Grant v. Allstate Insurance, 2022 CanLII 30676

Citation: Grant v. Allstate Insurance, 2022 ONLAT 20-003332/AABS

Licence Appeal Tribunal File Number: 20-003332/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:

Laurel Grant

Applicant

and

Allstate Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Laurel Grant, Applicant

Kenway Yu, Counsel

For the Respondent:

Laura Meschino, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on April 17, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2On consent, the issues before me to be decided are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and the $3,500.00 limit in s.18(1) of the Schedule, which the parties agree have been exhausted?

ii. Is the applicant entitled to $2,707.44 for chiropractic services recommended by Dr. Bita Ahmad in a treatment plan (OCF-18) dated November 28, 2017?

iii. Is the applicant entitled to $1,995.55 for an attendant care assessment at Alliance Diagnostic and Treatments lnc., recommended by Dr. Syed Nabeel in a treatment plan (OCF-18) dated October 8, 2020?

iv. Is the applicant entitled to $2,168.00 for catastrophic impairment assessment from Sports Medicine Rehabilitation recommended by Dr. Marciniak in a treatment plan (OCF-18) dated October 14, 2020?

v. Is the respondent liable to pay an award under s.10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

LAW

3Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

4Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of his/her/their medical and rehabilitation benefits payable shall not exceed $3,500.00.

5Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that she has a pre-existing medical condition that will prevent her from achieving maximal recovery from the minor injury if she is subject to the MIG funding limit.

6In Scarlett v. Belair Insurance (“Scarlett”), the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries.

7The onus is on the applicant to show that her injuries fall outside of the MIG².

APPLICABILITY OF THE MINOR INJURY GUIDELINE

8The applicant argued that that her chronic pain diagnosis, psychological injury diagnosis and aggravated, pre-existing injuries ought to remove her from the MIG.

9The respondent submitted that the applicant’s injuries are minor in nature, and no benefits or payments are outstanding.

Submissions & Evidence – Chronic Pain

10The applicant submits that she suffers from chronic pain, which removes her from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

11She relied on the report³ of Dr. Grigory Karmy, Chronic Pain Specialist, which confirmed the applicant’s diagnosis of chronic mechanical neck and shoulder pain and chronic cervicogenic headaches.

12The applicant also relied on the findings of Dr. Z. (Marc) Marcinak, Physician. Dr. Marcinak authored a Preliminary Catastrophic Impairment Rating Report⁴. This report found that the applicant suffered from a catastrophic impairment as a result of the accident. Since this issue is not before me, I will not be making a finding regarding this.

13Dr. Marciniak made a preliminary diagnosis finding which included “Chronic Pain”. In his report, Dr. Marciniak noted that the applicant had to reduce her social and leisure activities due to her headaches, widespread pain and low mood.

14To support this position, the applicant submitted that she was prescribed: massage therapy⁵ and a required absence from work⁶. Dr. Marcinak⁷ also noted that the applicant was prescribed blood pressure medication, Reactine, Tylenol, Amlodipine, Betahistine, Ramipril, Lyderm and Candesartan.

15The respondent argued that less weight should be put on Dr. Karmy’s findings, as he failed to elaborate what basis the diagnosis was made on, or account for the fact that the applicant returned to work after the accident. Furthermore, it submitted that the diagnoses were made more than two years after the applicant’s accident.

16Additionally, the respondent took issue with the fact that Dr. Karmy’s report⁸ was issued over a year after his consultation with the applicant, which took place on August 8, 2019, and did not provide an explanation of such.

17The respondent also took issue with Dr. Marciniak’s report⁹, as the report qualifies the impairments noted as “preliminary” and specifically notes that further investigation is required, including diagnostic imaging and further medical consultations. Dr. Marciniak states that: “It is difficult to provide the precise impairment rating calculations because we do not have precise diagnoses.”

18Based on this, the respondent submitted that Dr. Marciniak’s finding should be given little weight, as his conclusions were merely preliminary and did not provide a diagnosis of chronic pain which warranted removal from the MIG.

19The respondent also argued that the applicant has failed to demonstrate that his pain complaints require removal from the MIG¹⁰. Instead, it submitted that chronic pain, a severe, debilitating condition, is distinct from the applicant’s circumstances and should be evaluated against the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“the AMA Guides”), as seen in 17-007825 v. Aviva Insurance Canada¹¹ (“17-007825”). 17-007825 sets out that at least 3 of the 6 AMA Guides criteria must be met to establish a diagnosis of chronic pain syndrome¹², which include:

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

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

c. Secondary physical de-conditioning due to disuse and/or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contracts;

e. 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;

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

20It noted that the applicant had not provided evidence that she used prescription drugs beyond the recommended duration or abused them. It noted that the only medication the applicant was using to manage her pain was Tylenol, which is not a prescription medication. The respondent also observed that the applicant had not provided evidence of excessive dependence on health care providers. Moreover, since the applicant failed to provide clinical notes and records from treating physicians to demonstrate such, a negative inference ought to be made.

21The applicant did not specifically address the AMA Guidelines, but did provide evidence that she had withdrawn from the social milieu due to her pain.

22Finally, the respondent relied on its Insurance Examinations of Dr. Michael Fung, Family Physician, and Ms. Deborah Westbrook, Registered Physiotherapist¹³, during which, the applicant reported that her accident-related complaints were 80-85% improved¹⁴. The applicant also reported that she was able to work in her pre-accident job and was able to complete her full duties and hours. The applicant also reported that she was able to complete her home duties and activities of daily living¹⁵.

Analysis – Chronic Pain

23After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not established that she suffers from chronic pain or that her pain falls outside the MIG and can be defined as “chronic pain” which would remove her from the MIG.

24I was more persuaded by the respondent’s submissions related to the applicant failing to demonstrate that her chronic pain was not merely sequelae of soft tissues injuries as well as the case law it relied on, specifically 17-007825, regarding the evaluation of chronic pain before the Tribunal and using the AMA Guidelines.

25As discussed above, the applicant carries the burden of demonstrating that her chronic pain requires removal from the MIG. In this case, I chose to adopt the AMA Guidelines to evaluate the applicant’s chronic pain. After considering the evidence and submissions of the parties, based on a balance of probabilities, I agreed with the respondent in that the applicant had not shown she met at least 3 of the 6 criteria of the AMA Guidelines.

26Furthermore, I put less weight on Dr. Marciniak’s findings, as he himself states in the report that his findings are not diagnoses and require further investigation.

27In terms of Dr. Karmy’s findings of chronic mechanical neck and shoulder pain and chronic cervicogenic headaches, though I do believe that the applicant experiences pain in her head and neck, I was not persuaded that this report supported a finding of chronic pain requiring removal from the MIG.

28Chronic pain removing an insured person from the MIG must be demonstrated by the party claiming it, which would be the applicant. In this case, the applicant has not demonstrated that she experienced pain that was beyond the definition of sequelae as listed in the Schedule. Since the applicant carries this burden and has not fulfilled it, her pain cannot be qualified as chronic pain which removes an insured from the MIG.

29The applicant has not demonstrated her diagnosis of chronic pain or continuous pain and the impact said pain has had on her life. Without this evidence, the applicant’s injuries cannot be qualified as chronic pain warranting removal from the MIG.

Submissions & Evidence – Psychological Injuries

30The applicant claims that she sustained psychological injuries as a result of the accident that place her claims outside of the MIG.

31Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments.

32The applicant relied upon the above-mentioned report of Dr. Marciniak¹⁶, which included a Psychological Assessment¹⁷. In his report, Dr. Marciniak made a preliminary diagnosis of the applicant dealing with “psychological/cognitive problems”.

33Dr. Marciniak noted that the applicant’s mood was somber, she had a dysphoric mood, and that she was visibly upset and tearful during the assessment¹⁸. The applicant reported feeling confused regarding her emotions, feeling sad on a daily basis, needing to keep her family in close proximity and feeling like she was a burden to them¹⁹.

34Dr. Marciniak also noted that the applicant had a sense of apprehension and tenseness, an increase in her level of worry, fear, short-term memory difficulties, poor sleep, a lack of energy and general uneasiness about her physical and mental state.

35Dr. Marciniak noted that the applicant cannot manage social interactions, has pessimistic thinking, and prefers routine and predictability when feeling sad about her future due to her accident²⁰.

36The applicant also relied on the clinical notes and records of Dr. Karmy, which noted that the applicant felt depressed due to chronic pain²¹ and that her quality of sleep has not been restorative as it has been impacted by her pain²².

37Based on the above, the applicant submitted that she has suffered psychological injuries that have caused her to feel depressed, irritated, caused her issues with her focus, attention and short-term memory as a result of the accident.

38The respondent submitted that the applicant has not presented any compelling medical evidence to support that she suffered a psychological impairment that would remove the applicant from the MIG. It reminded the Tribunal that the applicant had not provided any clinical notes or records beyond those discussed above, demonstrating that no medical professional has formally diagnosed the applicant with a psychological disorder or condition.

39It argued that less weight should be put on Dr. Karmy’s Report regarding the applicant’s report of “sometimes feels depressed due to her chronic pain”²³. The respondent submitted that this conclusion is not a diagnosis or finding, but rather is based on the applicant’s self-reporting, 2 years post-accident. Furthermore, the respondent noted that Dr. Karmy’s Report²⁴ fails to identify if any psychological testing was administered to the applicant to form the basis of this opinion, nor does he diagnose the applicant with any psychological condition.

40The respondent also argued that Dr. Marciniak’s report, which found that the applicant has psychological/cognitive problems” should be afforded less weight for the same reason; Dr. Marciniak fails to identify if any psychological testing was used during her assessment. Dr. Marciniak also did not provide a basis for making this finding. Furthermore, as discussed above, Dr. Marciniak’s report is specifically labeled as “preliminary” and does not make a specific psychological diagnosis of the applicant, nor does this consist of a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders.

Analysis – Psychological Injuries

41After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not established that she suffered psychological injuries as a result of the accident.

42I agreed with the respondent position, namely that the medical evidence provided by the applicant of Dr. Marciniak and Dr. Karmy did not diagnose the applicant with a psychological injury. Though both doctors noted that the applicant reported suffering from psychological symptoms, neither doctor noted engaging in any kind of formal diagnosis process for such.

43Without knowing the full, medical basis for such findings, I cannot consider the applicant’s self-reporting of psychological symptomology to be sufficient to satisfy the requirements of the Schedule.

44Furthermore, I noted that Dr. Karmy never formally diagnosed the applicant with depression but noted her complaints regarding her mood and pain. And again, as discussed above, I also put less weight on Dr. Marciniak’s findings, as they were preliminary in nature and not diagnostic.

Submissions & Evidence – Pre-existing Conditions

45The applicant also argued that she suffered from pre-existing conditions that would prevent her from achieving maximal medical recovery if confined to the $3,500.00 monetary limit of the MIG.

46The applicant submitted that prior to her accident, she had been diagnosed with a focal tear in her right supraspinatus²⁵, meaning a tear in a muscle which forms part of the rotator cuff of the shoulder.

47The applicant relied on the above-mentioned report of Dr. Marciniak²⁶, which made the following comment about the applicant’s pre-existing conditions:

“the patient had multiple pre-existing problems which were aggravated and destabilized. It should be noted that she was functioning before the accident and she became dysfunctional after the accident.”

48The respondent denied that the applicant’s pre-existing injury should remove her from the MIG. It did not dispute that the applicant had been diagnosed with a focal tear in her right supraspinatus before her accident. However, it submitted that the applicant had not met her evidentiary burden to demonstrate how this pre-existing condition could not be fully treated if the applicant was confined to the MIG.

49The respondent relied on its Insurer’s Examination²⁷, conducted by Dr. Eric Silver, Family Physician. Dr. Silver noted the applicant’s pre-existing injury during his assessment²⁸. However, Dr. Silver also noted that the applicant categorically denied that the accident aggravated her previous injury. Based on this, Dr. Silver concluded that the applicant had no pre-existing conditions that would prevent her from achieving maximal medical recovery if subjected to the MIG’s limits.

50The respondent took issue with the findings of Dr. Marciniak, describing them as vague. It noted that Dr. Marciniak does not provide the basis or details of his findings, nor explain how he reached such. Furthermore, Dr. Marciniak failed to explain why the applicant’s pre-existing condition could not be treated within the MIG. Based on this, the respondent asked that the Tribunal put more weight on Dr. Silver’s evidence.

51The applicant criticized Dr. Silver’s findings, arguing that the Insurer’s Examination assessment, as it was conducted approximately 8.5 months after the applicant’s accident. As such, Dr. Silver was not able to obtain a full or accurate diagnosis of the applicant, as not enough time had elapsed since the accident until her examination.

52Based on this, she submitted Dr. Marciniak’s evidence should be preferred, as it is more recent and accurate. To support this position, the applicant relied on Applicant v Portage La Prairie Mutual Insurance Company²⁹, which found that an insurer has an obligation to not solely rely on their own assessor’s report if there’s more information available to them.

Analysis – Pre-existing Condition

53After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not provided compelling medical evidence that she has a pre-existing medical condition that will prevent her from achieving maximal recovery from the minor injury if she is subject to the MIG funding limit.

54I preferred the arguments and submissions of the respondent, who noted that the evidence provided by the applicant in relation to this argument was vague, and not supported via medical evidence, namely Dr. Marcinak’s report.

55Though Dr. Marciniak acknowledged that the applicant had a pre-existing condition, he failed to explain how and why this condition could not be treated within the MIG. Without this information, the applicant has not fulfilled the obligations of Section 18(2) of the Schedule and therefore cannot be removed from the MIG on this basis.

BENEFITS IN DISPUTE

56As the parties have acknowledged that the applicant’s MIG limits are exhausted, I do not need to consider the reasonableness and necessity of the treatment plans in dispute.

Interest and award

57In accordance with section 51 of the Schedule, interest is only payable on overdue payments.

58Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled together with interest on all amounts owing to the insured (including unpaid interest).

59Since I have determined that no benefits are owing, no interest or award is payable.

CONCLUSION and order

60I find that the applicant’s injuries are found to be within the Minor Injury Guidelines. Since she has exhausted the Minor Injury Guideline, no benefits are payable.

61No interest or award is payable.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair, 2015 ONSC 3635 at para.24.
3. 3Dated May 10, 2020.
4. 4Dated December 21, 2020.
5. 5On December 6, 2018, by Dr. Aneesh Thadani.
6. 6Dated February 21, 2019, by Dr. Chan.
7. 7In his Preliminary Catastrophic Impairment Rating Report, dated December 21, 2020.
8. 8Dated May 10, 2020.
9. 9Dated December 21, 2020.
10. 1017-004824 v Aviva Insurance Canada, 2018 CanLII 81880 (ON LAT).
11. 1117-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT).
12. 12Ibid.
13. 13Both dated November 29, 2018.
14. 14Based on the Family Medicine Specialist Report of Dr. Fung and the Functional Capacity Evaluation of Ms. Westbrook.
15. 15Ibid.
16. 16Dated December 21, 2020.
17. 17Conducted on October 14, 2020.
18. 18Dr. Marciniak’s report dated December 21, 2020.
19. 19Ibid.
20. 20Ibid.
21. 21As noted on Dr. Karmy’s Consultation Report dated October 5, 2020
22. 22Clinical notes and records of Dr. Karmy dated May 10, 2020.
23. 23Dr. Karmy’s Consultation Report dated October 5, 2020.
24. 24Ibid.
25. 25As mentioned in Dr. Silver’s Report dated February 6, 2018.
26. 26Catastrophic Impairment Rating Report of Dr. Marciniak dated December 21, 2020.
27. 27Dated February 6, 2018.
28. 28Ibid.
29. 29Applicant v Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT).