Released Date: 07/30/2020
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. A.
Applicant
and
Toronto Transit Commission
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Faranaz Siganporia, Counsel
For the Respondent:
Sarah Merredew, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant (“A.A.”) was involved in a motor vehicle accident on January 5, 2016 (“the accident”). A.A. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”). A.A. is disputing entitlement to benefits with his insurance company, the Toronto Transit Commission (the “TTC”). A.A.’s position is that he is entitled to $50,000 of medical coverage; the TTC’s position is that A.A. is entitled to $3,500. The outcome of this dispute turns on the nature and severity of A.A.’s injuries and impairments sustained as a result of his injuries.
2There is a section of the Schedule, s.18, that sets out three levels of insurance coverage, depending on the severity of the impairments sustained as a result of a motor vehicle accident. Predominantly minor injuries, such as sprains, strains and bruises are subject to a $3,500 limit. More serious injuries causing a greater functional impairment were, at the time of this accident, subject to a $50,000 limit. The highest category, for people who have been catastrophically impaired, is a $1 million limit on medical and rehabilitation benefits. Minor injury and catastrophic impairment are defined terms in the Schedule.
3In order for A.A. to be successful, he must prove, on a balance of probabilities, that his injuries are more severe than predominantly minor injuries. A.A. has failed to do so.
ISSUES
4The issues to be determined are as follows:
i. Did A.A. sustain predominantly minor injuries as defined under the Schedule?
5If A.A. did not sustain predominantly minor injuries, then I must determine the following:
i. Is the medical and rehabilitation benefit in the amount of $1,553.72 for physiotherapy treatment recommended by Allevio Pain Management in a treatment plan (OCF-18) submitted on, July 12, 2017 and denied on October 16, 2017, reasonable and necessary?
ii. Is the medical and rehabilitation benefit in the amount of $1,460.00 for physiotherapy treatment recommended by Toronto Health Care Rehab in a treatment plan (OCF-18) submitted on October 23, 2017 and denied on November 17, 2017, reasonable and necessary?
iii. Is the cost of examinations in the amount of $2,200.00 for a Physiatrist’s Assessment, recommended by Dr. Ali Ghouse in a treatment plan dated April 11, 2018, and denied on April 25, 2018, reasonable and necessary?
iv. Is A.A. entitled to interest on any overdue payment of benefits?
PRELIMINARY ISSUE - Section 38 compliance
The Parties’ Positions
6A.A. submits that each of the above disputed physiotherapy treatment plans should be approved because TTC failed to comply with s. 38(8) of the Schedule.
7Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. As per s. 38(11), if an insurer fails to comply with these requirements, it is prohibited from taking the position that the Minor Injury Guideline (‘MIG’) applies and must pay for any treatment expenses starting on the 11th business day after the insurer received the claim until such time that it gives proper notice.
8A.A. submits that the OCF-18 dated July 12, 2017 was first denied by the TTC on August 30, 2017, and the OCF-18 dated October 23, 2017 was first denied by the TTC on November 17, 2017, both denials being more than 10 business days after the respective OCF-18s were sent to the TTC, and therefore A.A. submits that sections 38(8) and (11) apply.
9The TTC disagrees with A.A. regarding the denials and the consequential applicability of s. 38(8). TTC posits that on August 23, 2017, A.A. submitted an OCF-18 dated July 12, 2017 from Allevio Clinic. The TTC responded to the July 12, 2017 OCF-18 by letter dated August 30, 2017. On November 11, 2017, A.A. submitted an OCF-18 dated October 23, 2017 from Toronto Healthcare Rehabilitation Centre. The TTC relies on its correspondence dated November 17, 2017 denying the October 23, 2017 OCF-18 and re-stating its position on the MIG.
10A.A. does not contend that the TTC denial letters failed to comply with s. 38 on any other basis. The TTC provided the medical and other reasons for its denial of the OCF-18s and noted its position that the MIG applies to A.A.’s injuries. I do not agree with A.A.’s claim that the TTC did not comply with the 10-day notice requirement pursuant to s. 38.
11I find that the denials were within the 10-day limitation period prescribed by the Schedule. For these reasons, I find that the TTC complied with s. 38(8), and the OCF-18s are not payable in accordance with s. 38(11) of the Schedule. In addition, the TTC can maintain its position that the MIG applies to A.A.’s injuries.
Definition of Minor Injury
12The overall obligation of the TTC under the Schedule is to pay for benefits to or on behalf of A.A. if he sustained an impairment as a result of an accident (see s.14 and s. 18(1)). With respect to medical benefits, the insurer must pay for all reasonable and necessary medical benefits, subject to the coverage limits set out in s. 18 (see s. 15).
13The limitation of coverage section, s 18(1) of the Schedule, caps the amount the TTC is required to pay for treatment of impairments arising out of predominantly minor injuries to $3,500. The term “minor injury,” which may be generally characterized as “soft tissue injuries,” is defined in the Schedule as follows:
“minor injury” means 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.
14There is a tension between the Schedule’s focus on impairment to trigger a right to benefits and s. 18(1) which limits benefits based on the nature of the injuries. Thus, a person who sustains a moderate whiplash injury who may require treatment to resolve any resulting impairments is limited to $3,500 of insurance coverage for that treatment, notwithstanding that the person may need treatment in excess of $3,500 to achieve maximum medical recovery. Section 18(1) does not apply only to soft tissue injuries. It applies to injuries that are “predominantly” minor. It contemplates a wider scope than the simple definition of minor injury in s. 3.
15The use of the word “predominantly” in s. 18, then, clearly identifies that A.A. may still be subject to the $3,500 coverage limit even if he sustained injuries leading to impairment that are not caught by the definition in s. 3. In my view, in looking at these injuries, it flows from the wording of s. 18(1) that the focus is on the manner in which the non-listed injury creates a loss of ability or function.
16My analysis of s. 18(1) then requires me to first ascertain if he did suffer injuries not included in the definition of minor injury and, if he did, do those injuries impair him to such an extent that it cannot be said that the minor injuries predominate.
ANALYSIS
A.A. Carries the Onus
17It is now ordinary law that A.A. carries the onus of establishing, on a balance of probabilities, that he is entitled to the benefits he seeks. Included in that onus is a requirement to establish that he should not be subject to the $3,500 limit in s. 18(1). It should be noted that s. 18(2) contains provisions that allow for treatment in excess of the $3,500 limit if A.A. suffered from a suitably documented pre-existing medical condition that would prevent him from achieving maximum medical recovery if he were subject to the $3,500 limit. The medical evidence before me shows that A.A. did not suffer from a pre-existing condition that would prevent him from achieving maximum medical recovery under the $3,500 limit.
18A.A.’s main point of argument that his injuries do not fall within the definition of minor injury is that he suffers from chronic pain. Based on the evidence, I do not find that A.A. should be removed from the $3,500 limit on the basis of chronic pain.
Does A.A. suffer from chronic pain?
19For the reasons that follow, I find that A.A. does not suffer from chronic pain.
20A.A. saw Dr. Ramji, family physician, on several occasions, post-accident, for various accident-related pain complaints. Based on A.A.’s cumulative subjective pain complaints and assessments by Dr. Ramji, Dr. Ramji diagnosed A.A. with sprain/strain of the neck, and back, acute whiplash injury, insomnia, leg dysesthesia, lower extremities paresthesia and weakness, degenerative disc disease with chronic pain, chronic back pain, chronic whiplash and possible tendinosis of the right shoulder. A.A. submits that as a result of neurological symptoms and findings, his injuries are “non-compatible with the MIG definition”.
21I do not find that A.A. suffers from chronic pain that would take him out of the MIG. I have come to these findings based on the medical evidence before me, including:
i. On behalf of A.A., Dr. Lesley Corrin, neurologist, completed a report dated November 11, 2017. In the report, A.A. complains of neck and back pain, legs going numb when sitting for prolonged periods of time and shooting pain into the legs when lying down. Despite these pain complaints, Dr. Corrin reports that testing reveals normal findings in the upper and lower extremities. Dr. Corrin found no evidence of peripheral nerve entrapment in the lower extremity and no evidence of a lumbosacral radiculopathy;
ii. In the independent assessment report of Physiatrist Dr. Ali Ghouse, dated April 18, 2018, Dr. Ghouse diagnoses A.A. with various accident-related impairments.2 On examination, Dr. Ghouse found A.A.’s musculoskeletal results to be relatively normal. From a neurological perspective, Dr. Ghouse also found A.A. presented with relatively normal results;
iii. On behalf of the TTC, Dr. Lexier, orthopaedic surgeon, assessed A.A.3 Upon testing, Dr. Lexier did note A.A.’s pain complaints; however, similar to the findings of Dr. Corrin and Dr. Ghouse, A.A.’s range of motion was found to be normal; and
iv. A.A. reported to his own independent assessors and the TTC assessor that he is able to participate in many of his pre-accident activities and conduct his activities of daily living independently. Although A.A. notes that he has some pain and difficulty with dressing his lower extremities, he is able to do so independently. In addition, there is no evidence that A.A.’s injuries impact his current position as a TTC station supervisor.
22I find that the evidence listed above support that A.A. does not suffer from chronic pain.
23The criteria for chronic pain established in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”) has also been used as a benchmark for determining chronic pain. A.A. did not dispute the applicability of the criteria set out in the AMA Guides. These criteria are cited in Adjudicator Ferguson’s decision of 17-007825 v Aviva at paragraph 6 as follows:
a. Use of prescription drugs beyond the recommended duration and/or abuse of 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 contracts;
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 behaviors.
24A.A. did not direct me to any persuasive evidence that supports or confirms that he suffers from chronic pain as a result of the accident. Further, A.A. failed to satisfy any of the criteria to establish that he suffers from chronic pain. The TTC submits that A.A.’s records do not demonstrate that he meets the criteria for chronic pain, for example:
i. A.A. has not directed me to any evidence of abuse of prescription medication or use beyond the recommended duration;
ii. There is no evidence that A.A has excessive reliance on healthcare providers, spouse or family. A.A. has reasonable sought treatment, which I do not find to be excessive, and as noted earlier, he is independent with his activities of daily living;
iii. Although A.A. has not returned to his role as a bus driver, he has returned to full-time work with the TTC as a station supervisor; and
iv. There is no objective medical evidence of any psychological impairment as a result of the accident.
25The TTC submits that this evidence supports that A.A. is not at a level of suffering and distress accompanied by functional impairment or disability indicative of chronic pain. I agree.
26A.A. has not pointed me to evidence that supports that he suffers from chronic pain as a result of the accident. A.A. has failed to meet his burden that he suffers from chronic pain or that his injuries or impairments satisfy any of the criteria for chronic pain in the AMA Guides. Consequently, I find on a balance of probabilities that A.A. does not suffer from chronic pain as a result of the accident. I find that A.A.’s pain complaints, do not meet the level of impact on his functionality that are indicative of chronic pain.
CONCLUSION
27Having weighed the medical evidence and A.A.’s subjective evidence, I find that A.A.’s injuries fall within the definition of minor injury in s. 3 of the Schedule and are subject to the $3,500 limit set out in s. 18(1).
28Since I have found that the limit in s. 18(1) applies, and the $3,500 limit has been exhausted, I do not need to address whether the individual treatment plans are reasonable and necessary.
29As there are no benefits outstanding, no interest is payable under the Schedule.
30A.A.’s application is dismissed.
Released: July 30, 2020
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10.
- Dr. Ghouse’s diagnoses include: musculoligamentous cervicodorsal strain, chronic myofascial pain, post-traumatic muscle tension and cervicogenic headaches, right should strain with biceps tendinitis, scapular dyskinesia and myofascial pain, lumbar strain underlying L5-S1 asymmetric disc bulging indenting the left S1root, and facet joint arthritis at L4-5 and L5-S1 levels, probable right greater trochanteric contusion, lumbosacral radiculopathy at likely S1, features of anxiety and posttraumatic stressors requiring formal psychological evaluation and chronic pain to the neck, right shoulder and back” – Applicant Document Brief – Exhibit 9 at pgs. 8-12.
- Applicant Document Brief – Exhibit 12: Orthopaedic Assessment Report of Dr. Lexier dated October 3, 2017