S.A. v. Intact Insurance Company, 2020 CanLII 57372

S.A. v. Intact Insurance Company, 2020 CanLII 57372

Citation: S.A. v. Intact Insurance Company, 2020 ONLAT 19-000107/AABS

Released Date: 07/08/2020

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:

S.A

Applicant

and

Intact Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Peter T. Trueman, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on July 29, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a front seat passenger with her husband when their parked vehicle was struck from behind. As a result of the impact, the applicant sustained injuries to her neck and back.²

3The applicant applied for medical benefits that were denied by the respondent as it determined that her injuries were subject to the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the s. 3 of the Schedule and which are subject to treatment within the $3,500 limit of the MIG?

If the answer to issue (i) is no, then:

ii. Is the applicant entitled to a medical benefit for physiotherapy in the amount of $1,314.25 recommended by Toronto Healthcare Clinic in a treatment plan (OCF-18) submitted on October 31, 2017 and denied on November 7, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,465.10 for physiotherapy treatment, recommended by Toronto Healthcare Clinic in a treatment plan submitted on February 27, 2018 and denied by the respondent on March 17, 2018?

iv. Is the applicant entitled to receive the cost of an examination in the amount of $2,000.00 for a psychological assessment recommended by Toronto Healthcare Clinic in a treatment plan submitted on January 25,2018 and denied by the respondent on June 28, 2018?

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

vi. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find:

i. The applicant sustained predominately minor injuries as defined in the Schedule and, thus, she is subject to treatment within the monetary limits of the MIG;

ii. The treatment plans and the cost examination are not reasonable and necessary; and

iii. As there are no outstanding benefits, the applicant is not entitled to interest or an award.

ANALYSIS

Preliminary Issue

6The applicant, in her reply submissions, submits that the respondent’s submissions were not in compliance with the Tribunal Order dated May 7, 2019 as they were single-spaced as opposed to being double-spaced. The applicant submits this is unfair and contrary to the principles of natural justice and undermined the applicant’s right to a fair hearing.

7The respondent’s paragraph submissions were not double-spaced as required and, as a result, its submissions were more than likely slightly over the 10-page limit if they would have been double-spaced.

8A breach of a Tribunal Order is not to be taken lightly. However, in this situation, I do not find there to be a breach of natural justice or that the applicant’s right to a fair hearing was in any way compromised.

9The applicant had the opportunity to address the respondent’s submissions through her reply submissions and, indeed, did so. The applicant could have brought a motion under the Tribunal Rules³ after she was served with the respondent’s submissions if she felt she required additional pages or additional time to respond to the respondent’s submissions or, alternatively, to seek the Tribunal’s appropriate direction. She did not.

10In my view, there was no breach of natural justice or an undermining of the applicant’s right to a fair hearing as she had the opportunity to respond to the respondent’s submissions and exercised her right to do so with the filing of her reply submissions.

Applicability of the Minor Injury Guideline

11The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

12The applicant bears the onus of establishing, on a balance of probabilities, her entitlement to coverage beyond the $3,500 cap for minor injuries.⁴

13The applicant submits that her injuries do not fall within the MIG as a result of pre-existing back pain and, following the accident, post-traumatic psychological disorder and chronic pain.

14I will first discuss whether the applicant has chronic pain or a psychological injury sufficient enough to remove her from the MIG. I will then discuss whether she has a pre-existing injury which may remove her from the MIG.

Does the applicant have a chronic pain condition?

15I find that the applicant has not persuaded me on a balance of probabilities that she suffers from chronic pain in order to be removed from the MIG for the following reasons.

16The sole evidentiary basis for the applicant’s claim here is a Disability Certificate (“OCF-3”) completed by Dr. Minella, Chiropractor, which notes the following injuries:⁵

• Chronic cervical spine strain and sprain;

• Chronic thoracic spine strain and sprain;

• Post traumatic headaches;

• Chronic pain; and

• Signs and symptoms involving an emotional state.

17The applicant further submits and relies upon Executive Chair, Linda Lamoureux’s reconsideration decision in T.S. v. Aviva Insurance Company,⁶ in which she found that chronic pain is not captured by the minor injury framework or the term “clinically associated sequelae.” Furthermore, she argues that chronic pain is distinct from minor complications arising out of injuries sustained as it can be defined as ongoing and lasting pain that typically extends beyond the scope of an acute illness, or more than three to six months.⁷

18The respondent relies upon the Tribunal’s decision in YXY v. The Personal Insurance Company,⁸ in support of its position that the requirements for chronic pain to move an individual out of the MIG are that the chronic pain must be more than sequelae from soft tissue injuries, that it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed), and must be of a severity that causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion 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 mere sequelae.⁹

19It is respondent’s position that the applicant has not provided a medical report from a qualified health practitioner explaining how the applicant’s pain is sufficiently severe, how the applicant is functionally impaired, or how the accident was the material cause of her chronic pain condition. The respondent further submits that the only mention of chronic pain is in the diagnosis portion of the applicant’s OCF-3, which was submitted more than six months after the accident. Thus, the respondent argues that the applicant has failed to establish that any alleged chronic pain she suffers is not “mere sequelae” that would not be covered by the MIG.

20The reconsideration decision in T.S. was decided after YXY and, in my view, is more persuasive. However, in the present case, the only evidence the applicant submits is the OCF-3 from the applicant’s chiropractor diagnosing chronic pain. I have not been pointed to any other evidence in support from any of the applicant’s treating practitioners. I have not been directed to evidence from a medical practitioner who has noted any chronic pain over a period of time. In my view, a single notation of chronic pain in an OCF-3 is, on its own, insufficient. There must be a clinical analysis of the pain becoming chronic in a way that outlines the severity of the pain and what functional impairments or limitations it causes that are related to the accident. Moreover, while it would be permissible for a chiropractor to treat chronic pain, a diagnosis of chronic pain is beyond a chiropractor’s scope of practice.

21As a result of the above, I find that the applicant has not persuaded me that she suffers from chronic pain that would be sufficient to remove her from the MIG.

22In the applicant’s submissions, she also refers to psychological impairments discussed in a psychological assessment by Dr. Shaul. I will therefore turn to discuss whether the applicant has a psychological impairment sufficient to remove her from the MIG.

Does the applicant have a psychological impairment to remove her from the MIG?

23For the following reasons, I find that the applicant does not have such a psychological impairment.

24The applicant submits Dr. Shaul diagnosed her with Specific Phobia (travelling in and around a vehicle) and adjustment disorder.¹⁰

25The respondent submits that the clinical notes and records do not note any psychological problems mentioned before or after the accident. Furthermore, an insurer’s examination (“IE”) was conducted by Dr. Biswas, Psychologist, following which Dr. Biswas noted some emotional challenges, but found these of a sub-clinical level.

26Upon review of Dr. Shaul’s report, his clinical analysis does not correspond to his conclusion. During the clinical testing stage, the applicant did not endorse any depression or anxiety symptoms on the Beck Depression Inventory-II (BDI-II). She endorsed minimal anxiety on the Beck Anxiety Inventory (BAI) and endorsed “a little bit distressing” on the Symptom Chekclist-90-Revised (SCL-90-R) tests as opposed to extremely, quite a bit or moderately distressing.

27Despite the test results, Dr. Shaul relied upon the applicant’s self-reports to conclude she presents with symptoms of depression and anxiety. Dr. Shaul does not provide any analysis on why he ignores his own testing in favour of the applicant’s self-reports. He also does not comment on whether or not he conducted any validity tests. As a result, I place little weight on Dr. Shaul’s report.

28The applicant further relies upon the OCF-3 from her chiropractor, mentioned above, who noted psychological impairments. However, I do not place any weight on the evidence of psychological impairments as noted by a chiropractor as, again, it is beyond the scope of practice of a chiropractor to opine on psychological impairments.

29As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that she suffers from psychological impairments to be removed from the MIG.

30I will now discuss whether the applicant has a pre-existing injury in accordance with the Schedule and whether that is sufficient to remove her from the MIG.

Requirements to be removed from the MIG

31Even if the applicant’s injuries fall within the definition of minor injury, she can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. She must meet all three of the following requirements in order to be removed from the MIG under this section:

a) have a pre-existing medical condition;

b) the pre-existing medical condition was documented by a health practitioner before the accident; and

c) the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

32For the following reasons, I find that the applicant has not satisfied her onus and has not provided any submissions or evidence of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

33The applicant submits that her family physician noted back pain in advance of the subject accident beginning on July 15, 2015 and sacral pain in the spinal region on October 21, 2016.¹¹ Furthermore, the applicant submits that Dr. Kachooie diagnosed her with a sacroiliac joint disorder,¹² and opined that her pre-existing spinal injury was exacerbated as a result of the accident.

34However, upon review of Dr. Kachooie’s report dated January 23, 2018, there is no mention of the applicant’s pre-existing conditions and whether they were exacerbated as a result of the accident.

35The applicant also relies upon the psychological report of Dr. Shaul, who noted in his report dated October 30, 2018 that her psychological condition prevents her from performing her activities of daily living and from achieving maximal recovery with the MIG.¹³ However, these psychological impairments were not pre-existing conditions. In my view, Dr. Shaul’s opinion that the applicant’s psychological impairment will prevent maximal recovery within the MIG does not support the applicant’s position to be taken out of the MIG due to a pre-existing condition.

36Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has presented. However, the last part of s.18(2) is where I find the applicant fails. There is no compelling evidence from any medical practitioner that her pre-existing condition will prevent her from achieving maximal recovery from the minor injury if she is limited to the $3,500 monetary limit. Dr. Shaul’s opinion is that her psychological condition will prevent her from performing her activities of daily living and prevent her from achieving maximal recovery. However, her psychological condition Dr. Shaul opines on was not a pre-existing condition that would satisfy the test from s. 18(2). Furthermore, Dr. Kachooie’s report is dated after the date of the accident and therefore it also fails to satisfy the requirements of s. 18(2).

37As a result, I find that the applicant has not persuaded me on a balance of probabilities that she has a pre-existing injury in accordance with s. 18(2) to be removed from the MIG.

38Despite finding that the applicant’s injuries fall within the definition of the MIG and as the parties have not provided submissions or evidence that the MIG limit has been exhausted, I will turn to discuss whether the treatment plans and the psychological assessment is reasonable and necessary.

Are the physiotherapy treatment plans in the amount of $1,314.25 and $1,465.10 reasonable and necessary?

39I find that the physiotherapy treatment plans are not reasonable and necessary for the following reasons.

40The applicant submits that the treatment plan corresponds directly to the exacerbated spinal injury and the accident-related sequelae noted in the medical records. As result, the physiotherapy treatment is reasonable and necessary to help the applicant mitigate and manage her chronic impairments.

41The respondent submits that the applicant has failed to provide any objective evidence that shows any lasting loss of range of motion, loss of strength or the inability to participate in any pre-accident activity as a result of the accident.

42A review of the applicant’s medical evidence shows that the applicant had lower back pain as a result of the accident from her family doctor and the referral to Dr. Kachooie who diagnosed the applicant with whiplash and sacroiliac joint disorder with respect to her physical injuries. However, what I have not been directed to is any recommendation for physiotherapy or any type of physical treatment. Her family doctor does not appear to make any recommendations for treatment and Dr. Kachooie also does not make any recommendation for physical treatment other than to discuss an interventional pain management and soft-tissue proiotherapy injections.

43Other than the treatment plans themselves, I have not been directed to evidence in support of treatment. A treatment plan is not compelling evidence on its own in support of treatment.

44As a result, I find that the physiotherapy treatment plans are not reasonable and necessary.

Psychological assessment

45I find that a psychological assessment is not reasonable and necessary for the following reasons.

46The applicant submits and relies upon psychological report of Dr. Shaul and the notations of anxiety and emotional sleep disturbances from Dr. Minella, Chiropractor, in the treatment plans requesting physiotherapy.

47The respondent relies upon the IE assessment of Dr. Biswa, who opined that the applicant is not presenting with any significant symptoms of anxiety, depression or traffic related fear as a result of the accident. He goes to opine that her anxiety appears to be at a subclinical level and does not appear to cause any significant distress or interfere with her daily life. As a result, he does not find the applicant in need of any physiological treatment.

48As discussed above, I do not place much weight on the report of Dr. Shaul as his clinical testing does not correspond to his opinion. The testing results revealed minimal if any anxiety or depression issues which would correspond to the clinical testing and the conclusion of Dr. Biswa.

49Furthermore, I do not place any weight on the anxiety and emotional issues assessed by Dr. Minella as he is a chiropractor and it would be beyond the scope of practice of a chiropractor to opine on phycological impairments of the applicant.

50There are also no other notations or recommendations of any psychological impairments that would warrant an assessment or treatment from the applicant’s family doctor’s clinical notes and records.

51As a result, I find that the applicant has not persuaded me on a balance of probabilities that a psychological assessment is reasonable and necessary.

ORDER

52As a result of the above and on a balance or probabilities, I find that:

i. The applicant sustained predominately minor injuries as defined in the Schedule and, thus, she is subject to treatment within the monetary limits of the MIG;

ii. The treatment plans and the cost examination are not reasonable and necessary; and

iii. As there are no outstanding benefits, the applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant’s Document Brief at Tab 3.
3. 3Common Rules of Practice and Procedure (the “Rules”)
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
5. 5Applicant’s Document Brief at Tab 5, OCF-3 dated March 3, 2018.
6. 62018 CanLII 83520 (“T.S.”)
7. 7Ibid at para. 19.
8. 82017 CanLII 59515 (ON LAT) (“YXY”)
9. 9Ibid at paras. 27-28.
10. 10Applicant’s Document Brief at Tab 4. Dr. Shaul’s Report dated October 30, 2018.
11. 11Applicant’s Book of Documents at Tab 2, pgs. 3-10.
12. 12Ibid at Tab 3, pg. 2.
13. 13Applicant’s Book of Documents at Tab 5, pg. 12.