Pham v. Coseco Insurance, 2021 CanLII 43546

Pham v. Coseco Insurance, 2021 CanLII 43546

Citation: Pham v. Coseco Insurance, 2021 ONLAT 19-005174/AABS

Released Date: 05/18/2021

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:

Phuong (Clara) Pham

Applicant

and

Coseco Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice Chair

APPEARANCES:

For the Applicant:

Kathryn McRae Hill, Paralegal

For the Respondent:

Kathleen O’Hara, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on May 28, 2017, and sought various benefits from the respondent, Coseco, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Coseco denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Are the applicant’s injuries predominantly minor injuries as defined in the s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the MIG?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,267.88 for physical therapy, recommended by Danforth Health and Wellness in a treatment plan submitted July 24, 2017, and denied by the respondent on August 3, 2017?

c. Is the applicant entitled to receive a medical benefit in the amount of $4,164.75 for psychological therapy, recommended by Danforth Health and Wellness in a treatment plan submitted September 29, 2017, and denied by the respondent on October 10, 2017?

d. Is the applicant entitled to receive a medical benefit in the amount of $3,099.44 for physical therapy, recommended by Danforth Health and Wellness in a treatment plan submitted October 13, 2017, and denied by the respondent on October 24, 2017?

e. Is the applicant entitled to payments for the cost of examinations in the amount of $2,219.74 for a Driving Assessment, recommended by Novo Medical Services in a treatment plan submitted February 1, 2019, and denied by the respondent on February 15, 2019?

f. Is the applicant entitled to payments for the cost of examinations in the amount of $1,920.55 for a Psychological Assessment, recommended by Danforth Health and Wellness in a treatment plan submitted August 30, 2017, and denied by the respondent on September 13, 2017?

g. Is the applicant entitled to payments for the cost of examinations in the amount of $2,094.54 for a Neuro-psychological Assessment and testing, recommended by Novo Medical Services in a treatment plan submitted September 5, 2018, and denied by the respondent on September 18, 2018?

h. Is the applicant entitled to payments for the cost of examinations in the amount of $1,845.71 for a Neuro-psychological scoring assessment, recommended by Novo Medical Services in a treatment plan submitted September 5, 2018, and denied by the respondent on September 18, 2018?

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

RESULT

3The applicant has not met her burden to demonstrate that her accident-related impairments warrant removal from the MIG. The treatment and assessment plans in dispute are not reasonable and necessary and no interest is payable.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant’s submissions do not specifically engage with the grounds for removal from the MIG and it is difficult to ascertain her theory of the case as presented. Indeed, her submissions on the MIG amount to copying and pasting from various clinical notes and records of different treating practitioners with her own commentary seemingly interspersed between direct quotations. As I understand, it appears that she is arguing that she has a pre-existing condition that warrants removal under s. 18(2). Further, the applicant infers that her chronic pain and psychological impairments warrant removal from the MIG. She relies on clinical notes and opinions from Dr. Cadhit, her G.P.; Dr. Vitelli, neuropsychologist; Dr. Peric-Todorovic, psychologist; and records from Danforth Health and Wellness and Michael Garron Hospital. The applicant also asserts Coseco failed to comply with s. 38(8) of the Schedule but does not offer any specific submissions on same nor did she direct the Tribunal to which of the denials she submits was deficient.

6In response, Coseco submits that the applicant sustained minor injuries that are subject to treatment within the MIG. It relies on a s. 44 report and paper review of Dr. Hines, psychiatrist, who opined that the applicant’s subjective reports were not supported by objective findings, concluding that the applicant did not have any psychiatric illness or diagnosis and, in particular, she did not present with evidence of adjustment disorder, mixed anxiety and depressive disorder or a specific isolated phobia. It also relies on two s. 44 assessments from Dr. Zabieliauskas, physiatrist, who diagnosed a cervical strain WAD-II. He opined that the applicant’s injuries were considered uncomplicated soft-tissue injuries, that she did not present with a physical impairment as a result of the accident and that there were no pre-existing conditions reported or identified that would prevent maximal medical recovery under the MIG. Further, Coseco submits that the applicant has access to collateral benefits, however, based on her benefits summary, she did not use any of the extended health benefits which were available to her in 2017, 2018 or 2019.

7I agree with Coseco and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. First, the actual physical injuries listed in the OCF-3 dated June 26, 2017 are all contusion and sprain and strain-type injuries that fall squarely within the definition of a minor injury under the Schedule: WAD-II; sprain and strain of the thoracic and lumbar spine and sacroiliac joint; low back pain; headaches; and injury of other flexor muscle and tendon at forearm level. Part 8 confirms that the applicant did not have any pre-accident disease, condition or injury that would affect her ability to perform her activities. Accordingly, I find there is limited indication in the file that her physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1) and her submissions provided no basis to support the contention that her physical injuries are not minor.

8Second, with regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant cites to a response from Dr. Cadhit as evidence that her family physician commented on the MIG, submitting: “the pre-existing conditions that were noted and documented even before the accident. As such, it prevents the applicant from achieving maximal recovery from the MIG.” In evidence is a document with a series of questions answered by Dr. Cadhit where she mentions the applicant’s situational depression in March 2016 and on and off neuropathy involving her right leg in October 2016. However, the applicant’s submissions do not indicate which of these conditions continues to affect her nor do they explain why the pre-existing conditions would prevent maximal medical recovery under the MIG.

9In order to escape the MIG under s. 18(2), there needs to be compelling evidence that the condition will prevent maximal medical recovery. I find the applicant’s evidence falls well short of the compelling standard. In any event, as Coseco notes, her own Disability Certificate indicates that she did not have any pre-accident disease, condition or injury that would affect her ability to perform her activities, which was echoed in Part 6 of chiropractor Dr. Shlepakov’s OCF-23 dated June 14, 2017 and the s. 44 reports that reveal that the applicant denied any relevant pre-accident medical issues. In his report, Dr. Vitelli states that there is no indication of pre-existing pain problems that would contribute to her inability to function. On balance, I agree with Coseco that there is limited evidence to suggest that the applicant’s pre-existing conditions continued up to the time of the accident or prevented her recovery within the MIG. I agree that she has not met her onus to prove why or how these pre-existing issues prevent maximal recovery under the MIG.

10Next, the Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. Here, however, the applicant does not offer specific submissions to support her chronic pain claim, as there is no discussion on the severity of same, how it affects her day to day function or on any of the criteria in the AMA Guides. While I note that the medical documents in evidence reflect the applicant’s lingering pain complaints— specifically her headaches, her nerve root irritation and her sciatica as a result of standing for long periods of time during work—it does not automatically follow that this constitutes chronic pain that justifies removal from the MIG.

11Coseco submits that the applicant has not delivered an expert report which opines that she has chronic pain syndrome; she has not been referred to, nor attended, a pain clinic; she continues to work full-time; she is not taking any prescription pain medication; and she stopped attending treatment in November 2017. I agree with Coseco that chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain and that, on the evidence before the Tribunal, the applicant has provided no supporting documentation to indicate she has suffered from severe and debilitating chronic pain as a result of the accident where she is largely completing all of her regular pre-accident activities, working full-time as a medical operations manager and also part-time as a pharmacist. I note that Dr. Vitelli seemingly ruled out a neurological impairment and the CT scan performed by Michael Garron Hospital came back normal. Similarly, the MRI report on the applicant’s lumber and cervical spine from Michael Garron Hospital came back as unremarkable with “minimal degenerative changes.”

12As Coseco submits, the Tribunal has consistently held that for chronic pain to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome or continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.² While I am alive to the applicant’s pain complaints, I find she has not met her burden to demonstrate that she has chronic pain with functional impairment where there is limited objective evidence that she sustained anything more than a minor injury, where she continues to lead a very productive life and where she has yet to fully exhaust the funding under the MIG or utilize all of her collateral benefits.

13Finally, the Tribunal has also determined that a psychological impairment may justify removal from the MIG, as it is not captured by the definition of a minor injury under s. 3(1). The applicant relies on the neuropsychological report of Dr. Vitelli dated October 22, 2018 and the assessment of Dr. Peric-Todorovic from September 11, 2017. Dr. Vitelli diagnosed the applicant with Adjustment Disorder, with Mixed anxiety and Depressed mood, Acute, and Specific phobia, situational type (driver/passenger), while Dr. Peric-Todorovic found she demonstrated symptoms of moderate depression and diagnosed her with an adjustment disorder, mixed anxiety and (isolated) phobia - vehicular anxiety.

14In response, Coseco submits that the evidence does not support that the applicant suffers from a diagnosable psychological impairment resulting from the accident. It submits that the applicant was never diagnosed with any psychological impairment by her family physician in her follow-ups post-accident, she was never prescribed any medication for a psychological impairment and she was never referred to a psychiatrist or for counselling. In contrast, Coseco asserts that her pre-accident situational depression from 2016 resulted in a referral to a psychiatrist, which she declined. It relies on the s. 44 opinion of Dr. Hines that the applicant’s subjective reports were not supported by objective findings, that the applicant did not have any psychiatric illness or diagnosis and, in particular, she did not present with evidence of adjustment disorder, mixed anxiety and depressive disorder or a specific isolated phobia.

15On the evidence, I agree with Coseco and prefer the s. 44 report of Dr. Hines over those of Dr. Vitelli and Dr. Peric-Todorovic. I found Dr. Hines’ report to be consistent with the medical evidence and the applicant’s self-reporting to Dr. Cadhit. I agree that following the accident, Dr. Cadhit did not diagnose depression or anxiety, yet when asked to provide a letter supporting entitlement, Dr. Cadhit provided a diagnosis in December 2019 even though there were no contemporaneous notations to support such a diagnosis.

16I also agree that Dr. Vitelli’s report is inconsistent with the rest of the medical evidence and the applicant’s self-reporting, as it is unclear what documentation he reviewed in arriving at his opinion. For instance, he states that the applicant’s symptoms are “likely the most significant barriers to her inability to perform the essential tasks of her pre-accident employment” yet there is no dispute that she was working full-time at the time of the assessment, that she continues to do so and, in any case, the applicant is not claiming an income replacement benefit, which seems to be the test Dr. Vitelli refers to. Dr. Vitelli also opines that she suffers a complete inability to carry on her activities of daily living (or the same language as the non-earner benefit test under the Schedule), which is undermined by the applicant’s own self-reporting in Dr. Peric-Todorovic’s report as well as the s. 44 reports where she admits to essentially carrying out all of her pre-accident activities, including working, driving, housekeeping and self-care, as well as taking care of her ailing mother.

17While Dr. Vitelli concluded there was no neurological impairment, he diagnosed the applicant with specific phobia, situational type (driver/passenger) despite the fact that she has consistently driven at all times post-accident. This same inconsistency is present in Dr. Peric-Todorovic’s diagnosis of “single (Isolated) phobia - vehicular anxiety” where the applicant resumed driving immediately post-accident and was commuting for 1-1.5 hours to and from work, travelling on highways and driving seven days per week. The applicant also reported to Dr. Hines that she has rarely travelled as a passenger in a vehicle but was fine when she did. I would not give effect to either of these diagnoses as there is no evidence in the file that the applicant avoids driving or riding as a passenger.

18I do note that the applicant’s migraine headaches, dizziness and concentration issues appear consistently in the evidence. Indeed, Dr. Cadhit’s notes capture the applicant’s complaints about her memory lapses, her anxiety over her work, her treatment, her role in her family, etc. However, on the medical documentation before the Tribunal, it is unclear if these issues are accident or life and work-related and the applicant’s submissions do not address how these impairments, if they are indeed accident-related, warrant removal from the MIG. The CT scan from January 25, 2018 was unremarkable. Dr. Vitelli found “no evidence that the applicant sustained more than a mild concussion” and did not offer a diagnosis on these impairments, despite noting the applicant’s concerns. The Tribunal would have benefitted from a deeper analysis of these impairments. Accordingly, for these reasons, I find the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.

19Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. In any case, despite citing the proper test, the applicant’s submissions on the reasonableness and necessity of the treatment plans in dispute fall well-short of meeting her burden of proof. Her submissions do not specifically address any of the OCF-18s. There is no discussion of the goals of the plans, how the goals were being met to a reasonable degree and there is no analysis of the costs of achieving the goals. On this basis, and on the fact that she did not use any of her extended health benefits, I could not have found them to be reasonable and necessary. As no benefits are overdue, it follows that no interest is payable under s. 51.

ORDER

20The applicant has not met her burden to demonstrate that her accident-related impairments warrant removal from the MIG. The treatment and assessment plans in dispute are not reasonable and necessary and no interest is payable.

Released: May 18, 2021

__________________________

Jesse A. Boyce

Vice Chair

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), at paras 27-28.