Nguyen v. Wawanesa Mutual Insurance Company, 2021 CanLII 96836

Citation: Nguyen v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-007890/AABS

Release date: 10/05/2021

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:

Chien Van Nguyen

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Jessie V. Tran, Paralegal

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Chien Van Nguyen, was involved in an automobile accident on February 14, 2017, and sought benefits from the respondent, Wawanesa Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The respondent determined that the applicant's injuries fell within the Minor Injury Guideline and that he is subject to the $3500.00 funding limit for medical and rehabilitation benefits under the Schedule. It accordingly denied his claims for certain medical benefits. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

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 Minor Injury Guideline?

b. Is the applicant entitled to a medical benefit in the amount of $1,700.00 for chiropractic, massage and acupuncture treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on July 12, 2017, and denied by the respondent on July 24, 2017?

c. Is the applicant entitled to a medical benefit in the amount of $2,185.00 for chiropractic, massage and acupuncture treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on September 12, 2017, and denied by the respondent on September 22, 2017?

d. Is the applicant entitled to payment for the cost of examination in the amount of $200.00 for the completion of an OCF-3 disability certificate recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on September 12, 2017 and denied by the respondent on October 10, 2017?

e. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for chiropractic, massage and acupuncture treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on October 17, 2017, and denied by the respondent on October 25, 2017?

f. Is the applicant entitled to a medical benefit in the amount of $2,600.00 for chiropractic, massage and acupuncture treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on December 19, 2017, and denied by the respondent on January 3, 2018?

g. Is the applicant entitled to payment for the cost of examination in the amount of $200.00 for the completion of an OCF-3 disability certificate recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on March 8, 2018 and denied by the respondent on April 6, 2018?

h. Is the applicant entitled to a medical benefit in the amount of $2,600.00 for chiropractic, massage and acupuncture treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on April 10, 2018, and denied by the respondent on April 25, 2018?

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

RESULT

4The applicant has failed to establish, on a balance of probabilities, that his injuries place him outside the Minor Injury Guideline. Because the respondent failed to comply with the notice requirements in s. 38 of the Schedule, it is barred from taking the Minor Injury Guideline in respect of the treatment plan for $2,600.00 for chiropractic, massage, and acupuncture treatment. However, the applicant has not established the reasonableness and necessity of that treatment plan. Since the Minor Injury Guideline applies to the remaining treatment plans, none of them are payable. No benefits are owing, and no interest is due. The application is dismissed.

ANALYSIS

5To be eligible for the medical benefits he seeks in this application, the applicant has the onus of proving, on a balance of probabilities, that his accident-related injuries are not predominantly "minor" as defined in the Schedule.² The term "minor injury" is defined in s. 3(1) 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."

6If the applicant's injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident. However, in this case, the applicant claims that one of the respondent's denial notices was deficient under s. 38(8) of the Schedule, which requires that the notice be sent no more than 10 business days from the receipt of the treatment plan by the insurer.

7The respondent concedes that the notice in question was sent 11 business days after it was received. Because the denial notice was deficient, s. 38(11) bars the respondent from taking the Minor Injury Guideline position in respect of that treatment plan. As such, regardless of the outcome on the Minor Injury Guideline issue, an analysis of the reasonableness and necessity of that treatment plan will be required.

8For the reasons that follow, I find that the applicant's accident-related injuries are predominantly minor and fall within the definition of a minor injury; the Minor Injury Guideline applies in respect of all issues except issue h ($2,600.00 for chiropractic, massage and acupuncture treatment); and the treatment sought in issue h is not payable because it is not reasonable and necessary under s. 15(1) of the Schedule.

Pre-existing injury

9Section 18(2) of the Schedule provides that the Minor Injury Guideline funding cap does not apply to a person whose health practitioner determines and provides compelling medical evidence that the person has a pre-existing medical condition, documented before the accident, that will prevent them from achieving maximal recovery from their minor injuries if they are subject to the Minor Injury Guideline limit.

10The applicant submits that he suffers from a pre-existing condition warranting treatment outside the Minor Injury Guideline, namely, pre-existing headaches and back pain documented before the accident by his family physician, Dr. Nam Vham Tran.

11The applicant has tendered select clinical notes and records of Dr. Tran. The notes are handwritten and have not been transcribed. In places, they are illegible. However, I do note references to back pain "after heavy lifting" on April 9, 2016. Additionally, the May 11, 2020 Independent Pain Medicine Assessment Report of anesthesiologist Dr. Hien Ta, tendered by the applicant, discusses the applicant's history of back pain emerging sometime between 2015 and 2016. Dr. Ta notes the applicant's own report that the pain was not serious enough to warrant further investigation by Dr. Tran.

12The applicant has not presented compelling medical evidence as to how his pre-existing complaints will prevent him from achieving maximal recovery within the Minor Injury Guideline. This is an important part of the test under s. 18(2). Given that this branch of the test has not been addressed and the medical evidence suggests minor pain complaints that never resulted in medical follow up, I find that the applicant falls below the threshold for removal from the Minor Injury Guideline on account of any pre-existing conditions.

Psychological injuries

13The applicant submits that he sustained psychological injuries in the accident. He submits that psychological impairment is mentioned nowhere in the definition of a minor injury and that he should be removed from the Minor Injury Guideline based on his psychological condition.

14The applicant refers me to the Social Work Assessment Report of Ms. Amber Williams dated December 2, 2019, which mentions the applicant's reduced social activity, his trouble sleeping, caution while driving, decreased memory and concentration, irritability, fear, anxiety and diminished interest in activities he previously enjoyed. The applicant also relies on Dr. Ta's findings that he suffers from disturbed sleep and vehicular phobia and the fact that he was prescribed amitriptyline in October 2018, which is used to treat depression. Dr. Ta opined that the applicant's anger, frustration and minor cognitive dysfunction should remove him from the Minor Injury Guideline.

15I disagree. While I am alert to the fact that the Schedule's definition of a minor injury does not include psychological impairment, the definition does capture the "clinically associated sequelae" of minor, soft tissue injuries. The Minor Injury Guideline adopts a "functional restoration" framework for the treatment of minor injuries which contemplates "interventions that help the insured person to reduce or manage his/her pain and associated psycho-social symptoms."³ The Guideline is clear that some psychosocial issues can be expected as the clinical consequences of minor, soft tissue injuries.

16It is not in dispute that the applicant sustained soft tissue sprains and strains in the accident, including whiplash associated disorder with complaints of neck pain, stiffness and tenderness; sprain and strain of thoracic spine; sprain and strain of ribs and sternum; and sprain and strain of shoulder joint. The psychological symptoms documented in the evidence before me include slight mood and behavioural changes, sleep disruptions, and increased caution and anxiety. While I am alive to the fact that the applicant's family doctor prescribed an antidepressant, this was almost two years after the accident and there are no clinical notes and records documenting a link between the accident and any psychological impairment. I find that the applicant's symptoms are clinically associated consequences of the applicant's minor, soft tissue injuries, and should therefore be treated under the Minor Injury Guideline.

Chronic pain

17The applicant submits that he suffers from chronic pain warranting his removal from the Minor Injury Guideline. He submits that it is well-established that pain persisting longer than three months is considered chronic. He submits he suffered from pain for four months after the accident, that his pain is therefore chronic, and that on this basis he should be removed from the Minor Injury Guideline. He refers me to this Tribunal's decision in 17-000835 v. Aviva General Insurance Canada [T.S.]⁴ to establish that his injuries fall outside the minor injury definition.

18The applicant asks me to consider the Functional Abilities Evaluation conducted by Dr. San Bui, his treating chiropractor, on June 18, 2019. Dr. Bui opined that the applicant would not recover fully from his physical injuries if confined to the Minor Injury Guideline.

19I place limited weight on Dr. Bui's diagnoses of chronic neck and back pain because it is not within a chiropractor's scope of practice to make medical diagnoses. Dr. Ta diagnosed the applicant with chronic pain syndrome, but stated in the same report that without investigations, he could not determine if the applicant's left shoulder muscle atrophy was due to prolonged disuse or early onset regional chronic pain syndrome. Dr. Ta's conclusions on this point are equivocal and I assign very limited evidentiary weight to them.

20I have additional difficulties with the evidence of Dr. Bui. His report is dated February 24, 2020, which I note is approximately 13 months after the assessment was conducted. The delay in reporting by Dr. Bui was not explained in the applicant's submissions. A delay in reporting of more than one year raises doubt as to the reliability of Dr. Bui's findings and recommendations. For example, it strikes me as unusual that the applicant's range of motion scores would uniformly be "less than normal limits" in every area. I question whether these scores were recorded contemporaneously. I also question their accuracy given that the applicant's accident-related injuries impacted the left side of his body, not the right. Additionally, the Insurer's Examination conducted by Dr. Jacqueline Auguste, Orthopedic Surgeon on August 17, 2017 notes full range of motion in the head, neck, shoulders, lumbar spine, left hip, knee and ankle. Of note is Dr. Auguste's finding that the applicant reported pain and stiffness at end-range of rotation of the left paraspinal cervical muscles without loss of lordosis or muscle tension to palpation along the cervical paraspinals. Additionally, Dr. Auguste observed suboptimal effort by the applicant in strength testing of the left shoulder. She observed no difference of muscle bulk to explain the applicant's lack of effort. Dr. Auguste concluded that the applicant had no substantive musculoligamentous, osseous, or neurologic impairments from an orthopedic perspective.

21For these reasons, I prefer Dr. Auguste's opinion over that of Dr. Bui and Dr. Ta.

22The applicant also relies on an x-ray report dated Oct 5, 2017 which showed a muscular spasm on the left side of his neck, minor osteophytes on his cervical spine, and minor arthropathy and a small bump on the foot. It is unclear how these findings show accident-related injuries that exceed the definition of a minor injury. The reported noted that the reason for the muscle spasm was "unknown" and that there was "no evidence of trauma." Osteophytes and arthropathy are degenerative in origin, and I see no connection between these findings and the applicant's accident-related injuries. The small bump on the applicant's foot was noted as a possible ganglion.

23I find that the applicant largely remains functionally independent despite reports of severe, persistent pain. While the applicant submits he suffers from several functional limitations with cooking, exercise, driving, child-care, shovelling snow, walking, and social engagement, he is still able to engage in these activities, albeit with some limitations. The applicant's pain scale reporting to various assessors is consistently elevated, in the eight to 10 out of 10 range. With respect, I find it difficult to reconcile the degree of pain reported by the applicant with the fact that he has largely been able to remain functionally independent. The apparent disconnect between the applicant's pain scale reporting and his overall functioning was noted by Dr. James Murray, Insurer's Examiner, who assessed the applicant on December 6, 2017. Following symptom validity testing which the applicant failed, Dr. Murray found that the applicant "presented as a pain-focused individual with heightened disability perceptions." Dr. Murray's concerns are echoed by psychologist and Insurer's Examiner Dr. Karen Spivak, who found that while the applicant exhibited residual low mood symptoms, his presentation during a June 2019 clinical assessment was at odds with his psychometric testing results. Dr. Spivak found no evidence of a DSM-5 impairment.

24The applicant's prescription history is not consistent with the persistence of debilitating pain. While he points me to records showing Dr. Tran prescribed tramadol, a pain killer, immediately after the accident, the prescription records do not indicate continued use of this medication beyond March 2017. Instead, the applicant progressed to using a common anti-inflammatory, ibuprofen, which Dr. Tran prescribed to him in July 2017.

25Since T.S., the Tribunal's case law has developed. It is not enough to merely assert ongoing pain symptoms to escape the Minor Injury Guideline. The Minor Injury Guideline's framework for the treatment of minor injuries contemplates some pain symptoms as clinically associated sequelae of minor injuries. Chronicity of pain complaints alone is not enough to escape the Minor Injury Guideline. To warrant additional treatment, pain symptoms must not only persist longer than the 12-week timeframe associated with recovery from minor injuries but be severe and functionally disabling.

26The applicant relies on 16-000098 v. Aviva Insurance Canada,⁵ for his submission that the aggravation of his pre-existing chronic pain conditions warrants his removal from the Minor Injury Guideline. However, that case was one in which the applicant was found to have psychological conditions warranting treatment outside the Minor Injury Guideline. There were no findings related to pre-existing chronic pain conditions. Moreover, although the applicant has proven that he occasionally suffered from minor back pain before the accident, he has not presented compelling medical evidence that he suffers from pre-existing chronic pain of any kind.

The respondent's compliance with s. 38 of the Schedule

27There is no dispute between the parties that the respondent failed to deliver notice of its denial in relation to issue h (a medical benefit in the amount of $2,600.00 for chiropractic, massage and acupuncture treatment) within the timeline set out in s. 38(8) of the Schedule. The applicant submitted the treatment plan on April 10, 2018, and the respondent denied it on April 25, 2018, which, it concedes, is 11 business days after it received the plan.

28Consequently, I find that s. 38(11) operates to bar the respondent from taking the Minor Injury Guideline position in respect of this treatment plan.

29It is not the effect of s. 38(11), as the applicant argues, to bar the respondent from taking the Minor Injury Guideline position in relation to his entire application. The Divisional Court made this clear in Zheng, Cai v. Aviva Insurance Company of Canada.⁶ The language in s. 38 refers to the specific treatment plan in question.

30Section 38(11) also requires that an insurer pay the goods and services set out in the treatment plan that relate to the period starting on the 11th business day after the insurer received the claim and ending on the day the insurer gives proper notice. Since the insurer provided proper notice on the 11th business day after receiving the plan, it is not required to pay for the services in question per s. 38(11). Still, though, since the Minor Injury Guideline does not apply to this plan, I must consider whether the services proposed in the plan are reasonable and necessary. If they are, the respondent will be liable to pay for them.

31The treatment plan in issue is for $2,600.00 for a "reassessment" and 16 sessions of chiropractic, massage and acupuncture treatment. The OCF-18 (Treatment and Assessment Plan), submitted on April 10, 2018, was prepared by Dr. Bui. The goals of treatment include increasing strength, improving range of motion, reducing pain, and returning to activities of normal living. The treatment plan indicated that the applicant reported pain at 9/10 that was worsening, and that he feels better with treatment.

32The applicant submits that the independent assessments of multiple healthcare provides representing multiple specialties recommending need for physical therapy should suffice to show that the proposed treatment is reasonable and necessary.

33I find, on a balance of probabilities, that the applicant has not met his onus in proving the $2,600.00 treatment plan is reasonable and necessary as a result of the accident. I reach this conclusion for many of the same reasons articulated in my Minor Injury Guideline analysis. Dr. Tran made a recommendation for physiotherapy in the aftermath of the accident, but there is no recommendation for continued rehabilitation over a year later when this plan was submitted. Given that the applicant sustained minor, soft tissue injuries as a result of the accident, this is unsurprising. Dr. Tran's notes document complaints of low back pain in March 2018, but at that time, Dr. Tran simply prescribed ibuprofen on an as needed basis. At his next visit to Dr. Tran on May 25, 2019, the applicant reported no complaints.

34I have discussed the evidentiary shortcomings of Dr. Bui's report, including the delay between the assessment and the issuance of the report and the improbable pattern of his physical examination findings, namely, range of motion results falling in the "less than normal limits" in every area. The reliability of Dr. Ta's diagnoses, as I have noted, is limited in that they are inconclusive. Dr. Ta advances several diagnoses and then states that without investigations, those diagnoses cannot be confirmed.

35Dr. Ta appends to his findings lengthy excerpts from chronic pain studies, but does not link the research to the applicant's personal circumstances. Similarly, the applicant tenders a Canadian Pain Task Force Report of June 2019 and the WHO Internal Classification of Diseases as evidence but does not present expert evidence linking these reports to his circumstances. These reports on their own are of very little assistance in determining the issues in dispute.

36To conclude, the applicant has not met his onus in establishing the reasonableness and necessity of the $2,600.00 treatment plan for the treatment of his accident-related injuries. The plan is therefore not payable.

CONCLUSION

37The applicant has failed to establish, on a balance of probabilities, that his injuries place him outside the Minor Injury Guideline. He has also failed to show that the treatment plan listed at para. [3] h. is reasonable and necessary as a result of the accident.

38No benefits are payable, and no interest is owing. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.
3. 3Superintendent's Guideline No. 01/14 at p. 4.
4. 42018 CanLII 83520 (ON LAT).
5. 52016 CanLii 93136.
6. 62018 ONSC 5707 at para. 21.