S.P. v. Intact Insurance Company, 2021 CanLII 28715

Citation: S.P. v. Intact Insurance Company, 2021 ONLAT 19-004789/AABS

Release date: 2021/03/05

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:

S.P.

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Naguena Alingary, Counsel

HEARD:

by way of written submissions

OVERVIEW

1On January 31, 2017, the applicant, S.P., was involved in a motor vehicle accident when the vehicle he was driving was struck from behind.

2The applicant applied for medical benefits, specifically a treatment plan related to physiotherapy services, that were denied by the respondent, Intact Insurance Company. The respondent took the position that the applicant's injuries were predominantly minor injuries and, thus, treatment of them fell within the Minor Injury Guideline (the "Guideline" of "MIG") as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the "Schedule").

3The applicant disagreed and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal"), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the "Act").

ISSUES IN DISPUTE

4The following issues in dispute are:

a. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

b. Is the applicant entitled to a physiotherapy treatment plan in the amount of $3,551.04 denied on October 4, 2017?

c. Is the applicant entitled to interest?

d. Is the respondent entitled to costs?

RESULT

5Based upon a review of the totality of the evidence presented, I find that:

a. The applicant's physical injuries do not fall within the Guideline.

b. The applicant is entitled to the medical benefit for physiotherapy in the amount of $3,551.04.

c. The applicant is entitled to interest on the incurred amounts for the allowed treatment plan as per the Schedule.

d. The respondent is not entitled to costs.

ANALYSIS

The Applicability of the Guideline

6The Guideline 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." The terms "sprain", "strain", "subluxation", and "whiplash associated disorder" are also defined in subsection 3(1). Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

7In Scarlett v. Belair Insurance, 2015 ONSC 3635 ("Scarlett"), the Divisonal Court held that the onus is on the applicant to prove on a balance of probabilities that her entitlement to medical benefits is not subject to the Guideline and its prescribed $3,500.00 limit for minor injuries.

A. Did the applicant sustain predominantly minor physical injuries?

8Based upon the totality of the evidence presented, I find that the applicant sustained a physical impairment that is not predominantly a minor injury. I find that his injuries do not fall within the definition of a "minor injury" as listed in subsection 3(1) of the Schedule. I find that the medical evidence establishes that the applicant suffers from ongoing pain symptoms and has functional limitations, and that his physical impairments take him outside of the MIG for the reasons set forth below.

9The applicant asserts that, as a result of the accident, he suffers from permanent and serious impairments which include trauma to his head, neck, back, elbows, wrists and knees. He states the injuries have been accompanied by debilitating symptoms, including functionally disabling and chronic pain, limited range of motion, poor balance resulting in headaches, dizziness, anxiety, depressed mood, sleep difficulties, weakness, fatigue and diminished energy. He asserts he has managed his symptoms over the years with painkillers, muscle relaxants, anti-inflammatories, anti-insomnia medication, anti-depressants and physical therapy.

10In reviewing the medical evidence, I found particularly persuasive the November 9, 2017 clinical note of the applicant's physician, Dr. Mayer Yacowar. Dr. Yacowar notes that, after the January 31, 2017 accident, the applicant continues to experience multiple pains in his hips, neck, thoracis spine, lumbosacral spine and shoulders. He notes neck pain with radiation to the shoulders, dizziness, fatigue, decreased energy, and weight loss of around 15 pounds.

11Upon objective examination, Dr. Yacowar notes that there is pain and tenderness in the applicant's hips, decreased range of motion in his left and right shoulders with decreased abduction and decreased internal rotation, and loss of cervical lordosis and lumbar lordosis. He is stiff when walking. Further, there is difficulty ambulating and performing his activities of daily living. Dr. Yacowar provides referrals to internal medicine, orders an ultrasound of both shoulders, x-ray of the cervical spine, and medication for pain management. He prescribes Tylenol 3, Baclofen and Trazodone. Dr. Yacowar also notes the continuing need to reassess with respect to pain management.

12In the Disability Certificate dated February 1, 2017, Dr. Dianna Bakalovski, chiropractor, notes that the applicant suffers a complete inability to carry on a normal life, noting difficulty coping with pain, movement, and a lack of sleep. In addition, there is a substantial inability to perform housekeeping and home maintenance services that he normally performed prior to the accident.

13I note the applicant's medical records from Humber River Hospital, dated February 2, 2017, a few days after the accident make note of a head injury with no loss of consciousness, and neck and back pain.

14On February 2, 2017, a CT scan of the applicant's head and cervical spine was ordered by Dr. Daria Denissova, of the Humber River Hospital, after the applicant complained of ongoing head trauma, neck and back pain, and neck tenderness after hitting his head on the steering wheel upon impact. The CT scan revealed "an air-fluid level in the left maxillary sinus and some mucosal thickening in the right maxillary sinus consistent with sinusitis", and no fracture or traumatic malalignment.

15I also found persuasive the pain inventory that the applicant completed for Dr. Neil Harding McAlister, internal medicine specialist, dated April 11, 2017. The applicant was referred to Dr. McAlister by his physician, Dr. Yacowar. Dr. McAlister notes the applicant indicated pain in his bilateral arms, bilateral wrists, bilateral legs and feet, bilateral shoulders and buttocks, lower back, upper back and head. The medical record states that walking makes the pain feel worse. Notably, the applicant reported that therapy makes the pain feel better. The pain interfered in his general activity, mood, walking ability, sleep and enjoyment of life and his interference scale total score was 49/70.

16Additional evidence on the applicant's pain symptoms, and the resulting impact on activities of daily living, is set forth in the in-home occupational therapy assessment report dated September 20, 2017, completed by IE assessor occupational therapist Ms. Alexandra Bhatnagar. The applicant reports that prior to the accident he was independent with all his daily activities. He reports attending school full-time for English as a Second Language (ESL), helping with clean up, and driving independently. Post-accident, he has difficulty with heavier daily activities, does not engage in any housekeeping tasks, has not attended his ESL classes, sleeps very little, and drives occasionally. He also attends therapy twice a week if his headaches are not severe. He has difficulty showering and, in the past, has felt dizzy and held onto the towel rack, breaking it.

17The assessment report further notes that the applicant reports lower back pain at a 9 out of 10, noting that he has constant pain in his lower back, aggravated by prolonged sitting/walking, and bending. Pain shoots down to his legs (right is worse). He copes by lying down, applying Voltaren and massage therapy, and taking medication. He also lists neck and shoulder/arm pain at a 9 out of 10 and reports constant pain aggravated by lifting/carrying, and movements. He notes that he is unable to sleep due to the pain and has been prescribed mediation to assist. He further reports constant headaches and dizziness. During range of motion testing, he reports pain with all neck movements, right shoulder movements, and truck movements. He attends therapy 1-2 times a week where he receives massage and physiotherapy and engages in active forms of therapeutic rehabilitation.

18Ms. Bhatnagar notes the applicant demonstrates full range of motion in most planes with moderate restrictions to truck, right shoulder and neck. While Ms. Bhatnagar finds the applicant does not suffer a "complete inability" to carry on a normal life as a result of the accident related injuries, she encourages him to pace himself while performing the activities of daily living, and to use energy conservation strategies. I note the report was prepared to assist in making a non-earner benefit determination, and not a MIG determination. While I am not persuaded by Ms. Bhatnagar's conclusion, I did find her report highlighted the applicant's ongoing pain symptoms, functional limitations and physical impairments, and supported the finding that he sustained a physical impairment that is not predominately a minor injury in accordance with the Guideline.

19I did not find especially persuasive the conclusion of IE assessor, Dr. Seung-Jun Lee, physician, who completed a musculoskeletal examination of the applicant in a report dated September 20, 2017. Dr. Lee found the applicant suffered soft tissues injuries as a result of the accident, did not have an accident-related impairment, and did not require further medical or rehabilitation services. Notably, the report states the applicant was attending physiotherapy twice a week, engaging in daily home exercise, taking pain medication, using topical anti-inflammatory medication and also taking a sedative and a sleeping pill on a daily basis. The report makes clear that the applicant was engaging in activities and actions to manage his ongoing pain symptoms and physical impairments.

20I further note Dr. Lee states the applicant reports lower back pain to be constant and rated 7 out of 10 in intensity, right calf pain to constant and rated 9 out of 10 in intensity. Bilateral shoulder pain is reported to be intermittent and rated 5 out of 10. He reports that he needs assistance with showering and dressing/underdressing from his wife. He also is able to only complete light household chores like sweeping, while prior to the accident, his household chores included cooking, doing dishes/laundry and cleaning. The report was helpful in understanding the applicant's physical impairments and pain symptoms even though I am not persuaded by Dr. Lee's conclusion. I find the applicant was engaged in considerably activities to manage his ongoing pain symptoms, functional limitations and physical impairments. I find his physical impairment is more serious than a "minor injury."

21The respondent points out that the applicant has not produced any diagnostic imaging indicating that he suffers from any significant physical impairment as a result of the accident. While there is limited diagnostic imaging provided, I base my decision on a totality of the evidence presented, and I find the provided medical records to be sufficient in meeting the requisite burden.

22I note that the evidence establishes that the applicant has consistently complained about his ongoing pain symptoms and functional limitations to his treatment providers and IE assessors, and consistently sought medical attention. I find that, on a balance of probabilities, the applicant has provided compelling evidence that his physical impairments are not a predominantly minor injury.

23Accordingly, based upon the totality of the evidence presented, I conclude that the applicant's injuries fall outside the Guideline. Given this finding, I will not undertake an analysis on whether the applicant has a pre-existing condition that will prevent maximal recovery within the MIG, or a psychological impairment that would take him outside the MIG, as asserted by the applicant.

24I will now conduct an analysis on whether the treatment plan in dispute is reasonable and necessary.

B. The treatment plan and interest

25The onus is on the applicant to show that the treatment plan for physiotherapy services is reasonable and necessary. I find he has met his onus for the following reasons.

26The treatment provider recommends physical treatments as the applicant struggles to function with his medical condition and pain symptoms. The goals of the treatment plan include pain reduction, increased range of motion, increase in strength and to achieve a return to activities of normal living. The applicant consistently reports ongoing pain symptoms and resulting restrictions and limitations as evidenced in the medical records and IE reports. He reports physical treatments provide pain reduction and a return to activities of normal living.

27In my opinion, pain reduction which increases range of motion and strength are reasonable treatment goals for the applicant to manage his pain symptoms and physical impairments. Physical treatment may lead to a better quality of life and a reduction in pain medications.

28I find that Dr. Lee overlooks the benefits of pain relief that the applicant receives from physical treatments. Pain reduction, in particular, is an important and reasonable goal of the proposed treatment. I find the applicant is entitled to choose to undergo treatment that reduces his pain symptoms. I find the treatment plan to be reasonable and necessary.

29I further find the applicant is entitled to interest in accordance with section 51 of the Schedule on any incurred amount under the treatment plan.

C. Costs for the respondent

30I do not find that the respondent is entitled to costs.

31Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), provides that a party can make a request for costs where they believe another party in the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. A submission on costs shall set out the reasons for the request and the particulars of the other party's conduct that are alleged to be unreasonable, frivolous, vexatious or in bad faith.

32The respondent has not set out the reasons for the request for costs or provided any particulars of the applicant's conduct that is unreasonable, frivolous, vexatious or in bad faith. I find costs are not warranted.

CONCLUSION

33After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I find that:

a. the applicant's injuries do not fall within the Guideline;

b. the applicant is entitled to the medical benefits in treatment plan for physiotherapy in the amount of $3,551.04;

c. the applicant is entitled to interest on the incurred amounts for the allowed treatment plan as per the Schedule; and

d. the respondent is not entitled to costs.

Date of Issue: March 5, 2021

_________________________

Rupinder Hans, Adjudicator