Released Date: 11/26/2020
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:
D.R.
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR: Monica Chakravarti
APPEARANCES:
For the Applicant: [D.R.], Applicant Alexei Antonov, Counsel
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of teleconference and written submissions
OVERVIEW
1On September 16, 2017 the applicant was involved in a motor vehicle accident (the “Accident”). Following the Accident, the applicant sought medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant initially received medical and rehabilitation benefits in the amount of $3,500.00. The respondent then denied the applicant’s claim for further medical and rehabilitation benefits because it determined that 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”). The applicant disagreed with the respondent and thus applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service.
3The parties confirmed that if the applicant’s position is correct and the applicant’s injuries do not fall within the MIG, then I must address the issue of whether the medical and rehabilitation treatments claimed are reasonable and necessary. However, if the respondent’s position is correct and the applicant’s injuries are within the MIG, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule. In turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
4Additionally, regardless of my finding with respect to the MIG, I must decide if a treatment plan that was submitted on September 27, 2017 was responded to by the respondent within the timelines prescribed by section 38(8) of Schedule and if the resulting rules of section 38(11) of the Schedule therefore apply.
5Further, the applicant raised the issue that the respondent’s submissions exceeded the allotted pages as per the Tribunal’s Order of August 22, 2019 and therefore those pages in excess of the page limits, dealing primarily with costs, should not be considered in the decision.
6Below are the issues in dispute that incorporate the above and the resulting decision on those issues.
ISSUES IN DISPUTE
a) Procedural Issue:
7The procedural issue in dispute is whether the respondent exceeded the page limits for submissions as set out in the Tribunal Order of August 22, 2019, and therefore submissions exceeding the page limits not be considered.
b) MIG and Treatment Plans
8The following are the substantive issues that will be decided:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore already consumed the $3,500.00 limit and in the Minor Injury Guideline?
ii. If the answer to the above is no then:
Is the applicant entitled to a medical benefit in the amount of $2,581.08 for physiotherapy services, denied by the respondent October 12, 2017?
Is the applicant entitled to a medical benefit in the amount of $1,294.25 for physiotherapy services, denied by the respondent November 13, 2017?
Is the applicant entitled to a medical benefit in the amount of $1,465.10 for physiotherapy services, denied by the respondent December 4, 2017?
Is the applicant entitled to a medical benefit in the amount of $1,254.25 for physiotherapy services, denied by the respondent January 15, 2018?
Is the applicant entitled to a medical benefit in the amount of $1,800.00 for physiotherapy services, denied by the respondent January 15, 2018?
Is the applicant entitled to a medical benefit in the amount of $1,383.74 for physiotherapy services, denied by the respondent February 16, 2018?
Is the applicant entitled to a medical benefit in the amount of $11,181.90 for a chronic pain program, denied by the respondent August 1, 2018?
Is the applicant entitled to a medical benefit in the amount of $1,186.45 for physiotherapy services, denied by the respondent August 14, 2018?
Is the applicant entitled to a medical benefit in the amount of $3,335.98 for psychological services, denied by the respondent August 28, 2018?
Is the applicant entitled to $1,340.20 for the cost of functional abilities evaluation, denied by the respondent December 6, 2017?
Is the applicant entitled to $2,000.00 for the cost of a psychological assessment, denied by the respondent January 11, 2018?
Is the applicant entitled to $2,000.00 for the cost of a chronic pain assessment, denied by the respondent March 13, 2018?
Is the applicant entitled to $200.00 for the cost of a psychological pre-screening report, submitted to the respondent October 1, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
c) Notice
v. Did the respondent fail to provide a notice complaint with section 38(8) of the Schedule for the treatment and assessment plan that was submitted on September 27, 2017 and denied by the respondent on October 12, 2017?
RESULT
9Based on the evidence, jurisprudence, and submissions of the parties, I find as follows:
a. The parties’ submissions will be considered as filed.
b. For the reasons noted below, the applicant injuries fall within the MIG. As the applicant’s injuries fall within the MIG and the funding limit has been exhausted, I do not need to consider whether the treatment plans are reasonable and necessary.
c. The respondent did provide notice complaint with the Schedule and therefore the respondent may take the position that the applicant is within the MIG and the treatment plan submitted on September 27, 2017 is not payable.
d. The applicant is not entitled to interest or an award, and neither party is entitled to costs.
ANALYSIS
a) Procedural Issue: Page Limits
10The page limit allotted for in the Tribunal Order of August 22, 2019 is 15 pages. The applicant submitted seventeen (17) pages consisting of one page as a cover page, fifteen pages as submissions and one page as a back page. The respondent submitted sixteen (16 pages) consisting of one page as a cover page and 15 pages of submissions. The difference between the two submissions is the applicant started numbering his submissions after the cover page. The respondent started numbering its pages starting at the cover page.
11Therefore, I find that both parties have submitted the same number of pages for their respective submissions - 15 pages each - plus both parties have submitted one page as a cover page. Thus, as both parties’ submissions are 15 pages and abide by the Tribunal’s Order of August 22, 2019, they will be considered in their entirety.
b) Minor Injury
12Section 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.”
13A psychological injury is not a minor injury.
14Section 18(1) of the Schedule limits the recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. The jurisprudence has established that chronic pain is not considered a minor injury. The onus is on the applicant to show that his injuries fall outside of the MIG.2
15The applicant advances a three-prong argument that his injuries are outside the MIG. First, the applicant submits that, as a result of the injuries sustained in the Accident, he has developed chronic pain. Secondly, the applicant submits that, as a result of the Accident, he sustained psychological injuries. Thirdly, in the alternative, the applicant submits that the respondent failed to respond to a treatment plan in the time provided for by the Schedule and therefore the respondent cannot take the position that the applicant is in the MIG with respect to the specific treatment plan, explained in detail below.
i. Does the applicant have chronic pain as a result of the Accident?
16The applicant submits that chronic pain is a condition that is outside of the definition of minor injury and therefore outside of the MIG. The applicant submits that, based on earlier decisions of this Tribunal,3 chronic pain is a condition that persists for three to six months after the initial trigger or injury.
17The applicant submits that he was diagnosed with chronic pain by two assessors– Dr. Jacobs, a doctor specializing in chronic pain and Dr. West, an orthopaedic surgeon. The applicant further submits that he continues to experience pain at the 2 year post-accident mark as noted by his family physician, and his subjective complaints of pain are in keeping with his objective findings, specifically the findings of the functional ability assessment which noted that he demonstrated poor body mechanics and an x-ray noting scoliosis of the thoracic spine.
18As well the applicant submits, he suffers from severe and constant pain. That the pain persisted past the 12-week scope of treatment provided for under the MIG and that the pain has caused significant functional impairments with his activities of daily living and functional ability. He further submits that he relies on prescription and over the counter medication and developed psychosocial issues as a result of the pain including weight gain, sleep difficulty and difficulties with performing at work.
19The respondent submits that immediately following the accident the applicant was diagnosed by his family physician and by his chiropractor with soft tissue strain injuries. The respondent submits that the applicant stopped taking prescription medication one month following the accident, and takes only Advil or Tylenol as necessary and that by the time that the applicant was diagnosed with chronic pain syndrome by Dr. West he had returned to housekeeping, walking his dog and many of his pre-accident hobbies and socialization as evidenced in the surveillance.
20Further, the respondent submits that, based on the definition of chronic pain by Dr. West, the orthopaedic surgeon who was retained by the applicant, that the applicant does not meet that definition in that his pain is not unremitting, his pain did respond to treatment and his pain does not interfere with his activities of daily living. The respondent also relies of the report of Dr. Zabieliauskas, physiatrist who was retained to conduct an insurer examination, wherein Dr. Zabieliauskas found the applicant did not sustain chronic pain.
21The respondent submits that the pain that the applicant experiences is intermittent, well managed and is a sequela of the MIG injuries sustained by him.
22I find based on the totality of the evidence including the testimony of the applicant that the applicant sustained injuries to his mid to lower back as a result of the accident. I find that the applicant had immediate injuries to his neck, left shoulder, abdomen and various other parts; however, those issues resolved in a timely fashion as per the evidence, leaving intermittent pain to his mid and lower back (or, as it is noted, at times his thoracic and lumbar spine). I find that the ongoing complaints of the applicant are not chronic pain or chronic pain syndrome for the reasons noted below.
23The applicant relies on the report of Dr. West, orthopaedic surgeon. Dr. West diagnosed the applicant with chronic pain syndrome and defines chronic pain syndrome as follows:
A chronic pain syndrome is said to exist when symptoms persist far beyond the normal expected time of healing for the specific injury, often six months or longer. Chronic pain is intrusive in nature, unremitting, and often not susceptible to conventional methods of treatment. Chronic pain often interferes with an individual's activities of daily living, both vocational and avocational. Chronic pain is often accompanied by psychological and emotional problems such as those demonstrated by [the applicant].
24I find that I cannot rely upon the diagnosis by Dr. West as the evidence is contrary to his definition of chronic pain in that the applicant’s pain is not unremitting, not intrusive and is susceptible to conventional methods of treatment.
25The applicant’s explanations and description of his pain were inconsistent and variable. The applicant testified that his neck pain is gone but that he continues to have right shoulder pain. The shoulder pain is not documented in the family doctor’s clinical notes. The family doctor does note that the applicant’s back pain comes on sometimes. The applicant reported to Dr. Jacobs that his lower back pain is intermittent. He reported to Dr. West, a year after the assessment by Dr. Jacobs, that his thoracolumbar pain is constant. He reported to his family doctor that he has ongoing back pain but does not go into details about the frequency of the pain. The applicant testified that his back pain is not constant. I find these are not hallmarks of unremitting pain.
26Further, by Dr. West’s own definition, the applicant has not demonstrated that his symptoms are intrusive in nature. The applicant testified that he continues to work, albeit with modifications, continues to perform home activities with pacing, continues with his hobbies of fishing and hunting and continues with his social activities as evidenced by the surveillance video and the testimony of the applicant.
27Finally, the applicant has not demonstrated that his symptoms are not susceptible to conventional methods of treatment. In fact, the applicant reported and testified that his pain is managed by over the counter Advil and Tylenol, which he does not take daily but approximately 15 times per month.
28When taken together, the findings of Dr. West are not in keeping with the evidence.
29I also do not place any weight on the conclusion of Dr. Jacobs. Dr. Jacobs acknowledges that the pain that the applicant experiences is intermittent but then states that the applicant has chronic pain. Dr. Jacob does not explain how he reaches that conclusion when the applicant is reporting intermittent pain.
30I also do not find that the functional impairment evaluation report of December 19, 2017 to be helpful in deciding the issue of chronic pain. The report does not speak to the chronicity of the injuries sustained. As well, the report is silent on the abilities of the applicant post the 12-week scope of treatment provided for under the MIG or even currently.
31I do not place any weight on the report of Dr. Zabieliauskas as his assessment took place within the healing time i.e. less than six months following the Accident. As well, Dr. Zabieliauskas provided addendum reports; however, these were based on paper reviews and Dr. Zabieliauskas never examined the applicant following his initial assessment, which was within the six months following the Accident.
32The clinical notes and records of the family doctor as well do not indicate chronic pain or chronic pain syndrome. The applicant saw his family doctor on September 27, 2017 and October 16, 2017 and reported his immediate injuries. Thereafter, the applicant saw his family doctor on October 1, 2018, one-year post accident, while continuing to work and reported low back pain. He then saw his family doctor approximately one year later on September 16, 2019 and reported pain in the lower thoracic spine and upper lumbar spine. The applicant advised his doctor that it was as a result of a motor vehicle accident but did not advise his doctor that the pain comes and goes and that he does not always require the use of over the counter medication.
33Lastly, the family doctor referred the applicant to a physiotherapy clinic that confirmed that applicant has muscular mid back pain.4 There is no notation of chronic pain nor any further referrals or anything indicating that the family doctor is concerned that the pain is now chronic in nature. As well, the note from the physiotherapy clinic states that the pain increases with activities of daily living. This is consistent with the applicant reporting to Dr. Jacobs that his pain increases with certain prolonged movements and that it is not constant.5
34I am not persuaded that on a balance of probabilities that the applicant has chronic pain as a result of the Accident. The evidence provided does not demonstrate that the thoracic and lumbar injuries from the Accident have culminated into chronic pain or chronic pain syndrome; rather, the evidence indicates that the pain comes and goes based on activity level.
35On a balance of probabilities and after considering the evidence I find that the applicant does not have chronic pain or chronic pain syndrome as a result of the Accident.
ii. Does the applicant have psychological injuries as a result of the Accident?
36The applicant submits that, as a result of the accident, he sustained ongoing psychological injuries. The applicant relies on the report of Dr. Shaul, psychologist, who diagnosed the applicant with Adjustment Disorder related to the Accident.
37The respondent submits that the applicant sustained no psychological impairments or injuries as a result of the Accident and relies on the report of Dr. Debow, psychiatrist, who assessed the applicant at the request of the respondent.
38Based on the evidence, I find that on a balance of probabilities that the applicant did not sustain any psychological impairments as a result of the accident.
39Firstly, I am not persuaded by the report of Dr. Shaul. The applicant in his testimony advised that he did not see Dr. Shaul but saw Ms. Ilios, who did the interview and questionnaire. In other words, Dr. Shaul’s diagnosis is based on the information from Ms. Ilios and not from his personal assessment of the applicant.
40Secondly, the report of Dr. Shaul notes that the applicant has tested in the minimal range for depression and anxiety and minimal level of emotional distress. Despite this, the report states that the applicant seemed “emotionally devastated” as a result of the accident and then makes a diagnosis of Adjustment Disorder with Mixed Anxiety and Depression. This diagnosis is not in keeping with the testimony of the applicant that he still has a positive outlook on life, that psychologically he feels better than he did following the accident and made the best of what occurred.
41The respondent’s insurer examiner, Dr. Debow, concluded that the applicant sustained no psychological or emotional injuries as a result of the Accident. I am also not persuaded by the report of Dr. Debow as it is devoid of details as to how he comes to this conclusion based on the interview.
42I also cannot rely upon the information from Dr. West, orthopaedic surgeon, or the chiropractor regarding the applicant’s emotional state as neither is in a position to provide the diagnoses of psychological injuries.
43I am persuaded by the clinical notes and records of the applicant’s family doctor. The applicant does not report any emotional or psychological issues to his family doctor following the Accident. I find this to be persuasive in showing that the applicant is reporting his physical issues but is not reporting any psychological issues. I found no issues with the credibility of the applicant and believe that the applicant’s reporting to the various assessors and his family doctor to be his true information.
44The applicant bears the onus to show that he sustained psychological injuries as result of the Accident. Based on the evidence the applicant has not discharged this burden and therefore I find that on a balance of probabilities that the applicant did not sustain any psychological injuries as a result of the Accident and therefore the applicant remains in the MIG.
c) Notice and MIG
45Section 38 (8) of the Schedule states:
Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
46Section 38(11) of the Schedule states:
If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
47Section 38(8) of the Schedule provides when the notice is to be provided and section 38(11) lays out the consequences if the respondent does not adhere to timelines in providing the notice.
48The applicant submits that the respondent did not abide by the requirement of section 38(8) of the Schedule of informing the applicant of its denial of the treatment plan that was submitted on September 27, 2017 and denied on October 12, 2017 which was more than 11 business days after the respondent received the treatment plan of September 27, 2017.
49The respondent takes no issue that the treatment plan was submitted on September 27, 2017 and responded to on October 12, 2017. The respondent submits that it was responded to within ten business days as October 7, 8, and 9 of 2017 are not to be counted because they are the Saturday, Sunday and Thanksgiving Monday and are exempt from the definition of “business days” pursuant to section 3(1) of the Schedule. As well, the respondent states that September 27, 2017 is not to be included in the counting of the business days and the first business day starts after receipt of the treatment plan.
50I note that Section 64(24) of the Schedule states:
A reference in this Regulation to a number of days between two events shall be read as excluding the day on which the first event happened and including the day on which the second event happens.
51I take no issue with the fact that the treatment plan was submitted on September 27, 2017. I also agree that as per section 64(24) of the Schedule the counting of business days commences the day after receipt of the treatment plan and not on the day of receipt. When counting the business days between September 27, 2017 and October 12, 2017, day one is September 28, 2017; the excluded days are September 30, October 1, 7, 8, and 9 as they are the Saturday, Sunday and Thanksgiving Monday and therefore, the tenth business day is October 12, 2017.
52The applicant agrees that the respondent gave notice of its denial of the treatment plan on October 12, 2017; therefore, the respondent provided notice compliant with section 38(8) of the Schedule and the consequences found in s. 38(11) do not apply in respect of this treatment plan.
53Based on the above, I find that the applicant’s injuries fall within the MIG. The applicant and respondent agree that if the applicant’s injuries fall within the MIG then I do not need to render a decision regarding the treatment plans in dispute as the monetary limit of $3,500.00 has been exhausted.
d) Interest and Award
54As I have found that there are no benefits owing to the applicant, there is therefore no interest payable.
55The applicant has put forth no evidence to show that the insurer, through its actions or inactions, has unreasonably withheld or delayed payments of benefits. The respondent relied upon the reports it commissioned pursuant to section 44 of the Schedule and relied upon the medical information provided by the applicant. While I agree that some of the section 44 reports are not persuasive, that is not enough to show that the insurer acted unreasonably. Further, as there are no benefits owing to the applicant, it cannot be said that the insurer withheld or delayed benefits. I find that the respondent is not liable to pay an award.
CONCLUSION
56For the reasons stated above, I find that the applicant’s injuries fall within the MIG and there are no benefits owing to the applicant. No interest or award are payable. Therefore, the application is dismissed in its entirety.
Released: November 26, 2020
Monica Chakravarti Adjudicator
Footnotes
- O.Reg 34/10, as amended.
- Scarlett v Belair Ins. Co., 2015 ONSSC 3635 (Div.Ct.).
- T.S. v Aviva General Insurance Canada, 2018 CanLII 83520
- Tab 10 page 12 of 21 of the Applicant’s Document Brief (The Document Brief)
- Tab 6 page 7 and 8, of the Document Brief