Citation: N.J. vs TD General Insurance Company, 2020 ONLAT 19-002444/AABS

Released Date: 07/22/2020

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:

N.J

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Michael A. Yermus, Counsel

Norma Barron, Counsel

For the Respondent:

Alexandra Wilkins, Counsel

HEARD:

In Writing

OVERVIEW

1The applicant was involved in an automobile accident on August 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant applied for medical benefits that were denied by the respondent because her injuries were predominantly minor and therefore subject to the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the tribunal for resolution of the dispute.

ISSUES

2The issues in dispute to be decided in this hearing are:

a. Did the applicant sustain predominantly minor injuries as defined in the Schedule?

b. If the applicant did not sustain predominantly minor injuries:

i. Is the applicant entitled to a medical benefit in the amount of $2,265.00 for physiotherapy recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan (OCF-18) submitted on March 14, 2017 and denied on April 5, 2017?

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

d. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payment of the benefits?

RESULT

3The applicant has not demonstrated that her impairments warrant treatment beyond the MIG. Therefore, the applicant is not entitled to the treatment plan, and no interest or award is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

4I find the medical evidence indicates that the applicant suffered predominately minor physical injuries as a result of the accident. The 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. The applicant must establish entitlement to coverage beyond the limit on a balance of probabilities.

5The applicant submits that her injuries do no fall within the MIG for two reasons:

a. She has been diagnosed with chronic pain syndrome; and,

b. She has pre-existing medical conditions.

6For reasons outlined below, I am not satisfied that the evidence supports a finding that her injuries fall outside of the MIG.

a. Chronic Pain Syndrome

7The applicant submits that she suffers from chronic pain as a result of the accident. She relies on the report of Dr. Razvi, dated August 27, 2019, which diagnoses chronic pain syndrome secondary to the motor vehicle accident.

8A chronic pain diagnosis by itself does not remove the applicant from the MIG.¹ Removal from the MIG requires the applicant to prove that their chronic pain is not merely sequelae of soft tissue injuries, but rather that it is the applicant’s predominant injury. Adjudicator Neilson provided an analysis regarding the interaction between chronic pain and the MIG.² Ongoing pain alone does not take one out of the MIG, it must be accompanied by some functional impairment. For chronic pain to be more than sequelae from soft tissue injuries, there must be: (1) continuous, or chronic pain syndrome; and (2) it must be of a severity that it 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. Unless the applicant provides evidence that the pain she experiences contains these elements, the pain is sequelae of a MIG injury.

9I find that the applicant has not met her burden to show that the chronic pain is more than sequelae to her soft tissue injuries. The only mention of chronic pain in the evidence before me is Dr. Razvi’s report. The applicant complained of headaches and pain in her neck, upper back, thumbs, and right knee. Dr. Ravi noted findings of tenderness during his examination, and all ranges of motion were normal. Dr. Razvi diagnosed the applicant with chronic pain syndrome as a result of the accident, and recommended a referral to a chronic pain management centre and further treatment. While he noted that the applicant had limitations with her activities, Dr. Razvi provided no detail as to what those limitations were. He noted that she worked as a dental hygienist and taught at a college. She missed a few days of work after the accident, but is now back to regular hours. Dr. Razvi’s report doesn’t establish that the applicant had continuous pain, or what functional impairments she experiences as a result.

10The treatment plan in dispute lists sprain and sprain injuries to the applicant’s neck, back, shoulder and knee. It also lists post-concussional syndrome, however this form was completed by a chiropractor. That diagnosis is outside of his specialty, and no other medical professional has made that diagnosis.

11The other evidence before me does not establish that the applicant has had continuous pain. She attended for physical treatment at [a Medical Centre] from September 2016 to May 2017. She began attending treatment in April 2019 at a different facility, however the notes indicate that her main complaint was pain in her legs and feet.

12A review of the clinical notes and records of the family physician, Dr. Ash, do not support that she has been experiencing continuous pain. The applicant first saw her family physician after the accident on September 8, 2014. She reported the accident, and that she had pain and felt shook up, her head and ear hurt, and her ear was ringing.

13Dr. Ash completed a note for the applicant on September 29, 2016 for a scuba diving trip. Dr. Ash noted that she had a slight injury to her right shoulder, and needed assisting lifting gear, but she was cleared for scuba diving. A note from the applicant’s treating chiropractor on October 18, 2016 indicates that she went on the scuba trip, and she was stable throughout the trip with some difficulty with her right upper extremity. Other than the initial two visits, although the applicant has seen her family doctor fairly frequently since the accident, there are no other entries about accident related pain. Dr. Ash’s records do indicate that the applicant injured herself twice while on vacation out of the country. Two post-accident emergency room visits do not mention the subject accident or any pre-existing pain, noting that she was healthy overall.

14The applicant submitted that she has been prescribed several medications post-accident, including Oxycodone, Naproxen, and Hydromorphone. However, the prescription summary indicates that these were one-time prescriptions, and the complaints for which they were prescribed were not due to the accident. The medications were prescribed by the ER physicians for unrelated visits. The foregoing does not support that the applicant has had continuous accident-related pain.

15The evidence does not suggest that the applicant has been experiencing significant functional impairments since the accident. As noted by Dr. Razvi, she returned to work a few days after the accident. The applicant reported to the insurer’s assessors, Dr. Kleiner and Dr. Levy in May 2017 that she was independent with her personal care, and housekeeping, albeit at a slower pace. She had not resumed going to the gym, but that was due to a membership issue. The records also indicate that the applicant has travelled extensively, going on a scuba driving trip a month after the accident and again in 2018. She has been on vacations to the Dominican Republic in 2017 and 2019, and a note from the family doctor in May 2017 indicates she had just returned form Dallas, Miami and a cruise. The applicant reported to Dr. Levy in 2017 that she had 70% improvement in her condition.

16Following the submission of additional medical documents, Dr. Kleiner and Dr. Levy saw the applicant again for in-person assessments, with reports dated September 27, 2019. To Dr. Kleiner, the applicant complained of right hip pain radiating down her leg and headaches. She reported that her prior arm numbness and dexterity issues had mostly resolved. The applicant reported that she was working, was independent with personal care and housekeeping, and that she enjoyed exercising and dancing the cha-cha and salsa, although she had difficulty with some movements due to hip pain. Dr. Kleiner concluded that the applicant had a completely normal neurological examination.

17To Dr. Levy, she reported intermittent neck pain, intermittent low back pain, intermittent TMJ pain, intermittent headaches, intermittent paraesthesia in her right thumb, and difficulty sleeping. She reported that her condition had now improved by 80%. Dr. Levy diagnosed WAD I, thoracic spine sprain, lumbar spine sprain, right deQuervain’s tenosynovitis, cervicogenic headaches, and TMJ syndrome.

18For chronic pain to be more than sequelae from soft tissue injuries, it must be: (1) continuous, or chronic pain syndrome; and (2) it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. The evidence does not establish that the applicant suffered functional impairments as a result of her pain. She returned to work, travelled extensively, went scuba diving, resumed exercising and dancing. She is independent with her personal care and housekeeping, and reported significant improvement in her condition overall. There are no accident-related complaints in the family doctor’s records since September 2016, and limited evidence of any functional impairments as a result of her injuries. I find that the applicant had not met her burden to prove that the chronic pain is more than sequelae to her MIG injuries.

b. Pre-existing medical conditions

19Section 18(2) of the Schedule states that the $3,500 limit does not apply if the person’s health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident, and that will prevent the insured person from achieving maximal recovery from the minor injury if they are subject to the $3,500 limit.

20The applicant submits that she suffered from pre-accident medical conditions that place her injuries outside the MIG, including migraines, mood swings, vertigo, chronic headaches, a disc bulge at C4-5, depression and neck pain, binge eating disorder, panic attacks, possible borderline personality disorder, anxiety and depression.

21However, the applicant has not established how these prior conditions would prevent her recovery if she is subject to the MIG. The treatment plan in dispute does not indicate that there were any prior conditions that would impact her recovery under the MIG. She has not provided any evidence that a health practitioner has determined that she would not achieve maximal recovery as a result of a pre-existing condition. Without that evidence, the exclusion in section 18(2) does not apply.

CONCLUSION

22The applicant sustained predominantly minor injuries, subject to the $3,500 monetary cap set out in the Schedule. Therefore, the applicant is not entitled to the treatment plan in dispute and no interest or award is payable.

Footnotes

1. 117-000640/AABS v TD Insurance, 2018 CanLII 13142 (ON LAT).
2. 216-000438/AABS v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)