Released Date: 09/10/2020
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:
M. A.
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
M. A., Applicant
Steven Sieger, Counsel
For the Respondent:
Co-operators General Insurance Company
Emily Schatzker, Counsel
Heard by way of written submissions:
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in an automobile accident (“the accident”) on December 5, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when her claims for benefits were denied by the respondent.
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (MIG). The applicant disagrees.
3If the applicant’s position is correct, then I must address the issue of whether the medical benefits claimed are reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary.
ISSUES
5Did the applicant sustain predominantly minor injuries as defined by the Schedule?
6If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to a medical benefit in the amount of $2,221.72 for chiropractic services denied on August 16, 2017?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant sustained predominantly minor injuries as defined under the Schedule. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plan.
ANALYSIS
8In order to determine if the applicant’s injuries fall outside the MIG, I considered whether or not there was any evidence that the applicant: (a) had a pre-existing medical condition that would prevent her from achieving maximum medical recovery within the MIG; and (b) if she sustained any physical injuries that fall outside the definition of a “minor injury” under s. 3(1) of the Schedule.”
The Minor Injury Guideline
9Section 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 any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.
10Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
11The onus is on the applicant to show that her injuries fall outside of the MIG.3
Did the applicant have a pre-existing condition?
12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit on treatment costs under the MIG.4
13The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. It must be documented by a health practitioner before the accident and must be shown to prevent maximal recovery within the cap imposed by the MIG.
14In denying the applicant, the respondent argues that the applicant has not provided compelling evidence that she has a pre-existing medical condition which prevents her from achieving maximal recovery within the MIG. Furthermore, it is the respondent’s position that the applicant’s submissions alone, without an opinion by a medical practitioner confirming the same, are not enough to take her outside of the MIG.
15The applicant’s submissions state that she suffers from the following pre-existing injuries: upper and lower back pain, headaches, pre-existing deaf patient with history of slip and fall, and an MRI which revealed migraines. The applicant has argued that the clinical notes and records (“CNRs”) from her family physician, Dr. Chuen, show that her pre-existing conditions were exacerbated as a result of the accident. The applicant asserts that her pre-existing conditions conform to the criteria set out in section 18 of the Schedule. After reviewing the evidence, I am not persuaded by this argument and find that the applicant did not have a pre-existing condition that prevented maximal recovery.
16The CNRs from Dr. Chuen from March 13, 2012 to July 19, 2013 document headaches and back pain. On March 13, 2012, the applicant reported that she had a headache for two weeks. On May 21, 2013, there is a note that mentions tension headaches. On July 19, 2013, she met with Dr. Chuen because she had fallen down the stairs the day before and was experiencing a mild headache and some pain along the l-spine, L 3rd MCP and sacrum.
17On January 10, 2017, there is a tel-progress note from Dr. Chuen’s office that states “pt was in accident, to get physicals.” On January 23, 2017, the applicant met with Dr. Chuen and reported that she was involved in an accident. Dr. Chuen noted that it had been more than one month, but the applicant was still having pain in the lower back. However, the applicant reported that she was not experiencing any neck pain, headaches or pain radiating down her legs.
18There were subsequent visits at the clinic on April 3, 2017, May 8, 2017, August 21, 2017, November 15, 2017 and November 16, 2017. There is no mention of the accident and any related impairments during these visits. The CNRs for these appointments do not mention headaches, neck pain and/or back pain.
19It is not until the following year on February 20, 2018 that the applicant reported that she was experiencing back and sternal discomfort for one week. She was unable to recall the specific injury, but the doctor noted that her job requires some lifting. The doctor concluded that it was likely costochondritis and muscle strain.
20A few weeks later on March 6, 2018, the applicant reported that she was suffering from neck pain and headaches for one to two years. Dr. Chuen noted that the applicant was unclear whether this started before or after the accident in December 2016 and queried “frequent headaches and muscle tension, ?post MVA.” She referred the applicant to see a physiatrist for an assessment.
21With respect to the back pain, the evidentiary record does not support that this pre-existing condition prevented maximal recovery. Apart from her January 2017 visit, she did not report back pain at the subsequent visits in 2017. Furthermore, the pain that she reported experiencing in February 2018 had been occurring for one week. I am not convinced that the back pain that she reported in February 2018 was related to the accident. Furthermore, Dr. Chuen does not make such a finding.
22The applicant was also receiving treatment from Dr. Blainey, chiropractor, for back pain, left knee and left shoulder prior to the accident and for a few months thereafter. At the behest of her counsel, she started attending a different facility for treatment from 2017 to 2019. The applicant has failed to provide the CNRs from this facility, which may have been helpful in filling in the gaps.
23As for the headaches and neck pain, I find that there is a discrepancy in the applicant’s reporting from my review of the evidence. When the applicant first met with Dr. Chuen after the accident, she reported that she did not have any headaches or neck pain. Following this appointment, there were no such complaints at her other appointments throughout 2017. However, in March 2018, she reported that she was experiencing neck pain and headaches for almost one to two years. This is not consistent with what has been documented by her doctor. If the applicant was experiencing these symptoms, why were they not raised during the other appointments? If this was an ongoing issue, I would have expected the applicant to have reported this to her doctor.
24Moreover, there is approximately a three-year gap between her visits at the clinic and as such, there is a lack of evidence to corroborate the timeline that the applicant has provided with respect to her headaches and neck pain. Prior to the January 23, 2017 appointment, the applicant last attended the clinic on February 10, 2014. If the applicant was experiencing these symptoms, it begs the question why is there a significant gap in her visits to the clinic? In my view, the evidence does not substantiate that the applicant has been suffering from neck pain and headaches for one to two years.
25In support of her case, the applicant relies on an x-ray of the lumbar spine dated March 6, 2017 that concluded that the applicant has mild scoliosis of the lumbar spine, convex to the right. The disc spaces in the lumbar spine were found to be well preserved. No compression fractures or other abnormalities were seen. The applicant has not advanced any evidence to suggest that the scoliosis may have prevented maximal recovery from her injuries. Moreover, this was not documented prior to the accident. As such, I am assigning less weight to this report.
26The applicant has made reference to the pre-existing condition of migraines and is relying on an MRI from St. Joseph’s Hospital dated January 19, 2019. The applicant underwent an MRI for her headaches. The MRI found:
There are mild to moderate amount of punctate T2 FLAIR hyperintense foci in the supratentorial white matter, primarily in the deep white matter and subcortical locations. The appearance are nonspecific and may be due to migraine or early presentation of chronic small vessel ischemia if there are risk factors. The morphology of the lesions does not support demyelination. No other intracranial abnormalities. Clinical correlation is advised.
27This report does not suggest that the applicant has the pre-existing condition of migraines. Although there is some level of pathology, it is not conclusive. Moreover, this report was completed after the date of the subject accident. As such, I am assigning less weight to this report.
28The applicant has argued that she is deaf, and that this is a pre-existing condition. From my review of the evidence, the applicant suffers from congenital deafness. The applicant has not made any submissions regarding how her pre-existing congenital deafness would prevent her from achieving maximal recovery under the MIG limits. There is a comment from Dr. Sajjad Iqbal, chiropractor, in the OCF-18 dated July 17, 2017. In Part 9 of the OCF-18, there is a section that addresses barriers to recovery. He states “pre-existing medical history of complete hearing impairment. This may affect patient’s ability to fully engage in her therapy within the MIG timeframe.”
29Dr. Iqbal does not provide any further explanation. Moreover, it is unclear to me how her congenital deafness would prevent her from achieving maximal recovery under the MIG limits. The evidence before me does not address this. Although I acknowledge that the applicant might have experienced challenges due to her congenital deafness, I am not persuaded that this particular condition removes her from the MIG.
30In denying the applicant, the respondent relies on two insurer examination reports from Dr. Kopyto. The applicant attended an insurer examination on September 12, 2017. She reported experiencing intermittent pain involving her neck, upper and lower back. She told Dr. Kopyto that her back pain is worse than before the accident. She reported a gradual improvement in her overall condition in terms of less pain. The examination did not reveal any abnormalities. There was no tenderness. The range of motion was normal. Dr. Kopyto did not identify any impairments and concluded that he had not been provided with compelling evidence that she suffers from a pre-existing medical condition that would prevent her from achieving maximal recovery if subjected to the $3,500.00 limit in the MIG.
31On March 1, 2018, Dr. Kopyto completed a paper review. He was provided with additional information that he was not in possession of at the time of the insurer examination in 2017. He concluded the following:
Based on the clinical notes and records provided by Justine Blainey Wellness Centre, and the claimant’s own reporting to this assessor, it would appear the subject MVA temporarily exacerbated her pre-existing neck, upper back and lower back pains. As noted above, her medical primary care records provided reported that she had no further neck pain as of January 2017. I am not able to evaluate the precise extent to which the subject MVA exacerbated her pre-existing conditions based on a file review alone; however, in my opinion, the claimant’s pre-existing conditions would not necessarily impair her ability to recover to her pre-accident status.
32In response to this, the applicant has stated the following:
[M.A.] further submits that Dr. Kopyto ignored the medical evidence and opinion of Dr. Chuen as well as the pre-existing injuries and accidents [M.A.] reported to Dr. Kopyto in the initial assessment. Dr. Chuen’s clinical notes and records confirm the pre-existing injuries and accidents that [M.A.] reported to Kopyto who acknowledged an exacerbation. The records indicate that she had pre-existing neck and lower back pain as well as a history of headaches. These pre-existing medical concerns conform to s. 18 of the SABS, and accordingly qualify [M.A.] to receive treatments beyond the MIG.
33I am not persuaded by this argument. Dr. Kopyto reviewed the additional information that he received and addressed it in his second report. He concluded that “the claimant’s pre-accident medical conditions would not of themselves necessarily prevent her from achieving maximal recovery from the minor injury if subject to the $3,500 limit or limited to the goods and services authorized under the Minor Injury Guideline.” The applicant has not put forth any evidence that supports that he ignored Dr. Chuen’s evidence and what the applicant told him at the initial assessment.
34Furthermore, Dr. Chuen did not conclude that the applicant’s pre-existing conditions were exacerbated by the accident. She did not provide an opinion about this. There is nothing that suggests this from my review of the CNRs, nor has the applicant pointed me to this. It appears that Dr. Chuen was further investigating what was causing her symptoms. As such, I find that the applicant’s argument regarding Dr. Kopyto’s conclusions is without merit.
35I also note that the applicant submitted that she advised Dr. Kopyto of a history of depression during the insurer examination on September 12, 2017. However, no further submissions were made with respect on that point or how her history of depression is at all related to her accident related injuries. In fact, there is nothing in the CNRs that shows any history of depression and ongoing psychological complaints.
36Upon reviewing the evidence, I acknowledge that the applicant had some pre-existing conditions. However, the presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce compelling evidence to demonstrate that the pre-existing condition prevents her from achieving maximal medical recovery if subjected to the MIG limits. The applicant did not point me to any evidence that demonstrates this.
37The applicant has not met her onus in providing compelling medical evidence of a pre-existing medical condition that was documented by a health practitioner, prior to her accident, which would prevent her from achieving maximal recovery if subjected to the $3,500 MIG limit. As a result, I find the applicant’s pre-existing conditions do not remove her from the MIG.
Did the applicant sustain predominantly minor physical injuries?
38Section 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 any clinically associated sequelae to such an injury.” Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. The applicant argues that her injuries are not predominantly minor injuries. In my opinion, the applicant has failed to persuade me that she sustained any injuries that were more than soft tissue in nature for the following reasons.
39The applicant is relying on a report by Dr. Feliou, physiatrist. Dr. Chuen referred the applicant to Dr. Feliou for her neck pain. Dr. Feliou met with the applicant on November 5, 2018. He diagnosed her with WAD 2/neck strain and strain of bilateral traps. She was advised to continue with her stretching and range of motion exercises. Dr. Feliou recommended a conservative treatment plan that included heating and icing, over-the-counter medication and Voltaren gel for her pain. He also discussed the possibility of trying trigger-point injections if the treatment did not work.
40On December 10, 2018, the applicant met with Dr. Feliou for a follow up appointment. She reported that she was doing better with the Voltaren gel and ice for her neck pain. It was determined that the applicant did not require the trigger-point injections. Dr. Feliou did not schedule a follow up appointment. Dr. Feliou’s diagnosis of WAD 2/neck strain and strain of bilateral traps falls within the definition of a minor injury under Section 3(1) of the Schedule.
41The respondent relies on Dr. Kopyto’s assessments. Dr. Kopyto did not identify any accident-related impairments at the time of his assessment. He concluded that based on the available documentation and assessment findings, the applicant suffered from predominantly minor injuries. In the paper review, he found that the applicant’s neck and back strains would be considered as predominantly minor injuries. I find that both Dr. Feliou’s and Dr. Kopyto’s findings support that the applicant suffered predominantly minor injuries as a result of the accident.
42In addition to the injuries listed above, based on the evidence and submissions, it appears that the applicant has continued to experience pain years after the accident. However, I am not persuaded that her ongoing pain stems from the injuries sustained in the accident. There is a significant causation issue in this case. In any event, the applicant has not demonstrated that her ongoing pain falls outside of the definition of a minor injury.
43The evidentiary record shows a history of slip and falls. Prior to the subject accident, Dr. Chuen’s CNRs documented that the applicant had fallen down on a couple of occasions and was experiencing pain. There are reports of her falling down years after the accident as well. For example, on August 21, 2018, she was admitted to [The Hospital] because she had fallen down the stairs on two occasions and was experiencing pain in her mid-lower back, legs and lower pelvic area. She was diagnosed with “Back Pain, Lumbar” by Dr. Harmon Fong and ordered to take acetaminophen. On February 27, 2019, she was admitted to Halton Healthcare because she had fallen down and sustained a minor head injury. The falls are also documented in Dr. Blainey’s SOAP notes.
44The issue of whether her ongoing pain was attributable to the accident was addressed by Dr. Kopyto in his report. He opined that “it would appear that the claimant’s pre-existing neck, upper back, and lower back pain would at least in part have arisen as a result of conditions not directly attributable to the subject MVA.” While he does not provide his opinion as to what may have caused her ongoing pain, it is quite clear that he is not convinced that it was the accident.
45After a two-year gap, the applicant returned to Dr. Blainey’s office for treatment. Dr. Blainey diagnosed the applicant with multiple vertebral subluxations, rib subluxations and si joint discfunction [sic] and associated muscle hypertonicity aggravated after mva and with work [Emphasis added]. Based on my review of Dr. Blainey’s notes, it appears that there was some uncertainty as to whether her condition was related to the accident. On August 23, 2019, there is a note from her that states “jbb consult re: care/mva ins claim treatment to another clinic in between 2017 to 2019 trying for settlement, is condition new related to mva I can’t prove that I said, I said 2 yrs gap.”
46On August 26, 2019, Dr. Blainey had a consultation over the phone with the applicant’s parents. There was a note regarding whether “this” was related to the accident. She informed them that there had been so much time in between that it is hard to say and also depended on the care that the applicant had received at the other clinics. The fact that Dr. Blainey has not definitively concluded that her conditions are a result of the accident leads me to believe that there may be other intervening factors that have contributed in her continuing to experience pain.
47As such, I find that the applicant has not discharged her onus. She has not advanced any evidence to suggest that her physical injuries are not minor in nature. As such, I find that the applicant sustained predominantly minor injuries as a result of the accident.
The treatment plan and interest
48As I have found that the applicant’s injuries fall within the MIG, I do not have to make a determination on whether the treatment plans are reasonable and necessary. The applicant has already exhausted $3,500.00 limit on medical and rehabilitation benefits for the treatment of minor injuries under the MIG. She is therefore not entitled to any further medical and rehabilitation benefits. Consequently, interest is not payable as there are no amounts owing.
ORDER
49For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that are subject to treatment within the MIG. Accordingly, she is not entitled to the treatment plans claimed in this application. Her application is dismissed in its entirety.
Released: September 10, 2020
___________________________
Tavlin Kaur
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.