24, 2018?

c. Is the applicant entitled to receive a medical benefit in the amount of $450.00 for a functional impairment chronic pain assessment recommended by Dr. Balkansky in a treatment plan submitted July 10, 2018 and denied October 24, 2018?¹

d. Is the applicant entitled to payment for the cost of an examination in the amount of $2460.00 for a physiatry assessment recommended by Robin McMackin, in a treatment plan submitted April 3, 2019 and denied on April 9, 2019?

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

ARE THE APPLICANT’S INJURIES PREDOMINANTLY MINOR INJURIES

6The Guideline establishes a framework for the treatment of an insured person who sustains an impairment in an accident that is predominantly a minor injury. The term “minor injury” is defined in s. 3 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”, “subfluxation” and “whiplash associated disorder” are also defined in s. 3.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for minor injuries to $3500 minus any amount paid in respect of an injured person under the Guideline. The applicant has received $3094.60 under the Guideline, leaving a balance of $405.40 available for medical and rehabilitation benefits if his injuries are found to fall within the Guideline.²

8Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3500 limit. To access these increased benefits, the injured person’s health care provider must provide compelling evidence that the person has a pre-existing condition, documented prior to the accident, which will prevent the injured person from achieving maximum recovery if benefits are limited to the Guideline limit.

9The applicant claims that he has pre-existing conditions that entitle him to access benefits beyond the Guideline limit.³ He has not, however, provided the required evidence from his health care provider that these conditions were pre-existing and documented prior to the accident and will prevent him from achieving maximum recovery if his benefits are limited to the Guideline. The earliest evidence of these pre-existing conditions are the x-rays taken after the accident.⁴

The Test

10The onus of establishing entitlement to medical and rehabilitation benefits beyond the Guideline limit rests with the applicant. In order to be entitled to benefits beyond the limit, the applicant must prove on that balance of probabilities that he suffered from more than predominantly minor injuries in the accident.

11TD argues that a “but for” causation test has been adopted by the Ontario Court of Appeal and cites the Tribunal case of E.T. v. Certas Home and Auto Insurance⁵ to support its argument.⁶ TD argues that the applicant is required to prove on the balance of probabilities, that “but for” the motor vehicle accident of September 18, 2016, he would not be suffering from the left shoulder pain about which he currently complains.

12In his reply submissions, the applicant disagrees with TD’s application of the ”but for” test. The applicant cites the Ontario Superior Court (Divisional Court) decision in Sabasdash v. State Farm et. al⁷ (“Sabadash”) as the leading case from the Divisional Court on this issue. In Sabasdash, the Divisional Court held that the plaintiff did not have to prove on a balance of probabilities that the accident alone caused the impairment at issue, The Divisional Court also explained that in some cases, the “material contribution” test might apply, which the applicant claims should apply here.

13In this case, it does not matter whether the “but for” or “material contribution” test applies. For the reasons provided below, I am not satisfied that that the applicant’s shoulder pain was at all caused by the accident.

Injuries/Impairments Sustained in the Accident

14The applicant submits that he sustained the following physical injuries as a result of the accident:

(i) Injury to his cervical spine (bones) which also had pre-existing but asymptomatic degenerative change.

(ii) Injury to his left shoulder which either caused or aggravated a pre-existing calcific supraspinatus tendinosis.

15He submits that these injuries are not injuries to the muscles, tendon and ligaments or clinically associated sequelae and, therefore, none are a “minor injury” as defined in the Guideline and/or they are aggravations of pre-existing conditions.

16The applicant also submits that he developed chronic pain as a result of the injury to his shoulder.

17TD submits that the main issue to be decided is the causation of the applicant’s left shoulder pain. TD argues that the left shoulder pain was not caused by the accident and, therefore, treatment outside of the Guideline is not reasonable or necessary.

18I must determine if the applicant sustained injuries in the accident, including an injury to his left shoulder, that were more than predominantly minor injuries. Chronic pain is not considered to be a minor injury.

19For the reasons provided below, I am not satisfied on the balance on probabilities that the applicant suffered more than predominantly minor injuries in the accident.

No Medical Attention Sought After the Accident

20The applicant did not seek medical attention immediately following the accident and did not miss work after the accident. The earliest clinical note and record (CNR) from his family physician before me is dated November 1, 2017, over one year after the accident.⁸ In my view, if the applicant suffered more than predominantly minor injuries in the accident, he would have required more medical attention.

September 26, 2016 X-Ray

21The September 26, 2016 x-ray of the applicant’s neck showed moderate degenerative changes in his cervical spine.⁹ There were no destructive changes or fractures. There is no evidence that these degenerative changes were documented before the accident, and no evidence that these changes would prevent the applicant from achieving maximal recovery within the Guideline. For that reason, these degenerative changes do not take the applicant out of the Guideline. The applicant argues that he suffered cervical spine damage in the accident, however the only evidence of cervical spine damage is the moderate degenerative disc changes.

Disability Certificates

22While the Disability Certificate dated September 26, 2016 lists dislocation, sprain and strain of joints and ligaments of the shoulder girdle, there is no evidence to show that the shoulder girdle was dislocated. Sprains and strains fall within the Guideline.¹⁰ The same is true for the disability certificate dated November 2016.¹¹

Statement of the Applicant

23In his statement to the Claims Pro Inc. adjuster, Sunil Maoncha, made on October 5, 2016, the applicant stated he did not hit his head or any part of his body inside the car. He stated that, at the time of the accident, he just felt a little bit of pain in his neck and, at the time of the statement, reported only having pain in his neck.¹² I find this to be the most reliable evidence of the applicant’s injuries for the reason that it was made shortly following the accident.

May 10, 2017 X-Ray - Calcific Supraspinatus Tendinosis

24The May 10, 2017 x-ray of the applicant’s left shoulder shows a calcific supraspinatus tendinosis. While the applicant submits that the accident may have caused this tendinosis, there is no evidence to support a finding that the accident caused this condition. As previously stated, this condition was not documented before the accident and, for that reason, does not meet the requirement for being a pre-existing medical condition that takes the applicant’s injuries out of the Guideline. ¹³ There are no CNRs provided from Dr. Fidal, the GP who ordered the x-ray of the applicant’s left shoulder in May 2017.

Clinical Notes and Records of [the Medical Centre]

25I have reviewed the CNRs of [the Medical Centre] , where the applicant received chiropractic and other treatment beginning in November 2016. The CNRs chronicle regular visits beginning in November 2016 but the record for each visit is minimal and illegible. The November 26, 2016 Initial Assessment Pain Diagram indicates that the applicant reported pain in his neck and buttock.¹⁴ In the Initial Consultation Data sheet and notes in the diagram completed by the applicant, he indicates that his pain was radiating from his neck down his shoulder. He did not circle the shoulder as an area with pain.

26It was not until April 29, 2017, over seven months after the accident, that the CNRs have a Pain Diagram indicating pain in the applicant’s left shoulder.¹⁵ The May 2017 x-ray of the left shoulder that calcific supraspinatus tendinosis appears to be the outcome of the investigation of the applicant’s left shoulder pain complaint. I am not satisfied on the balance of probabilities that the shoulder injury the applicant complained and sought treatment for in May 2017 was an injury sustained in the accident due to the length of time between the accident and pain in the left shoulder being reported.

OHIP Summary

27The decoded OHIP summary, while essentially only a billing record, does not suggest any issues with the applicant’s shoulder until May 2017.¹⁶

Pain Medication

28While the applicant submits that he suffers from chronic pain as a result of the accident, the prescription summary of [the pharmacy] from February 17, 2016 to February 7, 2019 does not show that the applicant was prescribed pain medication. The applicant submits in his reply submissions that there maybe other pharmacies where the applicant filled prescriptions and that the applicant was taking Tylenol and Advil for relief. In my view, if the applicant was filling prescriptions for pain medicine at other pharmacies, he would be in a position to provide the evidence.¹⁷

Assessment of Physiatrist Dr. Dessouki

29Dr. Dessouki provides the opinion that the injuries the applicant suffered in the accident were more than predominantly minor injuries. For the following reasons I give little weight to this assessment. This includes the fact that Dr. Dessouki did not assess the applicant until almost 20 months after the accident.

30Dr. Dessouki did not review the November 26, 2016 medical imaging of the applicant’s cervical spine or recognize that the applicant had pre-existing moderate degenerative disc changes in his cervical spine. He did review the left-shoulder x-ray from May 17,2017 but did not address whether the calcific supraspinatus tendinosis in the applicant’s left shoulder could have been caused by the accident or exacerbated by the accident.¹⁸

31Dr. Dessouki’s report states in several places that the applicant did not have pain in his left shoulder until 6-8 months after the accident and that it was not until 6- to-8 months after the accident that the applicant went to a walk-in clinic due to left shoulder pain.¹⁹ In my view, Dr. Dessouki’s opinion that the applicant’s left shoulder issues were caused by the accident is not supported by the fact that the applicant did not report any pain in his left shoulder until 6-8 months after the accident.

IE Assessment of Dr. Lipson

32I give more weight to the assessment of Dr. Lipson, who conducted an Insurer’s Examination (IE) nine months after the accident. The applicant reported to Dr. Lipson that he did not use any analgesic medications at the time of the examination and that his only ongoing pain symptom form the accident was left shoulder pain. Dr. Lipson did not attribute the applicant’s left shoulder calcific tendinopathy to the accident because there was no focal injury and there was a substantial time lag to symptom onset that exceeded the time from that could be attributed to an accident related impairment.²⁰ In Dr. Lipson’s opinion, the applicant sustained uncomplicated cervical and thoracolumbar spine strain/sprain injuries.

IE Assessment of Physiatrist Dr. Alborz Oshidari

33The applicant attended an IE with physiatrist Alborz Oshidari in October 2018, more than two years after the accident. ²¹ In my view, the report of Dr. Oshidari shows that the applicant changed his story between the time he was assessed by Dr. Lipson in June 2017 and the assessment by Dr. Oshidari over a year later. According to Dr. Oshidari, the applicant reported immediately after the accident experiencing pain in the left shoulder and lower back area. This report differs from both the report he gave to Dr. Lipson and the report he gave to Dr. Dessouki. I also note that both Dr. Ohsidari and Dr. Lipson’s reports state that the applicant’s only concern was pain in his left shoulder.

34Dr. Oshidari found that the mechanism of the accident did not explain any pathology to the left shoulder due to the accident. In his opinion, calcification of a shoulder is very common in people over 50 and there was no correlation between the calcific tendonitis in the shoulder and the accident. Dr. Ohsidari provided the opinion that the applicant’s injuries from the car accident fell under the Guideline. He stated that, because there was no trauma to the left shoulder or bleeding in the shoulder after the accident, it would be very unusual that the calcification was caused by the accident. The applicant submits that Dr. Ohsidari’s report confirms he sustained a contusion of the left shoulder. A contusion is clearly included in the Schedule’s definition of a minor injury.

Chronic Pain and Functional Disability Report of Chiropractor Dr. John Balkansky

35I do not agree with the applicant’ submission that he reported a left shoulder injury and pain to Dr. Balkansky 8 days after the accident and again less than 10 weeks after the accident. The earliest CNR from [the Medical Centre] that has been provided to me is dated November 26, 2016 and, as stated above, the first pain diagram showing shoulder pain is dated April 29, 2017.

36I give little weight to the Chiropractic Chronic Pain and Functional Impairment Disability Report by Dr. John Balkansky.²² This report is dated almost three years after the accident. Dr. Balansky’s report does not recognize that it was not until 6-8 months after the accident that the applicant complained of shoulder pain. He states that the applicant requires support in his activities of daily living. He fails to recognize that the applicant did not time off work following the accident and that worked full-time until 2019 when he was laid off due to an unrelated cause.

37I also have taken into consideration the April 21, 2018 Treatment Plan proposed by Dr. Balkansky which states that the applicant’s impairment is predominantly a minor injury and seeks approval for treatment with the $3500 limit. ²³

Chronic Pain

38I am not satisfied on the balance of probabilities that the applicant suffers from chronic pain as a result of the accident. The first mention of chronic pain in the CNRs before me is in the CNRs of [the Medical Centre] made on September 17, 2017, over a year after the accident. It may be that the applicant suffers from chronic pain as a result of his calcific supraspinatus tendinosis. However, for the reasons stated above, I am not satisfied that this is an injury that was sustained in the accident. I have also considered that there is no indication in the CNRs of the applicant’s family doctor that chronic pain is an issue and no record of pain medication being prescribed.

39For the reasons provided above, I am not satisfied on the balance of probabilities that the applicant sustained more than predominantly minor injuries in the accident. I am satisfied on the balance of probabilities that the applicant’s left shoulder pain is not the result of an injury sustained in the accident. I am also satisfied on the balance of probabilities that any cervical injury the applicant sustained in the accident was predominantly a minor injury within the meaning of the Guideline.

40The Schedule allows an insurer 10 business days after it receives a treatment plan to give the insured a notice that identifies the good, services assessments and examinations it agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all other reasons why the insurer considers the good, services, assessment and examinations or the proposed costs of them, not to be reasonable and necessary.²⁴

41The Schedule provides that, if the insurer does not provide the required notice on time, it is prohibited from taking the position that the Guideline applies and must pay for the goods, services, assessment and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a proper notice. ²⁵

42The applicant submits that the treatment plan dated April 21, 2018 in the amount of $1,362 became payable because TD failed to deny the treatment plan within the time limit required by the Schedule. TD has provided evidence that the treatment plan was submitted to HCAI on April 24, 2018 after 6:30 pm and denied on Friday, May 4, 2018 after 5:30 p.m. This denial is thus 8 business days after receipt of the treatment plan.²⁶ The applicant does not refute this evidence in his reply submissions. For that reason, I am not satisfied that the treatment plan became payable because TD did not deny the claim within the 10 business days required by the Schedule.

43Having determined that the applicant sustained only predominantly minor injuries in the accident, he is not entitled to more than $3500 in medical and rehabilitation benefits. As stated above, the applicant has received a total of $3,094.60 in medical and rehabilitation benefits. There is still room under the Guideline for the applicant to receive a further $405.40 in medical and rehabilitation benefits. For that reason, I must consider whether any of the treatment plans before me are reasonable and necessary.

44In this plan Dr. Balkansky proposes $1300.62 for chiropractic and massage therapy. The plan states:

a. The applicant’s impairment is predominantly a minor injury as referred to in the Guideline;

b. Treatment under the Guideline had already been provided and additional goods and services were required within the $3500.00 limit;

c. The applicant’s impairment affected his ability to carry out his employment. The plan proposes $1300.62 for chiropractic and massage therapy.;

d. The functional goals are return to activities of daily living, return to pre-accident work activities, and return to modified work activities.

45The plan totally fails to recognize that the applicant was working full-time and also fails to consider the effectiveness of the earlier treatment the applicant had received under the Guideline. For these reasons I am not satisfied on the balance of probabilities that any part of this plan was reasonable and necessary.

46This treatment plan proposes a functional impairment evaluation to determine and manage the extent of chronic pain as well as make recommendations in the pacing/tasking through physical work/home conditioning and improved coping skills/confidence with behavioural therapy.

47I do not find this treatment and assessment plan to be reasonable and necessary on the balance of probabilities for the following reasons:

a. For the reasons stated above I am not satisfied on the balance of probabilities that the applicant suffers from chronic pain as a result of the injuries he sustained in the accident.

b. Three months earlier Dr. Balkansky was of the opinion that the applicant’s injuries fell within the Guideline.²⁹ He provides no explanation for his change of mind.

48The physiatry assessment proposed by this treatment plan was undertaken by Dr. Dessouki on July 23, 2019. I am not satisfied that this treatment plan was reasonable and necessary for the following reasons.

49The treatment plan is based on the premise that the accident affected both the applicant’s ability to return to work and his ability to carry out his activities of daily living. These determinations were made on the basis of a telephone interview that took place over two and one-half years after the accident. This interview is essentially the only evidence to support these contentions.

50The evidence is that the applicant returned to work after the accident and worked until some time in 2019 when he was laid off for a reason not related to the accident. There is no evidence that he reported any issues with his employment or activities of daily living to his family doctor. The family doctor’s CNRs give no indication that a referral to a physiatrist was required.

51The occupational therapist proposing the treatment plan based her recommendation for an assessment by a physiatrist on the basis that the applicant’s calcific supraspinatus tendinosis was caused by the accident. For the reasons already provided I am not satisfied on the balance of probabilities that the calcific supraspinatus tendinosis was caused by the accident.

52The treatment plan also states that the applicant was undergoing concurrent treatment with his family physician and massage therapy. The CNRs of the family physician do not support this statement and there is no evidence that the applicant was receiving any massage therapy at the time of this assessment.

53Having found that the statements in the treatment plan are not supported by other evidence, I am not satisfied that the assessment by a physiatrist proposed in the treatment plan is reasonable and necessary.

54Having found that none of the treatment plans in issue are reasonable and necessary, there are no medical or rehabilitation benefits owing for these plans.

ORDER

55For the reasons provided above I ORDER:

1. The application is dismissed.

2. The applicant is not entitled to interest on overdue benefits.

Footnotes

1. 1The applicant’s submissions point out that the July 9, 2020 Order of the Tribunal erroneously describes this treatment plan as a plan for chiropractic treatment.
2. 2Neither party submitted evidence of the amount of medical and rehabilitation benefits that have been paid under the Guideline. By e-mail dated May 12, 2020, the Tribunal asked the parties to provide this information. By e-mail dated May 13, 2020, the amount paid under the Guideline was provided by TD.
3. 3In his written submissions, the applicant points to his pre-existing asymptomatic degenerative change to his cervical spine and a pre-existing calcific supraspinatus.
4. 4Cervical Spine Imaging Report dated September 25, 2016, Tab 1 applicant’s hearing record; Left Shoulder X-Ray and ultrasound results dated May 17, 2017, Tab 5, applicant’s hearing record.
5. 52019 Can LII 40289, Tribunal File 18-003758/AABS.
6. 6This case reference appears to be incorrect. In E.T. v. Certas the decision refers to the Financial Services of Ontario (FSCO) case of State Farm and Sabadash, Appeal, P16-00029.
7. 72019 ONSC 1121.
8. 8Tab 9, applicant’s hearing record, Clinical Notes and Records of Dr. Abraham Cohen dated from November 1, 2017 to April 21, 2018.
9. 9Tab 1, applicant’s hearing record, Cervical Spine imaging report.
10. 10Tab 2, applicant’s hearing record, Disability Certificate.
11. 11Tab 4, applicant’s hearing record, Disability Certificate.
12. 12Tab 3, TD’s documents, Statement of Carlos Gonzalez dated October 5, 2016.
13. 13Tab 5, applicant’s hearing record, Jane Centre X-ray and Ultrasound report.
14. 14Page 17, Tab 6, applicant’s hearing record, Clinical notes and Records of [the Medical Centre]
15. 15Page 19, Tab 6, applicant’s hearing record, Clinical notes and Records of [the Medical Centre]
16. 16Tab 7, page 6 applicant’s hearing record, Decoded OHIP summary dated September 18, 2012 to March 12, 2018.
17. 17Tab 13, applicant’s hearing record, Prescription Drug History of [the pharmacy] from February 17, 2016 to February 7, 2019.
18. 18Tab 16, applicant’s hearing record, Physiatry Assessment of Dr. Shariff Dessouki of Med Net dated July 30, 2019.
19. 19Tab 16, applicant’s hearing record.
20. 20Tab 1, TD’s document book, Physiatry Assessment, June 12, 2017.
21. 21Tab 2, TD’s document book, Physiatry Assessment of Dr. Alborz Oshidari.
22. 22Tab 17, applicant’s hearing record.
23. 23Tab 10, applicant’s hearing record
24. 24S. 38(8) O. Reg. 34/10
25. 25S. 38(11) O. Reg. 34/10.
26. 26Tab 10, TD’s documents.
27. 29Tab 10, applicant’s hearing record.
28. 27Tab 10 applicant’s hearing record.
29. 28Tab 11, applicant’s hearing record.
30. 30Tab 14 applicant’s hearing record.