A.G. v. Heartland Farm Mutual Inc., 2020 CanLII 42675

Citation: A.G. vs. Heartland Farm Mutual Inc., 2020 ONLAT 19-002942/AABS

Released Date: 06/04/2020

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:

A.G.

Applicant

and

Heartland Farm Mutual Inc.

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

[A.G.], Applicant

Domenic Pellegrino, Counsel

For the Respondent:

Prabhdip Dhami, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on September 27, 2017, 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 benefit in the amount of $2,470.00 for chiropractic treatment recommended by Danforth Health and Wellness, in a treatment plan (OCF-18) submitted on August 8, 2018, and denied on August 20, 2018?

Iii Is the applicant entitled to a medical benefit in the amount of $177.98 ($1,267.88 less approved $1,089.99) for chiropractic treatment recommended by Danforth Health and Wellness, in a treatment plan (OCF-18) submitted on May 2, 2018, and denied on May 14, 2018?

RESULTS

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

4The applicant is not entitled to any medical benefits.

BACKGROUND

5The applicant was involved in an accident on September 27, 2017. Her vehicle was rear ended and, as a result, ended up hitting the car in front of her. The air bags in her car were deployed. The applicant had pre-existing issues with her right shoulder and right upper back for which she was receiving physiotherapy / chiropractic treatment for right rotator cuff strain from 2015-2016.¹ The applicant claims that she is suffering chronic pain from injuries to her right shoulder, neck and back. At the time of the accident, the applicant worked as a server/waitress [.]

6The applicant submitted an OCF-1 indicating that she had returned to work on October 20, 2017.² This was similarly confirmed by an OCF-3 dated October 30, 2017, prepared by Dr. S. Jahandideh-Sheijani (Chiropractor).³ The OCF-3 confirmed that the applicant did not have any pre-existing conditions that affected her ability to perform her normal activities. The applicant also indicated to the IE assessor Dr. E. Urovitz orthopaedic surgeon, that she continued to work as a server and did not miss substantial time from work.⁴

7On May 30, 2016, Dr. P. Jose, family doctor, noted in his clinical notes that the applicant complained of “right upper back/shoulder tightness for the past week”. He noted on examination that the applicant had “full right shoulder ROM with mild medial scapular tenderness at extremes of movement in all directions.”⁵ On September 28, 2017, he diagnosed her with mild whiplash and mild RC tendonitis.⁶ The applicant had an ultra sound on October 25, 2017 which indicated that no significant abnormality was found.⁷ In his notes dated August 30, 2018, Dr. Jose noted that the applicant has RC tendinopathy; chronic pain syndrome developing.”⁸

8The applicant also saw Dr. Vakilha, general practitioner, from July 4, 2015 to the date of the accident. His notes make no reference to any right shoulder injury or other injuries.⁹

ANALYSIS

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

9I find that the applicant did sustain predominantly minor injuries, as defined under the Schedule for the reasons set out below.

10Section 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.

11Chronic pain can be a sequelae of soft tissue injuries.¹⁰ Chronic pain, to be removed from the MIG, requires the applicant to prove that her chronic pain is not merely sequelae of the soft tissue injuries, but that it is the applicant’s predominant injury.¹¹A 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.¹²

12There has been no evidence put before the Tribunal as to any discussion of the applicant’s level of pain, its effect on the applicant’s function or whether the pain is bearable without treatment. There is no evidence before the Tribunal that the applicant has met any three of the criteria for a diagnosis of chronic pain, set out in the case of M.N.M. and Aviva Insurance, Tribunal file No; 17-007825/AABS. That case sets out six criteria described in the American Medical association (AMA) Guides which state that at least three of them must be met for a diagnosis of chronic pain:

a. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse or family;

c. Secondary physical deconditioning due to disuse and/ or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu including work, recreation, or other social contacts;

e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and,

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behavior.

13Dr. Jose did not discuss these criteria in any of his diagnoses including the applicant’s level of pain, its effect on the applicant’s function or whether the pain is bearable without treatment. His mentioning possible chronic pain syndrome does not prove that the applicant’s chronic pain is not merely a sequelae of the soft tissue injuries, and that it is the applicant’s predominant injury.

14The fact that the applicant continued to work and that none of the medical evidence discusses her not being able to function, supports the fact that the applicant’s injuries meet the definition of MIG.

15There is not sufficient evidence before me to show that any pre-existing injuries existed before the accident, or if they did, that those injuries were exacerbated by the accident that prevents the applicant from reaching maximum medical recovery under the $3,500.00 limit.

16The onus is on the applicant to prove her case, on the balance of probabilities which she has not done. The applicant has not met the criteria set out above.

MEDICAL BENEFITS

17I find that the medical benefits applied for are not necessary and reasonable based on the reasons set out below.

18Section 15 of the Schedule requires all medical benefits to be reasonable and necessary before they are required to be paid.

19Part 8 of the OCF-18s state that the applicant is unable to carry out her pre-accident activities and therefore the goals of the OCF-18s are to help the applicant’s return to her pre-accident work activities and activities of normal living.¹³

20The applicant was already working again and there is no medical evidence submitted to support that the applicant had any functional impairments.

21The IE report of Dr. E. Urovitz dated September 12, 2018 indicate that the applicant “was fully independent with respect to all self-care activities of daily living.”¹⁴ Dr. Urovitz also concluded that the applicant had full symmetrical mobility in both shoulder joints and that the applicant had achieved maximum medical recovery.

22I find that the requested medical benefits are not reasonable and necessary.

CONCLUSION

23For the reasons stated above, the applicant’s application is dismissed.

Footnotes

1. 1Tab 1 Applicant’s Brief of Documents-Clinical Notes of family doctor Dr. Jose.
2. 2Tab C Respondent’s Brief of Documents
3. 3Tab D- Respondent’s Brief of Documents
4. 4Tab N Applicant’s Brief of Documents- Report of Dr. E. Urovitz dated September 12, 2018
5. 5Tab F - Applicant’s Brief of Documents CNRS of Dr. Jose p45
6. 6Tab F- Applicant’s Brief of Documents CNRS of Dr. Jose p46
7. 7Tab K- Applicant’s Brief of Documents
8. 8Ibid P.67
9. 9Tab G - Applicant’s Brief of Documents CNRS of Dr. Vakilha
10. 10B.U. v. Aviva, 2015 CanLII 96167(Ont Lat) Tab 9.
11. 11LJ v. TD Insurance, 2018 CanLII 13142(ONT LAT) Tab 10.
12. 12YXY v. The Personal, 2017 CanLII 59515 (ONT LAT) Tab 11.
13. 13Tab S- Applicant’s Brief of Documents
14. 14Tab T- Applicant’s Brief of Documents IE Report of Dr. Urovitz