Release date: 06/04/2021
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:
Alison Gomes
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Lawrence H. Calenti, Counsel
For the Respondent:
Emily Compton, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Alison Gomes, (“the Applicant”) was injured in an automobile accident on October 15, 2019 and sought benefits from Economical Insurance, (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2The Respondent determined the Applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. As a result, the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
Are the Applicant’s injuries predominantly a minor injury as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
Is the Applicant entitled to $3,585.63 for chiropractic services, recommended by North Toronto Rehab in a treatment plan (OCF-18) submitted December 3, 2019?
Is the Applicant entitled to $2,287.65 for chiropractic services, recommended by North Toronto Rehab in a treatment plan (OCF-18) submitted January 3, 2020?
Is the Applicant entitled to $2,768.50 for a Physiatry Assessment, recommended by Access Rehab in a treatment plan submitted June 22, 2020?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.
5The Applicant is not entitled to the disputed treatment and assessment plans or interest.
BACKGROUND
6The Applicant was the rear-seat passenger of a minivan which was struck from behind by another vehicle while slowing down in traffic on a major highway. She sought no medical attention at the scene of the accident, but went to her family physician, Dr. P. Nijmeh, two days later. Dr. Nijmeh assessed the Applicant, found decreased range of motion in her neck and back, and advised her to start physiotherapy and take Advil. The Applicant started physiotherapy and massage therapy at North Toronto Rehabilitation and Physiotherapy (“NTR”) the next day.
7The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition in the Schedule and subjected her to the Minor Injury Guideline (“MIG”). The Applicant disputes the characterization of her injuries and submits that the MIG should not apply because she had pre-existing back pain and developed chronic neck and back pain. She also claims entitlement to the disputed treatment plans and submits that she is entitled to the plans because the Respondent failed to reply to them in accordance with the Schedule.
THE MINOR INJURY GUIDELINE
8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.
9If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.
10Upon review of the evidence and submissions, I find that the Applicant sustained a minor injury as defined by the Schedule. As a result, she is subject to the $3,500.00 funding limit provided by section 18 of the Schedule. I also find that the Respondent’s denials are compliant with the Schedule and that the Applicant is not entitled to the disputed treatment and assessment plans because she is subject to the MIG
Pre-Existing Neck and Back Pain
11I find no compelling evidence to show that the Applicant’s pre-existing intermittent neck and back pain would preclude her recovery if subject to the MIG.
12The Applicant’s family physician’s clinical notes and records (“CNRs”) show only intermittent back, neck, and shoulder pain pre-existing the accident. Examples include entries on April 18, 2018 and June 6, 2018, where the Applicant complained of upper back pain in recent days. Records from later visits include no complaints of back, neck, or shoulder pain. In fact, on September 6, 2018 the Applicant complained of dizziness, but it was noted that MSK (musculoskeletal) was intact. A record from a visit on December 29, 2018 expressly stated that the Applicant’s neck was not stiff.
13Likewise, Dr. Nijmeh’s post-accident records fail to identify the prior condition as a barrier to recovery. There is no indication that Dr. Nijmeh considered that the Applicant’s recovery would be prolonged by her pre-existing pain. The disability certificate dated October 24, 2019 identifies neck, bilateral shoulder, and back strains, sleep disturbance, and headache and anticipates a 9 to 12-week recovery period. The injuries identified are predominantly sprain/strain injuries or clinically associated sequelae. Further, while the disability certificate notes prior neck and back strains, the recovery period suggests that the pre-existing neck and back strains would not impact her.
14The CNRs from NTR are also uncompelling evidence of a pre-existing medical condition which would preclude the Applicant’s recovery. The records show that the Applicant sustained soft-tissue injuries to the neck and back as a result of a May 12, 2017 accident. She treated her injuries at NTR following that accident but sought no treatment at NTR for more than a year prior to the subject accident. Having previously sustained a similar soft-tissue injury does not automatically entitle the Applicant to treatment outside of the MIG.
Chronic Pain
15I find no compelling evidence that the Applicant suffers from a chronic pain condition which would remove her from the MIG. Overall, the evidence shows that the Applicant sustained no psychological injury and that her pain is intermittent and creates no ongoing functional impairment.
16I prefer the opinion of Dr. C. Sandhu, physician, in the insurer’s examination (“IE”) report dated July 21, 2020 and Dr. Nijmeh’s CNRs, over the physiatry report of Dr. T. Chen, dated October 19, 2020. Despite Dr. Chen’s recommendation for mindfulness treatment, the records and reports show no psychological injury. There are virtually no complaints of psychological symptomology, no referral to a psychologist, and no diagnosis of a psychological injury which would entitle the Applicant to funding above the $3,500.00 MIG funding limit.
17Dr. Sandhu and Dr. Nijmeh identify the Applicant’s sprain and strain injuries and referred her to physiotherapy and exercise. This is consistent with the MIG and is typical for soft-tissue injuries. Dr. Nijmeh’s records note no ongoing functional impairment as a result of pain. Likewise, Dr. Sandhu found that the Applicant’s range of motion impairment was due to self-limiting behaviour. The Applicant is independent with her self-care and has resumed her caregiving and homecare activities, albeit with reported help from family members.
18Dr. Chen’s report is like Dr. Sandhu’s report in that it identifies the Applicant’s intermittent pain complaints pre-dating and after the accident, and her range of motion deficits. However, Dr. Chen found a greater reduction in range of motion throughout. Unlike the recommendations for exercise from Dr. Sandhu and Dr. Nijmeh, Dr. Chen recommends nerve block injections and mindfulness treatment. This is remarkable because the same report notes that the Applicant advised that her pain was relieved by exercise and heat.
Compliance with the Schedule
19The Applicant submits that the Respondent failed to comply with section 38 of the Schedule. She submits that it failed to give adequate medical and other reasons to deny her entitlement to the treatment and assessment plans dated January 3, 2020 and June 22, 2020. Specifically, the Applicant submits that the Respondent failed to provide any analysis of the available pre-accident medical records and why those records were insufficient evidence of a pre-existing medical condition which would restrict her recovery is subject to the MIG and the $3,500.00 funding limit.
20I find that the two denials are compliant with the Schedule. The denial dated February 20, 2020 identifies the treatment and assessment plan, advises that it believes it is not reasonable and necessary. It notes that the treatment and assessment plan was reviewed along with the vehicle damage and medical information on file and compared this information to the minor injury definition and determined that it applied. The letter denied funding for the subject treatment and assessment plan but offered the Applicant funding within the MIG.
21If I am wrong, and the February 20, 2020 denial fails to comply with the notice provisions provided by section 38(8) of the Schedule, I find that it was denied pursuant to section 38(5). Section 38(5) permits the respondent to refuse to accept a treatment and assessment plan if the plan describes goods or services to be received in respect of any period during which the Applicant is entitled to receive goods and services pursuant to the MIG. Pursuant to section 38(6), such a denial is final and not subject to review.
22The denial dated June 25, 2020 is also compliant with the Schedule. It identifies the treatment and assessment plan and advises that it is not reasonable and necessary. It states that the Applicant’s reported injuries are sprain/strain injuries, highlights that her family physician made no referral for a physiatry assessment, notes that there is no evidence of a pre-existing condition that would restrict the Applicant’s recovery, and refers to a slip and fall incident from January 2020 that is documented in the Applicant’s medical record.
23I find that these denials meet the notice requirements as expressed in M.F.Z. v. Aviva Insurance Canada.1 As stated in that case, the notice requirements exist to allow the Applicant to understand why a benefit is being denied. For the first denial, the Applicant is advised that the medical information shows she sustained a minor injury and is offered funding pursuant to the MIG. While the legislation and caselaw requires medical and other reasons for the denial, it does not require a comprehensive analysis of all the information on file.
24The Respondent misidentified Dr. Nijmeh as Dr. Himel in the denial letters and the Applicant notes that it underscores the insufficiency of the medical notice. I find that the errors in the letters fail to detract from the overall message – that the medical information was reviewed, and that the Respondent believed that the Applicant sustained a minor injury and that it would not fund the disputed treatment plans. To me, the message remains clear. Insurers are not held to a standard of perfection.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
25An analysis of whether the treatment and assessment plans are reasonable and necessary is not required. The Applicant consumed $3,500.00 in treatment, which is the funding limit for the treatment of minor injuries.
INTEREST
26Interest is only payable on any overdue payment of benefits pursuant to section 51 of the Schedule. As no payments are overdue, no interest is payable.
CONCLUSION
27The Applicant sustained a minor injury as a result of the accident. There is insufficient evidence to show that her pre-existing intermittent back and neck pain will preclude her recovery if subject to the MIG and the $3,500.00 funding limit.
28The Applicant is not entitled to the disputed treatment plans because she has exhausted the $3,500.00 funding limit for minor injuries.
29No interest is owed.
Date of Issue: June 4, 2021
_______________________
Brian Norris, Adjudicator