Citation: Padua v. Co-operators General Insurance Company, 2022 ONLAT 20-005450/AABS

Licence Appeal Tribunal File Number: 20-005450/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:

Eilane Padua

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Eilane Padua, Applicant Rajwant Singh Bamel, Counsel

For the Respondent: Emily Schatzker, Counsel

Interpreter: Mildred Casey (Tagalog)

Court Reporter: Greg Vaughan

HEARD: by Videoconference: July 19 & 20, 2021

BACKGROUND

1Eilane Padua, ("the Applicant"), was involved in an automobile accident on March 24, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) ("the Schedule").

2Co-operators General Insurance Company, ("the Respondent"), denied the Applicant's claims because it determined that all of her injuries fit the definition of "minor injury" as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).¹ As a result, the Applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") to resolve this dispute.

ISSUES

3The issues to be decided in the hearing are:

1. Did the Applicant sustain a minor injury as defined in section 3 of the Schedule?
2. Is the Applicant entitled to the cost of an examination in the amount of $2,000.00 for a psychological assessment plan by Wellbridge Medical Inc., dated May 21, 2018?
3. Is the Applicant entitled to the cost of an examination in the amount of $2,000.00 for a psychological assessment plan by Toronto Health Care Clinic, dated April 22, 2020?
4. Is the Applicant entitled to a medical benefit in the amount of $3,375.98 for a psychological treatment plan by Toronto Health Care Clinic, dated July 17, 2020?
5. Is the Applicant entitled to a medical benefit in the amount of $2,488.50 for chiropractic treatment, massage and acupuncture treatment plan by the Toronto Health Care Clinic in a treatment plan, dated January 31, 2020?
6. Is the Applicant entitled to a medical benefit in the amount of $1,104.29 for a chiropractic treatment plan by Toronto Health Care Clinic, dated May 26, 2020?
7. Is the Applicant entitled to a medical benefit in the amount of $1,341.36 for a chiropractic, massage therapy, and acupuncture treatment plan the Toronto Health Care Clinic, dated June 9, 2020?
8. Is the Applicant entitled to the cost of an examination in the amount of $2,000.00 for a chronic pain assessment plan by the Toronto Health Care Clinic, dated February 15, 2020?
9. Is the Applicant entitled to $200.00 for the completion of a Disability Certificate by the Toronto Health Care Clinic dated February 12, 2020?
10. Is the applicant entitled to a medical benefit for $2,200 for chiropractic services recommended by the Toronto Health Care Clinic dated January 31, 2020?
11. Is the Applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664?
12. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant is not subject to the MIG and the $3,500.00 funding limit on medical benefits.

5The psychological assessment plan dated May 21, 2018 is not reasonable and necessary as a result of the accident.

6The psychological assessment plan dated April 22, 2020, and the psychological treatment plan dated July 17, 2020 are reasonable and necessary.

7The chiropractic treatment plans dated January 31, May 26, 2020, and June 9, 2020 are not reasonable and necessary as a result of the accident.

8The chronic pain assessment plan dated February 12, 2020 is not reasonable and necessary as a result of the accident.

9The Applicant is not entitled to $200.00 for the completion of a Disability Certificate by the Toronto Health Care Clinic dated February 12, 2020.

10The treatment plan in the amount of $2,200.00, dated January 31, 2020 is not reasonable and necessary as it is a duplication of services.

11The Applicant is entitled to an award in the amount of $1,612.79 for the unreasonably delayed payment of the psychological assessment and treatment plans.

12Interest is payable pursuant to section 51 of the Schedule.

BACKGROUND

13The Applicant was the driver of a stopped vehicle that was stuck along the front end by a truck in a perpendicular fashion. Police and emergency personnel attended at the scene of the accident, but the Applicant did not go to the hospital. The Applicant went to see her family physician, Dr. Tejani, a few days later, with complaints of neck, back, bilateral shoulder pain, and some dizziness. Dr. Tejani diagnosed her with mild cervical and lumbar sprains and prescribed pain medication and massage therapy.

14The Applicant started treatment for her accident-related injuries on April 14, 2018, pursuant to the MIG. She participated in treatment on a regular basis until July 18, 2018. She stopped treatment on her own accord, prior to exhausting the funding available to her under the MIG.

15The Applicant sought no further treatment for her accident-related injuries until January 2020. At that time, she submitted a multidisciplinary treatment plan from Toronto Healthcare Clinic. The treatment plan was denied because it exceeded the $1,988.00 that the Applicant had remaining under the MIG funding limit. Additional treatment plans were submitted but subsequently denied on the basis that the Applicant sustained a minor injury as a result of the accident.

THE MINOR INJURY GUIDELINE

16The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.

17Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant's heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

18If an insurer deems an Applicant's injuries to be minor in nature, the Applicant has the onus to establish that the MIG, and the related funding limit, should not apply.

Psychological Injuries

19I find on a balance of probabilities that the Applicant sustained a psychological injury, or in the alternative, an exacerbation of pre-existing psychological injuries, as a result of the subject accident.

20I find that the Applicant sustained an Adjustment Disorder with Mixed Anxiety and Depressed Mood, or an exacerbation thereof, as a result of the accident. My finding is based on the psychological assessment report by Dr. J. Brunshaw, psychologist, and H. Ilios, psychotherapist, dated June 4, 2020, ("the Brunshaw/Ilios report") and Dr. Brunshaw's testimony. The Brunshaw/Ilios report included a clinical interview and psychometric testing. Test results indicated that the Applicant fell in the severe range for depression and anxiety and that she experiences a severe level of emotional distress. The Brunshaw/Ilios report also noted that the Applicant suffered from Specific Phobia as a driver, passenger, and pedestrian. The Respondent never commissioned a psychological Insurer's Examination, ("IE"), leaving the conclusions in the Brunshaw/Ilios report uncontested.

21The Applicant's failure to clearly report her pre-accident health status does not overturn the conclusions in the Brunshaw/Ilios report. Indeed, the Applicant denied having experienced any physical or psychological symptomology prior to the accident, despite evidence to the contrary. For example, Dr. Tejani's clinical notes and records, ("CNRs"), document that the Applicant complained of depression symptoms and asked for a referral to a psychologist on April 20, 2017. However, the assessment in the Brunshaw/Ilios report never included a review of Dr. Tejani's CNRS. During testimony, when presented with information about the Applicant's pre-accident health, Dr. Brunshaw acknowledged the lack of disclosure but concluded that the only change in her diagnosis would be that the Applicant's condition would not be solely attributed to the subject accident and, instead, be considered an exacerbation of her pre-existing psychological symptoms.

22Further, I recognize the late disclosure of the Applicant's psychological symptoms and that virtually no psychological complaints were made immediately following the accident. This reasonably caused the Respondent to question the causation of the Applicant's psychological injuries. However, the Respondent provides no medical opinion that addresses causation or detracts from Dr. Brunshaw's opinion in the report and subsequent testimony.

Pre-Existing Health Condition and Chronic Pain

23Having found that the Applicant sustained a psychological injury as a result of the accident, an analysis of whether the Applicant should be removed from the MIG due to a pre-existing health condition or chronic pain is unnecessary.

THIS DISPUTED TREATMENT AND ASSESSMENT PLANS

The Psychological Treatment and Assessment Plans

24I find that the psychological assessment plan by Wellbridge Medical Inc., dated May 21, 2018 is not reasonable and necessary as a result of the subject accident. However, the psychological assessment plan by Toronto Healthcare Clinic, dated April 22, 2020 and the psychological treatment plan dated July 17, 2020 are reasonable and necessary.

25I find no compelling evidence of accident-related psychological symptomology that is contemporaneous with the submission of the psychological assessment plan by Wellbridge. The Applicant's initial accident-related complaints were predominantly sprain and strain injuries and did not include any meaningful complaints of psychological symptomology. While the Applicant experienced some psychological symptoms prior to the accident, there is no evidence that is contemporaneous with the time period that indicates that the Applicant's symptoms were exacerbated as a result of the accident.

26On the other hand, the psychological symptoms described and identified in Dr. Brunshaw's report are reasonably contemporaneous with the submission of the treatment and assessment plan. Dr. Brunshaw diagnosed the Applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and recommended that the Applicant engage in psychological treatment as proposed in the disputed psychological treatment plan dated July 17, 2020.

The Physical Treatment and Assessment Plans

27I find that the Applicant is not entitled to the physical treatment plans dated January 31, May 26, and June 9, 2020 because there is no contemporaneous evidence indicating that the Applicant required physical treatment for accident-related injuries.

28The pain reported by the Applicant pre-dates the accident. The Applicant was involved in an accident in 2014 whereby she sustained injuries to her back, neck, and shoulder. She sought treatment for those injuries but, continued to complain of pain thereafter. In fact, the Applicant visited Dr. Tejani about a month prior to the subject accident, complained of aches and pains all over her body, but primarily in the back. Dr. Tejani prescribed Gabapentin, a chronic pain medication, and referred the Applicant to physiotherapy and massage therapy.

29While the Applicant may experience ongoing symptomology, I am not persuaded that her pre-accident physical injuries were exacerbated as a result of the accident. The subject accident never resulted in additional visits to Dr. Tejani and the family physician's records make no indication that the Applicant's pre-existing pain was ever exacerbated by the subject accident. Notably, the Applicant was treated pursuant to the MIG at the treatment facility that she attended at immediately following the accident.

30I prefer the report and opinion of Dr. A. Opala, dated March 26, 2021 over Dr. Karmy's report, dated May 29, 2020. I appreciate that Dr. Opala reviewed the Applicant's medical records, including her family physician records, as part of the assessment because it is important for the assessor to considering the Applicant's pre-accident health complaints to determine their origin. Dr. Opala found that the Applicant presented with facet joint osteoarthritis in her low back and repetitive strain injuries such as right rotator cuff tendinopathy, epicondylitis of the right elbow, and right carpal tunnel syndrome. According to Dr. Opala's report, the Applicant's issues are unrelated to the subject accident and that, from a musculoskeletal perspective, the Applicant presented with no accident-related impairments.

31Dr. Opala testified that, upon examination, he found that the Applicant presented with some non-organic results such as an abnormal pinprick and positive Waddell sign. To him, explaining the results is outside of his scope of practice, but concluded from her functional history indicated that she is not impaired from a musculoskeletal perspective. Dr. Opala testified that the Applicant's functionality is extremely atypical for chronic pain patients. He highlighted that the Applicant had no prescription medication seeking behaviour, sought no treatment within the OHIP system, was independent with her activities of daily living and caregiving responsibilities, and returned to work.

32I recognize that Dr. Opala gave an incorrect definition of a minor injury during testimony and opined that the Applicant cannot be treated within the $3,500.00 funding limit provided for minor injuries. However, to me, this does not detract from the balance of the assessment and report, nor does it cause me to discount Dr. Opala's opinion. Dr. Opala incorrectly stated that a minor injury is an injury that is not a catastrophic injury, instead of the definition noted earlier in this decision. However, this does not change Dr. Opala's opinion that the Applicant's ongoing complaints are either as a result of her ongoing degenerative changes or a non-organic cause such as psychological sequalae which are outside of his scope of practice. In any event, it is unnecessary to analyse whether the Applicant sustained a minor injury, as I found that the Applicant sustained psychological injuries as a result of the accident and therefore, she is not subject to the MIG funding limit. Further, I interpret Dr. Opala's comments on the Applicant's inability to be treated within the $3,500.00 funding limit to be of a wholistic nature, which includes treatment for her pre-existing degenerative changes. As Dr. Opala noted, the Applicant has major osteoarthritis and in his opinion, she requires an MRI to determine the extent of the changes and may need chronic pain medication or injections to limit pain.

33Dr. Karmy reviewed no pre-accident medical records or any of Dr. Tejani's CNRs as part of the assessment and relied on the Applicant's inaccurate self-reported complaints and health history. The difficulty with this is that the Applicant has a history of health issues that predate the accident, yet she denied any prior motor vehicle accidents or injuries, chronic musculoskeletal pain or headaches, or any psychological issues prior to the accident. As a result of this, Dr. Karmy never considered the Applicant's pre-existing health condition and concluded that the Applicant's complaints were all as a result of the subject accident.

34Dr. Karmy's conclusion in the May 29, 2020 report is inconsistent with the examination findings. Dr. Karmy documented that the Applicant had mostly normal ranges of movement throughout her body and noted that she was generally independent with her caregiving responsibilities to her children, independent with her self-care tasks, and that she returned to work. Despite the functionality exhibited and reported by the Applicant, Dr. Karmy diagnosed her with chronic mechanical pain in the neck, bilateral shoulders, back, right hip, and right heel, as well as chronic pain syndrome.

35On a balance of probabilities, I find that the Applicant's physical complaints are due to her degenerative issues which pre-date the accident. The Respondent is not liable to fund treatment for pre-existing issues thus, I find that the treatment plans dated January 31, May 26 and June 9, 2020 are not reasonable and necessary.

Chronic Pain Treatment and Assessment Plan

36I find that the chronic pain assessment is not reasonable and necessary as a result of the subject accident.

37From a physical perspective, the Applicant sustained predominantly minor sprain and strain injuries which were treated pursuant to the MIG. The Applicant stopped attending treatment for these injuries prior to exhausting the MIG funding limits, which suggests that her accident-related injuries had resolved or, at least, required no further treatment. She sought no facility-based treatment for approximately a year and a half, then re-started treatment. The lack of facility-based treatment for a period of time where the Applicant is entitled to funding for treatment pursuant to the MIG also suggests that the Applicant's accident-related injuries resolved or that her current complaints are unrelated to the subject accident.

38The Applicant exhibits functionality which is atypical for chronic pain patients. The Applicant returned to work on a full-time basis and there is no evidence that indicates she required any accommodations to enable her to return to work. During the various assessments, the Applicant consistently reported independence with her activities of daily living and self-care. She also reported that she was mostly independent with her caregiving activities, but for some support from her older children when it comes to assistance with her younger children.

39I acknowledge that the Applicant has ongoing pain issues, as noted by Dr. Opala. However, there is no compelling evidence indicating that the ongoing pain is as a result of the subject accident. Instead, I agree with Dr. Opala that the Applicant's current complaints are as a result of her pre-existing degenerative issues like osteoarthritis and carpal tunnel syndrome. Indeed, the Applicant complained of pain during assessments in 2020. However, the fact that she made no such complaints to her family physician or treatment providers for nearly a year and a half after engaging in treatment pursuant to the MIG, but not exhausting the funding limits in the MIG, holds considerable weight. From this I conclude that a chronic pain assessment is not reasonable and necessary as a result of the subject accident.

OTHER MATTERS

Disability Certificate

40I find that the Applicant is not entitled to payment for the production of a Disability Certificate, dated February 12, 2020 and submitted on May 25, 2020.

41A Disability Certificate acts as an application for a specified benefit such as income replacement benefits, non-earner benefits, and caregiver benefits. However, the Disability Certificate here is redundant because the Applicant does not qualify for any specified benefits. She is not impaired from completing her essential work tasks and thus, is not entitled to an Income Replacement Benefit. The Disability Certificate does not endorse the Applicant's entitlement to Non-Earner Benefits, and it was submitted more than two years after the accident, which is beyond the time limit for Non-Earner Benefits. Lastly, the Applicant does not qualify for Caregiver Benefits because she is not catastrophically impaired.

OCF-23 dated January 31, 2020

42I find that the Applicant is not entitled to the goods and services described in the OCF-23 dated January 31, 2020 because it is a duplication of services.

43This OCF-23 seeks funding for the first block of treatment provided under the MIG. However, the Applicant previously submitted, and was approved for, the first block of MIG treatment. The Applicant was approved for the first block of MIG treatment at Strength N U about 2 to 3 weeks following the accident and she incurred treatment pursuant to it. It is not reasonable and necessary for the Applicant to engage in the first block of treatment under the MIG at one clinic, and then again for a second time, at another clinic more than 1.5 years after the accident.

INTEREST

44Section 51 of the Schedule provides that interest is payable on the overdue payment of benefits.

45Having found that the psychological assessment and psychological treatment plans are reasonable and necessary, it follows that the Applicant is entitled to interest, pursuant to section 51.

AWARD

46Pursuant to section 10 of O. Reg. 664, the Applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.

47I find that the Applicant is entitled to an award in the amount of $1,612.79 because the Respondent exhibited stubborn and inflexible behaviour when it refused to accept Dr. Brunshaw's opinion and diagnosis in the psychological assessment report.

48I am live to the issue that the Applicant was untimely with the production of medical records and that she sought entitlement to the psychological assessment and other treatment and assessment plans after more than a year and a half without incurring treatment. Yet, these issues do not discharge the respondent from its obligation to adjust the Applicant's claim on an ongoing basis. Psychological injuries can develop over time and the fact remains that the Applicant has five years to make claims relating to the subject accident.

49The Respondent, obviously influenced by the gap in treatment and lack of complaints of a psychological nature, decided against conducting a psychological IE. To the detriment of its case, the Respondent sought no independent medical opinion upon receipt of Dr. Brunshaw's report. While Dr. Brunshaw's report is imperfect – for example, it included no review of the Applicant's medical records – it remains uncontested.

50The Respondent exhibited stubborn and inflexible behaviour when it refused to remove the Applicant from the MIG or seek an independent medical opinion in light of Dr. Brunshaw's report. As a result, it withheld or delayed the Applicant access to reasonable and necessary medical benefits. Namely, the Respondent withheld or delayed the psychological assessment plan, dated April 22, 2020, and the psychological treatment plan dated July 11, 2020.

51The Applicant made no submissions on the amount of the award. While she may be entitled to up to 50% of the amounts withheld, I find that she is entitled to 30% of the amounts withheld, which equals $1,612.79. To me, this award amount recognizes the Respondent's shortcomings but also acknowledges the Applicant's untimely production of medical records to support her claim and the deficiencies in Dr. Brunshaw's report.

CONCLUSION

52The Applicant was involved in an accident and sustained predominantly sprain and strain injuries. However, she developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as Specific Phobia as a result of the accident which warrant her removal from the MIG and the $3,500.00 funding limit on treatment.

53The psychological assessment and treatment plans dated April 22, 2020 and July 11, 2020, respectively, are reasonable and necessary as a result of the subject accident. The Applicant incurred the psychological assessment and is entitled to payment for it, if/once properly invoiced. The Applicant has not incurred any of the goods and services described in the psychological treatment plan and is entitled to do so and the Respondent is liable to pay for same once properly invoiced. Interest is payable pursuant to section 51 of the Schedule.

54The Applicant is not entitled to the remaining benefits in dispute.

55The Applicant is entitled to an award in the amount of $1,612.79.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.