De Leon v. Scottish & York Insurance Company, 2020 CanLII 98737

Licence Appeal Tribunal

Citation: De Leon v. Scottish & York Insurance Company, 2020 ONLAT 19-006379/AABS Released Date: November 27, 2020 Tribunal File Number: 19-006379/AABS

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:

Teresita De Leon

Applicant

and

Scottish & York Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Appellant: R.J. Ford, Counsel

For the Respondent: Patrick Baker, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Teresita De Leon (“De Leon”), was injured in an automobile accident on June 24, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Scottish & York Insurance Company (“Scottish & York”), the respondent.

2Scottish & York denied De Leon’s claims, including a chronic pain assessment, because it had determined that all of De Leon’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² As a result, De Leon submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on December 9, 2019 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Did De Leon sustain predominately minor injuries as defined under the Schedule?

(ii) If De Leon did not sustain predominantly minor injuries:

(a) Is De Leon entitled to $2,200.00 for a chronic pain assessment recommended by On Time Assessments as set out in a treatment plan (“OCF-18”) dated April 7, 2017, and denied by Scottish & York on June 23, 2017?

(b) Is De Leon entitled to interest on any overdue payment of benefits?

RESULT

5I find that De Leon has not satisfied her burden of proving that her impairments require treatment beyond the MIG. I also find that she is not entitled to the OCF-18 for the chronic pain assessment and, therefore, there is no interest payable.

Did De Leon sustain predominately minor injuries as defined under the Schedule?

a) The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7The Tribunal has found that chronic pain syndrome would remove an injured person from the MIG, as this diagnosis is not included in the definition of “minor injury” in s. 3(1) of the Schedule.

8I find that De Leon has failed to meet her onus of proving on a balance of probabilities³ that she suffers from chronic pain syndrome and, therefore, she is not removed from the MIG.

b) Chronic Pain Syndrome

9Although not expressly stated in her submissions, I accept that De Leon’s position is that she should be removed from the MIG because she has been diagnosed with chronic pain syndrome as a result of the accident. In support of this diagnosis, De Leon relied upon an April 8, 2017 Independent Medical Evaluation by Dr. Mary Ann Goldhawk, chiropractor. In her report, Dr. Goldhawk diagnoses De Leon with chronic pain syndrome.

10I agree with Scottish & York’s submissions that Dr. Goldhawk is not qualified to render an opinion or to provide a diagnosis of chronic pain syndrome as a chiropractor. This finding is consistent with many other Tribunal decisions that have found that while it would certainly be permissible for a chiropractor to treat chronic pain, a diagnosis of chronic pain is beyond a chiropractor’s scope of practice.⁴

11I also do not accept that Dr. Goldhawk’s title of “Diplomate, Canadian Academy of Chronic Pain,” affects or changes this finding. Scottish & York submits, and I accept, that the Canadian Academy of Chronic Pain does not exist and that Dr. Goldhawk, as stated in the qualifications portion of her report, is instead a member of the Canadian Academy of Pain Management. Scottish & York also relied upon the following portion from the Canadian Academy of Chronic Pain’s website: “Acreditation in the Canadian Academy of Pain Management does not consitute professional certification or license to practice and does not regulate practice.”⁵ It is clear, as Scottish & York submits, that membership in this association does not amount to a member being professionally certified, licensed or qualified to practice in any way. De Leon did not dispute any of these submissions by Scottish & York as as De Leon filed no reply submissions for the hearing.

12De Leon filed no other clinical notes and records (“CNRs”) or any other documents from any other medical professionals aside from Dr. Goldhawk as evdience for the written hearing. As I have found that Dr. Goldhawk is not qualified to provide an opinion or to diagnose chronic pain syndrome, I find that De Leon has failed to prove on a balance of probabilities that she suffers from chronic pain syndrome. Therefore, she is not removed from the MIG.

Chronic Pain Assessment

13Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

14De Leon bears the onus of proving entitlement to the claimed chronic pain assessment by proving it is reasonable and necessary on a balance of probabilities.⁶

15As De Leon has failed to prove on a balance of probabilities that she should be removed from the MIG based on a diagnosis of chronic pain syndrome, a consideration of De Leon’s entitlement to the proposed treatment plan for the chronic pain assessment is not required given how the issues were set out in the Tribunal’s December 9, 2019 Order. However, since neither party confirmed in their written submissions that the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted, I have undertaken an analysis on the reasonableness and necessity of the disputed OCF-18.

16One of the goals of the treatment plan stated that it was for a chronic pain assessment and the OCF-18 stated that Dr. Goldhawk would be the service provider for this assessment. I find that De Leon has failed to prove on a balance of probabilities that the proposed OCF-18 was reasonable and necessary because Dr. Goldhawk is not qualified to diagnose or opine on chronic pain syndrome, as discussed above. Additionally, no CNRs were submitted to support the assessment at the time that it was submitted for consideration by Scottish & York. For these reasons, De Leon is not entitled to payment of this treatment plan.

Interest

17As there are no benefits owing, no interest is payable.

CONCLUSION

18For the reasons outlined above, I find that De Leon:

(i) Is not removed from the MIG;

(ii) Is not entitled to the OCF-18 for the chronic pain assessment;

(iii) No interest is payable; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4See, for example, 17-008752 v Certas Direct, 2018 CanLII 140346 (ON LAT) at para. 46, S.A. v. intact Insurance Company, 2020 CanLII 57372 (ON LAT) at para. 20, GV v Wawanesa Insurance Company, 2020 CanLII 34454 (ON LAT) at para. 17, M.J. v. The Dominion of Canada General Insurance Company, 2020 CanLII 45482 (ON LAT) at para. 19.
5. 5CAPM Vision, online: The Canadian Academy of Pain Management https://www.canadianapm.com/vision.html.
6. 6Supra note 3.