R. K. K. v. Cooperators General Insurance Co., 2020 CanLII 43702

Citation: R. K. K. vs. Cooperators General Insurance Co., 2020 ONLAT 19-002834/AABS

Released Date: 06/17/2020

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:

R. K. K.

Applicant

and

Cooperators General Insurance Co.

Respondent

AMENDED DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

R. K. K., Applicant

Kate MacLeod, Counsel

For the Respondent:

Emily Schatzker, Counsel

Neha Vinayak, Counsel

Court Reporter:

Bruce Porter

HEARD: In-Person:

February 24-27, 2020

OVERVIEW

1The applicant was injured in an automobile accident on January 9, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2010 (“Schedule”).

2The 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

3The issues in dispute are:

(i) Do the applicant’s injuries fall within the Minor Injury Guidelines (MIG)?

(ii) Is the applicant entitled to an income replacement benefit in the amount of $256.31 per week for the period from November 10, 2017 to date and ongoing?

(iii) Is the applicant entitled to a medical benefit in the amount of $23,581.00 submitted on August 8, 2019 and denied on August 23, 2019?

(iv) Is the applicant entitled to interest on any outstanding amounts?

BACKGROUND

4The applicant was involved in an accident on January 9, 2017. Another vehicle struck the front driver’s side of the car. An ambulance was not called and a friend drove her home. She reported whole body pain. The air bags did not deploy. The applicant attended physiotherapy for 6 months after the accident, but this did not help her.

5The applicant had been treated for depression pre-accident by her family doctor Dr. Masud.¹ The applicant also pre-accident complained of neck, shoulder and back pain.²

6At the time of the accident the applicant was working doing packaging of light cosmetics on an assembly line. She worked 8 hours shifts and was training for lead hand which job consisted of walking around the plant checking on other workers. She had been working at that job since 2016. The applicant was also studying to get her truck driving licence, as her goal is to become a truck driver. The applicant has her GZ licence. She took refresher courses in 2016 and 2018. Her employment records showed that she worked for four weeks after the accident.

7The applicant did receive IRB from January 25, 2017 until she was denied on November 2, 2017. The applicant did not receive medical benefits in the amount of $23,591.00 until August 8, 2019.beyond the MIG. She was denied further benefits on August 23, 2019.

8The applicant indicated in her evidence that she had tried to go back to work and could only complete three shifts, because of neck and back pain. The applicant gave evidence that she tried working for one day in 2019, but stopped because of the pain. She went onto Ontario Works from April 2018 to present. The applicant was referred to Choice Pain Clinic in December 2019/January 2020, but claims she couldn’t afford the prescriptions. She goes to the race track when she gets upset.

9The applicant denies any significant pre-accident medical conditions. She did have an accident on November 8, 2014 but gave evidence that she had full recovery from that accident.

10After the accident, the applicant saw her family doctor and was sent for x-rays of her neck and back. She was advised that she had muscle strain injuries and that there were no fractures. She was given a prescription of anti-inflammatory medication.

11The OCF-18 dated May 5, 2017, signed by Dr. O. Sohi and by the applicant indicated that the applicant had improved from her neck and back pain 60 %.³ The applicant in her cross examination disagreed with this notation.

12The applicant attended therapy at [the Wellness Centre] after the accident and was treated with massage therapy and TENS. She tried to work three days immediately after the accident and continued for two weeks. She did not work every day because of the pain that she was having.

13The applicant’s family doctor Dr. Masud at the applicant’s annual health examination on August 4, 2018 indicated that the applicant had no complaints.⁴ In his clinical noted dated August 18, 2018 he noted that she complained of neck pain but was getting better with time.⁵ Dr. Masud in his notes dated November 24, 2018, made no indication that the applicant was in pain.⁶ Dr. Masud in his notes dated January 30, 2019, that the applicant was complaining of low back pain and shoulder and feet pain. There was no note in the clinical records of Dr. Masud telling the applicant that she could not go back to work.

14On June 20, 2019, Dr. Masud noted that the applicant had no pain in her legs.⁷ Dr. Masud noted on July10, 2019 that the applicant had no restriction on regular activity, normal neck rotation, and normal muscle power in the upper limbs.⁸ The applicant at this time rated her neck pain as 4/10. Dr. Masud did not note that the applicant complained of any pain at the August 29, 2019 meeting. Dr. Masud noted in his clinical notes on September 14, 2019, that the applicant had no complaints.⁹ The applicant at the September 30, 2019 meeting with her family doctor made no complaints of neck and back pain¹⁰, and again on October 24, 2019 made no complaints of neck and back pain.¹¹

15Dr. Masud referred the applicant to a pain clinic in January 2019, and in June 2019 but the applicant failed to attend the clinic. Dr. Masud’s records do not show that the applicant is unable to work or has suffered any decline in function.

16Dr. A. Azadian, psychiatrist, in her report dated September 12, 2019 assessed the applicant with having major depressive disorder and somatic symptom disorder.¹² Her opinion was that the applicant suffered a complete inability to engage in employment for which she is otherwise suited.¹³

17A vocational assessment by Dara Taylor and Dr. A Polyzotis dated October 14, 2019, indicates that the applicant is being completely unable to perform any occupational or self employment for which she is suited but recommends three suitable occupations which she could do (laundromat, attendant, delivery and courier services driver, service station attendant and automotive service station attendants).¹⁴

18Dr. T. Getahun orthopaedic surgeon, in his report dated August 27, 2019, found that the applicant had chronic myofascial strain of the cervical spine, chronic myofascial strain of the lumbosacral spine and possible radicular symptomatology. His opinion was that the applicant suffered a complete inability to engage in employment for which she is otherwise suited.¹⁵

19Farhana Jessa occupational therapist in her report dated September 18, 2019, indicated that the applicant advised her that she could only stand for 4-5 minutes and drive only for 20 minutes before the pain set in.¹⁶

20Dr. J. M. Lang, physiatrist in his report dated October 19, 2017, noted that cervical range of motion and lumbar range of motion were self- limited. He found that the applicant had full active and passive range of motion in the shoulders and hips. The applicant had complained of whole -body pain. He found that there was no objective evidence of an existing musculoskeletal or neurological impairment.¹⁷ He found that she sustained a minor injury and did not suffer a substantial inability to perform the essential tasks of her previous employment.¹⁸ His addendum report dated January 22, 2020 adopted the same conclusions.¹⁹ Dr. Lang felt that the applicant did not have chronic pain syndrome because the applicant was able to do different activities which is not typical of chronic pain persons. He also indicated in his evidence that one can’t diagnose chronic pain without psychological testing.

21Dr. Lang’s addendum report also criticized Dr. Gatahun’s report on the basis that that report was based mostly on self -reporting by the applicant and that Dr. Getahun’s conclusion of chronic pain strain, was not based on a neurologic assessment.²⁰ Dr. Lang quaered how Dr. Getahun’s report found that the applicant had a limited range of motion, when on July 10, 2019, the applicant’s family doctor found that the applicant showed “normal neck ROM and no neck rigidity with mild local tenderness.”

22Dr. K. McCutcheon, psychologist, on an insurer’s examination came to the conclusion that the applicant’s accident related psychological issues fall within MIG. Dr. McCutcheon came to the conclusion that from a psychological perspective, the applicant does not suffer a substantial inability to perform the essential tasks of her employment.²¹ She acknowledged that the applicant had some pain, but without a psychological component. Her scores were also mild for depression and anxiety.

23In her examination in-chief, Dr. K. McCutcheon indicated that the applicant was still functioning doing housekeeping self- care tasks, driving and socializing with family and friends. She gave evidence that she saw no problems with the applicant’s functioning. Dr. McCutcheon didn’t diagnose the applicant with somatic pain because the applicant “would not be doing the things she was doing, if she had somatic pain.”

24Cynthia Kresak. certified vocational specialist in her IE report dated January 24, 2020, indicates that there are jobs that the applicant can do that do not require further formal education/training. These occupational jobs are set out in her report.²²

25Surveillance evidence of the applicant shows that on October 24, 2019, she left her residence and went to the bank, Rexall Pharmacy, and then to [the Race Track]. She left [the Race Track] at approximately 5:00 p.m. On December 12, 2019, the applicant was observed leaving her residence about 12:00p.m. attending [the Drugstore], [the plaza], Service Ontario, [the Gas station], [the restaurant] arriving at [the Race Track] at 3:00 p.m. and then leaving at approximately 7:00 p.m.²³

ANALYSIS

Do the applicant’s injuries fall within MIG?

26I find that the applicant’s injuries fall within the MIG for the reasons set out below.

27The term “minor injury” is defined in section 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.”

28Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for minor injuries. This limit does not apply if the insured person has a pre-existing medical condition documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery if the person is subject to the limit.

29Chronic pain can be a sequelae of soft tissue injuries.²⁴ Chronic pain to be removed from the MIG requires the applicant to prove that his or her chronic pain is not merely sequelae of the soft tissue injuries but that it is the applicant’s predominant injury.²⁵ A 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.²⁶

30The onus is on the applicant to establish that he or she is entitled to benefits beyond the MIG limits.²⁷

31The applicant has had Dr. Masud as her family doctor for 12 years. His clinical notes indicated that the applicant made complaints about her pain on four separate visits: August 18, 2018²⁸ (neck pain, no trauma getting better with time, patent not remember if she sprained her neck.); January 30, 2019²⁹ (low back shoulder feet pain, history of accidents); June 20, 2019³⁰ (Backache for 6 months no radiation to leg); July 10 2019³¹ neck pain now related to MVA getting worse 4/10, no restriction on regular activity.)

32Dr. Masud noted in his meetings with the applicant that the applicant had no restriction on regular activity, normal neck rotation and normal muscle power in the upper limbs.³²

33Dr. Masud treated the applicant for a long time and knew what her medical conditions were. He did not state that the applicant could not go back to work. Dr, J. M Lang also supported Dr. Masui’s position indicating that the applicant did not have chronic pain syndrome. Dr. McCutcheon gave evidence that there was no problem with the applicant’s functioning and that the applicant was doing self- care, driving and socializing with friends, and family. Dr. McCutcheon in her evidence also explained that it would be unusual for a patient with Somatic Symptom Disorder not to regularly report her pain and functional limitations to her doctor.³³

34The surveillance evidence also shows that the applicant had no issues with going to the racetrack, pharmacy, gas station etc.

35The totality of the evidence which includes, both medical, the applicant’s evidence, and the surveillance clearly show that the applicant had no issues with her functioning in her normal daily tasks.

Is the applicant entitled to an income replacement benefit (IRB) in the amount of $256.31 per week for the period from November 10, 2017 to date and ongoing?

36I find that the applicant is not entitled to any IRB for the reasons set out below.

37Section 5 of the Schedule sets out the requirements for an income replacement benefit (IRB). The insurer shall pay an IRB to an insured person, if the insured person because of the accident, was employed at the time of the accident and as a result of and within 104 weeks after the accident suffers a substantial inability to perform the essential tasks of that employment.

38After the first 104 week of disability, the insurer is not required to pay an IRB, unless as a result of the accident the insured person is suffering a complete inability to engage in any employment or self- employment for which he or she is reasonably suited by education, training, or experience.

39The applicant applied for Ontario Works (OW) on May 5, 2018 and indicated that she had no restrictions on active participation.³⁴ The applicant signed another form dated October 19, 2018 for OW and indicated that she had no deferral or restriction.³⁵

40Both Dr. McCutcheon and Cynthia Kresak indicate in their reports that the applicant can work, and that the applicant does not suffer a substantial inability to perform the essential tasks of her employment.

41Dr. Getahun is an orthopaedic surgeon specializing in lower extremity reconstruction. He is not a practicing chronic pain physician like Dr. Lang. I accept the evidence of Dr. Lang over Dr. Getahun as the applicant had no lower extremity issues. Dr. Getahun did not address in his reports the applicant’s range of motion on casual observation, did not specify the applicant’s medications, or perform a neurological examination and did not arrange an MRI.³⁶ He admitted that he relied on the applicant’s self-report about her complaints, to establish duration of the pain she claimed she was enduring.³⁷ This evidence was contradicted by the applicant’s own reporting to Dr. Sohi. Dr. Getahun also acknowledged that it was possible that the applicant was exaggerating her reports of dysfunction.³⁸

42I therefore give very little weight to the evidence of Dr. Getahun.

43I accept the evidence of Dr. McCutcheon over the evidence of Dr. Azadian. Most of the evidence that Dr. Azadian relied on was the applicant’s self- reporting. His report refers to a closed head injury,³⁹ that the applicant required a personal support worker,⁴⁰ and that the applicant lost 40 lbs.⁴¹ None of this information was reflected in any of the other evidence including the applicant’s own testimony. Dr. Azadian admitted that it was possible that the applicant had exaggerated her level of depressive symptoms to him.⁴² Dr. Azadian admitted that the applicant had not mentioned to him her attendance at the casino.⁴³ Dr. Azadian admitted that his reference to the applicant being unemployable due to her “poor response to treatment” was based on the erroneous understanding that the applicant had pursued psychological counselling and multiple courses of physiotherapy.⁴⁴

44I therefore give little weight to the evidence of Dr. Azadian.

45Ms. Jessica, on cross examination acknowledged that Dr. Masud’s file did not list the injuries and functional limitations that the applicant had described to her during the applicant’s assessment.⁴⁵ Ms. Jessa indicated that she relied on the applicant’s self- reports of her best capabilities.⁴⁶

46I therefore give very little weight to Ms. Jessica’s evidence on the ability of the applicant to return to work. I accept the evidence of Dr. Lang that the applicant did not suffer a substantial inability to perform the essential tasks of her previous employment.

Is the applicant entitled to a medical benefit in the amount of $23,581.00 submitted on August 8, 2019 and denied on August 23, 2019?

47I find that the applicant is not entitled to a medical benefit in the amount of $23,581.00 for the reasons set out below.

48Section 15 of the Schedule requires all medical benefits to be reasonable and necessary before they have to be paid by the insurer.

49I have found that the applicant’s injuries are confined to the MIG and therefore the proposed assessments claimed are not payable.

50The applicant has also failed to demonstrate that she suffered a substantial inability to return to work. The funding of the section 25 assessments to assess her “complete inability” is not reasonable and necessary.

INTEREST

51I find that no interest is owing, as no benefits are owing.

CONCLUSION

52For the reasons set out above, the applicant’s application is dismissed.

Footnotes

1. 1Medical records of Dr. Masud dated October 12, 2012 Joint Brief of Documents Part 1 tab 9- P149, 154
2. 2Dr. A. Masud ibid P 152
3. 3Joint document Brief Tab12-p229
4. 4Joint document Brief Tab 9-p99
5. 5Ibid p101
6. 6Ibid p103
7. 7Ibid p107
8. 8Ibid p108
9. 9Ibid p110
10. 10Ibid p 111
11. 11Ibid p.112
12. 12Joint document Brief Tab16, p334
13. 13Ibid p362
14. 14Joint document brief tab 16-p373
15. 15Ibid p351
16. 16Ibid 383-384
17. 17Joint Document Brief Tab 16-p471
18. 18Ibid Tab 16-p 473-4
19. 19Ibid tab 19. P463
20. 20Ibid tab 16-p483
21. 21Report of Dr. K. McCutcheon dated January 28, 2020 Tab 21 P537 Joint Document Brief
22. 22Independent Vocational Evaluation & Transferable Skills Analysis Report dated January 24, 2020 Tab 20 Joint Brief of Documents
23. 23Surveillance video and Investigation Report by Delta Investigations dated January 6, 2020 Supplementary Brief of the Respondent, Tabs 3&4
24. 24B.U. v. Aviva 2015 CanLII 96167(Ont Lat) Tab 9
25. 25Applicant v. TD Insurance 2018 CanLII 13142(ONT LAT) Tab 10
26. 26YXY v. The Personal 2017 CanLII 59515 (ONT LAT) Tab 11
27. 27Scarlett v Belair Insurance 2015 ONSC 3635 (CAN LII)
28. 28Exhibit 1(a) p101 Tab 9.
29. 29Exhibit 1(a) p104 Tab 9
30. 30Exhibit 1(a) P107 Tab 9
31. 31Exhibit 1(a) P108 Tab 9
32. 32Exhibit 1(a) p108
33. 33Transcript February 27 P92-94
34. 34Exhibit 2 p56 Tab 3
35. 35Exhibit 2. P.66
36. 36Transcript of Hearing-February 25 p83-84.
37. 37Ibid p85
38. 38Transcripts February 25, p89
39. 39Exhibit 1(b) P359
40. 40Exhibit 1(b) p356
41. 41Exhibit 1(b) p357
42. 42Transcript February 25, p199
43. 43Ibid p102
44. 44Transcripts February 25 p207
45. 45Transcripts February 28 p39
46. 46Transcripts February 28 p68