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:
John Hunt
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant: Terrence Munn, Counsel
For the Respondent: Evan Argentino, Counsel
HEARD: By way of written submissions
BACKGROUND
1The applicant, John Hunt, was involved in an automobile accident on October 5, 2017, when the vehicle he was driving was rear-ended at an intersection. He sought benefits from the respondent, Aviva Insurance Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline and denied his claims for medical benefits outside the $3,500.00 funding limit available under the Schedule. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
b. Is the applicant entitled to $793.53 (the unapproved portion of a proposed treatment plan costing $1,093.28) for physiotherapy treatment, recommended by Focus Physiotherapy in a treatment plan (OCF-18) submitted on June 4, 2018 and denied on June 18, 2018?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to establish entitlement to treatment outside the $3,500.00 limit for the treatment of minor injuries under the Schedule. As such, it is not necessary to consider whether the disputed physiotherapy treatment is reasonable and necessary as a result of the accident. As no benefits are owing, no interest is payable.
ANALYSIS
Is the applicant entitled to treatment outside the Minor Injury Guideline limit?
5The applicant bears the onus of proving, on a balance of probabilities, that his accident-related injuries are not predominantly minor as defined in the Schedule. The term “minor injury” is defined in s. 3(1) as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6If the applicant’s injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident.
7The applicant submits that as a result of the accident he suffers from post-concussive cervicogenic headaches, post-traumatic insomnia, chronic pain disorder, and adjustment disorder with depressed and anxious mood. He submits that he should be removed from the Minor Injury Guideline on account of his chronic pain and psychological impairments.
The applicant sustained minor, soft tissue injuries in the accident
8On March 5, 2017, the day of the accident, the applicant attended a walk-in clinic complaining of neck pain. He was diagnosed with neck strain and whiplash.
9On October 11, 2017, he attended the office of his family physician, Dr. R. Goldsmith. He complained of a stiff neck that was getting better and headaches that were getting worse. Dr. Goldsmith diagnosed him with headaches and a flexion extension neck injury. He prescribed physiotherapy and Tylenol and Advil or Aleve for pain. He noted that the applicant’s headaches may have been due to analgesia withdrawal.
10The applicant attended West Side Physiotherapy for treatment. The applicant’s treating physiotherapist, Mr. Andy Penner, completed a progress report on November 28, 2017. Mr. Penner noted that the applicant had attended the clinic one to two times per week for five weeks, and that his neck injury had improved to the point of 90-100% cervical spine range of motion. Mr. Penner observed that the applicant’s neck pain had steadily declined and ultimately resolved, but that his headache was constant. He opined that the applicant’s symptoms were consistent with a concussion.
11Dr. Goldstein saw the applicant again on January 16, 2018. It is evident that he reviewed Mr. Penner’s progress report as it appears in his own clinical notes and records. Nevertheless, the opinion of Mr. Penner as to a possible concussion did not appear to alter Dr. Goldstein’s assessment of the applicant’s injuries, which he diagnosed as “tension headaches post MVA – persistent”.
12On January 18, 2018, Mr. Penner completed a disability certificate (OCF-3) on behalf of the accident, listing his accident-related injuries as whiplash and a concussion.
13On February 5, 2018, the applicant visited Dr. Goldstein again and requested a CT scan as he was worried that “something could be missed.” Dr. Goldstein ordered the scan, and it was completed on February 19, 2018. The scan revealed no intracranial abnormality.
14In a May 31, 2018 progress report, Mr. Penner noted that the applicant was performing all of his work duties without headaches except when concentrating or exerting himself physically. He opined that massage therapy and physiotherapy would enable the applicant to make a full recovery.
15The evidence of the walk-in clinic physician, the applicant’s family physician, and the applicant’s treating physiotherapist establishes that the applicant sustained soft tissue sprain and strain injuries in the accident. Concussions exceed the definition of a minor injury, but the applicant was not diagnosed with a concussion by a qualified physician. Instead, he was diagnosed by a physiotherapist. A physiotherapist may be qualified to treat concussion-related symptoms, but he is not qualified to diagnose the condition. Dr. Goldstein, on the other hand, is a physician qualified to diagnose and treat medical conditions. He repeatedly assessed the applicant after the accident. At no point did he conclude that the applicant had sustained a concussion in the accident.
16I attach no weight to Mr. Penner’s diagnosis of a concussion. I find that the applicant’s accident-related physical injuries consisted of soft tissue sprains and strains, and headaches, all of which fall within the definition of a minor injury under the Schedule.
17The applicant submits that he suffers from chronic pain and psychological impairments as a result of the accident, and that he should be removed from the Minor Injury Guideline on the basis of these impairments. For the reasons that follow, I reject those submissions.
The evidence does not establish chronic pain or psychological impairment
18The applicant relies on two expert reports to establish that he suffers from chronic pain: a report of Dr. J. Wong, Physiatrist, dated December 6, 2019, and a report of Dr. L. Taylor, a psychiatrist, dated November 28, 2019. As I will discuss, I attach limited weight to the conclusions of these assessors.
The findings of Dr. Wong
19Dr. Wong diagnoses the applicant with chronic pain, myofascial injuries of the cervical spine paraspinal muscles and the thoracic spine, cervicogenic headaches, post-traumatic insomnia, and “psychological problems” (though he acknowledges that the latter falls outside his area of expertise). He opines that these injuries are permanent in nature and recommends a chronic pain program.
20The weight of Dr. Wong’s conclusions is undermined by his failure to distinguish between pain related and unrelated to the accident. Dr. Wong refers to the applicant’s difficulty with frequent bending and lifting and limited range of motion in the thoracic and lumbar spine. He attributes this to back surgery the applicant had in his mid-thirties to treat lower back pain. There is no objective post-accident medical evidence to suggest that the applicant experienced back pain related to the accident. His complaints related to his neck and his persistent headaches. Dr. Wong notes that the applicant exercises and engages in recreational activities like golf less often due to pain, but it is unclear whether these limitations are a result of pre-existing back pain or headaches and neck pain.
21Mr. Penner’s evidence is that the applicant’s neck pain resolved completely within weeks of the accident due to his progress in physiotherapy. This is consistent with the clinical notes and records of Dr. Goldsmith, which make no mention of neck pain after October 11, 2017, when the applicant reported that this symptom was improving.
22In addition to commenting on extraneous causes of pain, Dr. Wong ignores possible causes highlighted in the medical record. The only post-accident symptom documented in the objective medical records is headaches. Dr. Wong’s discussion of the applicant’s headache is relatively minimal. He notes that the applicant experiences headaches for a few hours three to four times a week, and that he takes Tylenol or Advil every day to control the pain. He does not discuss the possibility, documented by Dr. Goldsmith in his October 11, 2017 clinical note, that the applicant’s headaches may have been due to analgesia withdrawal. If analgesia withdrawal was a plausible cause of the applicant’s headaches within a week of daily Tylenol and Advil use, it stands to reason that two years of regular analgesic use may have contributed at least in part to the applicant’s persistent headaches.
23Dr. Wong’s assessment of the applicant’s accident-related impairments does not align with the nature and severity of symptoms documented in the objective medical record before me. I attach greater weight to the records of the applicant’s treating physician, Dr. Goldsmith. Dr. Wong was retained by the applicant to produce his report. Dr. Goldsmith is an OHIP-funded primary care physician. Dr. Goldsmith has greater objectivity as to the nature of the applicant’s post-accident condition. He assessed the applicant within a week of the accident and throughout his post-accident recovery. And while Mr. Penner was not qualified to diagnose a concussion, his progress report of November 2017 corroborates Dr. Goldsmith’s clinical findings about the rehabilitation of the applicant’s neck injury.
The findings of Dr. Taylor
24Dr. Taylor diagnosed the applicant with adjustment disorder with depressed and anxious mood in partial remission. She also diagnosed him with chronic pain disorder and ongoing post-concussive headaches. She predicates these diagnoses on the applicant’s purported concussion as noted in the medical brief provided to her, though she later states that “there is some question of a concussion in the motor vehicle collision.” There is no concussion diagnosis made by a qualified practitioner in the evidence before me. By extension, there is no basis for a diagnosis of post-concussive headaches.
25The applicant’s clinical presentation to Dr. Taylor, as described in detail in her report, is not consistent with her conclusion that he may need to reduce his hours of work, stop working altogether, or retire early depending on his response to treatment. In other words, the applicant’s self-reported history as noted by Dr. Taylor in her report does not support her diagnostic conclusions. In her report, Dr. Taylor refers to some of the effects of the applicant’s headache pain, including:
a. the pain makes him sleepy, causing him to retire to bed early;
b. if the pain continues at night, he will listen to meditation tapes and do deep breathing exercises;
c. it takes him longer to do paperwork and he feels disorganized;
d. he sometimes needs to cancel golf plans at the last minute due to headaches.
26The symptoms and limitations Dr. Taylor describes are not debilitating. They do not prevent the applicant from engaging in his normal activities. In fact, Dr. Taylor notes, the applicant returned to work full time after the accident. She notes that he has modifications available to him if needed but does not state whether he has made modifications to his work duties. The applicant submits in reply that he has had to leave work early on occasion but points me to no evidence capable of establishing the disability he faces at work. Dr. Taylor opines that the applicant’s pain has impacted his interpersonal relationships, but also notes that he characterizes his spousal relationship as “great and solid”. Dr. Taylor reports that the applicant’s “sleep is nonrestorative”. It is not clear whether these are the applicant’s own words or Dr. Taylor’s, but the applicant did not report insomnia, and reported that he sleeps eight to nine hours a night. If anything, the evidence suggests the applicant’s headaches make him sleepy.
27Dr. Taylor notes four times in her report that she found the applicant to be stoic and that she believed him to be minimizing his pain symptoms. I do not accept that the applicant was minimizing his symptoms to Dr. Taylor because the degree of impairment he reported to her is consistent with the objective medical records. He reported being functional at work and stable in his relationships.
28I turn now to Dr. Taylor’s psychiatric diagnosis. She diagnoses the applicant with adjustment disorder with depressed and anxious mood in partial remission. She notes that in the six weeks after the accident, he felt “irritable, down, depressed and low” but that this has since improved. She notes that he continues to feel “discouraged” if he wakes up with a headache. She notes that he has a diminished appetite, but that he has lost no weight. In my view, these reports do not establish psychological impairment beyond the clinically associated sequelae of the applicant’s soft tissue injuries. When viewed against Dr. Goldsmith’s records, which contain no references to psychological complaints, referrals for psychological assessment or treatment, or prescriptions for psychiatric medications, Dr. Taylor’s opinions are even less persuasive. I accordingly find that, on a balance of probabilities, the applicant does not suffer from a psychological impairment as a result of the accident capable of removing him from the Minor Injury Guideline.
29To conclude, the applicant has not proven on a balance of probabilities that he suffered a concussion in the accident, or any other physical injury other than minor, soft tissue injuries. He has not established chronic pain. He has not established psychological impairment. He has shown that he continues to experience headaches several times a week, which he treats with over the counter analgesics and coping strategies like rest and meditation. Headaches fall within the definition of a minor injury in the Schedule. While it is unfortunate that the applicant continued to experience headaches as recently as 2019, his headaches have not resulted in substantial impairment. The only such suggestion is made by the applicant’s counsel in submissions. Submissions are not evidence. As the applicant’s symptoms are the clinically associated sequelae of minor injuries, there is no funding available for further treatment under the Schedule.
30I note that the applicant made submissions about the late production of certain insurer’s examination reports by the respondent in this matter. He asks me not to give any weight to those reports. Because I have found that the applicant has fallen short of his evidentiary onus, I need not engage with the opinions expressed in these reports. Any late production of these records, if established, is irrelevant to the final analysis.
CONCLUSION
31The applicant has failed to discharge his onus in proving entitlement to treatment outside the Minor Injury Guideline. Because the applicant has exhausted the $3,500.00 available to him under the Schedule for the treatment of his minor injuries, the disputed treatment plans are not payable, and no interest is owing.
32The application is dismissed.
Released: April 6, 2022
__________________________
Theresa McGee
Vice-Chair