Citation: Ramsay vs. Intact Insurance Company, 2020 ONLAT 19-012931/AABS

Released Date: 11/10/2020

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:

Patricia Ramsay

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Tiffany V. Little, Counsel

For the Respondent:

Stuart J. Norris, Counsel

HEARD:

By way of written submissions

OVERVIEW

1PR (the “applicant”) was involved in an automobile accident on June 7, 2017 and sought benefits from Intact Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?

ii. If the answer to the first question is no, is the applicant entitled to the following benefits:

a) Is the applicant entitled to a medical benefit in the amount of $848.75 for physiotherapy recommended by Wellington Sports Medicine in a treatment plan (OCF-18) submitted on November 7, 2017?

b) Is the applicant entitled to a medical benefit in the amount of $2,843.33 for occupational therapy recommended by Allison Poole in a treatment plan (OCF-18) submitted on November 7, 2017?

c) Is the applicant entitled to a medical benefit in the amount of $1,799.83 for occupational therapy recommended by Fiona Kalp in a treatment plan (OCF-18) submitted on December 5, 2017?

d) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. Since the $3,500.00 limit has been exhausted, I need not determine whether the treatment plans are reasonable and necessary as a result of the applicant’s accident related impairments. Interest is not payable as I do not find that any payments are overdue.

BACKGROUND

5On June 7, 2017, the applicant was driving through an intersection with the right of way when another vehicle ran a red-light and t-boned her vehicle. The applicant was transported to hospital where she was assessed and discharged the same day. She took four days off work from her employment as a dental office manager.

6Following the accident, the applicant commenced treatment pursuant to the MIG. The applicant now seeks a finding that her injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

7I find the applicant’s impairments fall within the MIG.

8Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

9Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that her impairments are not minor and not subject to the $3,500.00 cap.

10The applicant argues that her impairments do not fit within the definition of the MIG because she suffers from a combination of impairments consisting of a partial tear in her right shoulder, radiculopathy in her right arm and a psychological impairment. Further, she argues that her accident related impairments remain unresolved and she requires further treatment. She relies on the clinical notes and records (“CNRs”) of Dr. McConvey, family doctor, Samuel Laldin, mental health counsellor and Andrea Malinowski, physiotherapist. She also relies on the reports of Dr. Wilkins, pain management specialist and Fiona Kalp, occupational therapist (“OT”), in support of her position that her impairments are not minor.

11The respondent submits that the applicant’s impairments fit within the MIG. It asserts that the partial tear sustained by the applicant fits within the definition of the MIG. Further, it maintains that the CNRs relied upon by the applicant do not support that she sustained a psychological impairment, nor has she been formally diagnosed with radiculopathy in her right arm as a result of the accident. The respondent relies on the insurer examination reports (“IEs”) of Dr. Sandhu, occupational medicine specialist who determined that the applicant’s accident related impairments are minor. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.

12The applicant submits that she did not have any pre-existing health issues that would prevent her from achieving maximum medical recovery within the MIG, so she is not removed from the MIG as a result of a pre-existing condition.

Do the applicant’s physical impairments remove her from the MIG?

Diagnosis of Radiculopathy

13I do not find that the CNRs of Dr. McConvey support the applicant’s position that she was diagnosed with radiculopathy as a result of the accident which would remove her from the MIG. I agree with the respondent that the applicant was not diagnosed with radiculopathy by her family doctor. Between August 24, 2017 and April 10, 2019, the applicant visited her family doctor’s office four times complaining of pain in her right shoulder, right hand and chest as a result of the accident. On November 15, 2017, Dr. McConvey diagnosed the applicant with tendonitis of the right hand and prescribed Vimovo. Following a visit on November 12, 2018, the doctor noted that her shoulder, arm and hand pain failed to improve, and the doctor referred her for an MRI. Dr. McConvey referred the applicant to Dr. Wilkins for further investigation. The last CNR of Dr. McConvey dated April 10, 2019 noted “significant pathology in her rotator cuff” and the doctor supported that she receive ongoing physiotherapy. The applicant did not submit any reports from any experts opining that a diagnosis of tendonitis would remove her from the MIG. In addition, the family doctor did not diagnose the applicant with chronic pain which would remove her from the MIG.

14Following a referral from Dr. McConvey, the applicant was seen by Dr. Wilkins, pain management specialist. In a letter to Dr. McConvey dated January 22, 2018 Dr. Wilkins confirmed that the applicant sustained a partial thickness rotator cuff tear of the right shoulder and recommended that she receive ongoing physiotherapy. Dr. Wilkins noted that the applicant had a seven-month history of right-hand pain with difficulty fully flexing the fourth digit bilaterally. In describing the applicant’s right-hand impairment, the doctor noted “no numbness or tingling” but that the applicant had “stiffness with gripping.” Dr. Wilkins completed electrodiagnostic studies which were abnormal. In interpreting the results of the EMG report, Dr. Wilkins opined that the applicant has slight carpel tunnel in the right hand and her inability to flex the right hand may be a stenosing tenosynovitis. I agree with the respondent that Dr. Wilkins does not diagnose the applicant with radiculopathy. Further, there is no expert opinion before me that carpel tunnel would remove the applicant from the MIG.

15An ultrasound conducted on February 14, 2018 supports that the applicant sustained a partial tear in her right shoulder as a result of the accident. An MRI completed on March 21, 2019 confirmed same. Both parties agree that a partial tear is an impairment which fits within the definition of the MIG.

16The applicant submitted the CNRs and report of Andrea Malinowski dated July 3, 2020. In her report the physiotherapist opines that the findings of her assessment include “whiplash with right arm radiculopathy, injury of the right rotator cuff, sprain/strain to the right wrist/hand, contusion of the left knee and sprain/strain of the thorax” The report highlights that the applicant has attended treatment focussing on improving mobility and strength to return her to full function. Further, that the applicant continues to have pain which has caused functional limitations in her ability to carry out her daily activities. What I found lacking from Ms. Malinowski’s report was any explanation for what radiculopathy is, the symptoms and how it is diagnosed. As a result, I do not find Ms. Malinowski’s opinion that the applicant had right arm radiculopathy persuasive as she did not provide any explanation for how she diagnosed this impairment.

17By contrast, the respondent relied on three IE reports of Dr. Sandhu, dated February 2, 2018, June 28, 2018 (paper review) and July 4, 2018 (addendum report). The purpose of Dr. Sandhu’s first assessment was to asses the applicability of the MIG. The applicant reported that she has intermittent numbness and paresthesias over both arms but predominantly over her right. Further, she reported ongoing shoulder pain. Dr. Sandhu completed a physical examination of the applicant which was normal, with the exception that the applicant had impaired ability to perform grasping with high grip strength in her right hand. Dr. Sandhu recommended that the applicant undergo an EMG nerve conduction study to clarify the etiology of the applicant’s symptoms in relation to her right hand. Further, once the EMG was completed the doctor would review it. Following this assessment, the report of Dr. Wilkins and EMG study was forwarded to Dr. Sandhu. Dr. Sandhu agreed with Dr. Wilkins that the applicant’s right hand was showing evidence of carpel tunnel syndrome. I accept the opinions of Dr. Wilkins and Dr. Sandhu over Ms. Malinowski as they are specialists and relied on EMG testing in rendering their respective opinions.

18The applicant argued that the partial tear in her right shoulder on its own fits within the definition of a minor injury. However, the combination of the partial tear of her right shoulder, radiculopathy and psychological impairment remove her from the MIG. What I found lacking from the applicant’s evidence, was an opinion from either her family doctor or another medical expert stating that the combination of the applicant’s impairments would remove her from the MIG and the clinical rationale with respect to why. The respondent submitted case law that supports that in order for a diagnosis of radiculopathy to be accepted it has to be supported by diagnostic imaging and result in some functional limitation.¹ I agree with the respondent that the applicant has failed to establish that she suffers from radiculopathy based on objective diagnostic testing.

19The applicant has not met her onus on a balance of probabilities that she suffers from radiculopathy as a result of the accident that would remove her from the MIG.

Did the applicant sustain a psychological impairment that removes her from the MIG?

20I do not find the applicant is removed from the MIG as a result of an accident- related psychological impairment for the following reasons.

21The applicant relied on one CNR of Dr. McConvey and a few counselling notes of Mr. Laldin to support that she suffers from an accident related psychological impairment. Dr. McConvey’s CNR dated August 23, 2018 notes that the applicant “has been struggling with some issues around low mood and anxiety at times. She relates some of this to being aggravations from her MVA from last year”. After administering two psychological screening questionnaires, Dr. McConvey diagnosed the applicant with a mood disorder, depression and anxiety and referred her for counselling.

22The applicant then attended counselling sessions with Samuel Laldin who diagnosed the applicant with major depression, moderate severity using the same PHQ-9 questionnaire as Dr. McConvey. The applicant attended three counselling sessions with Mr. Laldin in September and November 2018, and once again in January 2019. The session notes refer to the accident, however, discuss issues relating to the applicant’s family versus the impact of the accident on the applicant’s psychological condition. Following January 2019, the applicant stopped attending counselling. In her submissions, the applicant maintains that she would prefer to attend physiotherapy and occupational therapy to manage her symptoms of pain which would in turn improve her psychological state.

23I do not find that the above records support that the applicant sustained a psychological impairment as a result of the accident that would remove her from the MIG. While she may have had some psychological symptoms post-accident, I do not place much weight on the one CNR of Dr. McConvey as the diagnosis was based on the applicant’s self reports on one visit using a psychological screening questionnaire. Further, the same psychological screening questionnaire was used by Mr. Laldin based on the applicant’s self-reports. In my view, the psychological diagnosis rendered by Mr. Laldin was not supported by any objective medical evidence. For example, there was a lack of psychometric testing and post-accident CNRs to support that the applicant had ongoing psychological complaints which resulted in any functional limitations. In addition, the session notes do not support that the accident caused any significant impairment as the accident was not discussed as the primary cause of the applicant’s psychological distress as the sessions focussed on issues with her family.

24The applicant also relied on the OT report of Fiona Kalp dated December 10, 2017 in support of her position that she suffers from a psychological impairment as a result of the accident. In her report, Ms. Kalp noted that the applicant reported having a persistent low mood as well as vehicular anxiety. In assessing the applicant Ms. Kalp administered the Rivermead Post-Concussion Symptoms Questionnaire (RPQ) to assess the applicant’s post-concussive symptoms. The applicant rated high on scales regarding feelings of depression, frustration; fatigue; poor concentration and sleep disturbances.

25I did not find Ms. Kalp’s report persuasive as it was inconsistent with the evidence before me. For example, Ms. Kalp’s report indicates that the applicant suffers from post-concussive syndrome and she notes various symptoms experienced by the applicant. In my view, this is contradicted by the fact that the applicant reported to her family doctor as well as to Dr. Sandhu that she did not hit her head in the accident. In fact, Dr. McConvey’s first CNR post-accident notes “there were no signs or symptoms compatible with a concussion.” For these reasons, I assign little weight to Ms. Kalp’s report.

26While the applicant may have suffered from some psychological symptoms as a result of the accident, the applicant has not met her onus on a balance of probabilities that she sustained a psychological impairment as a result of the accident that would remove her from the MIG.

27Since I have determined that the applicant’s impairments are minor she is not entitled to the disputed treatment plans.

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

28The applicant is not entitled to interest.

29Section 51(1) of the Schedule provides that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this regulation.

30Since I do not find that any payments are overdue the applicant is not entitled to interest.

ORDER:

31For all of the above reasons, I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit;

ii. The applicant is not entitled to any of the disputed treatment plans

iii. The applicant is not entitled to interest as I do not find any payments are overdue.

Footnotes

1. 118-005474 v. Certas Direct Insurance Company, 2019 CanLII 76976 (ON LAT); and LH v. Certas Direct Insurance Company, 2020 CanLII 12749 (ON LAT)