J. Castillo v. TD Insurance Meloche Monnex, 2020 CanLII 80276

Citation: Castillo vs. TD Insurance Meloche Monnex, 2020 ONLAT 19-006103/AABS

Released Date: 09/16/2020

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:

J. Castillo

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Massoum Massoumi, Paralegal

For the Respondent:

Roshanne Atherley, Counsel

Head by way of written submissions

OVERVIEW

1The applicant, J.C., was involved in an automobile accident on August 15, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The applicant was denied certain benefits by the respondent, TD Insurance Meloche Monnex and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The parties participated in a case conference on October 21, 2019 but were not able to resolve the issues in dispute and the matter proceeded to a written hearing.

3The 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 Guideline (“the MIG”).¹ The applicant’s position is the opposite.

4If the applicant’s position is correct, then I must address if the proposed treatment plan for physiotherapy services is reasonable and necessary.

5If the respondent is correct, then J.C. 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 the claimed medical benefit is reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.²

ISSUES TO BE DECIDED

6The following are the issues to be decided:

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

ii. Is the applicant entitled to a medical benefit in the amount of $1,290.00 for physiotherapy services recommended by Active Therapy Works Inc. in a treatment plan submitted on November 7, 2017, and denied by the respondent on November 23, 2017?

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

RESULT

7I find that the applicant’s injuries are predominantly minor as defined by the Schedule and fall within the MIG because:

(i) they fit within the definition of minor injury prescribed by the Schedule; and

(ii) there is no compelling evidence of a pre-existing medical condition that would remove the applicant from the MIG.

8Accordingly, her entitlement to medical benefits is capped at $3,500.00 under the MIG. Her appeal is denied, and no interest is payable as no benefits are owing.

ANALYSIS

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.”

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

12The applicant argues that she should be removed from the MIG because of her pre-existing health issues (lower back pain, bilateral shoulder pain and thumb pain), together with a psychological impairment (anxiety) and chronic pain (neck, back and shoulder pain).

Does the applicant have a pre-existing condition that would take her injuries out of the MIG?

13I find J.C. has not provided compelling medical evidence that her pre-existing condition prevents maximal medical recovery from the accident if she is kept within the MIG.

14Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 MIG cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements.

a. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

b. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs or limited to the goods and services under the MIG.

15The 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 is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment be determined not to come within this Guideline.⁴

16The applicant appears to argue that she should be removed from the MIG based on pre-existing conditions referencing pre-existing lower back pain, bilateral shoulder pain and thumb pain.⁵ However, there is no documented medical evidence regarding these injuries, when they occurred or how these conditions prevent her from achieving maximal recovery if she were limited to the $3,500.00 funding limit or goods or services under the MIG.

17A review of the applicant’s medical evidence does not support a finding that there was a pre-existing medical condition documented by a health practitioner before the accident. The handwritten notes of the applicant’s family physician, Dr. Thomas Tam, do not reference a pre-existing condition except for some general reference to a fever (August 18, 2014), pain over right elbow and forearm (February 21, 2015), sore throat (January 19, 2017) and cold (June 12, 2017). Moreover, the presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG - the applicant must adduce evidence to demonstrate that these pre-existing conditions prevent her from achieving maximal medical recovery within the MIG.⁶ Notably, nowhere in these clinical notes and records of Dr. Tam is there any comment about the applicant being unable to recover under the MIG.

18The Disability Certificate (OCF-3) completed by T. Wong, chiropractor, on October 3, 2017, answers “No” under Part 7 to the questions whether the applicant prior to the accident had any disease, condition or injury that affected her ability to perform the activities listed in Part 6 (housekeeping and daily activities).

19During an IE physiatry assessment with Dr. Gwardjan on November 7, 2018, the applicant reported being in good general health and denied any history of systemic illness. Dr. Gwardjan noted in his report that J.C. underwent a right Achilles tendon surgical repair 10 years ago. In his follow up Physiatry Addendum Assessment Report dated March 6, 2019, Dr. Gwardjan further added that the Achilles tendon repair was likely resolved at the time of the accident and did not affect recovery from injuries sustained during the accident. Dr. Gwardjan concluded that there is no compelling evidence that this pre-existing medical condition would prevent J.C. from achieving maximum recovery of her minor injury. Dr. Gwardjan’s report was essentially uncontested and not challenged by the applicant as far as recovery from the Achilles tendon injury.

20I also noted that Dr. Verma’s report dated July 31, 2019 from Toronto Poly Clinic that the applicant relies on answered “No” under the heading “Past Medical History” and did not address in any way J.C.’s previous right Achilles tendon injury or how any pre-existing condition would remove her from the MIG. Dr. Verma also notes “Doctors Seen: None” and appears to never have reviewed any family doctor records or been aware of a previous right Achilles tendon surgical repair.

21The applicant’s OHIP summaries or pharmacy records were never provided despite the respondent making such requests to document and support a pre-existing condition. The applicant also did not file any reply submissions.

22Therefore, taking all of the evidence into consideration, including lack of documented medical evidence regarding her alleged pre-accident condition, I find that the applicant has failed to provide any compelling evidence of a pre-existing condition and how the condition(s) prevent her from maximal recovery to warrant removing her from the MIG.

Does the applicant suffer from chronic pain or a psychological impairment that would remove her injuries from the MIG?

23The applicant submits that her ongoing back/shoulder, hip, neck, right thumb and related pain complaints including anxiety and continued doctor’s visits including a visit to a pain management centre to manage her pain including back spasms sufficiently demonstrate that her pain has become chronic. I agree that chronic pain, if established, removes a claimant’s injuries from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

24Neither party provided me with any definition of “chronic pain”. However, in assessing the applicant’s claim of chronic pain, I have applied the following well-established criteria:

i. The insured person suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

ii. The insured person’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The pain is not a clinically associated sequela to minor injuries.

iv. The insured person’s pain causes functional impairment and disability. It significantly disrupts or disables pre-accident activities of daily living.⁷

25The applicant’s submissions focus almost entirely on whether the proposed treatment is reasonable and necessary as opposed to addressing how her injuries fall outside of the MIG. The Tribunal would have benefitted from substantive submissions on this issue directly addressing why removal from the MIG was required to treat her specific impairments (ie. how her pain was not a clinically associated sequela and a fuller discussion of the level of pain) and how her lifestyle has been altered or how her pain significantly disrupts or disables pre-accident activities of daily living.

26The applicant seems to argue that her physical symptoms including pain and psychological impairment of anxiety warrant removal from the MIG. To that end, the applicant essentially relies on: clinical notes and records of her family physician, Dr. Thomas Tam, clinical notes of Active Therapy Works; Disability Certificate (OCF-3) of Dr. Wong; report of Dr. Neil Verma; and report of Dr. David Lowe.

27On my review of this and other medical evidence, there is limited indication that J.C.’s alleged impairments are affecting her daily function or recovery or that her pain is not a clinically associated sequela to minor injuries which is the test she must meet to escape the MIG. For example, the physical impairments listed in the initial OCF-3, Part 5, completed on October 3, 2017 by Dr. Wong from Active Therapy Works fall squarely within the definition of minor injury under the Schedule, as they are largely sprain and strain-type injuries. Dr. Wong also noted under Part 6 of the Certificate that J.C. can return to work on modified hours and/or duties and that the anticipated duration to return to perform her services as nanny was 9-12 weeks. This indicates to me that a full recovery was anticipated back in 2017 (about 7 weeks after the accident) in a reasonable amount of time, and the injuries would not significantly disrupt her pre-accident activities of daily living.

28As well, the applicant relies on Dr. Verma’s report dated July 31, 2019 from Toronto Poly Clinic which diagnosed myofascial pain and back spasms and recommended nerve blocking injections to help manage pain. Dr. Verma noted that J.C. complained of 9/10 pain onset with limitations on lifting/pushing, bending, prolonged standing and walking and explained that J.C. “will be followed by our team until the pain syndrome is better managed.” I did not find Dr. Verma’s report, written almost two years post accident, particularly helpful and gave it limited weight for several reasons.

29First, it did not make any finding that the applicant’s alleged back injury was accident related (merely stating that onset was after the motor vehicle collision). It also does not address whether the applicant’s injuries are predominantly minor or how the pain was not a sequela of her soft tissue injuries and how it was of such a severity that it causes suffering and distress accompanied by functional impairment that interferes with her daily activities. A diagnosis of chronic pain without any discussion of the level of pain (especially here as was reported as 9/10), its effects on her function, or whether pain is bearable without treatment will not show that the pain is more than mere sequelae. Dr. Verma also did not review any of the family doctor records which were important as Dr. Verma saw the applicant before and after the accident or any other medical records for that matter. Finally, Dr. Verma saw the applicant only one time and described his brief report as an “initial report.” It appears no final or any other more comprehensive report was ever prepared by Dr. Verma. Interestingly, Dr. Verma concludes that J.C. will be followed by her team until the pain syndrome is managed but it appears that this was never done or that J.C. was never administered the recommended pain injections to alleviate her pain.

30I queried how someone who described her pain as 9/10 with walking limitations and back spasms would not follow through with these treatment recommendations from a pain clinic. However, I also have no reason to doubt J.C.’s self-reporting, pain is subjective and, as noted, her back pain occurred in 2019, nearly 2 years post accident, and there appears to be other material factors in play that cause her pain that are unrelated to the accident, namely her very physical work as a nanny and her physical activities at home and well-documented benign cyst in her left breast.

31The hand-written clinical notes of the family physician Dr. Tam are very difficult to read but what information I could read was telling. I note that there are only about eight visits between the date of this accident and this hearing. The first entry is September 16, 2017 – a month after the accident - references a minor headache and pain. On January 13, 2018 she complains of left shoulder pain and anxiety but not of neck pain (which accordingly to the December 21, 2017 Active Therapy note a mere 3 weeks earlier was her #1 area that was still bothering her from the accident)⁸. The entry on January 29, 2018 again references shoulder pain with some improvement but no neck pain. The applicant’s visit on March 24, 2018 indicates a breast cyst identified by an ultrasound.⁹ There is no mention of chronic pain or a psychological impairment from the accident causing functional impairment or affecting her day to day activities. Although Dr. Tam identifies an Adjustment Disorder, he attributes it to a bad relationship with her daughter’s boyfriend (which prompts the referral to Dr. Lowe). On August 1, 2019 Dr. Tam identifies back pain but appears to attribute it to her working as a nanny and taking care of her grandson. Notably, after the January 12, 2018 visit the applicant did not complain of any left shoulder pain to Dr. Tam. In summary, nowhere in these clinical notes does Dr. Tam indicate that the applicant’s symptoms prevent her from recovering or that treatment within the MIG prevents her from achieving her maximal medical recovery.

32In response, the respondent submits that J.C.’s arguments are not supported by the medical evidence and her reported complaints are predominantly minor. To that end, the respondent relies on four s. 44 assessment reports. The applicant was seen by Dr. Berbrayer, physiatrist, on November 6, 2017 to determine her entitled to non-earner benefits. Dr. Berbrayer notes that the applicant complained of intermittent headaches, neck and entire back pain and shoulder pain which she thinks is caused by work. With respect to her level of functioning, Dr. Berbrayer noted that she had full range of motion of her cervical spine, complete extension, and only areas of tenderness were upper area of trapezius and sternocleidomastoid. The applicant reported to Dr. Berbrayer that she does all indoor apartment activities including laundry, cooking, cleaning, walking the dog and garbage removal and she has continued to work and not missed any work form the accident in the same capacity 40 hours per week (her work as a nanny would involve housework, cooking, grocery shipping, ironing, cleaning and driving).

33The Occupational Therapy In-Home IE completed by Sarash Sasani, OT, on December 21, 2017, to determine and compare the applicant’s pre and post accident functional abilities and activities of daily living concluded that the applicant has difficulty with prolonged sitting, standing, waking, meal preparation, lifting and carrying heavy stiffs. However, Mr. Sasani also concluded that she has no restriction and weakness when tested for range of motion and strength. With regards to self care tasks, she demonstrated to be independent with all tasks, and also demonstrated adequate range of motion and functional abilities to complete all her ADLs and IADLs independently. This supported my overall finding that J.C.’s life has not changed significantly from a functional perspective and why she was able to continue to work after the accident (although there was evidence that her job was terminated in June 2018).

34The applicant was seen by Dr. Gwardjan, physiatrist, on November 7, 2018, to determine if her injuries were minor. Dr. Gwardjan opined in his report dated November 21, 2018 that the applicant had cervical sprain/strain WAD I and musculoligamentous thoracolumbar sprain/strain. He did not see any paravertebral spasm. He was of the opinion that these soft tissue injuries were classified as minor injuries. These findings were maintained in his addendum report of March 6, 2019 after considering additional medical information.

35The applicant was critical of Dr. Gwardjan’s report explaining that he failed to give appropriate weight and consideration to J.C.’s ongoing neck, back and shoulder pain. On a careful review of the report, including his addendum report, Dr. Gwardjan, at page 5, did note that J.C. “reports axial spine pain..neck pain radiating to her shoulder..low back pain.” At page 4, he notes that J.C. “reports a worsening of her pain since the accident.” At page 5, he notes that she reports tenderness to palpation over her left and right shoulders. Therefore, it is clear that Dr. Gwardjan recognized and considered J.C.’s neck, back and shoulder pain in arriving at his conclusion. Indeed, he clearly recognized her pain and did not dismiss it and succinctly summarized that “despite pain, her current physical examinations suggest return to pre-existing physiological status.” He appears to have conducted a thorough physical examination and reviewed the necessary documentation. I find Dr. Gwardjan’s report to be fair and tied to the medical evidence before the Tribunal including J.C.’s own self-reporting. I cannot find that J.C.’s alleged physical pain complaints warrant removal from the MIG on the evidence available.

36At paragraph 5 of her submissions, the applicant implies that her anxiety is somehow related to the accident. There is no specific discussion of how this psychological symptom affects her function to a level that requires removal from the MIG. I do not accept this assertion and there is very limited medical evidence regarding her anxiety, or some form of adjustment disorder, as a result of the accident. To the contrary, the medical evidence provided including clinic note of Dr. Tam of January 13, 2018 demonstrates that it is likely that this was related a strenuous relationship with her daughter’s boyfriend.¹⁰ This was also supported by a letter report of Dr. David Lowe dated June 13, 2018 who conducted a psychiatric assessment (as a referral from Dr. Tam) and concluded that the applicant does not have a depressive illness and no mental illness. Similarly, Dr. Lowe diagnosed a problem related to her daughter’s relationship with boyfriend and did not give her another appointment. Interestingly, the applicant tells Dr. Lowe that she specifically asked for an appointment with a specialist to deal with her anger (and not anything related to the accident) which she describes as: “the father of the grandson – I don’t like him – that’s why I am here…I sleep very well, using meditation technique.”

37A section 44 IE examination conducted on November 8, 2018, by Dr. Daniel Cohen, psychologist, to determine whether J.C. exhibits a psychological impairment as a result of the accident concluded that although J.C. was genuinely upset by being injured in the accident and can complain of pain and some driving anxiety, she was not psychologically impaired and her symptoms did not meet the diagnoses criteria for any mental disorder as a result of the accident. An addendum report prepared by Dr. Cohen on March 9, 2019, to review additional documents including notes from Dr. Tam and Dr. Lowe’s June 13, 2018 psychiatric assessment did not alter Dr. Cohen’s opinion. I see no reason to depart from this conclusion which is in line with the other psychological medical evidence.

38On review, I prefer these IE reports to the evidence submitted by J.C. as they are more comprehensive and were part of a multi-disciplinary assessment and are more proportional to the medical evidence before the Tribunal. For these reasons, I find J.C. has not met her onus to demonstrate that her physical and or psychological impairments warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

39It is my understanding that the MIG limits have been exhausted.¹¹ Having determined that J.C.’s accident-related impairments are treatable within the MIG, an analysis under s. 15 of whether the one treatment plan for physiotherapy is reasonable and necessary is not required.

CONCLUSION/ORDER

40The applicant’s injuries are predominantly minor, her entitlement to medical benefits is governed by the MIG and the appeal is denied. As no benefits are owing to the applicant, no interest is payable.

Released: September 16, 2020

___________________________

Cezary Paluch

Adjudicator

Footnotes

1. 1Minor 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”.
2. 2The documentary evidence confirms that the applicant has consumed the monetary limit receivable under the MIG in the amount of $3,497.35. See Tab 9 Applicant’s Written Submissions and para. 17 of the submissions.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para. 24.
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, page 5, para. 4.
5. 5Applicant’s Written Submissions para. 21(a).
6. 616-000642 v Wawanesa Mutual Insurance Company, 2016 CanLII 93132 (ON LAT) para. 15 and s. 18(2) of the Schedule.
7. 7See YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) para. 24-29.
8. 8Active Therapy Works Note dated December 21, 2017.
9. 9See VPM Imagining repots dated/transcribed February 27, 2018 and March 12 2018 that note several benign cysts within left breast measuring 10.0 mm.
10. 10Dr. Tam note dated January 10, 2018.
11. 11Save and except for a nominal amount remaining of $2.65.