Citation: Panos v. Federated Insurance Company of Canada, 2022 ONLAT 21-003371/AABS - A

Licence Appeal Tribunal File Number: 21-003371/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:

Christopher Panos

Applicant

and

Federated Insurance Company of Canada

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Chris Lazaris, Counsel

For the Respondent:

Jennifer McGlashan, Counsel

Dean K. Paspalofski, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Christopher Panos (the “applicant”) was injured in an automobile accident on April 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from Federated Insurance Company of Canada (the “respondent”).

2The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3The applicant crashed into a car that turned in front of him as he entered an intersection. He injured his hands and wrists, his right knee, his back, and his neck. He continues to suffer from these injuries more than four years after the accident.

4The applicant applied for medical benefits to fund physiotherapy, chiropractic treatment, and massage therapy for his physical injuries, and social work counselling and psychological services for his declining mental health. The respondent took the position that the applicant had sustained predominantly minor injuries as defined in s. 3 of the Schedule, and that he was therefore limited to $3,500.00 in medical and rehabilitation benefits subject to the Minor Injury Guideline (the “MIG”).

5The applicant seeks determinations that he has sustained non-minor injuries that remove him from the MIG, and that he is entitled to the benefits in dispute, an award under s. 10 of Regulation 664,² and interest.

ISSUES

6The following issues are to be decided:

1. 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?

2. If the applicant’s injuries are not predominantly minor,

a. Is the applicant entitled to a medical benefit in the amount of $3,257.04 for chiropractic and physiotherapy services recommended by Whitby Physiotherapy and Rehabilitation Centre, as per a treatment plan (“OCF-18”) submitted on March 3, 2021?

b. Is the applicant entitled to a medical benefit in the amount of $4,335.00 for social rehabilitation counselling services recommended by FunctionAbility Rehabilitation Services, as per an OCF-18 submitted on July 31, 2018?

c. Is the applicant entitled to a medical benefit in the amount of $1,685.00 for psychological services recommended by Whitby Physiotherapy and Rehabilitation Centre, as per an OCF-18 submitted on June 12, 2018?

d. Is the applicant entitled to the cost of medication for Depo-Medrol injections in the amount of $603.44, as per an OCF-6 dated May 27, 2021?

e. Is the applicant entitled to a medical benefit in the amount of $4,560.00 for massage therapy, as per an OCF-6 dated August 26, 2021?

f. Is the applicant entitled to a medical benefit in the amount of $2,878.47 for physiotherapy and massage therapy recommended by Whitby Physiotherapy & Rehab Clinic, as per an OCF-18 dated September 17, 2021?

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

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

RESULT

7The applicant’s right knee injury is a non-minor injury that removes him from the MIG. Consequently, the applicant’s medical and rehabilitation benefits are not limited to $3,500.00. It is unnecessary to determine whether the applicant’s other injuries are minor injuries.

8The proposed Depo-Medrol injections to relieve pain in the applicant’s right knee are reasonable and necessary. The applicant has not established that the other disputed medical benefits are reasonable and necessary.

9The applicant is not entitled to an award under s. 10 of Regulation 664.

10The applicant is entitled to interest with respect to the Depo-Medrol injections pursuant to s. 51 of the Schedule.

ANALYSIS

Preliminary Issue

11The applicant argues that contrary to Adjudicator Kowal’s Case Conference Report and Order (“CCRO”) of October 15, 2021, the respondent has effectively doubled the length of its written submissions by single spacing them and reducing the font size. The applicant complied with these requirements and the page limit of 12 pages. He submits that the Tribunal should consider only the first six pages of the respondent’s submissions.

12When two issues were added to the hearing in Adjudicator Mazerolle’s Motion Order of November 29, 2021, the page limit for submissions was raised from 10 to 12 pages at the respondent’s request. The respondent did not claim that this page limit prejudiced its ability to fully address the issues in dispute.

13As the CCRO explicitly ordered, the hearing adjudicator may choose not to consider submissions that exceed the page limits.

14Pursuant to Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission’s Common Rules of Practice and Procedure, I have considered the respondent’s full submissions to ensure that the issues were fully canvassed. However, I caution the respondent that submissions inconsistent with the requirements set out in a CCRO may be excluded solely at the discretion of the hearing adjudicator.

Are the Applicant’s Injuries Predominantly Minor?

15Section 18(1) of the Schedule states that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG. The onus is on the applicant to establish that he has sustained a non-minor injury that would remove him from the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

16The applicant submits that the injuries to his right knee, hands, neck, and back are non-minor injuries that remove him from the MIG. I find that the right knee injury is a non-minor injury. As that finding is sufficient to remove the applicant from the MIG, it is unnecessary to determine whether the applicant’s other injuries are minor injuries.

17A Magnetic Resonance Imaging (“MRI”) scan conducted on August 6, 2020 identified the applicant’s right knee injury as “[f]ocal grade 4 chondrosis in the patellofemoral compartment and proximal tibiofibular joint,” which is described as “[f]ull-thickness articular cartilage fissures” at the midline patella and proximal fibula, with “subchondral edema/cystic change” in specified areas.³

18The respondent does not dispute that the applicant has chondrosis as identified in the MRI. It argues that the chondrosis was not caused by the accident, and that it falls within the definition of “minor injury” in s. 3 of the Schedule.

Did the Accident Cause the Right Knee Injury?

19The respondent argues that the applicant has not met his onus of proving that the accident was the cause of his right knee chondrosis. It claims that the applicant did not report having injured his knee to Dr. David Lipson (who conducted a s. 25 physiatry assessment), Ms. Amanda Malcolm (who conducted a s. 25 social work assessment and provided counselling to the applicant), or Dr. Mark Mason (the applicant’s treating physiatrist).

20The applicant argues that Dr. Mason’s clinical note of May 14, 2021 demonstrates that he did report his knee injury to Dr. Mason, and that Dr. Mason attributed this injury to the accident. In the clinical note, Dr. Mason stated that he recommended a trial of injections for the right knee because in his experience, “many patients with patellofemoral cartilage damage related to impact injuries, such as motor vehicle collisions, have had good success with these agents.”⁴

21I find that the accident was the cause of the applicant’s right knee injury for the following reasons.

22The medical records contemporaneous with the accident demonstrate that the applicant did injure his right knee:

1. The accident occurred on April 11, 2018. The applicant saw Dr. Ken Daiter later that day, and had follow-up appointments on April 23, May 4, and June 5, 2018.⁵ At these appointments, the applicant reported pain in his right knee, prompting Dr. Daiter to order diagnostic imaging.

2. Ultrasounds and x-rays were conducted on the applicant’s right knee on April 23, April 27, and June 26, 2020.⁶ They did not provide definitive evidence for a diagnosis of the injury. The injury was identified as chondrosis in the MRI of August 6, 2020.⁷ The inconclusive results of the ultrasounds and x-rays do not imply that the accident was not the cause of the chondrosis. According to Dr. Lipson, ultrasounds and x-rays are unable to detect this type of injury.⁸

3. Dr. Daiter authored a disability certificate (“OCF-3”) dated June 5, 2018 for the applicant. Dr. Daiter noted that the applicant reported pain in his right knee, and diagnosed the applicant with “[s]prain and strain of other and unspecified parts of knee.”⁹

23The respondent does not explain why, if the accident did not cause the applicant’s right knee injury, he began to experience pain in his right knee immediately after the accident. The respondent has not identified any potential cause of the chondrosis other than the accident.

24Over the years following the accident, the applicant consistently reported pain in his right knee to Dr. Daiter, his s. 25 assessors (i.e. Dr. Lipson and Ms. Malcolm), and the respondent’s s. 44 assessors (i.e. Dr. Alborz Oshidari, physiatrist, Dr. Lynne Lamarche, psychologist, and Dr. Deborah Rabinovitch, physiatrist). On June 25, 2020, Dr. Daiter referred the applicant to Dr. Mason for a physiatry consultation to address the applicant’s right knee pain and other injuries.¹⁰ Dr. Mason has treated the applicant since March 14, 2021.

25Contrary to the respondent’s submission, the applicant did report his knee injury to Dr. Lipson, Ms. Malcolm, and Dr. Mason. This is noted in Dr. Lipson’s report,¹¹ Ms. Malcolm’s report,¹² and Dr. Mason’ clinical note of March 15, 2021.¹³ As noted by the applicant, Dr. Mason’s clinical note of May 14, 2021 demonstrates that he considered the accident to be the cause of the chondrosis.¹⁴

Is the Right Knee Injury a Minor Injury?

26The applicant’s chondrosis is an injury to the cartilage of the patella and fibula at the right knee joint. He submits that this is a non-minor injury because it is not enumerated in the definition of “minor injury” in s. 3 of the Schedule: “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.”

27The respondent argues that the chondrosis is a minor injury because it falls within the definition of “sprain” in s. 3 of the Schedule. It relies on M.C. v Wawanesa Mutual Insurance Company, 2020 CanLII 12783 (ON LAT), in which the Tribunal found that the applicant’s knee injuries—including cartilage deterioration—did not remove her from the MIG.

28I find that the applicant’s chondrosis is a non-minor injury for the following reasons.

29Chondrosis does not fall within the injuries listed in the definition of minor injury, including a sprain. A sprain is defined in s. 3 as an injury to a tendon or ligament. As the respondent acknowledges, cartilage is a different kind tissue from tendons and ligaments, with a different physiological function.

30I agree with the applicant that M.C. v Wawanesa Mutual Insurance Company is distinguishable. In that case, cartilage deterioration was one of several alleged knee injuries. The Tribunal found that this group of injuries was not caused by the accident, and that even if they were, the applicant had failed to meet her onus of proving that they were non-minor injuries. This case does not stand for the general proposition that injuries to cartilage are minor injuries. It is distinguishable because the applicant has established that his right knee chondrosis was caused by the accident, and that it is a non-minor injury.

31The respondent relies on Dr. Oshidari’s and Dr. Rabinovitch’s opinions that the applicant’s injuries—including his right knee injury—were minor injuries. The applicant did not comment on Dr. Oshidari’s opinion. He argues that Dr. Rabinovitch’s opinion should not be accepted because it contains many inaccuracies.

32I do not accept Dr. Oshidari’s and Dr. Rabinovitch’s opinions for the following reasons.

33Dr. Oshidari conducted his assessment on January 10, 2019. Based on a physical examination, he diagnosed the applicant’s knee injury as a contusion, which is a minor injury. This diagnosis was subsequently proved incorrect by the August 6, 2020 MRI. His opinion therefore does not support the respondent’s position.

34Dr. Rabinovitch conducted her assessment on June 2, 2021. Her diagnosis was a soft tissue injury of the right patellar tendon, which is a minor injury. When she drafted her initial report, she was unaware that the August 6, 2020 MRI had identified the applicant’s right knee injury as chondrosis. She noted in her report that she knew there had been an MRI of the applicant’s right knee, but it had not been provided to her. She cautioned that her opinion might change should the MRI reveal “any significant pathology.”¹⁵

35Dr. Rabinovitch drafted an addendum report dated August 12, 2021, in which she considered the August 6, 2020 MRI and other documents that she had not previously seen. She maintained that the applicant had sustained a minor injury to his right knee. She acknowledged that the MRI had identified chondrosis, but stated that the applicant was independent in performing his pre-accident activities of daily living, was working at a physically demanding occupation, and enjoyed scuba diving and skiing.¹⁶ It appears that she considered the chondrosis to be a minor injury because it did not cause any functional impairments. Dr. Rabinovitch drafted a second addendum report dated January 31, 2022 based on her review of further documents. Her opinion did not change.

36I agree with the applicant that Dr. Rabinovitch’s opinion regarding the applicant’s right knee injury is premised on an incorrect fact: that the chondrosis did not interfere with the applicant’s ability to perform activities of daily living, work, scuba dive or ski. However, the applicant consistently reported to the s. 25 assessors, the s. 44 assessors (including Dr. Rabinovitch herself), and Dr. Mason that his injuries had severely interfered with these activities. In particular:

a. His right knee pain was exacerbated by physical activity, especially going up or down stairs.

b. Before the accident, he worked long hours and performed physically demanding tasks as the owner and operator of a restaurant. After the accident, he worked significantly reduced hours and was limited to less strenuous tasks.

c. Before the accident, he had been an avid scuba diver and skier. After the accident, he was unable to resume these activities, as well as outdoor maintenance tasks such as shovelling snow.

37Dr. Rabinovitch’s statement that the chondrosis did not cause functional impairment appears to be an error, and not a change of opinion. Her initial report noted that the applicant reported working shorter hours and having been unable to resume scuba diving, skiing, and outdoor maintenance activities.¹⁷ Nothing in the August 12, 2021 addendum suggests that she had reconsidered whether this was the case.

38I conclude that the applicant’s right knee chondrosis is a non-minor injury that removes him from the MIG. Having made this finding, it is unnecessary to consider whether the applicant’s other injuries are minor injuries.

Is the Applicant Entitled to the Medical Benefits at Issue?

39Given that the applicant suffered a non-minor injury, he is not subject to the $3,500.00 limit on medical and rehabilitation benefits. He submits that he is entitled to benefits for physiotherapy, chiropractic services, massage therapy, Depo-Medrol injections for his right knee, psychological services, and social work counselling.

40I find that the applicant has established that he is entitled to the Depo-Medrol injections, but not the other benefits at issue.

Physiotherapy, Chiropractic, and Massage Therapy Services (Issues 2(a), (e) and (f))

41The applicant submits that he is entitled to benefits for a combination of chiropractic, physiotherapy, and massage therapy services in three OCF-18s. The respondent denied the benefits in reliance on Dr. Rabinovitch’s opinion that the MIG applied. I agree with the applicant that this was incorrect, but he still must prove that the benefits are reasonable and necessary. He has provided very little evidence to establish that they are.

42The applicant argues that Dr. Daiter recommended he obtain physiotherapy, and that he obtained physiotherapy, chiropractic services, and massage therapy from 2018 to 2020.¹⁸ This evidence is insufficient to meet his burden of proof. Dr. Daiter’s recommendation supports the general proposition that that the applicant may benefit from physiotherapy, but it does not establish that the services proposed in the OCF-18s are reasonable and necessary. Nor does the fact that the applicant obtained physiotherapy, chiropractic services, and massage therapy in the past.

Depo-Medrol Injections for the Right Knee (Issue 2(d))

43The applicant submits that he is entitled to benefits for Depo-Medrol injections to relieve pain in his right knee. He argues that a similar injection on May 27, 2021 was observed to be effective.

44The respondent submits that the injections should be assessed according to the criteria set out in General Accident Assurance Co. of Canada v Violi, 2000 CarswellOnt 3453 at para 12, [2000] OFSCID No 171 (FSCO App): whether the treatment goals are reasonable, whether these goals will be met to a reasonable degree, and the reasonableness of the overall cost of achieving these goals. I find that these considerations strongly indicate that the injections are reasonable and necessary:

1. It is well settled that relieving pain and improving functionality are reasonable treatment goals: Violi at paras 14-15. The respondent submits that pain relief should not encourage inappropriate or indefinite dependency. Given that the applicant has received only one injection so far, this is not a serious prospect.

2. The May 27, 2021 injection proved to be effective at meeting the treatment goals for at least five months. According to Dr. Mason’s clinical notes, the applicant immediately felt an improvement after the injection, and reported on August 11 and October 21, 2021 (the last date recorded in Dr. Mason’s clinical notes) that he continued to feel less pain, and had increased tolerance for walking up and down stairs and other activities.¹⁹

3. At $603.44, the cost of the proposed treatment is reasonable.

Social Work Counselling and Psychological Services (Issues 2(b) and (c))

45The applicant submits that he is entitled to benefits for social work counselling and psychological services to treat the impact of his injuries on his mental health. I find that he has not established that these proposed treatments are reasonable and necessary.

46The OCF-18s proposing these treatments were submitted on June 12, 2018 and July 31, 2018. The only supporting evidence filed by the applicant is Ms. Malcolm’s social work assessment of August 3, 2018, and the notes from her counselling sessions with the applicant on October 2 and December 6, 2018. Dr. Lamarche conducted a s. 44 assessment on January 30, 2019 and drafted a report dated March 7, 2019. She opined that the treatments were not reasonable and necessary because the applicant did not meet the full diagnostic criteria for any psychological disorder.

47There is no evidence about the applicant’s mental health after January 30, 2019. During that period, he underwent a series of tests and assessments for his physical injuries, and received treatment for them from Dr. Daiter and Dr. Mason.

48Absent evidence of the applicant’s mental health after January 30, 2019, I cannot assess the status of his psychological symptoms and whether social work counselling and psychological services would be appropriate. Consequently, I find that the applicant has not established that the proposed benefits are reasonable and necessary.

Is the Applicant Entitled to an Award?

49The applicant seeks an award under s. 10 of Regulation 664. He submits that the respondent unreasonably withheld and delayed payments because it denied benefits for documented impairments and did not assess the significance of his right knee chondrosis in good faith. I disagree.

50An award under s. 10 is calculated with respect to the benefits and interest to which the applicant is entitled under the Schedule. Given my finding that the applicant is entitled to $603.44 for Depo-Medrol injections, he can only obtain an award with respect to that amount.

51Unreasonable behaviour by an insurer in withholding or delaying payments can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate: Malitskiy v Unica Insurance Inc, 2021 ONSC 4603 (Div Ct) at para 46.

52The respondent denied benefits for the Depo-Medrol injections in reliance on Dr. Rabinovitch’s opinion that the applicant’s right knee chondrosis was a minor injury. Her opinion is based on the incorrect premise that the applicant’s injuries did not interfere with his work or other activities. This is puzzling given that it is the opposite of what she recorded in her initial report. The respondent arguably ought to have noticed this error, but I am not persuaded that its conduct rises to the level of unreasonably withholding or delaying payment.

53Given that Dr. Rabinovitch did not have the August 6, 2020 MRI and other documents for her original report, the respondent arranged for her to draft an addendum. In the August 12, 2021 addendum, she acknowledged that the MRI had identified chondrosis in the applicant’s right knee, and gave an explanation for why she thought it was a minor injury. While this explanation was flawed, I am not persuaded that this would have been obvious to a reasonable person in the respondent’s position. First, given that the August 6, 2020 MRI was not the sole focus of the two addenda, it may not have stood out as clearly as it does in hindsight. Second, because the MRI report is written in medical jargon, the significance of its findings may not have been readily apparent to the lay reader. Third, the reader must have a high level of familiarity with Dr. Rabinovitch’s first report to notice the inconsistency regarding the applicant’s ability to work, scuba dive and ski, and perform outdoor maintenance tasks.

54Although it was an error to rely on Dr. Rabinovitch’s report, it does not reveal that the respondent assessed the significance of the applicant’s chondrosis in bad faith, and cannot be characterized as excessive, imprudent, stubborn, inflexible, unyielding or immoderate conduct. I therefore find that the applicant is not entitled to an award under s. 10.

Is the Applicant Entitled to Interest?

55The applicant is entitled to interest with respect to the Depo-Medrol injections pursuant to s. 51 of the Schedule.

CONCLUSION AND ORDER

56As the applicant has sustained a non-minor injury, he is not limited to $3,500.00 in medical and rehabilitation benefits.

57The applicant is entitled to benefits in the amount of $603.44 for the Depo-Medrol injections proposed in the OCF-6 dated May 27, 2021, with interest pursuant to s. 51 of the Schedule;

58The applicant is not entitled to an award.

Footnotes

1. 1O Reg 34/10.
2. 2RRO 1990, O Reg 664: Automobile Insurance.
3. 3MRI Report, dated August 6, 2020. Applicant’s Book of Documents, Tab B6 at 149.
4. 4Clinical Notes and Records (“CNRs”) of Dr. Mark Mason, dated May 14, 2021. Applicant’s Book of Documents, Tab B12 at 272.
5. 5CNRs of Dr. Ken Daiter, dated April 23, May 4, June 5, 2018. Applicant’s Book of Documents, Tab B11 at 266-270.
6. 6Durham Ultrasound Report, dated April 23, 2018; Whitby Medical X-Ray & Ultrasound Reports, dated April 28, 2018, June 26, 2018. Respondent’s Book of Documents, Tabs 2, 3, 10.
7. 7Supra note 3.
8. 8Dr. David Lipson, Independent Physiatry Assessment Report, dated June 10, 2020. Applicant’s Book of Documents, Tab E9 at 571-572.
9. 9Disability Certificate (OCF-3), dated June 5, 2018. Applicant’s Book of Documents, Tab B1 at 23.
10. 10Dr. Ken Daiter, Consultation Request, dated June 25, 2020. Applicant’s Book of Documents, Tab B7 at 154.
11. 11Supra note 8 at 565.
12. 12Ms. Amanda Malcolm, Social Work Assessment and Treatment Plan, dated August 3, 2018. Applicant’s Book of Documents, Tab B23 at 327.
13. 13CNRs of Dr. Mark Mason, dated March 15, 2021. Applicant’s Book of Documents, Tab B7 at 159.
14. 14Supra note 4.
15. 15Dr. Deborah Rabinovitch, Physiatry Independent Medical Evaluation, dated June 2, 2021. Respondent’s Book of Documents, Tab 15 at PDF page 71.
16. 16Dr. Deborah Rabinovitch, Physiatry Addendum, dated August 12, 2021. Respondent’s Book of Documents, Tab 16 at PDF page 81.
17. 17Supra note 15 at PDF page 65.
18. 18CNRs of Dr. Ken Daiter, dated June 5, 2018, June 26, 2020, August 26, 2020, and February 23, 2021; CNRs of Stevens Chiropractic Clinic; CNRs of Whitby Physiotherapy and Rehabilitation. Applicant’s Book of Documents, Tabs B3, B4, B19 at 299-303;.
19. 19CNRs of Dr. Mark Mason, dated May 27, 2021, August 11, 2021, October 21, 2021. Applicant’s Book of Documents, Tab B7 at 165, 169, 186-187.```