Vasconcelos v. TD General Insurance Company, 2021 CanLII 19480

Citation: Vasconcelos v. TD General Insurance Company, 2021 ONLAT 19-013800/AABS - A

Released: March 3, 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:

Duarte (Paul) Vasconcelos

Applicant

and

TD General Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Duarte Vasconcelos, Applicant

Hermia Leung, Paralegal

For the Respondent:

TD General Insurance Company, Representative

Olga Elmanova, Counsel

HEARD:

by way of written submissions

OVERVIEW

1Duarte Vasconcelos was injured in an accident on April 28, 2019, and sought various benefits from the respondent, TD Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').¹ TD Insurance denied the benefits in dispute on the basis of its determination that his accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). Duarte Vasconcelos disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2In accordance with the Tribunal Order of Adjudicator Msosa, the issues to be determined are as follows:

a. Did Duarte Vasconcelos sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to medical benefits limited by the MIG?

3If Duarte Vasconcelos’s injuries are not within the MIG, then I must determine the following issues:

a. Is the medical benefit in the amount of $3,696.50 for physiotherapy treatment, recommended by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated November 8, 2018, reasonable and necessary?

b. Is the medical benefit in the amount of $1,300.00 for physiotherapy treatment, recommended by Mackenzie Medical Rehabilitation Centre Inc. in an OCF-18 dated January 24, 2019, reasonable and necessary?

c. Is the cost of examination expense in the amount of $2,000.00 for a chronic pain assessment, recommended by Prime Health Care Inc. in an OCF-18 dated August 16, 2019, reasonable and necessary?

d. Is Duarte Vasconcelos entitled to interest on any overdue payment of benefits?

ANALYSIS

The Minor Injury Guideline

4The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the MIG.

5The onus is on Duarte Vasconcelos to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the MIG, and its prescribed $3,500.00 limit for minor injuries.²

Accident-related injuries – Physical

6For the reasons to follow, Duarte Vasconcelos has not persuaded me that his accident-related physical injuries are not predominantly minor. The clinical notes and records (CNRs), and the injuries indicated in the treatment plans are consistent with the Schedule’s definition of ‘minor injuries’. Duarte Vasconcelos’s injuries were listed in the two OCF-18s for physiotherapy as sprain and strain of joints and ligaments at neck level, thorax, lumbar spine/pelvis, and shoulder girdle; headache, injury of muscle and tendon at neck level thorax level; injury of muscle and tendon of abdomen, lower back and pelvis; other sleep disorders; acute stress reaction; and other anxiety disorders.

Applicant’s Position

7On May 2, 2018, Duarte Vasconcelos saw family physician Dr. Shahzad. The CNRs note neck pain radiating into shoulders. Dr. Shahzad diagnosed Duarte Vasconcelos with whiplash. On May 16, 2018, Duarte Vasconcelos again saw Dr. Shahzad, who noted persistent neck pain, with no neuro symptoms, similar to the first visit. Dr. Shahzad noted good range of motion, and again diagnosed Duarte Vasconcelos with whiplash. At the conclusion of both visits, Dr. Shahzad recommended heat and massage.

8Duarte Vasconcelos saw another treating physician, Dr. Faltas, who noted that Duarte Vasconcelos had persistent neck and upper back pain that impairs his ability to function at work. Dr. Faltas recommended further physiotherapy as Duarte Vasconcelos had reported he found the few sessions he had received to be helpful. At a subsequent visit to Dr. Faltas, Duarte Vasconcelos reported persistent neck pain. Dr. Faltas noted decreased neck range of motion and right arm due to pain. Dr. Faltas recommended continued use of muscle relaxant.

9Duarte Vasconcelos also relied on the results of diagnostic imaging of the cervical spine done on May 17, 2018. The report noted a loss of the normal cervical lordosis (a condition where the spine of the neck region does not curve as normal) and mild degenerative disc disease noted at C4-5 and C5-6. I note that the diagnostic imaging reported concluded the findings indicated mild degenerative change with no other abnormality.

Respondent’s Position

10TD Insurance relies on the report of its assessor, General Physician, Dr. Sharma. In his January 21, 2019 report, Dr. Sharma diagnosed Duarte Vasconcelos with post-traumatic headache; WAD I strain; thoracic myofascial strain; non-specific low back strain, right knee strain; and left knee medial collateral ligament strain with possible meniscal involvement. Further, Duarte Vasconcelos reported to Dr. Sharma that despite receiving seven months of treatment he reported a 20% improvement in his symptoms. Dr. Sharma concluded that, from a musculoskeletal perspective, Duarte Vasconcelos’s injuries fall within the MIG.

11The medical evidence Duarte Vasconcelos relies on is supported by Dr. Sharma’s conclusion in his January 21, 2019 report. In addition, the diagnostic reporting does not substantiate Duarte Vasconcelos’s claim that his physical injuries warrant treatment beyond the allowance of the MIG.

12There is little by way of medical evidence that supports that Duarte Vasconcelos suffered anything but predominantly minor injuries. I am not persuaded by the medical records from the OCF-18 author(s) or the records of Drs. Shahzad or Faltas that Duarte Vasconcelos’s physical injuries require treatment beyond the MIG limit.

13Based on the above, Duarte Vasconcelos has failed to persuade me that his physical injuries fall outside of the MIG.

Accident-related injuries – psychological

14In order to be taken out of the MIG due to psychological impairments, Duarte Vasconcelos must show that he has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing substantive post-traumatic symptomology or clinically significant psychological distress. I find that Duarte Vasconcelos has not provided sufficient evidence to support that his alleged psychological impairments would prevent him from reaching maximum medical recovery if kept within the MIG.

Applicant’s position

15Duarte Vasconcelos relies on the OCF-18 of Dr. Karmy, accompanied by additional comments on Duarte Vasconcelos’s alleged psychological impairments. Further, neither the OCF-18 nor the additional comments provide me with persuasive evidence to show that Duarte Vasconcelos’s reported psychological impairments are anything other than symptoms or sequelae arising from the soft tissue injuries sustained in the accident. As such, I place very little weight on the OCF-18 and Dr. Karmy’s comments. In addition, there is no formal diagnosis of any accident-related psychological impairment as a result of objective testing, and no OCF-18 seeking treatment for same.

Respondent’s position

16On its behalf, TD Insurance relies on the s. 44 report of Psychologist Dr. Rubenstein. In his report, dated January 21, 2019, Dr. Rubenstein noted that there were no previously available psychological reports to review. Dr. Rubenstein also noted that Duarte Vasconcelos “expressed puzzlement about the requirement that he have an insurer psychological assessment”. Duarte Vasconcelos reported to Dr. Rubenstein that he did not have any psychological issues related to the accident.

17Dr. Rubenstein opined that Duarte Vasconcelos’s symptoms “fell well below an even mild level of symptom expression.” Dr. Rubenstein went on to note that Duarte Vasconcelos’s mental status is clear and there is no indication that his profile would warrant a diagnosis of any mental disorder according to the DSM-IV criteria. Dr. Rubenstein concluded that Duarte Vasconcelos did not sustain any diagnosable psychological impairment as a direct result of the subject accident.

18On the evidence, I prefer the reports of Dr. Rubenstein, as I found they were more in line with the evidence and Duarte Vasconcelos’s self-reporting. Duarte Vasconcelos’s questioning the reasoning behind needing a psychological assessment, his admission that he did not have any psychological issues related to the accident, and the fact that he is not seeking psychological treatment are strong indications that he did not suffer significant, if any, psychological impairment as a result of the accident.

19Duarte Vasconcelos has not provided me with an objective medical opinion to refute TD Insurance’s position that any accident-related psychological impairment is minor accident-related sequelae. On a balance of probabilities, I am unable to conclude that Duarte Vasconcelos suffers from a psychological impairment that is not subject to the MIG.

Does Duarte Vasconcelos suffer from chronic pain as a result of the accident?

20I find that Duarte Vasconcelos does not have a chronic pain condition arising from the accident that places him outside of the MIG. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

21Duarte Vasconcelos submits he has not reached his pre-accident state, still has functional impairments and has not recovered in the usual time with these types of injuries. Despite this, Duarte Vasconcelos has not provided me with any medical opinion that supports a chronic pain diagnosis.

22Duarte Vasconcelos asserts that he suffers from chronic pain syndrome based on comments from Dr. Karmy and chiropractor, Dr. Hefford in the OCF-18. Both Drs. comment that Duarte Vasconcelos had “chronicity, chronic pain and multiple site injuries that were barriers to optimal recovery”. As a result, they recommended a chronic pain assessment. The Drs. opined that the extent of the injuries was unknown, and that this could be achieved through a chronic pain assessment, and a determination of what treatment would be beneficial could also be recommended.

23I find that Duarte Vasconcelos’s symptoms do not meet the criteria for chronic pain because:

(i) The OCF-18 and comments do not diagnosis Duarte Vasconcelos with chronic pain based on any objective criteria;

(ii) Neither Drs. Shahzad, Faltas, Karmy, or Hefford discuss Duarte Vasconcelos’s level of pain or it’s affects on his function;

(iii) I find for chronic pain to take someone out of the MIG, there must be an affect on their functionality. There is no medical evidence that Duarte Vasconcelos’s accident-related injuries have had a detrimental impact on his functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms”, affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

24I find that the Duarte Vasconcelos’s functionality is inconsistent with chronic pain based on the following:

(i) Duarte Vasconcelos took “a few days off” after the accident and continues to work on a full-time basis;

(ii) Duarte Vasconcelos returned to his work as a mechanic with the City of Brampton;

(iii) Duarte Vasconcelos does not rely on prescription medication, and reported to take over the counter Tylenol on an ‘as needed’ basis;

(iv) There is no evidence that Duarte Vasconcelos has relied excessively on health care providers or family;

(v) There is no evidence that Duarte Vasconcelos’s pain is not bearable without treatment; and

(vi) Duarte Vasconcelos reported independence with all aspects of personal care and does not require assistance.

25Based on the evidence before me, I am unable to find, on a balance of probabilities, that Duarte Vasconcelos should be removed from the MIG because he has chronic pain.

Are the treatment plans reasonable and necessary?

26As I have determined that the Duarte Vasconcelos’s injuries do not warrant removal from the MIG, it follows that an analysis of whether the OCF-18s are reasonable and necessary is not required. Consequently, as no benefits are payable, no interest is payable under s. 51.

CONCLUSION

27Duarte Vasconcelos sustained predominantly minor physical injuries that fall within the MIG. Accordingly, as, the MIG limit has been exhausted, Duarte Vasconcelos is not entitled to payment for the claimed OCF-18s in this application.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24