Released Date: 07/09/2020
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:
G.B.C.
Applicant
and
The Co-Operators Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Maurice Benzaquen
For the Respondent:
Julianne Brimfield
HEARD:
Via written submissions
OVERVIEW
1G.B.C. was injured in an accident on August 29, 2017, and sought various benefits from the respondent, the Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Co-Operators denied the cost of examinations in dispute here on the basis that G.B.C. sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (the “MIG”) and that the assessments were not reasonable and necessary as a result. G.B.C. disagreed and submitted an application to the Tribunal for resolution of the dispute. Although not captured by the Case Conference Order, the applicability of the MIG is still a live issue.
ISSUES IN DISPUTE
2Accordingly, the following issues are in dispute:
i. Did the applicant sustain predominantly minor injuries as a result of the accident that are treatable within the MIG?
ii. Is the applicant entitled to the cost of examination for $2,200.00 for a psychological assessment recommended by Psychological Assessment submitted July 17, 2018 and denied August 2, 2018?
iii. Is the applicant entitled to the cost of examination $2,014.40 for an attendant care assessment recommended by Humber River Medical Diagnostics submitted February 1, 2018 and denied February 12, 2018?
iv. Is the applicant entitled to the cost of examination for $2,200.00 for a physiatry assessment recommended by Dr. Joseph Wong submitted May 3, 2019 and denied May 9, 2019?
v. Is the applicant entitled to the cost of examination for $2,690.00 for a neurological assessment recommended by Dr. Yahmad submitted May 1, 2019 and denied May 9, 2019?
vi. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10, Ontario Regulation 664?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
result
3I find G.B.C. has not met his onus to prove that his accident-related impairments warrant treatment beyond the MIG. Even though the MIG limits have not been exhausted, I further find that G.B.C. has not met his onus to prove that the four cost of examinations he seeks are reasonable and necessary. As no benefits are overdue, it follows that interest and an award are not payable.
ANALYSIS
Applicability of the MIG
4The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500, although an applicant may escape the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find G.B.C. has not satisfied his burden to prove that his accident-related impairments warrant treatment beyond the MIG.
5While his submissions do not speak directly to the MIG, G.B.C. seems to argue that his chronic pain and psychological impairments warrant removal from the MIG and therefore make the costs of the examinations he seeks reasonable and necessary. To that end, G.B.C. relies on a Disability Certificate (OCF-3) dated September 6, 2017 identifying his impairments as tension-type headache, sprain and strain of joints and ligaments of other and unspecified parts of neck, cervicalgia, sprain and strain of shoulder joint (left), contusion of shoulder and upper arm (left), injury of muscle and tendon at shoulder and upper arm level (left), sprain and strain of thoracic spine, pain in thoracic spine, sprain and strain of lumbar spine, low back pain, suspected lumbar and other intervertebral disc disorders with radiculopathy, state of emotional shock and stress, unspecified, phobic anxiety disorders and insomnia. In addition to the four OCF-18s themselves, G.B.C. cites the physiatry report of Dr. Wong finding chronic pain and a psychological pre-screen by Dr. Staroversky, contained within an OCF-18 from April 2020, that was not identified as being in dispute for this matter.
6On review of the medical documentation before the Tribunal, I find there is limited evidence that G.B.C. sustained physical injuries as a result of the accident that warrant treatment beyond the MIG. Indeed, the physical impairments listed in the initial OCF-3 fall squarely within the definition of minor injury under the Schedule, as they are largely sprain and strain-type injuries. On review of the OCF-18s that follow the OCF-3, these impairments are largely reproduced. Further, despite G.B.C.’s contention in reply that there is “voluminous medical evidence” of pre-existing conditions that justify removal from the MIG, I find the evidence supporting this claim—four notations of headaches in 2017 in Dr. Wong’s report that were apparently taken from G.B.C.’s family physician records, which are not themselves in evidence—falls well-short of the compelling medical evidence standard required for removal under s. 18(2). Further, the MRI and CT scans were both normal and none of the notations indicate that these pre-existing headaches or dizziness complaints would prevent maximal medical recovery under the MIG, which is the test G.B.C. must meet.
7In any event, the focus of G.B.C.’s claim for removal from the MIG seems to be on his pain and psychological impairments. An applicant may escape the MIG where there is evidence of functional impairment caused by consistently severe or debilitating pain as a result of the accident. For his chronic pain, G.B.C. relies on Dr. Wong’s physiatry report that diagnosed him with chronic pain in December 2019. Dr. Wong cites “abnormal findings” but does not articulate what was abnormal about the physical examination where range of motion was normal and where muscle strength was 5/5 in upper and lower extremities. The report notes that G.B.C.’s upper and lower back were stiff and tender on palpation, but it is unclear why this would be considered abnormal. While the report lists all of the same physical impairments from the OCF-3, it opines that G.B.C. suffers from chronic pain because he has not healed despite the normal time for healing. The report concludes with the opinion that G.B.C.’s pain may have neurological and psychological components and that he is one of the 10-15% of “unfortunate patients” whose soft-tissue injuries never completely heal.
8With respect, I find that pain is not chronic pain justifying removal from the MIG if it only occurs 3-4 times per week at a moderate severity, as the report indicates. G.B.C. self-assessed his neck pain as 5/10, sometimes 7/10, and the report does not indicate what he self-assessed his back pain as, despite it being tender. On this self-reporting, the pain cannot be classified as chronic or severe but rather as moderate and intermittent. To be frank, where Dr. Wong’s report was completed over two years post-accident in December 2019, where G.B.C. was able to return to work in March 2018, where he stopped attending for physical treatments entirely in July 2018, where there is no evidence that he continues taking pain medication (other than Advil) or was prescribed same, where his OHIP summary reveals a single post-accident doctor visit in September 2017, where the s. 44 reports found no impairments and where he has not submitted any evidence of continuous or corroborating visits to his family physician to document his pain complaints and functional limitations from same, I find Dr. Wong’s conclusion that G.B.C. is one of the rare individuals whose soft-tissue injuries never heal to be tenuous and unsupported by the medical evidence.
9Even if I were to accept this opinion, G.B.C. has still not demonstrated that his pain causes functional impairment, as he self-reports to Dr. Wong being able to work, that he is able to complete his personal care activities, is able to perform household chores that do not require heavy lifting (despite being employed as a building superintendent when the assessment was performed), continues to drive and, aside from not going to the park with his daughter, his social and familial relationships remain unchanged. I also do not accept that G.B.C. was forced to “quit his dream job as an electrician apprentice” due to his pain from the accident and his employer not wanting to force an injury. Putting aside the fact that this is speculative and no evidence to support this was put before the Tribunal, G.B.C. also reports on several occasions that when he attempted to return to work the job was complete and that he has since attempted to look for other electrician jobs but has been unsuccessful. I find it difficult to reconcile how G.B.C.’s pain prevented him from working in his chosen field with the fact that he reports attempting to continue to find work in that same field.
10Turning to Co-Operators’ medical evidence, I prefer the s. 44 physiatry report of Dr. Ko as it was completed in January 2018, almost one full year prior to Dr. Wong’s report, while G.B.C. was still attending for physical treatment and just before he returned to work. Given the dearth of clinical notes in the file, in my view, this contemporaneous report, while sparse, provides a more accurate and reliable snapshot into G.B.C.’s post-accident injuries. After an examination, Dr. Ko diagnosed G.B.C. with sprain and strain-type injuries as a result of the accident and found no evidence of any organic pathology or impairment and concluded that G.B.C.’s injuries were minor and that no further treatment was required. Dr. Ko also determined that G.B.C. could return to work, which formed the basis for Co-Operators’ termination of his income replacement benefit. Indeed, following this report, G.B.C. returned to work and stopped attending for physical treatment a few months later. He has not disputed the income replacement benefit stoppage and has not submitted any OCF-18s for treatment in this dispute.
11Accordingly, on Dr. Ko’s opinion, the lack of contemporaneous medical evidence supporting his complaints, the fact that G.B.C. has not demonstrated functional impairment or debilitating pain and that he ceased physical treatment for his pain less than one year after the accident and that he still has funds remaining in the MIG, I am not prepared to accept that his pain warrants removal from the MIG at this time. However, G.B.C. also asserts that his psychological impairments as a result of the accident justify removal from the MIG.
12In support of this assertion, G.B.C. seemingly relies on a pre-screen report of Dr. Staroversky, which was not produced in evidence but rather formatted into an OCF-18 dated April 6, 2020. The OCF-18 lists G.B.C.’s impairments as Adjustment Disorders and Specific Phobias in Part 6 and despite being authored over two and a half years post-accident, is able to definitively trace G.B.C.’s psychological diagnosis to the accident based on his self-reporting with no testing. Problematically, this OCF-18 was not identified as being in dispute for this matter, it does not appear that Co-Operators has even had a chance to respond to its submission and G.B.C. has not explained why he has submitted duplicative psychological assessments or why he was referred for same.
13In any event, I find G.B.C.’s submissions still fall well-short of meeting his evidentiary burden to prove that his psychological impairments prevent maximal medical recovery under the MIG. The first OCF-18 proposing a psychological assessment that is properly in dispute was not supported by any psychological diagnosis or by a referral, but merely lists nightmares and anxiety in Part 6. Despite the existence of the first OCF-18 that offered no psychological diagnosis, G.B.C. then seemingly procured a second opinion two years later. While I accept that psychological and emotional conditions may decline, G.B.C. has not produced any evidence—a medical opinion, a clinical note or referral, treatment records, an OHIP record, an affidavit, etc.—evidencing a visit for psychological or emotional symptoms in the two years between these two OCF-18’s or, really, at any point post-accident to support further investigation.
14Indeed, Co-Operators’ s. 44 assessor Dr. Dancyger is the only psychologist to have assessed G.B.C. post-accident and, despite noting some anxiety, driving tension and spousal discord, found that G.B.C. did not have any psychological condition warranting a diagnosis or removal from the MIG in his September 2018 report. Against these facts, and with no other contemporaneous evidence that is not contained within an OCF-18, I also find that G.B.C. has not demonstrated how his psychological impairments prevent maximal medical recovery under the MIG or how they are affecting his daily activities or work function so far removed from the accident, which is his burden to prove. Much like his pain complaints, I find G.B.C.’s submissions were undermined by a sheer lack of corroborating or contemporaneous evidence and the Tribunal would have benefitted from more information to support his claims. For these reasons, I find G.B.C. has not met his onus to demonstrate that his psychological impairments warrant removal from the MIG and see no reason to interfere with Co-Operators’ determination.
Are the costs of examination reasonable and necessary?
15On the evidence, G.B.C has not yet exhausted the funding made available to him by Co-Operators under the MIG. Despite this, I find that he has not satisfied his onus to prove that the costs of the examinations he seeks are reasonable and necessary under s. 15 of the Schedule or, with the exception of the physiatry report, that they were incurred.
16Indeed, while G.B.C.’s submissions outline the findings in each of the four OCF-18’s he submitted, he does not actually provide any analysis to explain to the Tribunal why each assessment is reasonable and necessary for his specific impairment. When it is G.B.C.’s burden to prove that the costs of each assessment are reasonable and necessary, it is not sufficient to merely list the findings of each OCF-18 without a discussion as to why the assessment itself is necessary or why the cost for same is reasonable, and especially so when MIG funding has yet to be exhausted and there is a complete dearth of corroborating or contemporaneous medical evidence supporting the assessments.
17On this basis, and for completion, I follow all of the Co-Operators’ arguments on these issues because G.B.C. has not met his onus. First, as noted above, there was no evidence available to confirm that G.B.C. ever reported any psychological complaints to his family physician or any other OHIP-funded medical professional post-accident to justify the psychological assessment (let alone a second one two years later). Second, given that G.B.C. was and remains within the MIG, the proposed in-home attendant care assessment is not payable under s. 25(2) and especially so where G.B.C. reported being independent with his activities of daily living and continues to work full-time. Third, other than self-reports of a history of headaches to Dr. Wong, there is limited evidence to support why a neurological assessment 21 months post-accident is reasonable and necessary. None of these assessments were incurred by G.B.C. and despite his urging that the Tribunal deem the expenses incurred under s. 3(8), addressed below, I find no reason to find that they are payable due to Co-Operators unreasonably withholding or delaying payment and preventing G.B.C from incurring them.
18Last, G.B.C. did incur the cost of the physiatry assessment and report of Dr. Wong, submitted 21 months post-accident. For the reasons outlined above, I afforded this report limited weight due to the lack of corroborating medical evidence to support Dr. Wong’s conclusions, the fact that G.B.C. has not demonstrated functional impairments, continues to work full-time, stopped attending for physical treatment and provided no evidence of ongoing or continuous complaints to his family physician. In any event, other than securing a diagnosis of chronic pain, G.B.C.’s submissions do not speak to why this assessment was reasonable and necessary.
19Accordingly, I find G.B.C. is not entitled to payment for any of the costs of examinations in dispute as he has not demonstrated that they are reasonable and necessary or incurred under s. 3(8). As no benefits are overdue, it follows that no interest applies under s. 51 of the Schedule.
Award under s. 10
20G.B.C. also claims the maximum award under s. 10 of O. Reg. 664 due to Co-Operators unreasonable withholding and delaying the payment of his benefits and several “smoking gun” allegations that it adjusted the file in bad faith. Under s. 10, the Tribunal may award a lump sum of up to 50% of the benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonably withheld or delayed payment.
21A third of G.B.C.’s submissions were dedicated to the s. 10 award. He submits that Co-Operators acted in bad faith as follows: by not notating why it preferred its own reports over G.B.C.’s medical providers’ opinions; by ignoring the clinical notes and records of the family physician Dr. Ibrahim and the Departure Diagnosis from the Hospital; by failing to follow up with Dr. Dancyger as to why he ignored G.B.C.’s reports of stress-induced panic attacks, driving tension and interspousal discord; by incorrectly noting the Physiatry and Psychological examinations revealed no impairment; by failing to conduct a Neurological assessment or pay for G.B.C.’s reasonable and necessary Neurological assessment to address same; by acknowledging G.B.C. never returned to his pre-accident dream job as an electrician post-accident but deeming his injuries to be minor; and, by knowingly obtaining confidential information from G.B.C.’s union without his consent.
22In response, Co-Operators submits that it has not acted unreasonably in adjusting this file, that it made its adjusting decisions based on the medical information available, that G.B.C. produced limited medical information to meet his onus to prove his injuries are not minor and that it arranged medical assessments based on the available information that ultimately found minor injuries. Further, Co-Operators asserts that the allegations of an invasion of privacy “not only ignore that [G.B.C.] signed the OCF-1 and OCF-2, which allow an insurer to obtain information when investigating his claim, but these allegations have nothing to do with whether or not the insurer unreasonably withheld or delayed payment of the assessments in dispute.”
23On the evidence, I find an award is not appropriate. Ultimately, given the dearth of objective medical evidence offered by G.B.C. to support his claims, I find the efforts expended on the s. 10 award would have been better allocated to his substantive claims. On review of the adjuster’s log notes, I do not find that this is a situation where Co-Operators “closed its eyes to the voluminous medical evidence” before it. Indeed, on the contrary, the medical evidence cannot be described as voluminous and I find the log notes to be rather detailed, timely and consistent in approach. I do not find evidence of a “smoking gun” as alleged.
24The bigger issue here is that the Tribunal’s power under s. 10 is discretionary and tethered to the actual benefits and interest in dispute to which an insured is entitled. Having found that no benefits are payable and that G.B.C. remains in the MIG, it follows that the Tribunal cannot award up to 50% of zero. For these same reasons, I decline to award costs under Rule 19, as requested by G.B.C., as I find no evidence that Co-Operators acted unreasonably, frivolously, vexatiously, or in bad faith in this proceeding.
CONCLUSION
25G.B.C. remains in the MIG and is not entitled to payment for any of the costs of examinations in dispute, as he has not demonstrated that they are reasonable and necessary. Interest, a s. 10 award and costs are not applicable.
Released: July 9, 2020
__________________________
Jesse A. Boyce
Adjudicator