Licence Appeal Tribunal
Released Date: 10/13/2020
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:
I.R.
Applicant
and
TD Insurance Meloche Mennox
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Firaz Mohamed
For the Respondent:
Jeffrey Wong
HEARD:
By way of written submissions
OVERVIEW
1I.R. was injured in an accident on November 4, 2016 and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').1 In the three years post-accident, TD paid rehabilitation benefits in the amount of $3,406.02, just below the $3,500.00 limit of the Minor Injury Guideline (“MIG”). It partially denied the treatment plan in dispute based on its determination that I.R.’s accident-related impairments were predominantly minor injuries, subject to treatment within the MIG. I.R. disagreed, arguing that he suffers from chronic pain and pre-existing conditions warranting removal from the MIG, and submitted an application 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 s. 3 of the Schedule, and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
ii. Is the applicant entitled to receive a medical benefit in the amount of $367.00 for physiotherapy services, recommended by Active Physiotherapy Solutions in a treatment plan submitted February 8, 2017, and denied by the respondent on February 17, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3In addition, while not identified in the Case Conference Order, in submissions, I.R. claimed entitlement to payment of an award under s. 10 of O. Reg. 664.
RESULT
4I find I.R. has not satisfied his burden to prove that his accident-related impairments warrant removal from the MIG. The remainder of the treatment plan in dispute is not payable, no interest applies, and an award is not appropriate.
ANALYSIS
The applicability of the MIG
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly minor injuries in accordance with the MIG. Section 3(1) 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG. In all cases, the insured bears the burden of proof on a balance of probabilities. I find I.R. has not met his burden to prove that he suffers from chronic pain that warrants removal from the MIG or that he satisfies the criteria for removal under s. 18(2).
6I.R. submits that he should be removed from the confines of the MIG due to his chronic pain from the accident. He submits that as a result of the accident he suffers from chronic neck pain, persistent headaches, aggravation of his pre-accident degenerative disc disease, knee pain and osteoarthritis. I.R. attended for facility-based treatment in the year following the accident until November 2017, then began taking muscle relaxants and pain medication. He submits that he returned to physiotherapy in mid-2019 when his symptoms became worse and relies on an October 2019 pain consultation report from Dr. Szpakowski as evidence of his chronic pain. Further, he directs the Tribunal to the clinical notes and records of his family physician, Dr. Nichols, as evidence of the aggravation of his pre-existing conditions under s. 18(2). Finally, he submits that TD has failed to properly investigate his pre- and post-accident impairments, refused to remove him from the MIG despite medical evidence suggesting it should and also failed to schedule an Insurer’s Examination (“IE”) to assess whether his impairments warrant removal from the MIG.
7In response, TD submits that I.R. sustained a minor neck injury as a result of the accident and that the medical evidence does not support his argument that he has chronic pain, injured his back or knees, or that he suffers from persistent headaches as a result of the accident. TD points to the sporadic clinical notes, the fact that I.R. took three years to approach the MIG limit and the lack of diagnosis of chronic pain or functional impairment as a result of pain. Further to s. 18(2), TD submits that I.R. has provided no compelling medical evidence to suggest his pre-existing degenerative disc disease or knee osteoarthritis would prevent him from reaching maximal medical recovery under the MIG.
8While I am alive to I.R.’s reports of pain, I agree with TD that I.R. has not provided a convincing medical or expert opinion that would justify removal from the MIG on the basis of chronic pain, as alleged. He directs the Tribunal to sporadic complaints of neck pain since November 2016 in the notes of Dr. Jeffrey and the treatment records of Active Physiotherapy, but these notes do not demonstrate continuous and contemporaneous complaints of pain or functional impairment from pain, as there are significant gaps. Further, aside from Dr. Nichols’ referral, addressed below, they do not provide a diagnosis of chronic pain or chronic pain syndrome. While a diagnosis is not strictly required, I find there is also limited evidence, beyond I.R.’s self-reporting, of the type of functional impairment due to chronic pain that the Tribunal has previously accepted to warrant removal from the MIG. Indeed, as TD submits, on the evidence and despite complaints of pain, I.R. has seemingly continued to engage in many physical activities—sawing, lifting wood, cutting grass, etc.—despite his advanced age of 74 and with a one-and-a-half-year gap between treatment.
9With regards to the consultation report of Dr. Szpakowski on which I.R. relies, I find this report to be of limited weight. First, it was prepared in October 2019, nearly three years following the accident, raising issues of causation. While the report does refer to the accident based on I.R.’s self-reporting, it does not determine that I.R.’s lingering neck pain—for which he received block injections that provided relief—was as a result of the accident from three years prior, or from any of the several falls he endured since or whether it is from age-related or degenerative issues. Second, Dr. Szpakowski did not provide a medical opinion on whether or not I.R.’s neck injury is predominantly a minor injury and thus should remove him from the MIG, only that he has a decreased range of motion that is most consistent with myofascial pain. The report does not recommend further facility-based treatment.
10I.R. also submitted a clinical note from Dr. Nichols, dated February 12, 2020, that provides a timeline for his visits to his family physician and an update on his current status. The letter recaps the eight visits that I.R. has made to Dr. Nichols since the November 2016 accident and documents his neck pain complaints. Problematically, Dr. Nichols’ letter does not speak to the MIG, does not actually diagnose I.R. with chronic pain as a result of the accident and, confusingly, ends the letter by stating that while I.R. has ongoing neck pain, Dr. Nichols “feels that he has reached maximal medical recovery and will likely have ongoing neck discomfort” as a result of the accident. Where I.R.’s family physician has opined that he has reached maximal medical recovery, I find it is unclear how this opinion letter is assistive to I.R. in seeking treatment beyond the MIG for further facility-based treatment to help with maximal medical recovery.
11Accordingly, I find limited evidence to support I.R.’s claim that his identified impairments fall outside the definition of minor injury under s. 3(1) as chronic pain. While I.R. submits that his neck pain is a result of the accident, I find he has provided limited evidence to prove causation nearly four years later. With regards to his other pain complaints: the only medical records indicating back pain are from the November 13 and November 22, 2017 Active Physiotherapy treatment notes. I agree with TD that there is no medical diagnosis given for aggravated chronic back pain as a result of the accident. With regards to knee pain, there is no mention of knee pain in any medical record beyond a December 7, 2016 Dr. Nichols' entry indicating that his right knee had recovered. While I.R. reports chronic headaches, I again agree with TD that there is limited information regarding headaches, let alone persistent or chronic headaches, as there is only one Dr. Nichols' entry regarding headaches on March 9, 2017. Headache complaints do not appear again until July and October 2019 in the treatment notes of Active Physiotherapy, which are described as “intermittent” and Dr. Nichols later reports that the injections relieved I.R.’s headaches. TD submits, and I agree, that there is no medical diagnosis regarding headaches made by either Dr. Szpakowski or Dr. Nichol to escape the MIG.
12Finally, I agree with TD that I.R. has not demonstrated that he meets any three of the six criteria outlined in the Tribunal’s decision 17-007825 v. Aviva Insurance Canada2 to make a finding of chronic pain, as there is no use of prescription drugs beyond the recommended duration, excessive dependence on providers, secondary physical deconditioning, social withdrawal, disability or functional impairment or psychological sequelae. While I.R. may have lingering pain, I do not find that he has demonstrated that it requires removal from the MIG to treat.
13Under s. 18(2), I also find that I.R. has not provided compelling evidence of any pre-existing condition or pain that would have been exacerbated by the accident to warrant removal from the MIG. Mere evidence that a pre-existing condition existed before the accident is not sufficient to meet the test. The case law is well settled that it must be proven that the documented pre-existing condition prevents one from achieving maximal medical recovery under the MIG.3 I.R. has not provided the Tribunal with compelling evidence from a medical practitioner that any of his pre-existing conditions would prevent maximal medical recovery if he is kept within the MIG. Further, I.R. provided no compelling medical evidence to suggest that his degenerative disc disease or knee osteoarthritis would prevent him from reaching maximal medical recovery under the MIG. Indeed, it is difficult to look past Dr. Nichols’ opinion that I.R. has reached maximal medical recovery and especially so where he does not reference any pre-existing conditions. On the evidence, I would not interfere with TD’s determination that the MIG applies to I.R.’s accident-related impairments.
Is the treatment plan reasonable and necessary?
14Having determined that I.R.’s accident-related impairments are properly within the MIG, it is my understanding that the MIG limits have been exhausted and the remaining dispute pertains to $367.00, representing the unapproved portion of a treatment plan that exceeded the MIG limit. Accordingly, an analysis of whether the remaining funds in dispute are reasonable and necessary under s. 15 is not required. In any event, I.R. did not provide submissions on why the remaining funds are reasonable and necessary to treat his specific impairments, as it is his burden to do. As no benefits are overdue, it follows that no interest is payable.
Section 10 Award
15I.R. submits that TD has failed to properly investigate his pre- and post-accident impairments, refused to remove him from the MIG despite medical evidence suggesting it should and also failed to schedule an IE to assess whether his impairments warrant removal from the MIG. I.R. submits that TD acted in bad faith and seeks an award under s. 10 of O. Reg. 664 “in an amount to be determined by the Tribunal.” Under s. 10, the Tribunal may award up to 50% of the total benefits claimed if it finds that the insurer unreasonably withheld of delayed the payment of benefits.
16TD submits that an award is not appropriate based on the procedural history of I.R.’s file. TD notes that it approved funding up to the MIG limit on February 17, 2017. On January 15, 2018, TD advised I.R. that he had $1,061.73 remaining on his policy. On February 5, 2018, TD was notified by the clinic that I.R. stopped attending for treatment in November 2017 and it then advised I.R. that it would take steps to close his file. Then, on March 28, 2018, TD advised I.R. that it closed his file due to inaction. TD submits it did not receive any further correspondence from I.R. until he filed his application with the Tribunal in February 2019. TD submits that the report of Dr. Szpakowski along with the updated Dr. Nichols records were only provided to it on December 3, 2019. TD’s position is that, upon review of the complete medical evidence, there continued to be insufficient evidence to remove I.R. from the MIG and to approve the treatment plan in dispute and that its handling of the claim was not unreasonable.
17I agree and find an award is not appropriate. On this timeline, which I.R. did not dispute, TD would not have been required to conduct an IE as there were significant gaps in treatment and communication that can be laid solely at his feet. There is no indication—let alone a medical opinion to prompt an IE—that I.R. needed or even wanted treatment beyond the MIG. Further, it is uncontested that I.R.’s file was closed by TD due to inaction and that he also failed to provide TD with updated medical information to meet his burden to prove that he required treatment beyond the MIG until sometime after his application was filed with the Tribunal. I do not find TD’s denial to be unreasonable on the evidence. In any event, as no benefits are payable, it follows that the Tribunal cannot award 50% of zero under s. 10.
CONCLUSION
18I.R. has not satisfied his burden to prove that his accident-related impairments warrant removal from the MIG. The remainder of the treatment plan in dispute is not payable, no interest applies, and an award is not appropriate.
Released: October 13, 2020
__________________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10.
- 2018 CanLII 98282 (ON LAT), at para 6.
- 17-003571 v. Certas Direct Insurance Company, 2018 CanLII 39374 (ON LAT).