Sanico v. Co-operators General Insurance Company, 2022 CanLII 114466

Licence Appeal Tribunal

Citation: Sanico v. Co-operators General Insurance Company, 2022 ONLAT 20-002869/AABS

Licence Appeal Tribunal File Number: 20-002869/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:

Yzabelle Sanico

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jessica Cavdar

APPEARANCES:

For the Applicant:

Aurora T. Mancuso, Counsel

For the Respondent:

Patrick Baker, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on December 28, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective - September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The respondent denied the benefits in dispute based on its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”), and further, that the requested treatment was neither reasonable nor necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

3The following issues are in dispute:

i. Are the applicant’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 MIG?

ii. If the applicant’s injuries are not considered to be predominantly minor,

i. Is the applicant entitled to various medical benefits and costs of examination as set out in the Case Conference Report & Order dated July 22, 2020?

ii. Is the applicant entitled to various medical benefits and a cost of examination, as set out in the Motion Order dated March 23, 2021?

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

RESULT

4The applicant has not demonstrated that she sustained impairments as a result of the accident that justify removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. The applicant’s MIG limits have already been exhausted. As no benefits are overdue, it follows that no interest is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

6An 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.

7In all cases, the burden of proof lies with the applicant.

8The applicant has already expended the $3,500.00 MIG limit.¹

9The applicant submits that she should be removed from the MIG “since, as a result of the accident, she has suffered both psychological and neurological impairments, and has been diagnosed with chronic pain and fibromyalgia, each [sic] which warrant a removal from the MIG.”²

10Specifically, the applicant submits that she suffers “numbness and shocks along her 4th and 5th digits of her right hand, reduced sensation to her 5th digit of her right hand, causing her to drop items, sleep difficulties, nightmares and flashbacks, decreased concentration, vehicular anxiety, fatigue, and low energy.”³ She also submits that she “failed multiple tests to assess impingement and labral tears of the shoulder joint with respect to her right shoulder…and also failed the cubital tunnel compression test, which tests for ulnar nerve compression.”⁴

11To support her removal from the MIG, the applicant relies on December 30, 2017 records in which Dr. Peter Kizoff of the Huronia Urgent Care Clinic opined that the applicant had suffered from persistent paresthesia of her right 5th digit, as well as possible neuropraxia of the right ulnar nerve or C6/C7 nerve root.⁵

12The applicant further relies on records dated February 21, 2018 of Dr. Jaskaran Singh Kang, cardiologist, to support her removal from the MIG. Dr. Kang’s records note that the applicant stated that on February 15, 2018,

while at work and having a job interview, she felt palpitations which she initial had thought were because of her recent interview and anxiety regarding that. She states that these were intermittent for the better part of the day and at approximately 10:00 p.m. she had tried to go to sleep. At this time, she had appreciated ongoing elevated heart rare and eventually had contacted Telehealth. At that time, she was found to be tachycardic and was sent to the emergency department. Her initial ECG reveals sinus rhythm at a rate of approximately 88 beats per minute. She states that she does believe that she was having symptoms at this time. She otherwise had been stable fer a period of time and her evaluations have been unremarkable in the emergency department. Subsequently she was discharged home. She had ongoing palpitations the following day and has been largely asymptomatic since that this time… on examination, she appeared well, in no apparent distress.⁶

13The applicant further relies on a November 12, 2019 clinical note of Dr. Geraldine Cruz, her family doctor, to support her argument for removal from the MIG. In the records in question, Dr. Cruz wrote that the applicant “complains of 2-3 weeks forgetfulness; reported poor concentration; headache on and off photophobia; reported normal mood, no anxiety… complains of pain on her shoulders and back, now also has left hip pain that she reports are since the car accident; Physiotherapy benefits has [sic] ran out at present and waiting for new coverage; otherwise patient is working; also doing exercises as follows. Reported going to the gym, doing weight training, squats, bench presses, doing boxing classes 1 per week, recently doing Jojitsu [sic]; alert, no distress, coherent CN exam grossly normal Speech normal tone and content; Forgetfulness likely due to poor concentration and not a cognitive disorder; Migraine headache; Chronic pain from MVA but otherwise functioning well and active; Discussed lifestyle modifications for migraine… discussed trial of mindfulness meditation which may improve concentration…”⁷

14Lastly, the applicant submits that the chronic pain assessment report of Dr. Inese Robertus, physiatrist, dated January 19, 2021 supports her removal from the MIG. In this assessment, Dr. Robertus diagnosed the applicant with the following: “chronic pain disorder; concussion/post-concussion syndrome; chronic post-traumatic headaches; chronic Whiplash Associated Disorder (WAD) type II; sprain and strain of the cervical spine; sprain and strain of bilateral shoulder; sprain and strain of the lumbar spine; sprain and strain of bilateral hip; bilateral hand numbness not yet diagnosed; depression; anxiety; post traumatic insomnia; post traumatic fatigue; PTSD - to be correlated by a psychologist; and fibromyalgia.”⁸

15In response, the respondent submits that the applicant has sustained soft tissue injuries as a result of the accident and that these injuries fall squarely within the definition of “minor injury” under the MIG.

16The respondent submits that the primary care records generated by Dr. Geraldine Cruz – which contain sporadic references to shoulder and upper back pain – are the most reliable and accurate snapshot of the applicant’s post-accident condition. The respondent relies upon the fact that Dr. Cruz’s records do not reference emotional or neurological concerns relating to the subject motor vehicle accident. The respondent further submits that, although Dr. Cruz refers to migraines in November 2019 clinical notes and records (“CNRs”), there is no evidence that these were related to the accident.⁹

17The respondent relies on Dr. Cruz’s records – which state that the applicant was participating in weight training, weekly boxing, and jujitsu in November 2019 – to argue that the applicant was not in fact suffering from chronic pain syndrome.¹⁰ The respondent further submits that “it is a near certainty that [any] physical complaints of neck, shoulder, and hip pain voiced during that [November 12, 2019] visit were the direct result of [the applicant]’s recent experience with weights and regular participation in combat sports, as opposed to a distant and rather minor car accident. To state that a then-25-year-old woman, who was engaged in strenuous physical and combative activities, was suffering from chronic pain syndrome or neurological issues defies any sense of logic.”¹¹

18The respondent submits that Dr. Inese Robertus’ January 19, 2021 s. 25 report should be afforded no weight since it was authored more than three years post-accident and contained no review of primary care records whatsoever. The respondent argues that Dr. Robertus’ findings were based on the subjective self-reporting of the applicant herself, and that the applicant’s “statements to Dr. Robertus during this examination are entirely detached from the content of Dr. Cruz’ primary care notes. As a result, the findings of Dr. Robertus are equally unreliable.”¹²

19I agree with the respondent and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. First, the physical injuries listed in the applicant’s OCF-3, dated January 4, 2018, are sprain and strain of shoulder joint, rotator cuff capsule; injury of muscle and tendon at neck level; sprain and strain of thoracic spine; sprain and strain of lumbar spine; radiculopathy; concussion; other sleep disorders; and phobic anxiety disorders.¹³ While I am alive to the fact that certain mental health issues may bring an applicant out of the MIG, the healthcare professional who drafted the applicant’s OCF-3 is a chiropractor. Therefore, I afford little weight to the mental health diagnoses listed in the subject OCF-3.

20I find there is limited indication in the file that the applicant’s physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1) because the injuries described in her OCF-3 fall within the definition of “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.”

Psychological Impairments

21An applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). To this end, the applicant relies on, among other things, the report of cardiologist Dr. Jaskaran Singh Kang dated February 21, 2018.

22While Dr. Kang’s cardiology report does make reference to the applicant having palpitations and elevated heart rate on February 15 and 16, 2018, Dr. Kang qualifies this by stating that the applicant had reported to him that these were related to job interview anxiety.¹⁴ Dr. Kang reported that the applicant had been “largely asymptomatic since that this time…on examination, she appeared well, in no apparent distress.”¹⁵ I find that Dr. Kang’s evidence does not meet the burden to establish that the applicant suffered a psychological impairment as a result of the accident.

Chronic Pain

23The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, I find no indication in the medical documentation that the applicant’s lingering accident-related pain has become chronic in nature or is causing functional impairment.

24The records of the applicant’s family doctor, Dr. Cruz, confirm that she had experienced no interference with her normal life activities, and that she had been engaged in weightlifting and combat sports.¹⁶

25This Tribunal has held that at least three of six criteria set out by the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“the AMA Guides”) must be met to establish a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.

26I find that the applicant has not met the aforementioned six criteria. First, there is no evidence to suggest that the applicant was prescribed medication as a result of this accident, and therefore cannot have abused, become reliant upon, or used medication beyond the recommended duration.

27Second, the applicant has not adduced sufficient evidence to demonstrate excessive dependence on health practitioners following this accident. She complained of shoulder and upper back pain on an infrequent basis, and there is no evidence of any complaints made after April 21, 2020. Her frequency of visits was approximately once every six months, and she did not discuss accident-related symptoms in every instance.

28Third, the applicant has not adduced sufficient evidence of avoidant behavior or de-conditioning since the accident, and indeed confirmed that she had continued to engage in her activities of normal life to Dr. Cruz. The fact that she took up weight training and combat sports underscores the fact that this young woman is clearly not avoidant or de-conditioned and confirms that she is both active and healthy.

29Fourth, the applicant has not proven that she experienced social withdrawal. She returned to her employment soon after the accident and enjoyed participation in high-contact sports with others.

30Fifth, the applicant has not shown that she suffered disability and returned to both her employment and her daily life following the accident.

31Finally, the mention in the record of psychological symptoms is related to job interview stress, which does not meet the burden to prove that psychological issues developed as a result of the accident.

32Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that their accident-related impairments warrant removal from the MIG.

S. 38(11) – Two Treatment Plans in Dispute

33The applicant separately raises an argument under s. 38(11) of the Schedule in which she submits that she is automatically entitled to $2,055.33 for a psychological assessment as well as $2,260.00 for a neurological assessment since the respondent did not specifically reference the MIG in its March 14, 2018 denial letters, in violation of s. 38(9).

34Section 38(11) states: “If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

ii. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8). O. Reg. 34/10, s. 38 (11).”

35Section 38(8) states: “(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. O. Reg. 34/10, s. 38 (8); O. Reg. 14/13, s. 5.”

36Section 38(9) states: “(9) If the insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person. O. Reg. 34/10, s. 38 (9).”

37The respondent acknowledges that the denial letters in question do not specifically refer to the MIG and submits that its denials were proper because they instructed the applicant of its belief that the disputed treatment plans were not reasonable and necessary.

38The March 14, 2018 letter from the respondent to the applicant with regards to the neurological assessment in the amount of $2,260.00 states:

“We are unable to consider this OCF-18 Treatment and Assessment Plan which proposes a neurological assessment. Based on a review of your file, we currently have no compelling medical evidence to suggest a neurological impairment(s) has been sustained as a result of the motor vehicle accident, or that you suffered a pre-existing psychological impairment which was exacerbated by the subject motor vehicle accident, and continues to impact your recovery. We are not satisfied that the proposed OCF-18 Treatment and Assessment Plan provides enough information to medically support this type of assessment. At this time we would like to request a complete copy of the clinical notes and records from your family doctor, along with hospital records, and any other relevant medical documentation. Please forward the complete file to our office before March 29, 2018. Once we have reviewed these records we will also review this OCF-18 Treatment and Assessment Plan again to determine if the new medical documentation changes our opinion. If we do not receive these clinical notes and records by the due date indicated above we will be proceeding to an in-person insurer's examination to further investigate if the proposed assessment is reasonable and necessary.”¹⁷

39The denial letter from the respondent dated March 14, 2018 regarding a treatment plan for a psychological assessment in the amount of $2,055.33 states:

“We are unable to consider this OCF-18 Treatment and Assessment Plan which proposes a psychological assessment. Based on a review of your file, we currently have no compelling medical evidence to suggest a psychological impairment(s) has been sustained as a result of the motor vehicle accident, or that you suffered a pre-existing psychological impairment which was exacerbated by the subject motor vehicle accident. and continues to impact your recovery. We are not satisfied that the proposed OCF-18 Treatment and Assessment Plan provides enough information to medically support this type of assessment. At this time we would like to request a complete copy of the clinical notes and records from your family doctor, along with hospital records, and any other relevant medical documentation. Please forward the complete file to our office before March 29, 2018. Once we have reviewed these records we will also review this OCF-18 Treatment and Assessment Plan again to determine if the new medical documentation changes our opinion. If we do not receive these clinical notes and records by the due date indicated above we will be proceeding to an in-person insurer's examination to further investigate if the proposed assessment is. reasonable and necessary.”¹⁸

40I find that the denial letters dated March 14, 2018 comport with s. 38(8), because the respondent advised the applicant why it thought that the treatment plans in question were not reasonable and necessary; namely, the respondent identified the goods and services that it did not agree to pay for, and stated that the medical evidence provided by the applicant did not support the need for those kinds of assessments. While I find that these denials do not comport with s. 38(9) because these denials did not mention the MIG, I find that, since the OCF-18s were properly denied in accordance with section 38(8), the applicant must establish that the assessments proposed are reasonable and necessary.

41The applicant holds the burden of proof to establish that the $2,055.33 psychological assessment as well as $2,260.00 neurological assessment are reasonable and necessary.

42The applicant’s family doctor’s CNRs do not reference any emotional or neurological issue stemming from the subject accident. I give little weight to the report of Dr. Robertus, since it occurred three years post-accident and is largely based on the applicant’s self-reporting. Accordingly, the applicant has failed to establish, on a balance of probabilities, that these specific assessments are reasonable and necessary.

43In the alternative that I am wrong regarding s. 38(9), the applicant has exhausted the MIG limit in any event.¹⁹

CONCLUSION

44The applicant has not demonstrated that she sustained impairments as a result of the accident that justify removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. The applicant has exhausted the MIG limit.

45The applicant has not demonstrated that the two assessments which were denied on March 14, 2018 were reasonable and necessary.

46As no benefits are overdue, it follows that no interest is payable.

Footnotes

1. 1Applicant’s document brief at Tab 16, page 3.
2. 2Applicant’s written submissions at p. 7.
3. 3Ibid.
4. 4Ibid.
5. 5Clinical Notes and Records of Huronia Urgent Care Clinic dated December 30, 2017, located at Tab 37 of the applicant’s brief.
6. 6Clinical Notes and Records of Dr. Jaskaran Singh Kang, cardiologist, dated February 21, 2018, located at Tab 8 of the respondent’s brief.
7. 7Clinical Notes and Records of Dr. Geraldine Cruz, family doctor, dated November 12, 2019, located at tab 7 of the respondent’s brief.
8. 8Chronic Pain Assessment Report by Dr. Inese Robertus dated January 19, 2021, at tab 5 of the respondent’s brief.
9. 9Respondent’s written submissions at p. 9.
10. 10Clinical Notes and Records of Dr. Geraldine Cruz, family doctor, dated November 12, 2019, located at tab 7 of the respondent’s brief.
11. 11Respondent’s written submissions at p. 9.
12. 12Respondent’s written submissions at p. 10.
13. 13Disability Certificate (OCF-3) dated January 4, 2018 completed by Angel Russi, chiropractor.
14. 14Clinical Notes and Records of Dr. Jaskaran Singh Kang, cardiologist, dated February 21, 2018, located at Tab 8 of the respondent’s brief.
15. 15Clinical Notes and Records of Dr. Jaskaran Singh Kang, cardiologist, dated February 21, 2018, located at Tab 8 of the respondent’s brief.
16. 16Clinical Notes and Records of Dr. Geraldine Cruz, family doctor, dated November 12, 2019, located at tab 7 of the respondent’s brief.
17. 17Letter from the respondent to the applicant dated March 14, 2018 regarding the $2,260.00 neurological assessment, at Tab 6 of the applicant’s written submissions.
18. 18Letter from the respondent dated March 14, 2018 regarding the $2,055.33 psychological assessment, at Tab 11 of the applicant’s written submissions.
19. 19Applicant’s document brief at Tab 16, page 3.