Released: February 17, 2021

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:

Elvira Castillo

Applicant

and

TD General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

For the Respondent:

Nick Mahdavi, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Elvira Castillo, was involved in an automobile accident on October 9, 2015 when the vehicle she was a passenger in was rear-ended while stopped at a stoplight. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2The respondent, TD General Insurance Company, denied the applicant certain benefits and she applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES IN DISPUTE

3I am to decide the following issues:

a. Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to a $3,500.00 treatment limit in accordance with the Minor Injury Guideline (MIG)?

b. Is the applicant entitled to receive a medical benefit in the amount of $2,200 for Chronic Pain Assessment recommended by Scarborough Physiotherapy and Rehabilitation Centre submitted in a treatment plan dated October 24, 2018, and denied by the respondent on November 30, 2018?

c. Is the applicant entitled to receive a medical benefit in the amount of $12,310.98 for a chronic pain program recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated June 4, 2019, and denied by the respondent on June 20, 2019?

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

e. Is the applicant entitled to receive an award under s. 10 of Regulation 664² because the respondent unreasonably withheld or delayed payment of a benefit?

RESULT

4The applicant has not proven on a balance of probabilities that her injuries exceed the definition of a “minor injury” in the Schedule. She has not shown that she should receive treatment outside the MIG due to a pre-existing medical condition that would prevent her from recovering from her minor injuries under the MIG. The $3,500.00 funding limit for the treatment of minor injuries applies. $1,107.00 remains under the MIG funding limit, but the treatment plans claimed in this application exceed that amount. As formulated, they are therefore not payable.

5Because I have determined that the MIG applies to the applicant, I need not consider if the benefits she seeks are “reasonable and necessary” as a result of the accident. No interest is owing because no benefits are payable.

6The applicant has not demonstrated that the respondent should pay her an award for unreasonably withholding or delaying benefits under Regulation 664.

ANALYSIS

7To be eligible for medical and rehabilitation benefits in excess of the $3,500.00 funding limit in s. 18(1) of the Schedule, an applicant must demonstrate that her accident-related injuries are not predominantly minor. If her injuries are not predominantly minor, she will be entitled to medical and rehabilitation benefits up to a limit of $50,000.00 if she can demonstrate that they are reasonable and necessary as a result of the accident. It is the applicant’s responsibility to prove entitlement to the benefits she seeks.³

8Section 3 of the Schedule defines “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.

9Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that she has a pre-existing medical condition that will prevent her from achieving maximal recovery from the minor injury if she is subject to the MIG funding limit.

The applicant sustained predominantly minor injuries in the accident

10I have carefully reviewed the medical records and I find that the applicant’s documented physical injuries fall within the definition of a “minor injury” in the Schedule. The applicant’s accident-related injuries are soft tissue sprains and strains and their clinically associated consequences, or sequelae. I summarize the relevant medical evidence in the paragraphs that follow.

11Immediately after the accident on October 9, 2015, the applicant carried on to her scheduled shift as a logistics planner at a sporting goods factory. When she arrived, the safety inspector instructed her to seek medical attention.

12The applicant attended a walk-in clinic where she was assessed by Dr. Thomas Van. Dr. Van noted her pain complaints in her upper thoracic and lower cervical spine, left trapezius and right forearm. He concluded that she had sustained a head contusion and a sprain/strain of the cervical spine. The applicant then returned to work.

13Dr. Van also ordered x-rays of the applicant’s cervical and thoracic spine. The x-rays showed marked degenerative changes in the cervical spine and mild thoracic scoliosis.

14The next day, on October 10, 2015, the applicant returned to the walk-in clinic and Dr. Van prescribed her Naproxen.

15On October 16, 2015, the applicant visited her family physician, Dr. Judith Nacua. Dr. Nacua assessed the applicant’s injuries as “whiplash injury”. She recommended that the applicant continue with physiotherapy and prescribed extra-strength Tylenol as needed.

16On October 18, 2015, the applicant went to the emergency department with complaints of ongoing headaches and neck pain. The attending physician ordered a CT scan of her head that ruled out an acute intracranial event. She was diagnosed with “HA [headache] post MVC” and discharged.

17Approximately five months later, on March 26, 2016, the applicant was seen by Dr. Andrew Vellathottam. Dr. Vellathottam noted the applicant had been suffering from pain in her right shoulder for almost two weeks. He diagnosed left shoulder tendinopathy. Five days later, on March 31, 2016, he diagnosed shoulder tendinitis and referred the applicant for physiotherapy.

18There is nothing remarkable about the applicant’s physical injuries in the clinical notes and records of Dr. Nacua or Dr. Vellathottam until some 18 months later.

19On September 19, 2017, Dr. Vellathottam noted that the applicant had started to experience right scapular and shoulder pain after ceasing physiotherapy in February 2016. She reported having seen a sports medicine specialist who diagnosed calcification in her right shoulder. Dr. Vellathottam prescribed heat and ice therapy, massage, and physiotherapy.

20The applicant has not established that her right shoulder pain, which emerged five months after the accident, was caused by the accident. The clinical notes of Dr. Vellathottam in September of 2017 documenting shoulder problems also fail to establish any accident-related impairment in the shoulder. Neither of the applicant’s treating physicians associate her shoulder pain with the accident.

21There is evidence of calcification in the applicant’s shoulder, but I see no indication that this is trauma related. The diagnostic imaging the applicant underwent after the accident ruled out intracranial trauma and showed that the observable changes to the applicant’s spine were degenerative in nature.

22Dr. Michael Zahavi, a general practitioner with a focus on the treatment of chronic pain, attributes the applicant’s pain complaints to the accident. I deal with the reliability of Dr. Zahavi’s diagnosis of chronic pain below. However, as it relates to the causation of the applicant’s neck and shoulder pain, I give little weight to Dr. Zahavi’s opinion. The applicant reported to Dr. Zahavi that her pain complaints were caused by repetitive activities on the computer at work. Dr. Zahavi appears to disregard this as a possible cause when he proceeds to link the pain to the accident, without any analysis. For example, he does not account for the five-month delay in the onset of the applicant’s shoulder pain symptoms, a fact which raises doubt about the origins of the shoulder pain symptoms. He offers no basis for linking the accident to the applicant’s ongoing pain.

Pain complaints the sequelae of minor, soft tissue injuries

23The applicant submits that she should be removed from the MIG because she suffers from chronic pain as a result of the accident, a condition that falls outside the definition of a minor injury. However, she has not established that her pain complaints are more than the clinically associated consequences, or sequelae, of her minor, soft tissue injuries. She has not established that her pain is accident-related, or that is has caused her functional impairment. These are required for removal from the MIG limit.

24The applicant relies on the opinion of Dr. Zahavi, which I refer to above. Dr. Zahavi assessed the applicant on January 30, 2019. Dr. Zahavi diagnosed the applicant with chronic pain in her neck and shoulder as a result of the accident. He opined that the applicant’s chronic pain warrants her removal from the MIG. I find, however, that Dr. Zahavi’s conclusions are inconsistent with his findings, namely that:

a. the applicant reports that her pain is secondary to repetitive activities at work, like typing and gripping;

b. the applicant’s denial of the use of any prescribed or over-the-counter medication to manage her pain;

c. the applicant missed only one day of work due to the accident, the day of the accident when the safety inspector advised to her to seek medical attention. She has otherwise been able to maintain full-time employment;

d. the applicant remains independent in her activities of daily living. She shares housekeeping responsibilities with her husband 50/50.

25Dr. Zahavi grounds his diagnosis in the fact that the applicant continued to suffer pain three years after the accident. Chronicity of pain complaints alone does not justify a person’s removal from the MIG. Pain unaccompanied by functional impairment will not warrant treatment beyond the $3,500.00 funding cap. The applicant submits that she was taking numerous medications to deal with her ongoing pain, however, all the medications she refers to in her submissions but one – a Depo-Medrol injection she received in March 2017 - are for the treatment of other conditions.

26To be clear, a finding that the applicant’s pain does not meet the threshold for removal from the MIG, is not a finding that the applicant does not suffer from pain. A certain degree of pain can be expected as a clinically associated consequence of minor, soft tissue injuries. Treatment for pain of this kind is contemplated in the $3,500.00 funding limit under the Schedule. The applicant has not demonstrated that she suffers from functionally disabling pain as a result of the accident that requires treatment interventions outside the MIG limit.

Psychological condition does not warrant removal from the MIG

27The applicant submits that she is entitled to treatment outside the MIG because she suffers from a pre-existing psychological condition that worsened as a result of the accident.

28The applicant’s psychological condition does not warrant her removal from the MIG. The applicant has failed to demonstrate that as a result of the accident, she suffered an exacerbation of her psychological condition beyond the clinically associated consequences of her soft tissue injuries. She has also failed to satisfy the test for removal from the MIG based on her pre-existing condition, because she has not presented compelling evidence that the condition will prevent her from recovering from her minor injuries if she is held to the MIG.

29The medical records clearly show that the applicant suffered from a mood disorder before the accident. She was receiving treatment for anxiety, insomnia, and depressive symptoms as far back as 2013. Her symptoms were aggravated by work and family stressors. For a pre-existing condition to justify removal from the MIG, however, an applicant must present compelling evidence to show that the condition will prevent her from achieving maximal recovery from her minor injuries if confined to the MIG. In this case, the applicant has not explained how she would be prevented from recovering from her accident-related injuries due to her pre-existing psychological condition.

30The applicant had an acute episode of anxiety in March of 2018 and attended the emergency department of Markham Stouffville Hospital. She had headaches, nausea and pain afterwards, and she took a brief leave from work to recover. After this episode, the applicant started seeing a social worker, Ms. Jyotica Kumar, for counselling. Ms. Kumar’s notes reflect the applicant’s concerns about ill family members and associated financial pressures.

31The medical records of the applicant’s treating physicians do not establish that the applicant suffered a worsening of her psychological symptoms after the accident. There are records before the accident and much later that deal with psychological complaints, but I see no reference to psychological symptoms in the clinical notes and records that can be causally linked to the accident.

32The applicant directs me to the psychological assessment report of Dr. Grace Gronkowska, Psychologist, dated August 27, 2019, nearly four years after the accident. Dr. Gronkowska diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and attributed the condition to the accident. I am unable to place significant weight on Dr. Gronkowska’s causation analysis.

33Dr. Gronkowska states that the applicant’s symptoms are clinically significant and have caused marked distress and impairment of functioning. The applicant’s evidence is that she experienced impaired functioning beginning in March 2018 when she suffered a panic attack related to the illness of family members. Before that, the applicant had been able to maintain full-time work and had experienced no documented loss of independence in her activities of daily living.

34The records of Ms. Kumar, the social worker the applicant was seeing for counselling in 2018, are consistent with a finding that the applicant’s psychological distress at the time of the emergency department visit was triggered by family stressors. Ms. Kumar does not refer to the accident at all in her notes.

35In conclusion, I am not persuaded, on a balance of probabilities, that the applicant suffered a psychological impairment as a result of the accident. She has not demonstrated that her pre-existing condition will prevent her from achieving maximal recovery within the MIG.

There is no basis for an award for unreasonably withheld or delayed benefits

36The applicant submits that there is a basis for an award under s. 10 of Regulation 664 because the respondent unreasonably withheld or delayed benefits. She submits that the respondent deliberately ignored the medical evidence supporting the disputed treatment plans, and that this caused detriment to her recovery.

37I have found that the medical evidence fails to establish the applicant’s entitlement to treatment outside the MIG. There is no foundation in evidence for the applicant’s submission that the respondent acted unreasonably in adjusting her claim. The request for an award is denied.

CONCLUSION

38The applicant has failed to demonstrate entitlement to treatment outside the MIG on a balance of probabilities. None of the benefits claimed are payable, and no interest is owing. There is no award.

39The application is dismissed.

Date of Issue: February 17, 2021

________________________

Theresa McGee

Vice-Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2R.R.O. 1990, Reg. 664.
3. 3Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).