Released Date: 09/23/2020
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:
R.J.
Applicant
and
Pembridge Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Nathan Ferguson
APPEARANCES:
For the Applicant:
[R.J], Applicant
Ramy Akladios, Counsel
For the Respondent:
Dave Munns, Adjuster
Derek Yap, Counsel
HEARD: In Writing
March 9, 2020
REASONS
OVERVIEW
1The applicant (“RJ”) was involved in an automobile accident on November 14, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). RJ applied to have several treatment plans funded, interest paid on any overdue amounts, to be removed from the Minor Injury Guideline, and for an award under Ontario Regulation 664.
2The respondent (“Pembridge”) denied the proposed treatment plans on the basis that RJ should not be removed from the Minor Injury Guideline and that the treatment plans are not reasonable and necessary. RJ submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.
ISSUES
3The issues to be determined were identified and agreed upon as follows:
a. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the Minor Injury Guideline?
b. Is the applicant entitled to a medical benefit in the amount of $3,308.64 for physiotherapy treatment recommended by Dr. Chad Hefford in a treatment plan submitted on February 22, 2018, and denied by the respondent on February 28, 2018?
c. Is the applicant entitled to a cost of examination expense in the amount of $1,230.92 for an attendant care form 1 assessment recommended by Dr. Vyvyen Le in a treatment plan submitted on March 8, 2018, and denied by the respondent on March 9, 2018?
d. Is the applicant entitled to a cost of examination expense in the amount of $2,000.00 for a psychological assessment recommended by Dr. Andrew Shaul in a treatment plan submitted on May 11, 2018, and denied by the respondent on May 30, 2018?
e. Is the applicant entitled to a cost of examination expense in the amount of $144.41 for a psychological pre-screening assessment submitted on May 1, 2018, and denied by the respondent on May 30, 2018?
f. Is the applicant entitled to interest on any overdue payment of benefits?
g. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4I find that RJ did not demonstrate on the balance of probabilities that he ought to be removed from treatment under the Minor Injury Guideline (“MIG”). Therefore, RJ is not entitled to benefits for the treatment plans proposed, to interest on any overdue payment, or to an award for unreasonably delayed or withheld payments.
ANALYSIS
i. Are RJ’s Injuries Minor Injuries as defined in the Schedule and Subject to Treatment Within the MIG?
5The MIG describes a framework regarding the treatment of minor injuries. The term “minor injury” is defined in s. 3 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.”
6Similarly, the words “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in s. 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
7The Divisional Court held (Scarlett v. Belair Insurance, 2015 ONSC 3635) that the onus to establish entitlement outside (or above) the MIG limits rests with the claimant. Therefore, to qualify for the benefits in dispute, RJ must establish his entitlement to coverage beyond the $3,500.00 upper limit on a balance of probabilities.
8RJ submits that his pre-existing impairments (high cholesterol and blood pressure) as well as psychological impairments and the chronicity of his pain caused by the accident ought to remove him from the MIG.
9RJ argues that further treatment is necessary to maintain his current level of function, reduce his pain, and improve his pain and stamina. He relies on the evidence provided in the submitted OCF-18s (specifically the comments made by his chiropractor Dr. Le), the notes of his family doctor (Dr. Santhakumar), and the psychological pre-screen provided by Dr. Shaul.
10Pembridge does not agree with RJ’s position, and argues that RJ’s injuries fall squarely within the MIG on the basis that the injuries from the accident, if any, are minor, that he has not demonstrated the presence of chronic pain or provided compelling evidence of pain that causes any functional impairment, and that he does not have a valid psychological diagnosis sufficient to remove him from the MIG.
11Having reviewed and considered all of the documentation and the parties’ written submissions, I find on a balance of probabilities that RJ’s injuries are predominately minor injuries. Therefore, I agree with Pembridge that the MIG is applicable in this instance.
Do RJ’s Physical Injuries Remove Him from the MIG?
12On a review of the treatment plans and medical evidence provided, the injuries RJ experienced as a result of the accident appear to be entirely within the definition of minor injuries. They are described essentially as neck and back pain and headaches or the type of symptom consistent with the sprains and strains anticipated by the MIG.
13RJ confirmed is his testimony that he did not seek medical treatment immediately following the accident and returned to work within two days of the accident. He did not visit his family physician or any other medical practitioner until March 17, 2018 at which time he saw his family physician, Dr. Santhakumar, for a follow up appointment regarding his elevated cholesterol. That is, he did not schedule any specific appointment related to the accident with his family physician, or elsewhere. In addition, testified that he was not assisted with any specific facets of his daily activities or self-care.
14According to the notes and records available to me, RJ did not describe any injury or impairment caused by the accident that took place November 14, 2017 until March 17, 2018. Dr. Santhakumar’s notes indicate that RJ then mentioned that he was off work a few days because of pain. The only other references to pain in Dr. Santhakumar’s notes are dated March 23, 2018 and April 13, 2018. The pain was located in the neck and back. There was no indication that further investigation or treatment beyond the use of over-the-counter medication was warranted. In the five visits that took place after April 13, 2018 and up to January 18, 2019, there is no reference to any impairment caused by the accident.
15There is no reported treatment or referral on an emergency basis at any hospital as a result of the accident. The treatment recommended to RJ by his physician and other treating practitioners, specifically to be active, engage in physiotherapy, to control his diet, and to take Tylenol or Advil as necessary, is relatively conservative and passive and not indicative of significant functional impediment or symptoms outside the ordinary sequalae of the injuries described within the MIG.
16I find that the absence of any reference to pain by any treating practitioner for a period of over four months is not in keeping with significant functional impairment and tends to suggest that the injuries experienced were minor.
17Additionally, Pembridge stressed that treatment to the MIG limit was approved and had not been attended by RJ. There is $252.17 of approved treatment remaining with Prime Health Care which RJ has not accessed. No clinical notes and records from Prime Health Care were provided which makes it very difficult to assess RJ’s progress or the efficacy of the treatment undertaken to date. This is difficult to reconcile with the submission that the applicant both requires and desires additional treatment.
Does RJ’s Chronic Pain Remove Him from the MIG?
18While the OCF-18s provided suggest ongoing physical treatment, there is no formal diagnosis of chronic pain, arthritis, or any other testing that would suggest the presence of pain which exceeds the strains and sprains described within the MIG. For example, there are no imaging reports provided to account for any lingering symptoms of pain by way of any underlying pathology. While headaches are referenced, there is no referral to a headache clinic or description of any specific medication or investigation relating to the same.
19Though RJ testified that he can only walk short distances and provides less assistance to his spouse with household chores, the lack of reference to such limits in the ongoing treatment notes provided by his family physician undermines the assertion that such limits are severe or require any further intervention.
20As to the chronicity of his pain, RJ submits that this pain is persistent and exceeded the acute stages of pain contemplated by the MIG. He asserts that the pain is chronic and therefore beyond the MIG. That is, even if his injuries fall within the definition located in the MIG, he can still be removed from the MIG in accordance with s. 18(2) of the Schedule.
21I agree with Adjudicator Lake in 17-005000 v RBC Insurance Company, 2018 CanLII 83511 (ON LAT), that “in order for ‘chronic pain’ to remove the applicant from the MIG, the applicant must prove on a balance of probabilities that [his] chronic pain is more than just sequelae or a symptom arising from [his] minor injuries” (paragraph 31). Adjudicator Lake cited 16-000438 v. the Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 11 in determining: “A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae”.
22In this instance, RJ is not diagnosed with Chronic Pain Syndrome, but subjectively reports that his pain has persisted for more than 2 years. The presence of ongoing pain is insufficient in isolation to justify removal from the MIG. A related functional impairment must also be described.
23I find that the duration of RJ’s pain and his assertion that it is therefore chronic is not sufficient to meet the compelling standard necessary to remove RJ from the MIG. The evidence to the contrary, and specifically the lack of evidence suggesting any significant functional impairment, in my view outweighs the mere presence of pain.
24I acknowledge that RJ reports his pain is life-altering. However, no treating practitioner described the intensity or frequency of the pain. There is no objective testing or data that would corroborate the intensity self-reported by the applicant, or which suggests the necessity of treatment outside the MIG. There is no clinical data or information available to me that suggests the existing passive treatment measures are insufficient to control RJ’s pain.
25I find that the injuries and impairments experienced by RJ and described by the medical professionals involved in his care and evaluation are consistent with the definition of minor injury found in the Schedule and ought to be treated within the MIG.
Do RJ’s Psychological Injuries Remove him from the MIG?
26In addition to pain, RJ referenced anxiety especially while driving as a result of the accident. Anxiety is not diagnosed and I note that RJ also testified that he began driving approximately an hour to work on a regular basis very shortly after the accident. That is, while I do not doubt he experiences nervousness or anxiety when driving, the functional impact of this subjective complaint is minimal and does not preclude activity.
27RJ also subjectively reported experiencing depression and sleep impairment and this is reflected on the psychological pre-screening questionnaire provided by Dr. Shaul (dated March 5, 2018). Dr. Le referenced psychological symptoms in the OCF-18 dated February 13, 2018 and in Dr. Minella’s report dated May 22, 2019 the applicant was noted to have right shoulder and arm pain, neck and back pain, headaches, sleep disturbances, nervousness and fear of driving.
28I agree with Pembridge that Dr. Le and Dr. Minella, as chiropractors, are not qualified to diagnose sleep disorders or psychological impairments. In fact, the OCF-18 and report provided do not attempt to provide clinical data or describe objective testing undertaken to establish the same. I further agree, therefore, that Dr. Le and Dr. Minella did not provide sufficient evidence to establish any psychological diagnosis, and could not do so as this is not their area of expertise.
29Dr. Shaul is qualified to provide such a diagnosis. However, Dr. Shaul did not do so. The questionnaire provided was administered by a student under Dr. Shaul’s supervision. The level of supervision was questioned by Pembridge because RJ testified that he did not meet or interact with Dr. Shaul at any point in the completion of the questionnaire. The student that completed the pre-screening did not provide his or her name and as a result it is unclear who was involved in the single meeting with RJ. It is clear, however, that no objective testing, clinical data diagnosis or prognosis was provided. Dr. Shaul’s evidence is not persuasive in my view as it lacks any diagnostic detail, clinical or objective observation, or medical opinion. The questionnaire is effectively a prompted self-report.
30There is no available evidence related to treatment for mental health related symptoms in this instance. For example, there are no clinical notes or records related to such treatment or, again, any details of any clinical observation or diagnosable psychological condition. Dr. Santhakumar made no reference before or after the accident to psychological conditions. RJ does not have a psychological diagnosis.
31Therefore, I agree with Pembridge that there is no evidence that RJ was treated, evaluated or observed by any mental health professional with the exception of Dr. Shaul’s unnamed student who, whether directly or closely observed and supervised by Dr. Shaul or not, considered his symptoms insufficient to support any diagnosable psychological condition.
32I find that RJ’s psychological injuries are not sufficient to justify removal from the MIG on a balance of probabilities.
Does RJ’s Pre-existing Condition Remove Him from the MIG?
33Dr. Santhakumar’s notes confirm that RJ was diagnosed with elevated cholesterol and blood pressure before the accident. RJ submits that this documented pre-existing condition removes him from treatment within the MIG as it complicates his recovery and limits his functional abilities.
34RJ relies on Member Neilson’s decision in 17-002565 v Aviva Insurance Company of Canada (2018 CanLII 140338 (ON LAT)) to argue that one of the reasons exclusions from the MIG exist is to allow individuals who are precluded from recovery in an ordinary or expected timeframe because of a pre-existing condition to access additional supports. The applicant’s counsel argues that RJ’s high blood cholesterol level impedes his recovery and therefore excludes him from the MIG.
35No medical evidence was provided that attributes a delay in recovery to the applicant’s pre-existing conditions. Member Neilson reasoned that it is “common sense” (paragraph 20) that shortness of breath on exertion will prolong treatment and as a result there was compelling medical evidence that the applicant in that instance should be removed from the MIG. However, Member Neilson outlined that the applicant’s pre-existing conditions in that instance that would obviously cause such shortness of breath, specifically the diagnosis of interstitial pulmonary disease in combination with diabetes, thyroid cancer, dizziness and loss of balance, and high blood pressure.
36I find that this case is significantly and plainly distinguishable as the applicant does not share these significant diagnoses – particularly interstitial pulmonary disease, which is a lung condition. In the present case, exercise and diet modification are recommended and RJ is prescribed Crestor to control his elevated blood cholesterol and blood pressure. The respondent noted that the December 31, 2018 note provided by Dr. Santhakumar shows that there was a slight improvement in RJ’s conditions relative to the data available before the accident and RJ testified that this was due to diet change only. There is no available evidence that suggests RJ’s pre-existing conditions are not well controlled with the conservative treatment proposed and followed to date or directly linking any limits in his recovery to those pre-existing conditions.
Is Pembridge Barred from Denying Issue b?
37The OCF-18 submitted February 22, 2018 in the amount of $3,308.64 was denied February 28, 2018. RJ argues that this was not done in accordance with section 38(8) of the Schedule which prevents Pembridge from denying the treatment plan or taking the position that the MIG applies.
38Pembridge provided a copy of the Explanation of Benefits dated February 28, 2018 denying this treatment plan (Tab 3 of Respondent’s Submissions). The application filed in this matter refers specifically to this date of denial (February 28, 2018). Therefore, I find that the applicant received the Explanation of Benefits which outlines the treatments denied on a balance of probabilities. The respondent did not fail to give notice of the decision as outlined in Section 38(8) of the Schedule. There was no detail provided by the applicant with respect to any allegation that the denial was not clear or unequivocal.
ii. Are the treatment and assessment plans in dispute reasonable and necessary?
39The applicant bears the onus to prove entitlement for the benefits sought. I find that RJ did not meet the onus to show that his injuries are outside of the MIG, therefore treatment outside the MIG is not reasonable and necessary.
Should the Disputed Treatment Plans be Approved within the MIG?
40The applicant’s treatment to the MIG limits has been approved by the respondent. A further consideration of the treatment plans in dispute is therefore unnecessary and redundant.
iii. Award, Interest and Costs
41I find that no payment is overdue in this instance. Therefore, there is no interest owing. Additionally, I find that as no payment is outstanding, no payment was delayed or withheld unreasonably. Therefore, the respondent is not liable to pay an award under Ontario Regulation 664. Finally, the applicant requested costs in this matter as a result of Pembridge’s “highly deplorable” (Applicant’s submissions at paragraph 35) and “high-handed” (Applicant’s Reply Submissions at paragraph 7) conduct. Apart from the bald statement that Pembridge behaved in a high-handed and highly deplorable manner, I find no evidence to suggest the same. For the reasons outlined above, I find that Pembridge’s denials were proper and have upheld the same.
ORDER
42I find that RJ’s injuries are predominately minor injuries as defined by the Schedule. Therefore, treatment outside the limits outlined in the MIG is not reasonable and necessary. It follows that I find no benefits are overdue and RJ is not entitled to interest, an award or costs. Therefore, the application is dismissed.
Released: September 23, 2020
__________________________
Nathan Ferguson
Adjudicator