Released Date: 08/12/2020

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:

C.L.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Jennifer Mitchell

For the Respondent:

Shawn Macdonald

HEARD:

Via written submissions

OVERVIEW

1C.L. was injured in an accident on March 12, 2015, and sought various benefits from the respondent, The Guarantee, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). C.L. received treatment up to the $3,500 limit of the Minor Injury Guideline (the “MIG”). Her OCF-18 for physiotherapy treatment and various devices was denied by The Guarantee when it determined that her accident-related impairments were predominantly minor injuries subject to the MIG. C.L. disagreed, arguing that she has chronic pain and pre-existing impairments that justify removal from the MIG, and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the MIG?

ii. Is the applicant entitled to receive medical benefits in the amount of $7,873.20 for physiotherapy services recommended by CBI Physiotherapy and Rehabilitation Centre in a treatment plan submitted, November 7, 2016, and denied by the respondent on December 22, 2016?

result

3I find C.L.’s chronic pain justifies removal from the MIG under s. 18(2) of the Schedule. The OCF-18 in dispute is partially reasonable and necessary in the amount of $3,608.06.

ANALYSIS

Applicability of the MIG

4Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes and clinically associated sequelae to such an injury.” Under s. 18(1), medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500.00 under the MIG. Section 18(2) further states that the $3,500.00 limit does not apply to an insured person if their health practitioner determines and provides compelling medical evidence that the insured person has a pre-existing condition, documented by a health practitioner before the accident, that will prevent maximal medical recovery if they are subject to the MIG. The Tribunal has also determined that an insured may escape the MIG on the basis of a psychological impairment or evidence of chronic pain that would prevent maximal medical recovery under the MIG. In all cases, C.L. bears the onus of proving entitlement to treatment beyond the MIG.

5Here, C.L. submits that her pre-existing chronic pain and shoulder injuries, as well as her chronic pain that was exacerbated by the accident, warrant removal from, and treatment beyond, the $3,500 MIG limit. She relies on various clinical notes and records both pre and post-accident documenting her struggles with ongoing pain and with shoulder tears (and subsequent shoulder surgery) that continue to affect her activities of daily living and work life. Since the accident, she has been regularly attending for physiotherapy, receives pain injections, is taking various pain medications and her treating physicians have opined that her pre-existing chronic pain was exacerbated by the accident and will prevent her recovery.

6In response, The Guarantee submits that because C.L. suffered from chronic pain prior to the accident, that her current chronic pain is not a predominant part of her accident-related impairments. It points to various OCF-18s from C.L.’s own practitioners, including the one in dispute here, that indicate her accident-related impairments are predominantly minor injuries and do not reference a pre-existing impairment. Further, The Guarantee argues that C.L. only sustained a partial tear to her shoulder, not a full tear, and that surgery for her shoulder was recommended prior to the accident. These facts, it argues, formed the basis for Dr. Williams’ determination in his s. 44 report that C.L. sustained minor injuries as a result of the accident that are within the MIG. Finally, The Guarantee submits that C.L. has not provided compelling evidence that her pre-existing condition prevents maximal medical recovery if she is kept within the MIG, as required by s. 18(2).

7On review of the medical documents, I find C.L. has met her burden to prove, on a balance of probabilities, that her pre-existing condition was documented by a health practitioner, exacerbated by the accident, continues to cause her pain and likely prevents maximal recovery if she is kept within the MIG. Indeed, on the evidence, it appears that C.L.’s pain and shoulder issues pre-date the accident by several years and, despite these issues, she had some function. Post-accident, the clinical notes and records reveal an increase in her pain that prevented her from working and reduced her function. The notes of her family physician, Dr. Spence, consistently and contemporaneously diagnose chronic pain, even up to 2019 when C.L. underwent shoulder surgery. Dr. Spence’s October 2016 note states that the accident aggravated her pre-existing conditions and opined that C.L. would be “left with some residual disability.” In a 2019 note, Dr. Spence states that C.L. would require more treatment due to her pre-existing conditions. In a report dated May 15, 2016, C.L.’s physiatrist, Dr. Lacerte, determined that C.L.’s pre-existing chronic pain was compounded by the accident. In a later note, Dr. Lacerte ties C.L.’s shoulder tear directly to the accident. The OCF-18 in dispute here notes at Part 7 that C.L. has a lengthy history of shoulder pain and hypertension that could affect her response to treatment and further states that her activities of daily living are affected. Suffice to say, I disagree with The Guarantee’s submission that C.L. has not provided compelling evidence from a medical practitioner that her pre-existing condition will prevent maximal recovery.

8Further, I agree with C.L. that the presence of her pre-existing chronic pain does not mean that she cannot suffer from chronic pain that was exacerbated by, or the predominant result of, the accident, as alleged by The Guarantee. Indeed, I find it is clear from the medical records that C.L. was able to function with her pre-existing pain and that her ability to function was reduced post-accident and made tolerable with treatment. That C.L. declined shoulder surgery pre-accident suggests that the pain and her function were tolerable; the fact that she underwent shoulder surgery post-accident suggests a significantly decline in her function and an intolerable increase in her pain. I do not follow The Guarantee’s argument that C.L.’s chronic pain is not a “predominant part” of her accident-related impairment; the evidence suggests her chronic pain is overwhelmingly the predominant part and it is confirmed by several practitioners. I find Dr. William’s opinions that C.L. was within the MIG because her shoulder was only a partial tear to be somewhat stubborn, as it ignores a rather voluminous body of evidence confirming that she was suffering from chronic pain pre-accident and that her pain was clearly exacerbated by the accident and affecting her function post-accident.

9Accordingly, I find C.L.’s pre-existing chronic pain and shoulder issues were documented prior to the accident and exacerbated by same. I find she has provided compelling evidence from medical practitioners that her recovery is prevented by her chronic pain if she is kept within the confines of the MIG to satisfy s. 18(2). On the evidence, I find it reasonable to remove her from the MIG to continue to investigate her chronic pain, her lingering impairments and functional deficits and so that she may continue to receive reasonable and necessary treatment.

Is the treatment plan reasonable and necessary?

10The OCF-18 in dispute proposes treatment for physiotherapy and kinesiology and an occupational therapy assessment in addition to a cervical heat pad, a lumbar heat pad and an exercise ball, plus documentation costs. The total amount of the OCF-18 is significant, as it proposes $7,873.20 in treatment and devices. Notably, C.L. clarified in submissions that she has incurred all of the physiotherapy sessions identified in the plan through OHIP, so she is not seeking reimbursement for those 32 sessions totalling $3,192.00. This brings the total claim in the OCF-18 down to $4,681.20. C.L. submits that the treatment plan is reasonable and necessary because her practitioners have consistently recommended that she undergo various forms of treatment and modalities which the OCF-18 captures, because pain reduction is a legitimate goal for treatment and because the aspects of the plan will help improve her function.

11In response, The Guarantee did not provide a medical opinion to rebut whether the OCF-18 is reasonable and necessary and did not address the costs associated with same. Rather, it submits that the OCF-18 is not reasonable and necessary as a result of the accident “because its stated goals of pain reduction, increase in strength and a return to activities of daily living are all goals that, due to the fact [C.L.] was already suffering from chronic pain before the subject accident occurred, existed prior to the subject accident.” Additionally, it submits that C.L. acknowledges she already incurred the treatment proposed in the OCF-18, with that treatment being funded by OHIP, and the assistive devices proposed are devices that she already required before the subject accident due to her pre-existing chronic pain.

12I agree with C.L., but only partially. It is well-settled that pain relief and a return to function are legitimate goals for treatment and I find that these are the primary goals of this multi-modality plan. C.L.’s chronic pain and its affect on her function are the consistent complaints in the medical file. Accordingly, I find the remaining treatment and assessment items identified in the OCF-18 to address these issues—being the kinesiology treatment sessions and the occupational therapy functional assessment—to be reasonable and necessary items to address her chronic pain and, hopefully, increase her function moving forward. In turn, $150 for the completion of the OCF-18 is reasonable and therefore payable.

13However, on closer review of the OCF-18, I question the reasonableness and necessity of some of the other items that C.L.’s submissions and the OCF-18 itself did not speak directly to. I query why $360.00 is needed for “program coordination” or why $92.00 is a reasonable cost for a “discharge report” from physiotherapy where C.L. already incurred the proposed treatment and it was funded by OHIP. In a similar vein, it is unclear and unexplained why $232.76 for a “functional evaluation” by a kinesiologist is necessary where C.L. has already received 32 sessions of treatment from the same clinic and the occupational therapist is already doing a functional assessment. Further, C.L. did not provide submissions to justify why both cervical ($134.40) and lumbar ($154.00) heating pads are necessary or why it is reasonable for The Guarantee to fund both. Her submissions do not explain the need for an exercise ball ($55.28) and it appears that none of these devices have been incurred. The Treatment Plan Request form in evidence does not provide particulars to justify how these specific expenses or devices will aid in C.L.’s recovery for her specific impairments. In my view, these items seem somewhat gratuitous and the benefit to C.L. is unclear for the costs proposed.

14Accordingly, I find the OCF-18 is partially reasonable and necessary in the amount of $3,608.06, plus any applicable HST, representing the $1,595.00 for occupational therapy, $150.00 for completion of the OCF-18 and $1,862.08 for kinesiology treatment. The treatment is reasonable and necessary and payable once incurred. I find C.L. has not satisfied her burden to prove that the remaining items are reasonable and necessary, and they are therefore not payable.

CONCLUSION

15C.L.’s chronic pain justifies removal from the MIG under s. 18(2). The OCF-18 in dispute is partially reasonable and necessary in the amount of $3,608.06.

Released: August 12, 2020

__________________________

Jesse A. Boyce

Adjudicator