Released: 05/28/2020
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:
[P.S.]
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Claudette Leslie
APPEARANCES:
For the Applicant:
Marina Korchunova, counsel for the Applicant
For the Respondent:
Stephen Grey, counsel for Wawanesa Mutual Insurance Company
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on July 28, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits by the respondent insurer Wawanesa Mutual Insurance Company. The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on September 17, 2019, and consequently the matter proceeded to a hearing in writing.
ISSUES IN DISPUTE
3The following are the issues to be decided:
i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to receive a medical benefit in the amount of $1,328.10 for physiotherapy and massage services, recommended by Success Rehab Clinic in a treatment plan dated April 19, 2017, and denied by the respondent on June 14, 2017?
iii. Is the applicant entitled to interest on any overdue payment of the benefit?
RESULT
4Considering all of the relevant evidence provided, I find, on a balance of probabilities, the following:
i. the applicant's injuries fall outside of the MIG;
ii. the treatment plan proposed by Success Rehab Clinic for physiotherapy and massage services, in the amount of $1,328.10, is reasonable and necessary; and
iii. the applicant is entitled to interest on any overdue payment of the benefit in accordance with s. 51 of the Schedule.
BACKGROUND
5The applicant is a 69-year-old man. He was driving through a school zone at approximately 40 km/hr when his vehicle was hit, on the passenger side, by a car exiting an apartment complex. He reportedly immediately felt pain on the right side of his body and in his head. He did not lose consciousness, and the airbags did not deploy. A tow truck took him to a collision center, where he reported the accident before going home by taxi.
6The applicant reported that, the evening after the accident, he began feeling discomfort in his neck and left trapezius muscle group, as well as his lower back. He was unable to work for approximately three days. He initially returned to work on a modified, reduced hours basis.
7He went to his family physician approximately a month later with complaints of neck pain, headaches and neuro-cognitive symptoms. A Sport Concussion Assessment Test - 3rd Edition (“SCAT3”) indicated he sustained a concussion. The applicant subsequently visited his family doctor on several occasions, primarily with complaints of headaches and back pain. He received treatment for his accident-related injuries at Success Rehab Clinic until July 2017. He stopped attending when the respondent declined to fund further treatment, including the treatment plan in question.
THE LAW, EVIDENCE AND ANALYSIS
Issue (i): Whether the applicant sustained predominantly minor injuries subject to treatment within the Minor Injury Guideline (MIG)
The applicability of the MIG
8The MIG establishes a framework for the treatment of minor injuries. 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 meaning of the terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. Section 18(1) of the Schedule limits the entitlement to medical and rehabilitation benefits for minor injuries to $3,500.
Did the applicant sustain predominantly minor injuries?
9The applicant submits that his accident-related impairments, particularly a concussion, chronic headaches, and on-going back pain do not fall under the MIG. The respondent denies that the applicant sustained a concussion and argues that there is no objective evidence that justifies removing the applicant from treatment within the MIG limit.
10The onus is on the applicant to show that, on a balance of probabilities, his injuries fall outside of the MIG and, if so, whether he is entitled to receive the treatment in question. If the respondent’s position is correct and, provided the applicant has used up the full $3500 available for treatment under the MIG it will be unnecessary for me to determine whether the disputed benefit is reasonable and necessary.
11I agree with the applicant that the MIG does not apply in this case. The evidence provided establishes that he sustained injuries, including a concussion and concussion syndrome, on-going headaches and back pain for an extended period, that I find are not defined as minor injuries. Specifically:
The clinical notes and records of doctors Fan, Jia, Chan and the hospital CNRs indicate on-going complaints of headaches and pain in multiple parts of his bod. On August 27, 2016, he visited his family physician Dr. Fan with complaints of headaches, neck pain and neurocognitive symptoms. The doctor performed the SCAT3 test and found that the applicant had sustained a concussion. He was advised to “rest”.
On March 8, 2017, he visited a new family physician, Dr. Meng Jia, with similar complaints; and again, on May 23, 2017 with the same on-going complaints, including back pain, headaches, dizziness. He indicated that he was taking Tylenol for pain relief. A June 13, 2017 CT scan was conducted in response to the applicant`s complaints. It revealed no evidence of intracranial trauma. During a routine follow up for other illnesses, Dr. Chan of Scarborough Health Network (SHN) also noted that the applicant was photophobic.
Sometime in 2017, the applicant began experiencing chest pains and, as a result, in March 2019 her underwent Coronary Artery Bypass Grafting Surgery. Though unrelated, I note this information here only as it indicates that the applicant’s accident-related injuries, and recovery therefrom, fell within the context of other underlying health conditions.
On Sept 16, 2019, Dr. Jessica Chin of SHN, in conducting a follow-up from his operation, noted that the applicant reported that he had been experiencing low back pain for approximately 25 years and that he was no longer able to conduct weight lifting activities. Dr Chin refers him to chronic pain specialist, Dr. Alireza Kachooie for consultation for “low back pain x 25 with new sharp radiation to L>R foot since CABG in March 2019”.
12As well, the Insurer`s Examination (IE) report conducted by Dr. Eric Silver on June 1, 2017 in response to the denied treatment plan, indicates that, at this point, approximately 10 months after the accident, the applicant told him he was experiencing on-going headaches, upper back and neck pain and lower back pain.
13The IE physician indicated that during the examination the applicant demonstrated and /or he observed pain symptoms:
“bilateral rotation of the cervical spine was full, with mild left-sided neck pain at each end range…” When touching his fingers to his toes “he reported mild lower back pain”; and
He notes that other physical manipulations “were full and pain-free with the exception of some left-sided neck pain…reported mild low back pain ”; and the applicant reported mild low back pain while squatting. The doctors also observed tenderness at the “bilateral paralumbar muscles”; and mild upper trapezius soreness, including left upper trapezius.
14The applicant points out that the examiner’s physical findings, at the very least, indicates ongoing/chronic pain, and contradicts his conclusion upon assessment that there were no residual accident-related impairments, or that he had achieved maximum medical recovery.
Medical authorities on the issue of concussion, concussive syndrome, and on-going/chronic pain.
15In addition to the documentary, medical evidence submitted, the applicant asserts that various medical authorities reports/published articles support the impairments he sustained. Specifically,
o A Brain Injury Canada article reports that concussion/Traumatic Brain Injury "happens when the brain is shaken back and forth inside the scull, which injures the brain”; and that without treatment, the brain may not heal, and the injury could become worse.
o The American Association of Neurological Surgeons article indicates that "even mild concussions should not be taken lightly”. The article emphasizes that there is no such thing as a "minor concussion” and that warning signs of serious brain injury include pain and constant or recurring headaches.
o A World of Neurosurgery (April 2020) article further indicates that “People who suffer a head injury may suffer from side effects that persist for weeks or months. This is known as post-concussive syndrome…symptoms of which include prolonged headaches, dizziness…sensitivity to light” ; similar to those experienced by the applicant. The author also recommends that individuals with post-concussive syndrome should avoid activities that may cause repeated concussions. The article also finds that, in assessing football players’ concussion injuries, “each concussion is unique and , there is no set time-frame for recovery.”
o The International Association for the Study of Pain article states, “Chronic pain has been recognized as pain that persists past normal healing time…or it lasts or recurs for more than 3 to 6 months…” This includes headaches, the article states.
16The respondent relies primarily on its IE assessor’s report to support its case. It takes the position that there is no objective evidence to support a finding that his injuries fall outside of the MIG. Furthermore, it is the respondent’s position that the applicant did nothing to mitigate the situation, including failing to exercise. In my view, the evidence indicates this is not the case here. I find no merit in the respondent’s claims. For example,
The insurer’s assertion that the applicant did not sustain a concussion is refuted by the evidence that the applicant’s SCAT3 diagnosis showed he had sustained a concussion.
With regards to the applicant’s CT scan/ brain imaging of June 13, 2017, the respondent points to a normal outcome, and that it revealed no evidence of intracranial trauma. However, brain scans, according to the American Medical Society for Sports Medicine article “are usually not helpful for a concussion. These scans cannot show if you have a concussion."
The insurer also claims that the applicant did not sustain a concussion because he did not lose consciousness at the time of the accident. There is no evidence to support a claim that loss of consciousness at the time of impact negates a later diagnosis of a concussion.
The respondent questions the applicant’s claim of accident-related injuries considering the fact that the applicant did not seek medical treatment until approximately a month after the accident when he saw his family doctor on August 27, 2016. I find it plausible, as the applicant claims, that he did not visit his family physician immediately because he was hoping that the accident-related pains, headaches and dizziness he was experiencing would cease.
While recognizing that the applicant had various illnesses that required treatment, his decoded OHIP entries going back to 2013 show that in 2015 the applicant saw a physician in April and November only; and that starting in January of 2016 up to November 17, 2016, he made frequent visits to his family doctor or sought medical attention, frequently after the accident, contrary to the respondent’s claim.
The respondent also argues that the applicant did not mitigate the situation because as of May 2017, he had stopped exercising, which likely slowed recovery. The evidence shows that the applicant had curtailed his exercise routine on his doctor’s orders following surgery, un-related to the accident. His doctor advised that over exerting himself could be harmful. As well, family doctor Fan’s recommended treatment for his concussion was “rest”. The evidence shows that notwithstanding, the applicant continued to do light, self exercises.
17The applicant’s evidence both subjective and that of medical authorities, clearly indicates, that as a result of the accident,
(a) He was diagnosed with a concussion;
(b) He demonstrated symptoms of concussive syndrome in keeping with the characteristics of the condition noted in articles published by medical authorities;
(c) After the accident, he had on-going headaches, neck and back pain, including up to10 months after the accident. According to the International Association for the Study of Pain article provided by the applicant; this type of persistent pain is considered to be chronic; and
(d) Finally, none of these conditions are included in the definition of “minor injuries” as set out in the Schedule.
18In light of the foregoing, I find that the applicant’s diagnosis of concussion, and ongoing concussion-related/physical injuries are not part of the “minor injuries” definition set out in the Schedule; and as such, he is entitled to a determination of whether or not the proposed treatment plan is reasonable and necessary.
Issue (ii): Whether he is entitled to the physiotherapy and massage services recommended by Success Rehab Clinic in the treatment plan of April 19, 2017 is reasonable and necessary
19Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary. Once again, the onus is on the applicant to prove, on a balance of probabilities, that the treatment plan in question, is reasonable and necessary. The respondent argues that the applicant’s evidence does support a finding that it is.
Is this treatment plan reasonable and necessary?
20In my view, the recommended treatment is reasonable and necessary to provide helpful, ongoing therapy for pain relief and to restore the applicant’s health. My reasons are as follows.
21First, I gather from the medical notes/reports presented and what, in my view, constitutes credible self-reporting, that the applicant was consistent in his complaints of not only on-going headaches but also back and neck pain, for months following the accident:
There is no evidence that he suffered from on-going headaches before the accident.
There is evidence that he sustained a concussion as a result of the accident.
According to the World of Neurosurgery article, concussion related symptoms may include dizziness, “constant or recurring headaches…hypersensitivity to light…and side effects that may persist for weeks or months”.
He began complaining of headaches after the accident and he continued to do so months later including during the IE assessment 10 months after the accident:
o Starting on the evening after the accident, he reportedly began feeling discomfort in the neck and the left trapezius muscle group as well as his lower back, he complained of persistent pain, particularly headaches, neck and back pain
o Chiropractor Silverman, in the April 2017 visit, identifies the applicant’s injuries as “WAD2 with complaint of neck pain with musculoskeletal signs”. There is no indication that the chiropractor had any reason to discredit the applicant’s complaints. On the contrary, she asserts that the ongoing neck pain/upper back pain and headaches were barriers to his recovery.
o The following month, the IE assessor found that the applicant demonstrated, mild left-sided neck pain; mild lower back pain; some left-sided neck pain, and he demonstrated “tenderness at the “bilateral paralumbar muscles”; and mild upper trapezius soreness, including left upper trapezius.”
o According to the article published by American Association of Neurological Surgeons even mild concussions if left untreated hampers recovery; and The International Association for the Study of Pain article points out, pain that persist for extended periods/months, as is evident in this case, is considered to be “chronic pain”.
22Secondly, I must consider the contents/objectives of the recommended treatment and how it correlates to the applicant’s accident-related complaints. The goal of the treatment plan is noted as, pain relief, while increasing strength and range of motion, and essentially returning the applicant to activities of normal living. Specifically, it indicates that, (a)Therapy will target multiple body sites, (b) Ongoing therapy will help to overcome barriers to recover- left untreated will not provide reasonable recovery, and (c) Progress will be monitored as the plan includes measures for evaluating progress.
23I find that the treatment recommended is reasonable and necessary as it not only targets the applicant’s physical/pain complaints, offers relief, but it promotes recovery. The alternative, if left untreated, and according to the Brain Injury Canada’s report on concussion/Traumatic Brain Injury (TML) submitted by the applicant, the brain injury and likely the side effects, “could become worse.”
Issue (iii): Whether the applicant is entitled to interest
24The applicant is entitled to interest on any overdue payment of the physiotherapy/massage treatment plan, in accordance with section 51 of the Schedule.
CONCLUSION/ORDER
25In light of the foregoing, I order that:
a. The applicant sustained injuries including a concussion/post concussion symptoms, on-going headaches and back pain that are not included in the definition of “minor injuries”. As such, the applicant’s injuries are not subject to the MIG treatment limit ($3500);
b. The applicant is entitled to receive the medical benefit in the amount of $1,328.10 for physiotherapy and massage services, recommended by Success Rehab Clinic; and
c. The applicant is entitled to interest on any overdue payment of the benefit.
Released: May 28, 2020
Claudette Leslie
Adjudicator