Citation: Casavant v. Belair, 2022 ONLAT 21-001825/AABS

Licence Appeal Tribunal File Number: 21-001825/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:

Renee Casavant

Applicant

and

Belair

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant:

Renee Casavant, Applicant

Casey Dorey, Counsel

For the Respondent:

Angel Ju, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on October 6, 2018. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)("Schedule").

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

3The issues in dispute include the following:

a. Are the applicant's injuries predominately minor as defined in section 3(1) of the Schedule and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline ("MIG")?

b. Is the applicant entitled to a medical benefit in the amount of $873.72 for chiropractic treatment?

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

RESULT

4The applicant is not bound by the MIG and the $3,500.00 funding limit on treatment.

5The applicant is entitled to $873.72 for chiropractic service.

6The applicant is entitled to interest in accordance with the Schedule, related to the treatment plan in dispute.

BACKGROUND

7The applicant was the seat-belted driver of a stopped vehicle that was attempting to turn left into a plaza when it was rear-ended. The airbags did not deploy. The applicant did not report hitting her head, and she did not suffer any loss of consciousness. The applicant did hit her right wrist on the steering wheel, and experienced immediate pain in her back/neck/right wrist. She was taken by ambulance to the Brockville Hospital where she was assessed and discharged the same day.

8The applicant first attended her chiropractor, Dr. Gord Cushing, at the Brockville Chiropractic Clinic for treatment on October 11, 2018. Dr. Cushing was the applicant’s treating chiropractor before the accident. The applicant then consulted with her family doctor, Dr. Carla Trail, on October 30, 2018, because of back pain, neck pain, worsened right wrist pain, finger numbness, and headaches related to the accident¹.

9The applicant claims funding for further treatment beyond the MIG and the $3,500.00 funding limit provided by section 18 of the Schedule. She claims entitlement to the disputed treatment plan for chiropractic services on the grounds that pre-existing fibromyalgia, osteoarthritis in her neck and right wrist, and the development of chronic pain as a result of her injuries precludes her recovery within the MIG. The respondent disagrees.

THE MINOR INJURY GUIDELINE (the "MIG")

10The 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 section 3(1) of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.

11The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor 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.

12If an insurer deems an applicant’s injuries to be minor in nature, the onus is on the applicant to establish that the MIG, and the related funding limit, should not apply.²

Does the applicant have any pre-existing conditions?

13After considering the submissions and evidence of the parties, I find that on a balance of probabilities the applicant’s injuries warrant removal from the MIG. Her pre-existing conditions prevent her from reaching maximum medical recovery if subjected to the MIG limits.

7Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.³

14The 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.

15It is agreed that the applicant has pre-existing fibromyalgia that was diagnosed by a health practitioner years before the subject accident⁴. Fibromyalgia is a chronic condition that is often characterized by all-over muscle pain, joint pain, and intermittent fatigue. A lack of objective musculoskeletal or neurological findings on assessment or diagnostic imaging does not necessarily mean that the applicant’s pain and limitations are not real. I find that subjective complaints related to fibromyalgia cannot just be dismissed because they cannot be objectively measured.

16To date, the applicant’s fibromyalgia condition has been managed by her family doctor, Dr. Trail, who has prescribed courses of Prednisone and Naproxen for both pre- and post-accident flare-ups⁵.

17For example, on August 27, 2018, Dr. Trail indicated in her clinical notes that the applicant had right sided pain for the last two weeks with no improvement. There was no known injury, but the applicant couldn’t walk for two days and was having right wrist and left elbow pain. According to Dr. Trail, the applicant was experiencing another fibromyalgia flare-up. This documents the pre-existing impact of fibromyalgia, which Dr. Trail reported was aggravated by the subject accident.

18The applicant also relied on an x-ray of her right wrist on August 28, 2018. The x-ray showed mild degenerative joint changes and non-specific soft-tissue thickening overlying the distal ulna.⁶

19A computed tomography scan ("CT scan") scan of the applicant’s head/neck on October 6, 2018 showed moderate to severe degenerative disc disease at the C5-C7 levels. The severity of degenerative changes noted on the imaging supports that the condition pre-dated the accident.

20The respondent disagrees that the applicant suffers from a pre-existing condition that requires her removal from the MIG to reach maximal medical recovery.

21The respondent relies on the Insurer’s Examination ("IE") conducted by Dr. Michael Boucher, family doctor, on July 12, 2019 to support this position. The purpose of Dr. Boucher’s assessment was for MIG determination and entitlement to the treatment plan in question. Dr. Boucher concluded that the applicant sustained a minor injury as a result of the accident and that her history of right wrist pain and fibromyalgia would not prevent her from achieving maximum medical recovery of the minor injuries she sustained.⁷

22Dr. Boucher found reduced range of motion in the applicant’s cervical spine, but he concluded that her range were functional. He opined that her injuries were predominantly soft-tissue in nature and that she had an excellent prognosis. According to Dr. Boucher, the vast majority of individuals who sustain such soft-tissue injuries would recover within a period of six weeks to six months. I was not persuaded by Dr. Boucher’s assessment because the applicant has yet to achieve maximum medical recovery.

23Dr. Boucher’s assessment was conducted more than six months after the subject accident. At that time, the applicant reported to Dr. Boucher that she continued to suffer from ongoing right wrist pain, headaches with nausea, neck/upper back pain, low back pain, and intermittent numbness of both hands. The applicant reported no improvement, especially with respect to her right wrist. Dr. Boucher did not address the applicant’s moderate to severe cervical spine degenerative disc disease or her mild right wrist osteoarthritis. He also failed to include any headache diagnosis, even though headaches with nausea were noted in the body of his report.

24Dr. Boucher found no evidence of symptom magnification in his assessment of the applicant. I find that this lends support to the applicant’s overall credibility.

25In addition to Dr. Boucher’s report, the respondent relies on Mr. Luigi Grimaldi’s assessment. Mr. Grimaldi is a kinesiologist. His assessment was conducted to address the applicant’s entitlement to income replacement benefits. The respondent argues that Mr. Grimaldi made no mention of any back pain or headaches in his report. He only identifies frequent right wrist pain, neck pain, and left hip pain. Mr. Grimaldi concluded that the applicant was able to meet the demands of her employment and did not demonstrate any consistent functional limitations pertaining to her ability to perform her job. He also found that the applicant provided maximal effort throughout his assessment, which again supports the applicant’s credibility.⁸

26According to Mr. Grimaldi, the applicant was not taking any prescription pain medication at the time of his assessment. The applicant testified, however, that she continued to take over the counter anti-inflammatory medication on a daily basis. I accept that the mere fact that the applicant was not taking prescription medication at the time of Mr. Grimaldi’s report is not, in and of itself, an indicator that she was not continuing to suffer from pain and limitations in her daily life as a result of the accident.

27I am not persuaded by the respondent’s argument that the applicant’s injuries must have been minor in nature because she failed to attend Dr. Trail’s office until three weeks post-accident. A medical referral is not needed to initiate care with a chiropractor. An individual may choose to attend their treating chiropractor after an accident or injury before or after they present to their family doctor. The type of healthcare provider the applicant chose to initiate treatment with first is not an indicator that her injuries are any less severe.

28The fact remains that the applicant initiated and required treatment for her injuries and the aggravation of her pre-existing conditions within a few days of the accident. She was also transported to hospital by ambulance immediately following the accident where she was assessed by a medical doctor.

29I am persuaded by Part 4 of the treatment plan in question that was completed by Dr. Cushing. He indicated that the applicant’s injuries were not minor, as referred to in the MIG⁹. While Dr. Cushing may have initially placed the applicant in the MIG, he later recognized that her pre-existing conditions impacted her response to treatment, the resolution of her symptoms, and her ability to achieve maximum medical recovery within the parameters of the MIG.

30Unfortunately, the applicant’s pre-existing conditions have negatively impacted what Dr. Boucher referred to as a normal recovery timeline for the types of injuries that the applicant sustained as a result of the accident.

ENTITLEMENT TO THE DISPUTED TREATMENT PLAN ("OCF-18") FOR CHIROPRACTIC SERVICES

31I find that the treatment plan for chiropractic services in the amount of $873.72 that was submitted by Dr. Cushing and denied by the respondent on May 3, 2019 is both reasonable and necessary for the applicant’s accident-related impairments.

32Dr. Cushing has been the applicant’s treating chiropractor since 2012. As such, I find that he is in a good position to be able to comment on the applicant’s pre- and post-accident health status and any treatment progress that she has made.

33The applicant’s treating health providers - Drs. Cushing, Trail and Heseltine have all recommended ongoing treatment related to the applicant’s accident-related injuries both around the time the treatment plan in dispute was proposed, and into 2021.

34On April 5, 2019, Dr. Trail noted in her clinical notes that the applicant complained of increased right wrist pain, elbow pain, and finger pain in both hands. The applicant reported that she was in ‘so much pain’¹⁰. This was just over a week before Dr. Cushing proposed the treatment plan in dispute.

35In January 2021, Dr. Matt Heseltine, who was filling in for Dr. Trail and had access to Dr. Train’s medical records, reported that the applicant’s right wrist pain was chronic and significantly exacerbated by the accident. He recommended additional treatment, especially for the applicant’s right wrist, and that was nearly two years after the treatment plan in question was first proposed.

36The treatment plan in question proposes 18 sessions of combined spinal manipulation/mobilization, muscle stimulation, laser therapy, and 3 sessions of personal care instruction. Dr. Cushing’s treatment plan goals included: pain reduction, increased range of motion, return to activities or normal living, and a return to pre-accident work activities. The plan was submitted less than six months after the accident.

37According to Dr. Cushing, the applicant had progressed favourably through the previous 12 weeks of treatment, but due to her work schedule, she wasn’t always able to maintain a consistent schedule.

38The applicant testified that she had no choice but to continue working out of financial necessity. She lived alone and had no other source of income. The evidence on file is consistent in showing that the applicant had difficulty performing the essential duties of her light janitorial job¹¹, and that she was in receipt of income replacement benefits between May 29 and June 11, 2019.¹² That was not addressed by the respondent.

39The applicant’s affidavit confirms that the treatment she was receiving at Brockville Chiropractic Clinic was helpful for her symptoms. While it did not eliminate her symptoms altogether, it made them more tolerable while she continued working. Her neck pain and range of motion improved, and she experienced fewer headaches.

40Dr. Cushing echoed the applicant when he noted that certain aspects of the applicant’s condition were not improving. Specifically, her low back pain and right wrist pain/stiffness. That is why he proposed the additional laser therapy treatment. I find that the proposed treatment was reasonable. The treatment had already been helpful to the applicant, and new treatment was being proposed to treat her conditions that yet to improve.

41Dr. Cushing indicated that barriers to recovery for the applicant included continuing to work, and the severity of her injuries. He reiterated that she had been diagnosed with fibromyalgia a few years earlier, and that those factors may have affected her response to treatment and course of recovery.

42The respondent argues that at the time of Mr. Grimaldi’s functional assessment, the applicant was not participating in any treatment. According to the applicant, however, she had to stop treatment in May 2019 because the proposed treatment was denied. She could not afford to pay for ongoing treatment out of pocket. I accept this, and do not penalize her for not being able to continue with treatment because of her financial status. I also find the applicant’s submission that her condition deteriorated because she was not able to continue with chiropractic treatment to be persuasive. It supports the necessity of the proposed treatment plan.

43The respondent submits that the applicant returned to her full-time pre-accident work immediately after the accident. It is important to clarify, though, that she only ever returned to part-time work. She did not work more than 25 hours per week¹³. She has not worked on a full-time basis at all since the time of the accident. Regardless, this supports Dr. Cushing’s assertion that the fact that the applicant returned to her pre-accident work as a light janitor after the accident has been a barrier to her overall recovery to date.

INTEREST

44Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided.

45The disputed treatment plan for chiropractic services that was denied on May 3, 2019 is reasonable and necessary. As such, the applicant is entitled to interest in accordance with the Schedule related to that treatment plan.

CONCLUSION AND ORDER

46The applicant is not bound by the MIG and the $3,500.00 funding limit on treatment.

47The applicant is entitled to $873.72 for chiropractic services.

48The applicant is entitled to interest in accordance with s. 51 of the Schedule, related to the treatment plan in dispute.

Footnotes

1. 1TAB 17, Respondent’s Document Brief, pages 104-106.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para 24
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
4. 4TAB 1, Respondent’s Written Submissions, page 1.
5. 5Dr. Trail Clinical Notes and Records dated May 28th, August 27th, and September 14, 2018.
6. 6TAB 11, Respondent’s Document Brief, page 82.
7. 7TAB 6, Respondent’s Document Brief, page 61.
8. 8TAB 4, Respondent’s Document Brief, page 26.
9. 9TAB 32 of the Respondent’s Document Brief, page 222.
10. 10TAB 22, Respondent’s Document Brief.
11. 11TAB 6, Respondent’s Document Brief, page 65.
12. 12Applicant’s Reply Submissions, page 1.
13. 13TAB 4, Respondent’s Document Brief, page 23.