Long Tran v. TD General Insurance Company, 2021 CanLII 96939

Citation: Tran v. TD General Insurance Company, 2021 ONLAT 19-012706/AABS

Release date: 10/07/2021

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:

Long Tran Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Jessie Tran, Paralegal

For the Respondent: Symone Marlowe, Counsel

HEARD: By way of written submissions

OVERVIEW

1Long Tran was involved in an accident on March 1, 2016, and sought various benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). TD denied the benefits on the basis that it determined that Long Tran’s accident-related impairments were predominantly minor injuries and therefore limited to treatment within the Minor Injury Guideline (the “MIG”). Long Tran disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

a. Are Long Tran’s injuries predominantly minor 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?

b. Is Long Tran entitled to services recommended by Pain Rehabilitation Clinic, Inc., in treatment plans (“OCF-18s”) as follows:

i. $2,000 for physical rehab, massage, acupuncture, and chiropractic treatment and reassessment, in a plan dated September 7, 2017?

ii. $2,350 for a social work assessment, in a plan dated November 7, 2017?

iii. $2,600 for physical rehab, massage, acupuncture, and chiropractic treatment and reassessment in a plan dated December 15, 2017?

iv. $200 for an OCF-3/disability certificate, in a plan dated March 8, 2018?

v. $3,200 for massage, adjustments, modalities, IFC, acupuncture, and exercises, in a plan dated April 4, 2018?

vi. $1,500 for a functional abilities evaluation, in a plan dated September 18, 2018?

c. Is Long Tran entitled to interest on any overdue payment of benefits?

FINDINGS

3Long Tran is removed from the MIG due to chronic pain and psychological impairments.

4Long Tran is entitled to the costs of the treatment plans for physical treatment.

5Long Tran is entitled to the cost of the social work assessment.

6Long Tran is not entitled to the functional abilities assessment.

ANALYSIS

Applicability of the Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries, as set out in s. 3(1) of the Schedule. Section 18(1) limits entitlement for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Long Tran must establish entitlement beyond the MIG limit on a balance of probabilities.

8Long Tran submits he should be taken out of the MIG for the following reasons:

a. He has a documented pre-existing condition;

b. He suffers from chronic pain; and

c. He sustained psychological impairments as a result of the accident.

9The parties agree that if Long Tran proves that he suffers from any of the above medical conditions as a result of the accident, he is removed from the MIG.

10TD relies on the s. 44 IE assessor reports by Dr. Nesterenko, general physician, Dr. Gwardjan, physiatrist and Dr. Moshiri, psychologist to rebut Long Tran’s claims. Dr. Nesterenko concluded that Long Tran suffered minor injuries as a result of the accident. Dr. Gwardjan noted that Long Tran reported myofascial pain, but also opined that Long Tran suffered soft tissue injuries. Dr. Gwardjan concluded that there were no pre-existing or concurrent medical conditions that would prevent Long Tran from reaching maximum medical recovery within the MIG. Dr. Gwardjan maintained the same opinion in a second report.

11I prefer the medical records of Long Tran over the reports of the s. 44 assessors. Long Tran has continuously reported ongoing pain which is referenced in the clinical notes and records of the family physician, his assessors’ reports and the s. 44 assessors’ reports. He has reported a 50% improvement as a result of treatment, which in my view supports that additional treatment would achieve its stated goals of pain relief and increased strength and range of motion (ROM).

Pre-existing Condition and Chronic Pain

12I find that Long Tran has not established that he has a documented pre-existing condition that would exempt him from the MIG. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be taken out of the MIG. In order to qualify for this exemption from the MIG, the applicant must provide compelling medical evidence which satisfies the following requirements:

a. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

b. The pre-existing medical condition will prevent maximal medical recovery within the MIG limit.

13The evidence supports that Long Tran suffered from chronic pain as a result of a previous accident. However, what I find lacking from his evidence was an opinion from a medical practitioner that this pre-existing condition would prevent him from achieving maximum medical recovery within the MIG.

14Despite my determination, I do find that Long Tran suffers from chronic pain and is exempt from the MIG on this basis. This is supported by the documented evidence that Long Tran suffered back pain as a result of the subject accident (March 4, 2016 entry). Second, Long Tran has consistently reported to and has been diagnosed with ongoing back, neck and shoulder pain by his treating physician and assessors.

15Long Tran relies on a chronic pain assessment report (July 25, 2019 report) from Dr. Paki-Javan. In the July 25, 2019 report, Dr. Paki-Javan noted neck pain, upper and lower back pain, shoulder and right wrist pain. Objective testing showed less than normal range of motion in the neck and lumbar spine with complaints of pain in flexion and extension of the wrists. Dr. Paki-Javan diagnosed Long Tran with neck whiplash, cervical spine strain, lower back sprain/strain and bilateral shoulder sprain. Dr. Paki-Javan opined that the impairments were a direct result of the accident, and that the barrier to recovery is that Long Tran’s injuries are chronic. Dr. Paki-Javan went on to note that Long Tran continues to have pain in the neck and lumbar spine areas where there is palpable tenderness and decreased range of motion. Dr. Paki-Javan commented that without proper treatment, Long Tran would not get better in terms of his symptoms or impairments. Dr. Paki-Javan recommended active and passive rehabilitation.

16Long Tran is still experiencing ongoing pain over three years post-accident. I am satisfied that Long Tran suffers from chronic pain as a result of the accident.

OCF-18 dated September 7, 2017 for $2,000

OCF-18 dated December 15, 2017 for $2,600

OCF-18 dated April 4, 2018 for $3,200

17I find that Long Tran has demonstrated that the treatment plans are reasonable and necessary.

18The OCF-18 dated September 7, 2017 noted the following injuries: sprains and strains of cervical spine, lumbar spine and shoulder joint, chronic intractable pain and other chronic pain. His 2010 accident injuries were indicated to be both a previous and concurrent condition that could impact recovery from treatment. It was also indicated that his current accident-related injuries impacted his ability to carry out the tasks of his employment and engage in activities of normal life. The OCF-18 recommended 12 physical rehabilitation sessions.

19The OCF-18 dated December 15, 2017, noted the same injuries as the November 7, 2017 OCF-18, and also contained sprain and strain of other and unspecified parts of the foot. The OCF-18 author also noted that pre-existing injuries could affect Long Tran’s response to treatment. The OCF-18 recommended 16 physical treatment sessions. The OCF-18 contained the same reports as the November 2017 OCF-18 regarding the impact of the 2010 accident on treatment.

20The April 4, 2018 OCF-18, again noted similar diagnoses as the two previous OCF-18s, with the additional diagnosis of sprain and strain of the thoracic spine. This OCF-18 again noted similar previous accident-related issues and proposed 20 treatment sessions.

21In the April 5, 2019 report, Long Tran reported that the treatments help alleviate his pain, and although the treatments provide temporary relief, he wanted to continue to receive treatment. In addition, the reported improvement from treatment is indicative that the treatment received to date is beneficial. Further, I find that the proposed treatment plans are reasonable and necessary to address the ongoing pain complaints, which the records indicate that Long Tran continued to suffer ongoing back pain over a year after the accident (June 26, 2017 entry). Lastly, it is well-established that the goals of pain relief, as indicated in the treatment plans, are reasonable grounds for finding that the recommended treatment is necessary. I am persuaded by the consistent reporting of pain complaints noted above, that Long Tran still suffers from ongoing accident-related symptomatology.

22For these reasons, I find that Long Tran has established that the three OCF-18s are reasonable and necessary.

OCF-18 dated November 7, 2017 for $2,350

23Long Tran is entitled to the OCF-18 for a social work assessment, as I find it to be reasonable and necessary.

24Long Tran submits that due to his ongoing psychological impairments, that the proposed OCF-18 is reasonable and necessary. Long Tran points to the March 29, 2018 s. 44 report in which Dr. Moshiri notes that the results of testing reflected severe levels of discomfort as far as depression, anxiety, anger/irritability subscales are concerned. Long Tran’s position is that the OCF-18 is reasonable to address his problems with his social environment, certain psychosocial circumstances, relationship with his spouse, housing/economic circumstances and employment. Long Tran also relies on a September 24, 2020 bio-psychosocial pre-screen report, in which he indicated he was suffering from anxiety prior to the subject accident. The purpose of the OCF-18 is to determine whether or not Long Tran requires psychosocial intervention.

25TD submits that the social work assessment indicates that Long Tran is experiencing financial and social stressors related to disability and he experiences difficulties with re-integration to the work force. TD further submits that the family physician clinical notes and records suggest that Long Tran continued to work post-accident and there is no mention of work-related difficulty as a result of the accident. TD contends that Long Tran has failed to produce any records that document any issues with re-integration to the work force or re-integration to work.

26I agree with Long Tran that Dr. Moshiri’s report supports that he is suffering from a psychological impairment as a direct result of the accident. For example, objective testing revealed severe levels of depression and anxiety. The social work assessment is reasonable to determine the proper course of treatment to address Long Tran’s accident-related impairments as it pertains to the impact on his daily life.

27For these reasons, I find that Long Tran has established that the OCF-18 for a social work assessment is reasonable and necessary.

OCF-3 dated March 8, 2018 for $200

28Long Tran is entitled to the cost of the OCF-3.

29Long Tran submits that the OCF-3 is reasonable and necessary due to the injuries sustained in the accident and the duty to inform TD of same. His position is that the OCF-3 is a means to inform TD that he returned to work, albeit with pain, that he continued to suffer a substantial inability to perform some of his pre-accident housekeeping and home maintenance duties and that he required both an orthopaedic and social work assessment.

30TD did not specifically address the cost of the OCF-3, it maintained a generalized position that Long Tran failed to meet his evidentiary burden demonstrating that the OCFs were reasonable and necessary.

31I agree with Long Tran The OCF-3 is a necessary form that sets out the different types and levels of care that an insured may require. By its nature, an OCF-3 sets out the disability an insured suffered as a result of an accident. Without such a key document, there is limited information that an insurer can rely on to determine the extent of its insured’s injuries and impairments and any treatment or assessment recommendations for same. At the very least, an OCF-3 provides a fulsome picture of pre- and post-accident well-being and recommendations for treatment that obligate an insurer to take reasonable action to fund treatment for its insured.

32For these reasons, I find that Long Tran has met his burden to establish that the OCF-3 is reasonable and necessary.

OCF-18 dated September 18, 2018 for $1,500

33Long Tran is not entitled to the OCF-18 as he has failed to establish that the treatment is reasonable and necessary.

34Long Tran again relies on the April 5, 2019 functional abilities evaluation report of chiropractor Dr. Bui in support of his claim. In his report, Dr. Bui noted that post-accident, Long Tran has limitations in dressing, bathing/showering, toileting and grooming. Long Tran submits that the OCF-18 “appears to have been recommended in order to help identify a patient’s physical work tolerances, and to assess the amount of rehabilitation he requires.” His position is that the assessment is reasonable and necessary due to accident-related injuries and the aggravation of his pre-existing chronic pain condition. Long Tran also relies on the records of his family physician wherein his pain was noted to be recurrent and chronic.

35Dr. Bui went on to note that Long Tran continues to experience headaches with neck pain, intermittent neck pain, continual back and shoulder pain, bilateral knee pain and right wrist pain. Dr. Bui assessed Long Tran’s ROM and found that he was functioning at below normal levels at both the lumbar and cervical spine regions. Dr. Bui went on to conclude that Long Tran suffered impairments directly related to the accident and he was experiencing limitations in his pre-accident activities. Dr. Bui opined that Long Tran was suffering from sprain and strain of the cervical spine, chronic pain of the cervical spine, and chronic pain of the lumbar spine. Dr. Bui recommended that Long Tran attend a chronic pain program and continue with active and passive therapy.

36TD submits that Long Tran has not met his onus regarding the OCF-18. It argues that Long Tran’s claim for the assessment is not supported by any of the other documentation that Long Tran relies on. Its position is that the treating physician’s records note that Long Tran was working post-accident, which contradicts Dr. Bui’s report that Long Tran is unable to complete his self-care activities independently.

37I agree with TD. On the evidence, Long Tran has returned to work. There is no evidence that he continues to be on modified duties at the time the OCF-18 was submitted. Further, there is no evidence that he has stopped working as a result of his accident-related impairments. Also, there is little medical evidence that supports Dr. Bui’s report, especially that of the treating family physicians. I also find it difficult to agree that the OCF-18 is reasonable and necessary where Long Tran is able to work and yet purportedly requires assistance to perform self-care tasks. There is no evidence that he requires assistance with his employment duties, therefore I question how he is not able to independently perform his self-care tasks, as the report suggests.

38Therefore, Long Tran is not entitled to the disputed OCF-18, as he has failed to establish that it is reasonable and necessary.

INTEREST

39I have determined that Long Tran is entitled to the treatment plans for physical treatment, the disability certificate, and a social work assessment. As such, interest is payable on the overdue amounts, pursuant to s. 51 of the Schedule

CONCLUSION

40Long Tran is removed from the MIG due to his chronic pain and psychological impairments as a result of the accident.

41Long Tran is entitled to payment for the three OCF-18s for physical treatment, as they are reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.

42Long Tran is entitled to payment for the OCF-18 for a social work assessment and interest pursuant to s. 51 of the Schedule.

43Long Tran is entitled to payment for the OCF-3 for the disability certificate and interest pursuant to s. 51 of the Schedule.

44Long Tran is not entitled to payment for the functional abilities evaluation, interest is not payable as there are no overdue payment of benefits owing.

Footnotes

1. 1O. Reg. 34/10.