I.W. v. RBC General Insurance Company, 2020 CanLII 69927

Citation: I.W. v. RBC General Insurance Company, 2020 ONLAT 19-004342/AABS

Released: May 19, 2020

Tribunal File Number: 19-004342/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

I.W.

Applicant

and

RBC General Insurance Company

Respondent

DECISION

Adjudicator: Avril A. Farlam, Vice Chair

Appearances:

For the Applicant: Anastasiya Chepak, Counsel

For the Respondent: Arijana B. Schrauwen, Counsel

HEARD by way of written submissions

OVERVIEW

1The applicant, [I.W.] (“applicant”) was involved in an automobile accident on February 26, 2015 (“accident”), and sought benefits from the respondent, RBC General Insurance Company (“respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”).

2The respondent determined 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 Guideline (“MIG”)². The respondent also submits that even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed chronic pain assessment is reasonable and necessary. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

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

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,260.00 for a chronic pain assessment recommended by Medex Assessments in a treatment plan (OCF-18) submitted on April 4, 2017, and denied on April 19, 2017?

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

RESULT

4The applicant’s injuries do not fall within the MIG. The applicant is entitled to the cost of examination for the chronic pain assessment. The applicant is entitled to interest.

BACKGROUND

5The applicant was 55 years old at the time of the accident. Her vehicle was rear-ended by a third-party vehicle as a result of which the applicant says she sustained neck, back and shoulder pain, and headaches.

6The applicant made a claim for accident benefits. The respondent characterized the applicant’s injuries as falling within the MIG and refused to pay for the medical and rehabilitation benefit in the amount of $2,260.00 for a chronic pain assessment by Dr. Pruzanski of Medex Assessments Inc.

LAW AND ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment framework available to injured person who sustained a minor injury as a result of an accident. A “minor injury” is defined in Section 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.” Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8To request treatment above the $3,500.00 funding limit, the applicant must prove that her injuries do not fall within the definition of a minor injury. The applicant can establish that by:

A. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

B. Establishing an impairment sustained in the accident is not a predominantly minor injury.

9The onus is on the applicant to show that his or her injuries fall outside of the MIG on a balance of probabilities³.

10Section 47(2) of the Schedule provides that an insurer is “not required to pay for that portion of an expense for which payment is reasonably available to the insured under any insurance plan or law or under any other plan or law.

Did the applicant suffer minor injuries?

11The applicant submits that she suffered more than just minor injuries as she was diagnosed with chronic pain syndrome. The applicant relies on the records of her family doctor, Dr. Lo, her physical therapist, Physical Therapy One, x-ray imaging of her lumbar spine and the chronic pain assessment of Dr. Pruzanski, a specialist in internal medicine.

12The respondent submits the applicant has failed to prove that her injuries are not minor. Also, the disputed assessment is not reasonable and necessary. In support of its submissions, the respondent relies on the reports of Dr. Aldridge.

13I find that the totality of the applicant’s medical evidence establishes on a balance of probabilities that her injuries are not predominantly minor injuries and that she has chronic pain syndrome which will prevent her from achieving maximal recovery within the MIG.

14The applicant went to her family physician Dr. Lo the day after the accident with pain complaints. Dr. Lo prescribed medication. He also referred her to physiotherapy shortly after the accident. There are post-accident reports of pain in Dr. Lo’s records. Dr. Lo referred the applicant for x-ray imaging of her spine in April 2017 which revealed an objective basis for the applicant’s symptoms – demineralized vertebrae, moderate narrowing of the L4-5 disc and severe narrowing of the L5-S1 disc and degenerative changes in the apophyseal joints between L2 and S1. The records of Physical Therapy One also show that the applicant was experiencing pain post-accident and sought physical rehabilitation shortly after the accident for lower back, hip, shoulder pain and headaches.

15The applicant was assessed by Dr. Pruzanski in May, 2017 who diagnosed her with exacerbation/aggravation of pre-existing degenerative changes in the spine and chronic pain syndrome directly related to the accident. Dr. Pruzanski recommended treatment.

16The respondent’s family medicine (GP) Dr. Aldridge assessed the applicant in March, 2016 and diagnosed lumbar sprain/strain which did not result from the accident. However, Dr. Aldridge found reduced range of movements in the lower back which he attributed to self-limiting and noted pain amplification behaviour present during the physical examination.

17The respondent argues that I should prefer the medical opinion of Dr. Aldridge on the basis that he did more testing than Dr. Pruzanski. The respondent also argues that Dr. Pruzanski’s report is factually incorrect, does not correctly attribute the medical conditions to the applicant and reaches conclusions based on incorrect information.

18With respect to incorrect information, Dr. Aldridge concluded in August, 2016 that the applicant was not truthful during his assessment but he also stated in his addendum report that this does not change his opinion with regard to the fact that the applicant has attained maximal medical improvement and her occupational function has returned to pre-MVA level. Dr. Aldridge opined it is extremely likely that factors unrelated to the accident are generating her current symptoms.

19In my view, based on the addendum report of Dr. Aldridge, if there were any inaccuracies in the applicant’s reporting of her medical history to him, it appears this did not have any significant impact on his opinion. Despite any alleged inaccuracies from the applicant, Dr. Aldridge nonetheless concluded that:

i. The applicant attained maximal medical improvement

ii. Attained pre-MVA function

iii. Factors unrelated to the MVA are generating her current symptoms

20I disagree with the respondent that there are any significant flaws in Dr. Pruzanski’s report and I give his medical opinion more weight than that of Dr. Aldridge. Although Dr. Aldridge did some written testing and Dr. Pruzanski did not, I prefer the evidence of Dr. Pruzanski, a specialist in internal medicine (rheumatology and clinical immunology) with many years of professional experience.

21Dr. Aldridge’s first assessment was, at least in part, for the purpose of determining whether a proposed treatment and assessment plan dated November 9, 2015 is reasonable and necessary. That treatment plan is not in dispute at this hearing.

22In his first assessment, Dr. Aldridge did not have any x-ray imaging of the applicant’s spine available to him or Dr. Lo’s records. When Dr. Aldridge did review the applicant’s OHIP summary and Dr. Lo’s records for 2010-2014, his conclusion in his second report was that the applicant had not been truthful with him but he did not significantly alter his medical opinion. In his second report, Dr. Aldridge only commented on Dr. Lo’s April 9, 2015 note which was made less than two months after the accident and did not comment on Dr. Lo’s later records.

23When reviewing Dr. Aldridge’s conclusion about reduced range of movements, Dr. Pruzanski noted that there was marked tenderness to pressure over the paraspinal muscles of the thoracic and lumbar spine on both sides. Dr. Pruzanski also had the benefit of the 2017 imaging which provided him with more objective medical evidence than Dr. Aldridge had available to him at the time of his assessment.

24I find that the applicant has proven on a balance of probabilities that she has sustained injuries that are not predominantly minor. The records of the applicant’s family physician and her physical therapist contain references to post-accident pain. The applicant’s specialist, Dr. Pruzanski, diagnoses chronic pain syndrome as a result of the accident. The totality of the applicant’s medical evidence establishes that she suffers from chronic pain syndrome caused by the accident. This takes the applicant’s injuries out of the MIG. In coming to this conclusion, I am aware that the applicant has missed little time from her employment although she has sometimes had modified duties. In my view the applicant should not be criticized from working through her pain and any functional limitations given the medical evidence in this case.

Medical Benefit: Is the applicant entitled to the cost of the chronic pain assessment?

25I find that it was reasonable and necessary for the applicant to have a specialized investigation of the medical basis for her symptoms and injuries. The applicant continued to complain of post-accident pain to her family physician and physical therapist for several years. The x-ray showed objective evidence of issues with her spine. It was therefore reasonable to conduct an assessment to investigate whether the applicant’s pain was chronic and as a result of the accident. Also, the cost of Dr. Pruzanski’s assessment is in line with the Schedule and therefore meets the test for reasonable and necessary.

26I am not persuaded by the respondent’s suggestion that the cost of this assessment is not reasonable and necessary because Dr. Lo could have made a referral to a specialist within the OHIP system and then OHIP would have covered the cost because OHIP is “any other plan” under s. 47(2) of the Schedule. The respondent relies on S.H.S.K. v. Allstate Canada⁴. Although not binding on me, I note that in the S.H.S.K. case the Tribunal did not find the cost of the chronic pain assessment to not be reasonable and necessary based on s. 47(2) but for other reasons. The Tribunal did however, in that case cite G.T. v. Unifund⁵. In G.T. the Executive Chair made it clear that for this argument to prevail, there must be evidence, not just a bare assertion, that OHIP would have covered this cost:

…At the very least, an insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue, whether in whole or in part, was reasonably available to the insured from a collateral provider. If an insurer has satisfied that onus, the burden then shifts to the insured to prove that the benefit at issue was not in fact reasonably available. Applying this approach here, I am not satisfied that Unifund has discharged its onus…it offered the bare assertion that an orthopaedic assessment was reasonably available under OHIP.I was told nothing about how OHIP actually operates or, more to the point, how it would cover the assessment at issue.⁶

Here, as in G.T., the respondent has made a bare assertion and not provided evidence about how OHIP operates or how it would cover the assessment of Dr. Pruzanski.

Interest

27As the chronic pain assessment was found to be reasonable and necessary, any interest is payable in accordance with s. 51 of the Schedule.

CONCLUSION

28For the reasons outlined above, I order that the applicant’s injuries do not fall within the MIG. The applicant is entitled to $2,260.00 being the cost of examination for the chronic pain assessment. The applicant is entitled to interest under s. 51.

Footnotes

1. 1O.Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div Ct), para. 24.
4. 42019 CanLII 101476 (ONLAT) at para 10 and 11.
5. 52017 CanLII 81567 (ONLAT).
6. 6Ibid, at para 27,28,29,30.