Citation: Tyndale v. Primmum Insurance Company, 2022 ONLAT 20-000805/AABS

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:

Robert Tyndale

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice-Chair

APPEARANCES:

For the Applicant:

Alexandra Whitehead, Counsel

For the Respondent:

Benjamin Hutchinson, Counsel

Court Reporter:

Breanna Clancy (Days 1 and 3) and Amy Faria (Day 2)

HEARD:

By Videoconference

OVERVIEW

1R.T. was injured in an automobile accident on October 27, 2017 and sought a Non-Earner Benefit (“NEB”) and medical benefits from Primmum Insurance Company (“Primmum”) under the Schedule¹. Primmum paid for some of R.T.’s treatment but denied his request for the NEB and other treatment plans.

2R.T. appealed the denials to this Tribunal. The matter was heard before me over three days with six witnesses testifying. I find that R.T.’s life was affected but not to the degree to be entitled to an NEB. Similarly, while R.T. experienced some residual lingering pain that is chronic, his impairments are classified as “minor injuries”, and thus he is not entitled to the requested treatment plans.

ISSUES

3The parties agreed that the issues I must decide are:²

1. Is R.T. entitled to a Non-Earner Benefit of $185 per week from November 24, 2017 to October 27, 2019?

2. Are R.T.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit of the Minor Injury Guideline?

3. Is R.T. entitled to $3,107.55 for physical therapy proposed by Dr. Chauhan in a treatment plan/OCF-18 (“plan”) dated May 14, 2018?

4. Is R.T. entitled to $6,709.80 for a chronic pain program proposed by Dr. Kachooie in a plan dated January 15, 2019?

5. Is R.T. entitled to interest on any overdue payment of benefits?

6. Is Primmum liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4R.T. is not entitled to the NEB. His injuries are predominantly minor as defined in the Schedule, and he is not entitled to the two treatment plans, interest or an award.

Analysis

Issue 1: Is R.T. entitled to a NEB?

5No. The Schedule provides that an insurer shall pay an NEB of $185 per week to an insured that suffers “a complete inability to carry on a normal life” as a result of and within 104 weeks after the accident, that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”³ The NEB is not payable for the first four weeks after the onset of the complete inability and then payable until two years after the accident. The insured bears the onus to show entitlement to the NEB, and other benefits, on a balance of probabilities.

6Accident-related impairments or life changes are not enough. The “complete inability” analysis requires a comparison of pre- and post-accident functionality, with consideration to the following factors: ⁴

a. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable case-specific period prior to the accident;

b. Consideration of "substantially all" means all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

c. Accident-related injuries must “continuously prevent” engaging in substantially all pre-accident activities, on an uninterrupted basis;

d. “Engaging in" an activity is a qualitative perspective, requiring more than isolated attempts or “going through the motions”, and with consideration to significant restrictions and quality of an activity; and

e. If pain is a primary factor, the focus should not be if the applicant can perform those activities, but if the pain “practically prevents” the activities.

a. What was R.T.’s “normal life” prior to the accident?

7In terms of conducting the before and after analysis, R.T. presented two conflicting versions of his normal life before the accident, which really related to two different periods of time. The first period was pre-accident and before the onset of an unrelated medical condition, and the second was also pre-accident but after the condition. R.T. described that for many years – i.e. during the first period – he was in good health, and led an active life, being employed in physical jobs such as a landscaper and other active positions, and maintaining an active social life going out with friends and playing sports.

8The second period started about a year or more before the accident when he was diagnosed with Small Intestinal Bacterial Overgrowth (SIBO), an intestinal condition, that greatly altered his normal daily life. The condition drained him of energy, left him feeling weak, with anxiety, caused poor sleep, affected his mood, put his social life on hold, and he became unemployed. In February before the accident, he considered going on disability. Thus, even if his condition stabilized primarily through a controlled diet in the months before the accident – there was conflicting evidence if it was getting better or worse – he was not yet working or playing sports, and just starting to socialize again, spending most of time at home.

9While R.T. personally identified with the first period and thus saw that as his normal life, the second period which is closest to his accident when R.T. was affected by SIBO is the relevant period to assess R.T.’s normal life. It most represents his then normal life in the year leading up to the accident. While he was once more active, the effect of that condition cannot be ignored and is a part of his pre-accident normal life. Applying Heath, I consider this second, pre-accident period with the onset of SIBO to be the proper comparator with R.T.’s post-accident life.

b. How did the accident effect R.T.’s “normal life”?

10As a result of the accident, R.T. sustained neck, left shoulder, lower, mid and upper back injuries, and headaches. While I accept his testimony that he started experiencing intense pain the next day – and discuss below the extent to which those conditions continued – the overall evidence strongly pointed to the fact that R.T. was not completely prevented from carrying on his normal life. In fact, his life was largely unchanged after the accident as before.

11First, R.T.’s testimony supports this conclusion. He testified that after the accident, he did not want to do much such as going out with friends and playing basketball and hanging out, as he used to do before the accident. Ultimately, however, he clarified his testimony that in the months leading up to the accident he was not playing basketball and did not go out much. He was unemployed after the accident as before with perhaps the only difference being before the accident, he felt he had gotten to the point that he could have returned to work but mentally was not ready. He felt he did not keep to his diet as strictly after the accident, as before, which exacerbated his SIBO, but he does feel after about seven months he got back on track with his diet. He isolated himself, but again testified that was similar to his pre-accident lifestyle. When pressed for specific differences between his pre- and post-accident life, he did not provide much detail of concrete differences, and more described feeling that his life was gone and that while he could work but did not pre-accident, whereas post-accident it was very painful to do so. Yet, as in the other examples, he was not working before the accident.

12Second, in general, R.T. was not a particularly accurate historian which weakens his claim as so much of it is based on his testimony, although I do believe that R.T. was trying to be forthright with the Tribunal. For instance, as his counsel pointed out on closing, R.T. was open about a past personal mistake. Still, Primmum established inconsistences in his testimony, such as basics of the accident. He testified he was traveling 30-40 km/h and a March 2019 psychological IE records him saying it was 40 km/h, yet he reported to the collision centre immediately following the accident that he was doing 10 km/h, and other vehicle estimates it to be 5-10 km/h. The latter numbers fit with the description of the accident. It is hard to imagine that he was stopped at a stop sign, and then reached 30-40 km/h in that same intersection when he was struck.

13Third, while R.T.‘s medical evidence provides some support of his medical claims as discussed below, that evidence did not meaningfully endorse an inability to carry out a normal life. Dr. Yuliya Baryla, his family doctor, did recommend various therapies, prescribed some pain killers (he took very little), and even felt his pain was chronic, but did not point to significant physical impairments. A March 9, 2020 report by psychological associate, Grace Gronkowska, diagnoses Post-Traumatic Stress Disorder (PTSD), Somatic Symptom Disorder with predominant pain, and Major Depressive Disorder, moderate, but not a “complete inability”.

14Dr. Alireza Kachooie, a pain specialist, recommended chronic pain treatment, but his report to Dr. Baryla does not appear to endorse functionally disabling pain or significant limitations. His January 15, 2019 Disability Certificate does endorse a “complete inability”, but I give it little weight. The checkbox form contains a note “The patient is not able to do pre-accident tasks”, with no indication he was aware of what those tasks were. He seems unaware of the SIBO as he endorsed “no pre-accident condition” impacting R.T.’s ability to preform the tasks of daily living. Finally, the form endorses an inability to perform pre-accident housekeeping tasks, despite the evidence showing otherwise.

15Fourth, none of the three insurer examinations (discussed below) occurring shortly after the OCF-3 was filed found any significant level of impairment or a “complete inability”. In fact, all record that R.T.’s life was largely the same after the accident as compared to the month before the accident. Occupational Therapist Dawn Li recorded that the only difference was some sleep issues.

16Thus, I find R.T. has not established entitlement to a NEB.

Issues 2-4: Are R.T.’s impairments “minor injuries”, and if not, is R.T. entitled to $3,107.55 for physical therapy and $6,709.80 for a chronic pain program?

17R.T.’s injuries are minor, and he is not entitled to the requested treatment plans for the reasons that follow.

18Under section 18(1) of the Schedule, R.T. is limited to $3,500 in medical and rehabilitation benefits if his accident related injuries are predominantly a “minor injury”, which is defined in section 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.”

19Thus, because R.T. has utilized the $3,500 – or virtually all of it – to receive consideration for any more treatment, he must establish that his injuries are not “minor”. The Tribunal’s decisions have also determined that certain accident related chronic pain with functional impairment or psychological conditions are not “minor injuries,” within the meaning of the Schedule. Though I am not bound by those previous Tribunal decisions, I agree with them. Alternately, under s. 18(2), he can present compelling medical evidence that a documented pre-existing injury or condition prevents recovery of his “minor injury” if he were limited to the $3,500 limit.

20If R.T. establishes that he is not bound by the $3,500 limit, he is entitled to medical expenses if they are reasonable and necessary as a result of the accident.

21R.T. asserts he is not bound by the $3,500 limit because he suffered psychological injuries and chronic pain.⁵

22As for the psychological injuries, IE assessor Dr. Terra Seon, a licenced psychologist, found R.T. does not suffer from a diagnosable psychological impairment. I found her conclusion to be more accurate then Ms. Gronkowska’s conclusion (mentioned above) that he did, for several reasons. In general, Dr. Seon's conclusion generally fits with the totality of the evidence. She advised that R.T. denied any psychological impairment, nor did she observe any. Assuming R.T. has some hesitancy in driving, it is minor and not a diagnosable condition, and it certainly did not prevent him from driving. To the extent that R.T. is showing any symptoms of depression, those symptoms appear to be completely in line with his pre-accident condition. As well, Dr. Seon’s history is more robust and accurate. For instance, Ms. Gronkowska mentions R.T.’s health was better prior to the accident despite R.T.’s testimony describing the effect SIBO had on his pre-accident life. In fact, Ms. Gronkowska appears unaware of the SIBO.

23As for chronic pain, R.T. appears to have some limited pain that lasted unusually long after the accident, but which also is steadily trailing off on its own and has not caused significant functional limitations. His family doctor, Dr. Kachooie, and Dr. Michael Ko, the IE physiatrist, all endorsed some limited pain that is chronic, albeit in a relatively limited level, and found some objective symptoms.

24For instance, Dr. Baryla had no concerns R.T. was making things up, and as his pain remained after eight months, on July 31, 2018 referred him to Dr. Kachooie. Dr. Baryla considered Dr. Kachooie to be a good doctor and made the referral, although the initial impetuses for the referral may have come from R.T.’s lawyer. Dr. Kachooie’s exam took place on January 15, 2019. In his letter to Dr. Baryla the same day, he endorsed chronic pain, and recommended an active rehabilitation program and no interventional pain management, such as injections.

25Dr. Baryla’s subsequent November 4, 2019 examination showed R.T.’s neck pain was resolved, but there was still tenderness on right-side of his lower back, at which point she referred R.T. to an OHIP-based chronic pain program.

26Dr. Ko conducted an IE Physiatry Assessment on April 23, 2019.⁶ He found a full range of motion and no muscular atrophy, but some tenderness in his back, which is an abnormal finding. Based on R.T.’s history of seeing his family doctor only a few times, one consult with a specialist and limited medication, he felt that while R.T. he might be experiencing some ongoing pain, it did not warrant the chronic pain treatment, which was overbroad. Yet Dr. Ko did not say R.T. did not need any treatment; in fact, when questioned, he acknowledged that if R.T. was his own patient, he would have recommended more limited treatment. I accept his evidence that R.T. has soft tissue injuries, with relatively minor residual chronic pain, that should be classified as minor injuries⁷.

27Ms. Li, the IE Occupational Therapist, also examined R.T. on March 22, 2019. She found a basically normal examination with full range of motion and muscle strength with functional limits but did note he complained of some tightness and pain.

28Thus, I find R.T. suffers from some pain that is chronic, but at that limited level it falls within the definition of “minor injury.” The totality of the evidence shows that R.T.’s lingering pain is a clinically associated sequela of his whiplash, as well as presenting no functional impairment. He remains subject to the $3,500 limit and not entitled to the treatment plans.

29In the event that I am incorrect in my conclusion that R.T.’s injuries are deemed minor, I still would not have found the chronic pain treatment plan submitted (Issue 4) reasonable and necessary. It involves psychological counselling, but as I found above, R.T. does not suffer psychological issues from this accident. I accept Dr. Ko's testimony that the plan is overbroad, and that he would have recommended less involved treatment. While Dr. Kachooie endorsed the treatment, his January 2019 letter to Dr. Baryla recommending active treatment, does not sound consistent with such a robust plan. As well, to the extent that I am still mistaken and he does need such chronic pain treatment – Dr. Baryla’s second referral shows that the treatment is available via OHIP.⁸

30Finally, as R.T.’s injuries are deemed minor and subject to the $3,500 limit, he also is not entitled to the plan for $3,107.55 in physiotherapy, dated May 14, 2018 (Issue 3). While I have no authority to award it, I do note that this more modest plan strikes me as appropriate, given its scope, timing, R.T.’s limited symptoms, and R.T.’s belief it was helping him. R.T.’s attendance in excess of that amount also provides further support that the treatment was reasonably necessary and successful. Again, however, given I have found nature of R.T. injuries make him subject to the $3,500 limit, I lack authority to award it.

Issues 5 (Interest) and 6 (Award)

31Section 51 of the Schedule governs interest on overdue payments. In addition, s. 10 of O. Reg. 664 permits me to “award” a lump sum of up to 50% of the amount that a person is entitled (plus interest on all amounts then owing) if I find the insurer “has unreasonably withheld or delayed payments.” In this case, as I have not found entitlement to any requested benefit, neither interest nor an “award” are applicable.

Order

32R.T. is not entitled to the NEB. His injuries are defined as predominantly minor, thus he is not entitled to the two treatment plans, interest or an award. The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010 (O. Reg. 34/10)
2. 2Following the hearing, on July 7, 2021, Primmum withdrew its claim for costs.
3. 3Schedule, sections 12 and 3(7)(a). The latter section further defines section 12.
4. 4Heath v. Economical Mutual Ins. Co., 2009 ONCA 391 at 50
5. 5Although he mentioned the SIBO, there was very little evidence connecting it to any effect on his recovery. Additionally, several of the records made some reference to WAD III and radiating pain, which may not be minor within the meaning of the Schedule. However, Dr. Preeya Chauhan’s May 14, 2018 treatment plan refers to WAD II, and its existence was not supported by the records beyond, perhaps, a transitory occurrence.
6. 6As with the other IE assessors, his single assessment generated other reports, all dated May 6, 2019, differing only in referral questions, to address different benefits.
7. 7Dr. Ko appeared unaware of the Tribunal’s decisions finding chronic pain of sufficient severity can remove an individual from the MIG. Thus, to be clear, I do not endorse his comment that chronic pain does not remove an individual from the MIG.
8. 8See section 47(2) of the Schedule.