Citation: Hodder v. Economical Insurance Company, 2022 ONLAT 20-007296/AABS

Licence Appeal Tribunal File Number: 20-007296/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:

Barbara Hodder

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Robert Lamot, Counsel

For the Respondent:

Christopher K. Lamm, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Barbara Hodder ("the applicant") was involved in an automobile accident on December 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").¹ She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") after her claims for benefits were denied by Economical Insurance Company ("the respondent").

2On November 12, 2020, a case conference took place for the within matter and a 3-day videoconference hearing was scheduled for August 30, 31 and September 1, 2021. On June 3, 2021, the Tribunal granted a motion order to convert the videoconference hearing to a written hearing as the applicant withdrew the Non-Earner Benefit as an issue in dispute.

3The respondent denied the applicant's claims, including treatment for: physiotherapy services and cost of a psychological assessment because it determined that all of the applicant's injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline ("the MIG").²

4If the applicant's position is persuasive, then I must address if the physiotherapy services and cost of a psychological assessment are reasonable and necessary pursuant to the Schedule.

5If the respondent's position is persuasive, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to the benefits claimed, nor interest.

ISSUES

6The issues to be determined for the purposes of this hearing are as follows:

i. Are the applicant's injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

ii. Is the applicant entitled to a cost of an examination in the amount of $1,995.33 for a psychological assessment recommended by Brampton Civic Care Centre in a treatment plan ("OCF-18"), dated March 21, 2019?

i. Is the applicant entitled to $676.87 for physiotherapy services recommended by Brampton Civic Care Centre in an OCF-18, dated March 26, 2019?

iii. Is the applicant entitled to $3,637.60 for physiotherapy services recommended by Ortho Care Physio in an OCF-18, dated December 19, 2019?

iv. Is the applicant entitled to $3,245.94 for physiotherapy services recommended by Brampton Civic Care Centre in an OCF-18, dated May 11, 2019?

v. Is the respondent liable to pay an award pursuant to 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?

RESULT

7I find that the applicant sustained predominately minor injuries as a result of this accident, and that she is subject to the MIG and the $3,500.00 funding limit. The applicant has been approved for the full $3,500.00 funding limit on medical benefits for a minor injury. Thus, an analysis on the disputed treatment and assessment plans is not required.

8The applicant is not entitled to interest on any overdue payments of benefits, nor is she entitled to an award.

ANALYSIS

The MIG

9I find that the applicant sustained predominately minor injuries as a result of this accident, for the reasons outlined below.

10The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in section 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."

11On January 8, 2019, Dr. Reshma Shetty, Physiotherapist, completed a Disability Certificate ("OCF-3"). The injuries listed in the OCF-3 are all MIG-type injuries except for headaches and radiculopathy.³ I place little weight on the diagnosis of headaches of a neurological nature by Dr. Shetty as she is a physiotherapist, and this is outside of her scope of practice. Further, I place little weight on the diagnosis of radiculopathy by Dr. Shetty as there is no objective evidence to support this diagnosis, such as EMG testing or diagnostic imaging.

12It is well settled that the default test for causation to determine benefits remains the "but for" test, except in exceptional circumstances. The applicant referred to several non-binding authorities from FSCO which indicated that material contribution is the correct test for causation. I disagree, as the primary causation test is the "but for" test, and the material contribution test is applicable only in limited circumstances. The applicant has failed to demonstrate that her matter is exceptional, and the material contribution test is applicable. However, the applicant does not need to demonstrate that the accident is the sole cause for her injuries, but rather the accident was a necessary cause.⁴

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

13The applicant is not removed from the MIG as a result of a pre-existing condition, as she has failed to prove on a balance of probabilities that her pre-existing condition would prevent maximal recovery within the MIG.

14Section 18(2) of the Schedule provides that an applicant may be removed from the MIG if they provide evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG.

15The standard for excluding an impairment on the basis of a 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 funding limit imposed by the MIG.

16The applicant has the evidentiary onus to demonstrate that she has pre-existing injuries that would remove her from the MIG. Despite her assertion that her pre-existing conditions are a barrier to recovery of her accident-related injuries and that her pre-existing physical injuries to her neck, shoulders, and back have been aggravated, the applicant has failed to refer to any medical opinion by a treating health practitioner that these pre-existing conditions will prevent maximal recovery within the MIG.

17While I acknowledge the OCF-3 submitted on January 8, 2019, by Dr. Shetty noted that the applicant had a prior accident in 2011 which resulted in chronic lower back pain, osteoporosis, and a neurologist diagnosed the applicant with restless leg syndrome and asthma.⁵ The applicant has not presented any evidence to support that as a result of these pre-existing conditions, she cannot receive maximal recovery within the MIG.

18I also acknowledge the records of Dr. Elahi, applicant's Family Physician, show entries of pre-existing osteoporosis.⁶ However this is unpersuasive as Dr. Ehahi did not conclude that the applicant could not recover within the MIG as a result. It is well-settled that simply having pre-existing conditions will not remove you from the MIG. There must be a medical opinion that the applicant cannot recover within the MIG as a result of the pre-existing condition.

19On March 7, 2015, an x-ray of the right index finger revealed fracture probably intra- articular at the base of the right index finger middle phalanx along the palmar aspect.⁷ This is unpersuasive, as once again, there is no opinion by a medical practitioner that the applicant cannot recover within the MIG as a result.

20The applicant advised Dr. Debra Mandel, Psychologist, in a report, dated May 30, 2019, that she was involved in a previous accident in 2011 and she had neck and back pain following that accident.⁸ The applicant advised Dr. Mandel that she had sought treatment with a psychologist for anxiety and panic attacks in 2006.⁹ She further advised Dr. Hashmat Khan, General Practitioner, in a report dated May 30, 2019, that she was involved in the 2011 accident and sustained injuries to her back, shoulders, and neck and that she did not experience pain from these injuries at the time of the accident.¹⁰ While I acknowledge these pre-existing conditions, they are unpersuasive as once again the applicant has not referred to any medical opinion from a health practitioner that she cannot recover within the MIG as a result.

The applicant does not suffer from a chronic pain condition that would remove her from the MIG

21The applicant has failed to discharge her evidentiary onus that she suffers from a chronic pain condition that would remove her outside of the MIG.

22The applicant submits that she was referred to a chronic pain specialist because of this accident. However, the applicant failed to address why chronic pain would remove her out of the MIG.

23The respondent relies on 17-007825/AABS v. Aviva Insurance Canada,¹¹ wherein the Tribunal adopted the six criteria described in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition ("AMA Guides").¹² According to the AMA Guides, at least three of the following criteria must be met for a diagnosis of chronic pain syndrome:

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

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

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; and

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

24It is the respondent's position that the applicant has failed to establish that she meets any of the criteria listed above.

25The applicant submitted a reply but did not engage with the AMA Guides and failed to address how her chronic pain would remove her from the MIG.

26I find that the applicant has not met her evidentiary onus to establish that she suffers from chronic pain that would remove her from the MIG for the following reasons:

a. The applicant did not report this accident to Dr. Elahi until March 18, 2019. despite attending on December 18, 2018, January 8, 2019, January 30, 2019, February 27, 2019, and March 11, 2019. Four days after the accident, on December 18, 2018, the applicant met with Dr. Elahi and did not mention the accident. She advised Dr. Elahi that she had persistent tail bone pain and denied any trauma or injury which could explain the pain.¹³ On January 30, 2019, February 27, 2019 and March 11, 2019, the applicant met with Dr. Elahi for aches to her back and neck, however she denied any trauma or injury which could explain the pain.¹⁴ Once again, the applicant did not mention the accident. The applicant has failed to address why it took her until March 18, 2019, approximately 3 months after the accident to advise her treating family physician, Dr. Elahi of the accident.

b. Dr. Elahi did not make a diagnosis of chronic pain with respect to this accident, nor did he note any functional limitations as a result of the applicant's pain. On March 18, 2019, April 30, 2019, June 6, 2019, September 5, 2019, October 3, 2019, and November 25, 2019, the applicant complained of back pain and the accident.¹⁵ On January 17, 2020, Dr. Elahi noted that the applicant had back pain related to the accident but once again there was no diagnosis of chronic pain, nor any functional limitations noted as a result of pain.¹⁶ On November 19, 2020, an x-ray of the cervical spine, thoracic spine and lumbosacral spine revealed: minimal foraminal narrowing on the left side at C4-5; minimal age compatible spondylarthritis; and minor lumbar facet arthritis.¹⁷ On November 20, 2020, Dr. Elahi reviewed the x-ray results and noted that it showed minor lumbar facet arthritis, no evidence of degenerative disc disease or compression fracture.¹⁸ Dr. Elahi noted that he made a referral of the applicant to the chronic pain clinic as a result.¹⁹ I place significant weight on this entry as there is no reference to this accident and it appears that the applicant was referred because of the diagnostic imaging results. This is further supported by the entries from Dr. Elahi, dated December 11, 2020, February 25, 2021, April 13, 2021, and April 30, 2021, where back pain is noted but again there is no reference to this accident.²⁰

c. A diagnosis of chronic pain syndrome was made but the applicant has failed to establish on a balance of probabilities that it was caused by the accident. On November 30, 2020, the applicant met with Dr. Sanaz Zarinehbaf, from Vaughan Pain Clinic. The applicant advised she had pain in her neck, shoulder, mid and low back and that she thought her line of employment contributed to the development of the symptoms.²¹ Dr. Zarinehbaf noted that she was involved in two motor vehicle accidents in 2011 and 2018 which aggravated her pain.²² Dr. Zarinehbaf noted that the pain was aggravated by sitting, standing, walking, and any physical activity and is relieved by massage, physiotherapy, heat, and rest.²³ Dr. Zarinehbaf made the following diagnoses: Myofascial pain, Upper crossed syndrome, Mechanical low back pain, Piriformis irritation syndrome, and Chronic pain syndrome.²⁴ This is unpersuasive as Dr. Zarinehbaf provided no opinion on what caused the chronic pain syndrome whether it was the applicant's employment or this accident.

d. The applicant's submissions failed to engage with any of the criteria for the AMA Guides. While I acknowledge, Dr. Zarinehbaf noted that the applicant's pain was aggravated by sitting, standing, walking and any physical activity.²⁵ The applicant advised Dr. Khan, that she continued with her housekeeping tasks, was independent with her personal care tasks, continued with walking, albeit at a reduced pace, and she was back to the gym with lighter weights.²⁶ Furthermore, the applicant advised Dr. Mandel that she continued with her housekeeping tasks, personal care tasks, and her social life had not changed since the accident.²⁷ While I acknowledge the applicant provided her prescription summary, she has failed to establish that she has become dependent on prescribed medicine as a result of the accident. The applicant has also failed to establish excessive dependence on health care providers or her family as a result of chronic pain. She has also not withdrawn from her social life or work as a result of the accident.

27The applicant's submissions do not address whether she has a psychological impairment that will remove her from the MIG. However, as a cost of a psychological assessment is in dispute, I will consider next whether this will remove her from the MIG.

The applicant does not suffer from psychological injuries which would remove her from the MIG

28The applicant has failed to prove on a balance of probabilities that she suffers from a psychological impairment that will remove her from the MIG.

29I have placed little weight on the OCF-18, dated March 21, 2019, for the cost of a psychological assessment. It is well settled that an OCF-18 alone is not medical evidence. I note there is psychological symptoms listed in the additional comments section of the OCF-18 based on an interview conducted by Dorothy Tzimas²⁸, however there is no contemporaneous medical evidence to support this. The applicant has failed to refer to a single entry in Dr. Elahi's records where she presented with psychological complaints as a result of this accident.

30I also prefer the report of Dr. Mandel, dated May 30, 2019. The applicant advised Dr. Mandel that her mood remained unchanged since the accident, and she denied any significant feelings of worthlessness, uselessness, hopelessness, sadness, tearfulness, irritability, agitation, anger, financial stress, and interpersonal stress.²⁹ Dr. Mandel noted that the applicant had minor nervousness travelling as a passenger in a vehicle and as a driver.³⁰ The results of Pain Patient Profile testing revealed that the applicant on the depression scale and anxiety scale had below average depression and anxiety.³¹ As a result, Dr. Mandel concluded that the applicant did not suffer from a psychological impairment as a result of the accident.³²

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

31Despite being an issue in dispute as per the Case Conference Order, the applicant failed to provide any submissions on the rationale of why she is entitled to an award with respect to this matter.

32Section 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.

33As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

INTEREST

34Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

CONCLUSION and OrdeR

35For the reasons set above, I find that the applicant sustained predominantly minor injuries as defined under the Schedule. She is not entitled to the benefits claimed, interest, or an award.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3OCF-3 dated January 8, 2019.
4. 4Sabadash v. State Farm, et al. 2019 ONSC 1121.
5. 5OCF-3 dated January 8, 2019.
6. 6Clinical Notes and Records of Dr. Elahi from December 14, 2015 to March 4, 2019, pages: 2, 7, 13, and16.
7. 7Right Index Finger X-ray dated March 7, 2015.
8. 8Respondent's Book of Documents, Tab 6, Independent Insurer's Examination, by Dr. Mandel, dated May 30, 2019, page: 51.
9. 9Ibid.
10. 10Respondent's Book of Documents, Tab 5, Independent Insurer's Examination, by Dr. Khan, dated May 30, 2019, pages: 36-37.
11. 112018 CanLII 98282 (ON LAT), para 6.
12. 12American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 32-33.
13. 13Clinical Notes and Records of Dr. Elahi from December 14, 2015 to March 4, 2019, pages: 64-68.
14. 14Clinical Notes and Records of Dr. Elahi from December 14, 2015 to March 4, 2019, pages: 73-85.
15. 15Clinical Notes and Records of Dr. Elahi from March 1, 2019 to January 23, 2020, pages: 86-119.
16. 16Clinical Notes and Records of Dr. Elahi from January 23, 2020 to November 1, 2020, page: 3.
17. 17Clinical Notes and Records of Dr. Elahi, November 1, 2020 to March 21, 2021, page: 3.
18. 18Ibid, pages: 4-5.
19. 19Ibid, pages: 4-5.
20. 20Ibid, pages: 5-11.
21. 21Clinical Notes and Records of Vaughan Pain Clinic, pages: 2-3.
22. 22Ibid.
23. 23Ibid.
24. 24Ibid.
25. 25Ibid.
26. 26Respondent's Book of Documents, Tab 5, Independent Insurer's Examination, by Dr. Khan, dated May 30, 2019, pages: 37-38.
27. 27Respondent's Book of Documents, Tab 6, Independent Insurer's Examination, by Dr. Mandel, dated May 30, 2019, page: 52.
28. 28OCF-18 dated March 21, 2019.
29. 29Respondent's Book of Documents, Tab 6, Independent Insurer's Examination, by Dr. Mandel, dated May 30, 2019, page: 52.
30. 30Ibid.
31. 31Ibid, page: 53.
32. 32Ibid, page: 54.