Rodrigues v. Wawanesa Mutual Insurance Company, 2022 CanLII 117087

Licence Appeal Tribunal

Citation: Rodrigues v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-007165/AABS

Licence Appeal Tribunal File Number: 20-007165/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:

Natalia Rodrigues

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Claudette Leslie

APPEARANCES:

For the Applicant: Bobby Vujicic, counsel for the Applicant

For the Respondent: James Schmidt, counsel for the Respondent

HEARD: In Writing November 22, 2021

OVERVIEW

1The applicant was involved in an automobile accident on July 20, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The applicant was denied certain benefits by the respondent insurer, Wawanesa Mutual Insurance Company ("Wawanesa").

2The applicant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal"). The parties were unable to resolve their dispute at a case conference held on April 7, 2021, and consequently the matter proceeded to a written hearing.

ISSUES

3The following are the issues before me:

1. Are the applicant's injuries predominantly minor as defined under s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit under the Minor Injury Guideline ("MIG")?

2. Is the applicant entitled to a non-earner benefit ("NEB") of $185 per week from July 20, 2017 to date and ongoing?

3. Is the applicant entitled to medical benefits and cost of examination expenses proposed by Finch Health Centre Inc. in the following treatment plans/OCF-18s ("plans"):

(a) $10,610.60 for chronic pain program submitted September 13, 2019; and

(b) $2,200 for a chronic pain assessment submitted June 3, 2019?

4. Is the applicant entitled to cost of examination expense in the amount of $1,995.33 for psychological assessment proposed by LV Rehabilitation Clinic, submitted May 9, 2018?

5. Is the applicant entitled to a medical benefit in the amount of $2,321.97 for prescription medication and physiotherapy, submitted January 4, 2019?

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

RESULT

4Having considered all of the relevant evidence provided, I find that:

(i) the applicant's injuries fall outside of the MIG;

(ii) the applicant is not entitled to a non-earner benefit;

(iii) the applicant is entitled to medical benefits and cost of examination expenses in the amounts of:

a. $10,610.60 for a chronic pain program; and

b. $2,200 for a chronic pain assessment; plus, interest in accordance with s. 51 of the Schedule;

(iv) the applicant is not entitled to cost of examination expense in the amount of $1,995.33 for psychological assessment; and

(v) the applicant is not entitled to a medical benefits/costs in the amount of $2,321.97 for prescription medication and physiotherapy.

BACKGROUND

5The applicant was driving when her vehicle was struck from behind by another vehicle she observed had been travelling at high speed. Based on her observation that the vehicle had been racing towards a red light, she indicated that she braced for the impact. The airbags did not deploy; her head was jolted back and forth, and she reported feeling dazed, upset and nervous. She described feeling pain in her head, neck, left shoulder and back. The vehicle was towed from the scene and was subsequently repaired.

6Police and ambulance attended and she was taken to Brampton Civic Hospital. X-rays of her back and neck were performed and revealed there were no fractures. Hospital records indicated there was no need for an MRI to be conducted. The applicant was sent home with pain medication. She consulted her family doctor a few days later. Other pain medication and physical therapy were prescribed.

7The applicant was unemployed at the time of the subject accident. She was receiving payments from WSIB and CPP disability, specifically because of a severe injury to her right thumb in 1991, while she was working as a machine operator at a garment factory. As a result, she had stopped working a few years after this injury.

THE LAW, EVIDENCE AND ANALYSIS

The Minor Injury Guideline ("MIG")

8The MIG establishes a framework available to insured persons who sustain minor injuries as a result of an accident. A "minor injury" is defined under s. 3(1) of the Schedule as "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." For clarity, the terms "strain," "sprain," "subluxation," and "whiplash associated disorder" are also defined in the Schedule.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 for individuals who sustain minor injuries. An insured person may also be removed from the MIG treatment limit if, as per section 18(2), they have a pre-existing injury or condition, documented by a health practitioner, combined with compelling medical evidence, indicating that the condition will prevent the individual from achieving maximal medical recovery. The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG; it must be shown to prevent maximal recovery within the cap imposed by the MIG.

10While the MIG definition does not include chronic pain, or other impairments that are not considered minor, common-sense and a realistic understanding is that the treatment limit of $3,500 is meant to address minor injuries and restore an individual to functional capability, within a short period of time. Chronic pain however, as defined in the Tribunal's reconsideration decision of T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 at para. 23 (ON LAT) ("T.S."), is understood to be "ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well being. A simpler definition for chronic or persistent pain is pain that continues when it should not."

11Of note, Tribunal decisions have also held that removal from the MIG as a result of chronic pain must be accompanied by functional impairment or disability. In all cases, the burden rests with the applicant to prove, on a balance of probabilities, entitlement to funds exceeding the MIG treatment limit (Scarlett v. Belair, 2015 ONSC 3635 para. 24 (Div. Ct.)).

31.: Are the applicant's injuries predominantly minor as defined under s.

3 of the Schedule and therefore subject to treatment within the $3,500 limit under the Minor Injury Guideline ("MIG")?

12The applicant claims that treatment of her injuries fall outside of the MIG limit due to both pre- and post-accident, psychological and physical injuries sustained. The respondent disagreed. It contends that, as per the Insurer Examinations ("IE") it conducted, the applicant's submissions are not corroborated by evidence that she had a medical history, that would complicate her recovery. While the respondent concedes that the records show that the applicant had persistent pain, it is the respondent's position that the evidence does not meet the test for chronic pain that is treatable outside of the MIG limit.

The evidence

Pre-existing condition

13Determining whether the applicant, as she claimed, has pre-existing psychological and physical medical condition that removes her from the MIG, is where I start the analysis. As detailed below, I find the evidence provided does not corroborate her submission that she had pre-existing psychological and physical condition that would prevent her maximal medical recovery from her accident-related injuries. She is therefore not removed from the MIG treatment limit based on pre-existing physical/psychological medical condition. My reasoning is as follows.

Pre-accident evidence

14The applicant submitted evidence of a pre-accident, physical, workplace injury she sustained in 1991, more than two decades pre-accident, which led to some psychological/psychiatric sessions. Her right thumb was fractured while operating a machine at a garment factory. She had to stop working and has been receiving long term disability income since 2006. She was referred to a psychologist and a psychiatrist following her work-related injury and in 1992, she received sessions with a psychologist for a few months. She reported having had sessions then with a psychiatrist for about one year, before her family physician took over the responsibility for her medication prescription. That's the extent of the evidence regarding her pre-accident history.

Pre-accident psychological condition

15In her submissions the applicant mentions the above consultations with a psychologist and psychiatrist following her workplace injury. The applicant also points me to pre- (September 6, 2016) and post-accident (July 4, 2019) 9-symptom checklists she completed at her family physician's request. I do not find these documents support her claim that she had a pre-accident psychological condition. My understanding of the checklists is that they document the applicant's answers to questions posed in the document, as a way of assessing the applicant's emotional/psychological frame of mind at that time. While the assessments, based on the applicant's self-reporting only, may provide insight into the applicant's frame of mind at the time they were conducted, I do not find this to be proof or diagnosis of psychological issues, before or after the accident. The evidence does not establish a pre-accident psychological condition.

Pre-accident physical condition

16As indicated above, there is documented evidence that the applicant had fractured her right thumb in a workplace accident which curtailed her ability to work. The injury occurred more than two decades pre-accident. No other physical medical condition is indicated; nor did the applicant provide any indication that the pre-accident injury to her right thumb was impacted by injuries she sustained as a result of the accident. The applicant has not met her onus of proving, on a balance of probabilities, that she is entitled to benefits outside of the MIG limit on the basis of pre-existing psychological and physical injuries.

Post-accident injuries

17Psychological injuries: Regarding the applicant's claim to have sustained both psychological and physical injuries as a result of the accident, the evidence does not establish that she sustained psychological injuries. The only evidence submitted in regards to her psychological condition is mostly un-related to the accident: the applicant had an MRI conducted in August 2017 because she had headaches and felt dizzy, after falling on her washroom floor one night; she had brain aneurysm-surgery in December 2017, and she has been taking aneurysm preventative medication since. There is no evidence that she sustained a concussion as a result of the accident, and while the applicant did complain to her treating physicians and medical experts of occasional dizziness when she makes fast movements, occasional headaches, feelings of depression and sleeplessness, after the accident, there are no medical observations, or diagnosis of a psychological condition.

18While valid, the applicant's complaints, including as indicated in the above-mentioned 9-symptom checklist completed post-accident in May of 2019 at her family doctor's directive, cannot be construed as proof of a psychological impairment; nor is there an indication that these symptoms were of an ongoing/ continuous basis.

19Furthermore, while the applicant did not submit evidence indicating that she was examined or diagnosed with a psychological impairment as a result of the accident, the respondent submitted the following evidence, which also disputes the applicant's claim of having sustained accident-related psychological injuries. A one-time, psychiatric assessment, arranged by the applicant, on her family doctor's referral, with Dr. Shawn Vasdev on June 25, 2018, almost a year post-accident, was conducted. Based on both subjective information, objective observations and testing, Dr. Vasdev concluded that the applicant did not have a psychological impairment. Dr. Vasdev writes, "I do not see evidence of major depressive disorder, bipolar disorder, schizophrenia, cognitive disorder, primary anxiety or substance use". The doctor encouraged the applicant to pursue, among other things, physical therapy treatment for pain management, if the pain persisted; or arrange a return visit. The applicant did not return, which leads me to believe she likely had no reason do so. Of note is the fact there are no observations or symptoms of concussion mentioned in the documentation provided.

20Additionally, the respondent had three psychological IEs conducted by Dr. Tatiana Dumitrascu, according to reports submitted, of June 12, July 24 and July 30, 2018. The doctor conducted a documentary review in the first instance on June 12, 2018. She reported "no objective evidence to support psychological impairments". In the second instance, Dr. Dumitrascu examined the applicant on July 26, 2018. She considered both the applicant's self-reporting information and the psychological testing she conducted, in her report. The doctor indicated it was understandable that as the applicant reported, she was a bit irritable at times because of pain, otherwise her mood was normal. The doctor further indicated "She does not feel isolated or unsupported. There have been no post-accident changes in her cognitive functioning...denied having any symptoms of Post- Traumatic Stress Disorder such as flashbacks and/or intrusive memories about the accident, persistent nightmares, defensive avoidance, dissociation, or hyperarousal."

21The applicant also denied having "vehicular anxiety" or emotional problems when travelling in motor vehicles. The doctor found no "clinically significant emotional symptoms. Her scores on various testing administered were normal/unremarkable; and there were no signs of a psychological disorder as a result of the subject accident, or that further interventions were warranted. In her July 30, 2018 paper review report, Dr. Dumitrascu indicated that her opinion from the previous assessment regarding the applicant's psychological condition, had remained unchanged. The evidence does not lead me to make a finding that the applicant sustained accident-related, psychological injuries.

22Physical injuries: On the other hand, there is ample, documented subjective and objective evidence, as indicated below, showing that the applicant sustained, primarily physical injuries as a result of the accident. The evidence shows that: immediately after the accident, she complained of physical injuries, she was diagnosed with physical injuries, and subsequently she consistently complained to her family/treating physicians and assessors of and received treatment for pain as a result of physical injuries only. At the same time, I find no indication that there was further injury to her already fractured right thumb/hand.

23The record of the applicant's Brampton Civic Hospital attendance, immediately following the accident and those of Dr. Sophia Leung, her family physician, a few days later, document complaints of : neck pain, pain to her forehead from hitting the steering wheel, pain accompanied by swelling to her right knee and "C-spine midline pain". The hospital records indicates that her "...head hit the steering wheel, caused pain to forehead/ not blurred vision, dizziness...pain to right knee and swelling... relevant history ...osteoporosis...whiplash injury- brought by ambulance..." The report goes on to state that she was discharged form the hospital, without any "acute findings including right knee- no fracture or dislocation..."

24The applicant saw her family physician shortly after the accident, including on July 24, 27, 28 and August 4, 2017. Dr. Leung's clinical notes and records ("CNR") recount the injuries reported by the applicant, including details of the affected parts of her body: "hit my head on the seat leaving me with 2 bumps on back of head; my neck, left shoulder, right shoulder, upper back, mid back, lower back, right knee, right hip and left hip, bruised legs, ankles and feet hurt and a bump on left foot, chest pain, ribs hurt..." Dr. Leung completed a disability certificate ("OCF-3"), on July 28, 2017 in which she describes the applicant's injuries as "myofascial strain to cervical, shoulders and lumbar spine, right lower extremity and left ankle". The doctor estimated a recovery period of 9-12 weeks. The applicant began using pain medication prescribed by the doctor, as well as physical therapy. According to the applicant's reporting, initially she received physical therapy 3 times per week and later once per week.

25Two years post-accident, CNRs of the family doctor indicate that although the physical treatment sessions had stopped, the applicant continued to complain of pain resulting from her physical injuries in multiple areas of her body, including: her neck, back, right knee, left shoulder/arms. The doctor observed that the applicant's left hand was swollen, there was decreased range of motion and neck spasms. In a January 19, 2019 letter, Dr. Leung, implored the insurer to consider the applicant's plight, and her need for further physical treatment, having sustained : whiplash and trauma to multiple parts of her body; she was experiencing persistent problems to her neck, back, right knee and shoulders; and numbness of her left arm/hand. The doctor opined that "pain limits movement activity of daily living". In the letter, Dr. Leung also pointed out that the applicant's physiotherapy treatment and consumption of anti-inflammatory and muscle relaxant medication did not improve her pain complaints much.

26In a second, May 4, 2018, (10 months post accident) disability certificate submitted, chiropractor Ushma Patel's diagnosis, although indecipherable in parts, is reflected as follows: nonorganic insomnia, other disorders, malaise and fatigue, headache, injury of muscle and tendon at wrist and hand level, injury of muscle and tendon at neck level, sprain and strain of lumbar spine, sprain and strain of saualloc (sic) joint, injury of muscle and tendon at shoulder and upper arm level, sprain and strain of other collateral ligament of knee. The chiropractor projected a 9 -12 week recovery period.

27The applicant also relies on an independent chronic pain assessment conducted by Dr. David Brooks, a physician of Finch Health, on July 23, 2019, at two years post accident. The assessment involved the applicant's self reporting, including reporting to the doctor that she was a homemaker, she had started rehabilitation treatments a week after the accident, which ended on May 7, 2018; she was taking prescribed pain medication; that although therapy helped to decrease pain in her neck and increase range of motion, she still had ongoing pain in the neck, left shoulder and lower back as well as right thigh and knee. The applicant was specific in her description of the pain she was experiencing, which, in my view, lends credibility to her self-reporting. She described pain in her neck as aching and constant; in her right knee, as dull and achy, pain in her left wrist and into thumb, was daily "intermittent with aching"; pain in her lower back and into right thigh and leg she described as achy with burning; and she demonstrated tenderness in her right knee. Among the documents reviewed by the doctor was an X-ray showing "left wrist sprain and degenerative spinal changes but no fractures.

28The respondent also weighs in on the applicant's accident-related impairments. In its submissions, the respondent first draws my attention to the fact the applicant's written submissions exceed the 15 page limit as directed in the case conference order. I agree that the applicant's submissions, exclusive of case law, exceeds the page limit by approximately 1 page. I acknowledge the respondent's observation, and although I find no prejudice to the respondent as a result, parties are well reminded to ensure compliance with Tribunal orders, including page limits for written submissions.

29Regarding the issue of physical impairments, while the respondent concedes that the records show that the applicant had persistent pain complaints; the respondent does not agree that it meets the test for chronic pain. The respondents contends that Dr. Brooks' assessment(s), without having considered the psychological assessments conducted both by the applicant's assessor, Dr. Vasdev and that of its IE assessor, psychologist, Dr. Dumitrascu, indicated above, falls short; and it should be assigned little weight. I am not convinced this is the case. Dr. Brooks, in his documentary review specifically, indicates that he considered relevant documents in his assessment and conclusion. As a medical practitioner, I find it reasonable to defer to the doctor's judgement in determining what documents he considered relevant, especially given that the focus of his assessment was physical in nature.

30At the same time, further IE assessments submitted by the respondent, all point to physical injuries and related pain. Three IE reports, dated June 12, July 23 and 30, 2018, conducted by physiatrist, Dr. Devin, were submitted. The initial assessment entailed a review of documentation including the May 4, 2018 disability certificate of chiropractor Patel, outlining physical injuries in multiple areas of the applicant's body. While the doctor acknowledged the physical injuries diagnosed by chiropractor Patel, it was unclear to Dr. Devin whether the issues were aggravated by the collision. Dr. Devin's next assessment was done on June 18, 2018, in regards to the applicant's functional capability. The report reflects the applicant's pain resulting from physical injuries as "left shoulder pain which is felt primarily in the region of the trapezius and anterior chest wall region which she attributes to the seat belt impact."

31In my estimation, the evidence clearly establishes that the applicant's accident-related pain complaints were almost exclusively related to physical injuries, fitting the definition of "minor injuries" as defined, in multiple areas of her body. Notwithstanding, and while the evidence establishes that the applicant did sustain accident-related minor physical injuries and resulting pain, to be removed from the MIG, she must still prove, on a balance of probabilities, not only that she experienced persistent /chronic pain, but that such pain has caused a functional impairment and/or adversely affects her well-being.

Did the applicant sustain injuries/chronic pain that adversely affected her well-being would remove her from the MIG treatment limit?

32I find the evidence establishes that, on a balance of probabilities, she sustained persistent, physical pain of a chronic nature, over an extended period, spanning a couple of years, leading to physical impairments, necessitating treatment that exceeds the $3,500 MIG limit

Evidence of chronic pain

33Considering the above, there is sufficient, documented, reliable evidence, both subjective and objective, indicating that a) since the accident, the applicant consistently complained to various medical practitioners, including the respondent's assessors, of persisting pain in multiple areas of her body; primarily on the left side of her body, as well as her neck and shoulders. The evidence also indicates that the applicant's complaints have continued, since the accident and well beyond the maximum 3-month period projected for healing, first by her family doctor, days after the accident, and in the second disability certificate, completed by chiropractor Patel, secured, approximately 6 months after the accident.

34Physiatrist Devin's June 18, 2018 IE report notes, the applicant described the pain as being present most of the time. "The aggravating factor is that of moving her arm and therapy offers short term benefit." Dr. Devin's answered several questions set out in the report. In one such response he states, "With respect to her pain complaints, I cannot offer an opinion given her pain complaints have now been ongoing without any significant improvement for almost one year. It is likely her pain complaints will continue." On July 30, 2018, Dr. Devin conducted an IE, document review assessment, in regards to chronic pain determination. In the report, Dr. Devin's answers to questions posed, in essence, affirmed his previous conclusions from his examination/ observations. The doctor re-confirms the primary areas of physical pain complaints in question. Dr. Devin reported, "I believe the initial diagnosis is that of cervical strain and her current diagnosis is that of chronic pain..."

35In his July 2019 assessment, Dr. Brooks conducted testing in movement in areas of the applicant's cervical, lumbar, shoulder, elbow, "wrist-pain over left thumb swelling" and hip. Dr. Brooks' observed that, among other things, the applicant had "fair postural alignment... the patient ambulated with a very slow laboured gait...transfers from standing to sitting, sitting to prone and rising from a seated position were performed within normal limits for someone of Ms. Rodrigues 's age and health albeit much slower than normal". His cervical examination results indicated "Pain in the left shoulder anterior and posteriorly was palpated with some weakness noted in the left extremity 4/5...thoracic examination revealed tight paraspinal musculature bilaterally and tenderness over the thoracolumbar joints and into the lumbar spine; the right knee palpated tender over the patella and both medially and laterally...lumbar spine examination showed normal restricted ranges of motion by 45 degrees globally; neurologically, the client was within normal limits.... plantar reflexes were down going and clonus was absent bilaterally." The doctor also noted that the applicant's cranial nerve examination was unremarkable.

36Dr. Brooks found that the applicant had clinical features of "pain, weakness, muscle spasm, fatigue and restricted functional ROM very suggestive of chronic pain syndrome..." The doctor reported that "Based on the above objective examination data and time elapsed since the accident occurred with pain still being present, it is this physician's clinical opinion that Ms. Rodrigues is still suffering from generalized pain, weakness and unresolved biomechanical dysfunction of the left shoulder, lower back and right knee. This patient is suffering from a chronic pain condition (with possibly a neurogenic type of pain contribution) which is not always supported by acute objective findings during the examination."

37I gather that, to offer a better understanding of chronic pain, the doctor refers to the 2002 publication of the College of Physicians & Surgeons of Ontario on Guidelines for Treatment of Chronic Non-Malignant Pain. In it, chronic pain syndrome is described 'as a complex physical and psychological ailment, which does not directly correlate with the objective physical findings... and it affects all different aspects of the person's life.' Dr. Brooks acknowledged that the applicant's "present chronic pain condition claim is a legitimate one" and that overall, her physical condition and "clinical status does fit the classical picture of a Chronic Pain Syndrome secondary to unresolved residual pain as a direct result of the motor vehicle accident in question."

38I find Dr. Brooks validates the applicant's complaints as being credible, on the basis of his examination and observations. The doctor not only acknowledges that the applicant's self-reported pain condition was a legitimate one, but he found, she was still suffering from among other things, generalized, residual pain, weakness, biochemical dysfunction of the left shoulder, lower back and right knee" and chronic pain, fitting the description as described in the medical professional publication mentioned.

39I also find the evidence establishes a pattern of "ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months..." fitting the definition of chronic pain, in the aforementioned, Tribunal's reconsideration decision of T.S. Similarly, Dr. Brooks' objective findings also revealed the applicant had sustained a marked condition of chronic pain syndrome.

40Even an assessment of the evidence against the American Medical Association ("AMA") Guides' six criteria, in my view, refutes the respondent's assertion that the applicant's accident- related, pain as a result the physical injuries she sustained, fail to meet the chronic pain test. The six criteria are as follows:

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; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

41The AMA Guides state that at least three of the six criteria must be met for a chronic pain diagnosis. While I am not bound by the AMA Guides' criteria, I find them persuasive guiding factors in determining whether pain is chronic or not. In this case the evidence indicates that the applicant meets most of the AMA criteria :

(i) the applicant has used prescription drugs/injections (pain relieve medication, muscle relaxing gel, arm brace) for pain extensively as noted in IE assessor Devin's report and chronic pain assessor Brooks assessment conducted 2 years post accident;

(ii) there is documented evidence that she has frequently sought the services of health care providers, over the years;

(iii) she has taken steps to avoid physical activities that cause pain, such as those involved in her household activities;

(iv) she has not been physically restored to pre-accident condition over a period of years post accident; and

(v) there is indication that she has developed sleep issues sequelae, to some extent

42The other part of the chronic pain description according to T.S. that has to be considered in order for the applicant to be removed from the MIG treatment limit is whether her chronic pain "adversely affects the individual's well being." I find the applicant's evidence establishes that, on a balance of probabilities, the chronic pain has caused functional impairment, adversely affecting her well-being, to some extent.

Evidence of adverse effects of chronic pain

43Considering the affected areas of chronic pain reported to the various physicians identified, primarily her neck, back, right knee, shoulders, left arm/hand, cervical and lumbar spine, it is likely the applicant's functioning was impaired; as her family doctor opined, "pain limits movement activity of daily living." Chiropractor Dr. Patel, in the disability certificate completed on May 4, 2018 noted the applicant's impairments to include the following "knee strain, shoulder and upper arm strain, thoracic strain, lumbar strain, muscle and tendon injury of the neck, muscle and tendon injury of the wrist and hand...malaise and fatigue." I gather from both the physiatry and chronic pain practitioners' reporting that not only impairments such as those identified here affect the surrounding joints and the ability to perform certain activities (lifting, carrying, pushing, pulling, bending, stooping, prolonged sitting, standing, and walking), but in essence only the applicant can truly speak to her functional activity capability.

44To this end, Dr. Brooks during his July 23, 2019 assessment observed the applicant demonstrated functioning limitations. The applicant "ambulated with a very slow laboured gait" and she transferred from standing to sitting, sitting to prone and rising from a seated position at a slower than normal pace. At the same time, the applicant reported to him that she was unable to do most of her household/home maintenance activities, such as: sweeping, vacuuming, taking out the garbage and carrying groceries. As well, the applicant indicated that she struggled with dressing herself due to her spinal and knee related inflammation.

45In the meeting with IE assessor, physiatrist, Dr. Devin, on June 18, 2018, 11 months post accident, the doctor observed a lot of "grimacing" by the applicant during the course of his examination. During the examination, in her own words, the applicant explained how her functioning, requiring the moving of her affected limbs, has been adversely affected. She stated that her daughter lives nearby; and while she is able to dress/undress, shower and wash her hair independently, she now does a little cooking, the majority of which is now done by her daughter. She also indicated that her daughter now does the housework and most of the laundry; she is unable to do grocery shopping the way she did previously and does only a little/light grocery shopping, due to malaise resulting from living with pain.

46The applicant provided compelling evidence, not only indicating that she had developed chronic pain, from her physical, accident-related injuries, but the pain adversely affected her everyday movements/functioning to some extent; and up to two years post-accident, she was not, on a balance of probabilities, at maximum medical recovery. For this reason, the applicant's injuries are clearly not captured under the minor injury definition. The applicant is accordingly removed from the MIG.

32.: Is the applicant entitled to a non-earner benefit ("NEB") of $185 per week from August 17, 2017 to August 17, 2019?

47On subsequent visits to the family doctor after the accident, the applicant reported that since the accident, she was unable to do housework, she had headaches more often, decreased sleep, back spasms, and decreased range of motion in her right shoulder, and she was experiencing emotional issues.

48In order to qualify for a non-earner benefit, the applicant must prove that she suffered "a complete inability to carry on a normal life" as a result of accident-related impairment, within the 2-year period following the accident. see s. 12(2) of the Schedule. The phrase, "complete inability to carry on a normal life" is defined under s. 3(7)(a) of the Schedule as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." Section 3(1) of the Schedule defines "impairment" as "...a loss or abnormality of a psychological, physiological or anatomical structure or function". In this case, as per my findings above regarding the type of injuries sustained, physiological impairment is the focus of my analysis. In reaching my decision, I must consider the evidence in three interrelated parts.

• Life before the accident;
• The impairment sustained as a result of the accident; and
• Life after the accident.

49The Ontario Court of Appeal in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 ("Heath") provided the most extensive examination and analysis of the proper approach to interpret the test for NEB. I have relied on the principles of this decision to guide my analysis of the applicant's entitlement in this matter, including the following:

1. There must be a comparison of the applicant's activities and life circumstances before the accident to her activities and life circumstances after the accident;

2. It requires more than taking a snapshot of the applicant's life in the time frame immediately preceding the accident. It involves an assessment of her activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case;

3. All of the pre-accident activities in which the applicant ordinarily engaged must be considered. However, greater weight may be assigned to those activities which the applicant identifies as being important to her pre-accident life;

4. The applicant must prove that her accident-related injuries continuously prevent her from engaging in substantially all of her pre-accident activities. This means that the disability or incapacity must be uninterrupted. The term "continuously prevents" means that the applicant must prove "disability or incapacity of the requisite nature, extent or degree is and remains uninterrupted";

5. The phrase "engaging in" should be interpreted from a qualitative perspective. Even if an Applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as "engaging in" that activity;

6. Where pain is a primary factor that allegedly prevents the insured person from engaging in his or her former activities, the question is not whether the individual can physically perform these activities, but whether the degree of pain experienced either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

50The applicant submits that the period for which she seeks a non earner benefit is the two-year, post-accident period of August 17, 2017 to August 17, 2019, instead of on an ongoing basis as she had previously indicated. In her submissions, the applicant implies that she was unable to live a normal life after the accident; and while she indicates that even with an injured right hand/thumb, unrelated to the accident, she had been able to do housework, she was no longer able to do so after the accident. The applicant essentially points me to the evidence she submitted, which in essence provides me with as an overview of her complaints, injuries, the medical consultations she pursued and the physical treatment she obtained. Missing is a comparison of her life or activities she could do before the accident, and to what extent, if any, she could no longer engage in those activities after the accident. I gather from her submissions that I should disregard, the part of the disability certificate completed by her family physician, Dr. Leung, a few days after the accident on July 28, 2017; specifically the part where the doctor checked a box indicating that the applicant did not suffer a complete inability to carry on a normal life.

51On the other hand, the respondent contends that, firstly, the correct period in dispute for consideration is from May 4, 2018 to the end of the two-year, post accident period. Why? The respondent states that May 4, 2018, was the date/first time it received a disability certificate, completed by chiropractor Patel, alleging that the applicant had sustained injuries that caused her a complete inability to carry on a normal life. Secondly, the respondent agreed with Dr. Leung's, the applicant's family doctor, assessment that the applicant's injuries do not warrant a finding that her accident related injuries were such that she was unable to carry on a normal life. The respondent further argued that the applicant's evidence is unconvincing to qualify her for non earner benefit, and the evidence she relies upon does not meet any of the above Heath criteria. I agree with the respondent's submissions regarding the period in dispute, given that NEB could not be considered, nor would it have been able to respond to the claim for NEB, before an OCF-3 indicating the applicant was unable to carry on a normal life, was submitted, which is in essence, the applicable test for NEB.

Is the applicant, as a result of accident related impairments continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident?

52I have considered all of the relevant evidence presented, including the guiding principles established in the Heath decision, and even though I have found that the applicant had developed chronic pain that affects her movements to some extent, and removes her from the MIG treatment limit, the applicant has not met her onus of proving, on a balance of probabilities, that she is continuously prevented from engaging in substantially all of the activities in which she engaged in prior to the accident. I have considered the following.

Life before the accident

53Based on documentary evidence submitted and from the applicant's self reporting to both treating and assessing medical practitioners, I gather that the applicant who was in her 50s at the time of the accident, is a widow and a self described homemaker who lives independently and continues to do so. She has not worked since 1996 due to her workplace fracture of her right thumb. She resides alone in a detached house, as she did before the accident. As a result of her conversation with occupational therapist, Ms. Linda Cottrell, who conducted an IE on July 3, 2018, the applicant described her home as: "The main level of the home consists of a combined kitchen/family room, a combined living room/dining room, a two-piece washroom, and laundry facilities. The upper level consists of four bedrooms and three full bathrooms. The basement is reported to consist of a small (second) kitchen, a three-piece bathroom, and a recreation room."

54I gather from various sources of evidence submitted that prior to the accident the applicant's self reported life activities, and from a common sense perspective, included: personal care - bathing, grooming, dressing, toileting; housekeeping - cooking, eating, doing laundry; household/home maintenance - sweeping, vacuuming, taking out the garbage; grocery shopping- carrying grocery; driving to and from places- pumping gas; walking about her home and community; socializing with family and friends (to a lesser degree); occasional socializing - meeting for coffee; and exercising - in home stretching and short walks in her neighbourhood. In her submissions, the applicant specifically indicates that housework was important to her.

The impairments sustained as a result of the accident

55The accident-related impairments sustained as a result of the accident are important in that they shed light on the applicant's condition to function after the accident. As indicated above in multiple instances, the evidence indicates that the applicant's post-accident, pain complaints to various medical practitioners centred around her neck, back, right knee, shoulders, left arm/hand, cervical and lumbar spine. Chiropractor Dr. Patel, in the disability certificate completed on May 4, 2018 noted her impairments including: "knee strain, shoulder and upper arm strain, thoracic strain, lumbar strain, muscle and tendon injury of the neck, muscle and tendon injury of the wrist and hand...malaise and fatigue" Chronic pain specialist Dr. Brooks validates the applicant's complaints and in his July 23, 2019 examination, he found she was suffering from a chronic condition of generalized pain, weakness and unresolved "biomechanical dysfunction of the left shoulder, lower back and right knee..."

56As family doctor Dr. Leung opined, "pain limits movement activity of daily living". In keeping with Dr. Leung's affirmation, as determined above, the applicant's physical pain condition is chronic, and likely poses minor functional difficulties, preventing maximum medical recovery in a short term. However, the evidence does not establish that physical impairments sustained as a result of the accident continuously prevent the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

Life after the accident

57As the applicant has not provided me with information of time commitments and frequency relating to her pre-and post-accident life activities, I have relied on the medical consultations/assessment information provided to inform me. In the aforementioned psychological assessment (June 25, 2018), Dr. Vasdev observed that the applicant was living independently, maintaining her house, attending to self-care and seeing her children. In her 2-year post-accident consultation with Dr. Brooks the applicant reported that she was unable to do most of her household /home maintenance activities such as sweeping, vacuuming, removing garbage, carrying groceries, and that she struggles with dressing herself.

58Yet, in the IE examination with physiatrist Devin, 11 months post accident on June 18, 2018, she stated she was able to dress/undress, shower and wash her hair. She does a little cooking, because her daughter, who lives nearby has taken over most of the cooking, as well as the housework and most of the laundry. The applicant also reported that she only does light grocery shopping, as she finds it difficult to lift heavy items. Similarly, the applicant's activity reporting to IE assessor, occupational therapist, Linda Cottrell on July 3, 2018, a year after the accident, differs considerably from her later reporting to Dr. Brooks, two years post accident. According to Ms. Cottrell's report, the applicant demonstrated functional use of her left hand, and at the same time she confirmed that her ability to use her dysfunctional right hand had not changed. Ms. Cottrell's July 23, 2018 report indicates the following.

1. In regards to her mobility, the applicant indicated she is able to walk about her home and community without mobility aids; and she is able to transfer to and from a vehicle;

2. She reported that she is independent in her personal care activities, as she did before, having to use her, injured left hand makes it a bit slower.

3. Due to her non-functional right hand, she continues to prepare light meals such as toast and boiled egg for herself. Her daughter cooks the meals and brings them to the applicant, or she sometimes dines at her daughter's house.

4. The applicant does light grocery shopping, although she struggles to pick up heavy items as the store, especially considering only her left hand is functional. There were no major changes in this regard.

5. The applicant continues to drive herself to and from places, and pump gas, as she did before.

6. The applicant reported that she continues to "spend a great deal of time with her family members with whom she maintains a very close and supportive relationship." Occasionally she goes out to have coffee or shop with friends.

7. She stated that she continues to occasionally attend church.

8. She maintains fitness by stretching at home or going for short walks in the neighbourhood as a form of exercise.

59I find the evidence of IE assessors Devin and Cottrell provide a

more credible/reliable indication of the applicant's functional life activities and capabilities, given their examination/reporting were provided within a year of the accident, and well beyond the estimated 3-month recovery period projected by her family doctor and chiropractor in their disability certificates, as opposed to that of Dr. Brooks, conducted 2 years later. The applicant provided me with no evidence that would indicate to me that her earlier functional life capabilities, had, due to accident-related injuries, deteriorated two years later.

60All considered, and despite any difficulties she may have encountered, overall what I have deduced from the evidence provided regarding her pre- and post-accident activities is that the applicant fully engaged in the normal activities of her lifestyle after the accident. To echo, occupational therapist Cottrell's assessment/observations, I find that the applicant demonstrated the physical and behavioural abilities required to perform all of the activities of daily living in which she normally engaged in before the accident: she has not had to move from the house she lives in; she continues to live alone and manage her household, independently perform the majority of her life activities and/or in the same way she did before the accident - personal care, indoor housekeeping, preparing light meals and grocery shopping; she continues to spend time with family and friends, occasionally; she is able to drive a vehicle; as well, she continues to do her exercises of choice, including walking.

61Guided by the principles of the Heath decision, I find insufficient evidence that would warrant a finding that accident-related injuries continuously prevented the applicant from engaging in substantially all the activities in which she ordinarily engaged before the accident. The applicant is not entitled to the NEB benefit claimed.

62Sections 14 and 15 of the Schedule provide in part, that the insurer shall pay for all "reasonable and necessary expenses" incurred by an insured person as a result of the accident for such services as medical, chiropractic, psychological, occupational therapy and physiotherapy services. While the Schedule does not define the terms "reasonable and necessary", a realistic interpretation must include among other things whether the expenses and services proposed or incurred are related to impairments caused by the accident, the goals of the treatment, and whether such goals will be achieved by the services proposed or incurred.

63With regard to medical assessment costs, I must also consider the following provisions. Section 15(1) provides that the insurer shall pay for "all reasonable and necessary" expenses incurred as a result of an accident, while Section 25(1)3 of the Schedule states that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. In all cases, the burden rests with the applicant to prove, on a balance of probabilities, the reasonableness and necessity of the claimed plans

64First, I note here that I agree with the applicant's indication in her reply submissions that the respondent's interpretation of the term "incurred" is contrary to the findings in the Divisional Court's decision of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200. The Court held that, considering the remedial intent of the legislation, the term "incurred" is not understood to mean that the applicant pay for the denied treatment plan before appealing/applying to the Tribunal. As determined by the Court I must reject the respondent's interpretation of the term "incurred" that would require the applicant to fund the disputed treatment plan(s) before advancing her claim. I am bound by the Court's decision.

65As my findings above in this decision indicate, the applicant sustained persistent, physical pain in multiple areas of her body that affects her adversely, although not to the extent of preventing her from carrying on a normal life.

33.: Is the applicant entitled to medical benefits and cost of examination

expenses proposed by Finch Health Centre Inc. in the following treatment

plans/OCF-18s ("plans"):

(a) $10,610.60 for chronic pain program submitted September 13, 2019;

Plan portion completed by Chiropractor Andrew Haluskay, Chiropractor-Finch Health Centre Inc.

66The applicant submits that the plan provides a treatment program for addressing her chronic pain condition that has persisted for over two years and has only improved minimally despite physical treatment received so far. Other than its refuted argument on the interpretation of the term "incurred" in the context of the accident benefits system, the respondent disagreed with the plan on the grounds that it is based on a psychological premise, when there is no evidence of accident-related psychological impairment. I find, the plan in question is proposed by a chiropractor, on the basis of physical pain related complaints, which refutes the respondent's grounds of denial that the plan was on the basis of psychological impairments.

Is this plan "reasonable and necessary"?

67In my view, it is. Considering the evidence provided, indicating a chronic, physical pain condition, and despite having received facility-based treatment, the applicant's complaints continue The plan dated September 13, 2019 proposes an 18-week, chronic pain treatment regimen expected to address the chiropractor's diagnosis of mainly physical sprain strains, inclusive of joints, ligaments and shoulder girdle

(headache, malaise and fatigue included). The proposed treatment includes: 26 sessions of physical rehabilitation; 8 sessions of education promoting health and preventing disease; and 12 sessions of therapy, mental health and addictions. The goals of the treatment include pain reduction, increased range of motion, increase in strength, for recovery. Notwithstanding the indication that the treatment already received has not led to major improvements, and while medical treating physicians have urged continued treatment, I find, on a balance of probabilities, the plan is reasonable and necessary to likely help the applicant achieve further relief from pain/achieve maximum recovery.

(b) $2,200 for a chronic pain assessment submitted June 3, 2019?

68Similarly, having considered the relevant evidence submitted by the parties, it is clear that the applicant's subjective complaints of ongoing pain continued, over an extended period of time since the accident, despite having received treatment is validated by the chronic pain assessment conducted by Dr. Brooks. Dr. Brooks conducted the assessment on July 23, 2019. At the time of the assessment, the applicant reported experiencing ongoing pain in her neck, left shoulder and lower back as well as right thigh and knee, at two years post accident. She told the doctor on May 7, 2018, more than a year earlier, was the last time she had received therapy. The applicant contends that it is reasonable and necessary to have the assessment done, as she was still experiencing pain and discomfort, in the areas aggravated by the accident. The assessment resulted in Dr. Brooks' recommendation of the above chronic pain treatment regimen, based on his findings of chronic, residual, unresolved pain, restricted range of motion and decreased functional endurance. Under these circumstances and given that a couple of years had elapsed since the accident, without recovery, I find an assessment of this nature is reasonable and necessary.

34.: Is the applicant entitled to cost of examination expense in the amount of

$1,995.33 for psychological assessment proposed by LV Rehabilitation Clinic, submitted May 9, 2018?

69As I have indicated earlier in this decision, the applicant failed to meet her onus of proving that she sustained a psychological, accident-related impairment. The respondent also agrees this is the case. I acknowledge that on occasions, the applicant complained to consulting physicians, of headache, depression, sleep interruption, and irritability; but that her major concern, as reported to one physician, was she wanted pain she was experiencing to go away.

70While I acknowledge the applicant's complaints, I do not find they constitute proof of a psychological impairment. Furthermore, the applicant was examined by psychologists, including one on the referral of her family doctor. They all concluded she did not have a psychological impairment: OHIP funded psychologist Dr. Shawn Vasdev examined the applicant on June 25, 2018, almost a year post-accident, based on the applicant's depressed mood observed by her family physician; IE psychologist, Dr. Tatiana Dumitrascu, conducted an in-person and 2 paper review assessments. Her reports in all 3 cases - June 12, July 24 and July 30, 2018 - did not lead to a diagnosis of psychological impairment.

71All considered, including the fact that the above assessments were conducted later, on a balance of probabilities, I find no reason to believe this psychological assessment proposed by Dr. Nina Belyakova, Psychologist at LV Rehabilitation Clinic Inc. ("LV") prepared on May 9, 2018, is reasonable and necessary. The claim is denied.

35.: Is the applicant entitled to a medical benefit in the amount of $2,321.97

for prescription medication and physiotherapy, submitted January 4, 2019?

72The applicant presented me with an Expense Claim Form ("OCF-6"), dated January 4, 2022. It outlines six individual medications, accompanied by copies of each of the medication prescribed by her family doctor, covering the period from May to December 2018, totalling $242.32. Another cost is indicated of $2,079.65 for "various physio treatment", which the applicant submits represents the balance owing to City View Chiropractic, Sports Injury and Therapeutic Exercise, as indicated by an accompanying balance statement from the clinic.

73For the prescription and by extension the costs, the applicant states they are reasonable and necessary. The respondent did not submit a direct response to this claim. To determine which of the six prescriptions relate to the applicant's accident related injuries, she directs me to WSIB/CPP files submitted documenting pre-accident, prescribed medications and through the process of elimination, I should be able to determine which of the prescriptions relate to the accident. It is the applicant's responsibility to pinpoint the denied, accident-related prescriptions, and their costs that she wants me to consider, as the onus rests with the applicant to prove to the Tribunal that she is entitled to the cost of the medications. The applicant failed to identify the medication, their costs and she failed to provide me with the evidence/particulars required to make a decision in regards to entitlement.

74With regards to the cost noted as "various physio treatment" in the amount of $2,079. 65, the respondent indicated that the claim was not submitted in the form of a treatment plan, as required under section 38(2) of the Schedule, and it is therefore not liable for payment of any treatment incurred, prior to the submission of a treatment plan. It is unclear from the submissions, whether the respondent considered the claim. Notwithstanding, I find that the applicant has failed to provide me with evidence of a treatment plan and the medical basis for it, for consideration. The applicant is therefore not entitled to the costs set out in the OCF-6.

INTEREST

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

75Pursuant to section 51 of the Schedule, the applicant is entitled to interest on any overdue payment of the medical benefits and cost of examination expenses proposed by Finch Health Centre Inc. in the following treatment plans/OCF-18s ("plans"):

a. $10,610.60 for chronic pain program submitted September 13, 2019; and

b. $2,200 for a chronic pain assessment submitted June 3, 2019

CONCLUSION AND ORDER

76For the reasons given above, I order that:

i. The applicant's injuries fall outside of the MIG.

ii. The applicant's claim for a non-earner benefits in the amount of $185 weekly for the period in question is dismissed.

iii. The applicant is entitled to medical benefits and cost of examination expenses proposed by Finch Health Centre Inc. in the following treatment plans/OCF-18s ("plans"):

a. $10,610.60 for chronic pain program submitted September 13, 2019; and

b. $2,200 for a chronic pain assessment submitted June 3, 2019?

iv. The applicant's claim for cost of examination expense in the amount of $1,995.33 for psychological assessment proposed by LV Rehabilitation Clinic, submitted May 9, 2018, is dismissed.

v. The applicant's claim for a medical benefit in the amount of $2,321.97 for prescription medication and physiotherapy treatment, submitted January 4, 2019, is denied.

vi. The applicant is entitled is to interest on any overdue payment of the benefits numbered, iii. a. and b. above.