Gardiner v. TD General Insurance Company, 2022 CanLII 78795

Citation: Gardiner v. TD General Insurance Company, 2022 ONLAT 20-009316/AABS

Licence Appeal Tribunal File Number: 20-009316/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:

Ian Gardiner

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Beverly Brooks

APPEARANCES:

For the Applicant:

Carlos A Ortiz, Paralegal

For the Respondent:

Andrez D Belloso, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Ian Gardiner, the applicant, was involved in an automobile accident on November 7, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The respondent, TD General Insurance Company, characterized the applicant’s injuries as a predominantly minor and subjected him to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit provided for a minor injury. Consequently, the applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (Tribunal).

3However, on January 3, 2019, the respondent removed the applicant from the MIG based on his “pre-existing medical condition”.¹ The correspondence does not provide any specific details about the pre-existing medical condition but the respondent’s submission states that the applicant was removed from the MIG because of “pre-existing psychological conditions”.²

4The applicant’s position is that, in addition to psychological impairment injuries, the accident caused him to suffer from functional limitation injuries as well. The applicant submits that the proposed physiotherapy treatment and chronic pain assessment are reasonable and necessary for him to attain full recovery.

5The onus is on the applicant to prove on a balance of probabilities that the proposed physiotherapy treatment and chronic pain assessment are reasonable and necessary.

PRELIMINARY ISSUES

6The respondent raised the following preliminary issues:

i. Is the applicant statute-barred pursuant to s. 55 of the Schedule, as the applicant failed to attend an insurer’s examination (“IE”)?

ii. Should certain records in the applicant’s written submission (records from the applicant’s family doctor Dr. K. Sheldon, the accident benefits file from his 2012 motor vehicle accident, his collateral benefits files from 2012 to date, all physiotherapy, psychological and other treatment records and reports from 2021 to date) be excluded as evidence because they were not provided to the respondent by the production deadline?

iii. Is the applicant barred from claiming an award under s. 10 of Regulation 664 because he failed to deliver particulars about the award to the respondent prior to delivering his hearing submissions?

ISSUES

7The following substantive issues are to be decided:

i. Is the applicant entitled to a medical benefit in the amount of $3,370.33 for physiotherapy services submitted in a treatment plan /(“OCF-18”) dated June 9, 2019 and provided by Prime & Care Health Centre?

ii. Is the applicant entitled to a medical benefit in the amount of $2,700.00 for a chronic pain assessment proposed in an OCF-18 dated July 10, 2020 and provided by Optimal Assessment Health Centre?

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

iv. Is the applicant entitled to an award pursuant to s. 10 of Regulation 664?

Result

Preliminary Issues

8I find that the application should proceed despite the applicant’s failure to attend an Insurer’s Examination Assessment (“IE”). The respondent maintains that the applicant should be barred from submitting his application because the applicant failed to attend the insurer’s psychological examination scheduled for April 28, 2021 and a rescheduled examination on July 16, 2021. The insurer, however, removed the applicant from the MIG on January 3, 2019 because of a “pre-existing condition” which the respondent identifies in its submission as a “pre-existing psychological condition”. Although the applicant has been removed from the MIG, he still has the onus of proving that the physiotherapy treatment and chronic pain assessment for which he is seeking approval are reasonable and necessary. The requested psychological IE is unrelated to the physiotherapy and chronic pain treatment plans in dispute. I find that the respondent is not prejudiced by the applicant’s failure to attend the IE because the results of the psychological IE will not prove or disprove that the physiotherapy treatment and chronic pain assessment are reasonable and necessary.

9I will not exclude specific records provided by the applicant. The records were not provided to the respondent before the production deadline. However, I will permit them because they are relevant to the issues in dispute. Instead, I will give this evidence less weight in my deliberations because the respondent has not had an opportunity to seek a medical opinion on them.

10I will not exclude the applicant’s submissions on the award under s.10 of Reg. 664. The applicant failed to provide the particulars of the claim to the respondent, as ordered by the Tribunal. However, I will permit the submissions because they are relevant to the issue but will consider the late disclosure when determining whether the applicant is entitled to an award.

11I find that the applicant failed to provide specific records to the respondent by the production deadline and the particulars of the award under s. 10 Reg. 664 as ordered by the Tribunal. I will, however, permit the application because the prejudice to the respondent is insignificant given the circumstances.

Substantive Issues

12I find that the physiotherapy treatment plan dated June 9, 2019 and the chronic pain assessment dated July 10, 2020 are not reasonable or necessary.

13Since I have found that the physiotherapy treatment plan and the chronic pain assessment are not reasonable or necessary, the applicant is not entitled to interest under s. 51 of the Schedule.

14Since I have found that the physiotherapy treatment plan and the chronic pain assessment are not reasonable or necessary, the applicant is not entitled to an award under Regulation 664.

ANALYSIS

Is the June 9, 2020 physiotherapy treatment plan reasonable and necessary?

15I find that the physiotherapy treatment plan is not reasonable and necessary.

16The physiotherapy treatment plan proposes an initial assessment; therapy, multiple body sites; exercise, multiple body sites; documentation, support activity; and document, support activity for claim form.³ The goals of the program are pain reduction, an increase in strength, an increased range of motion, a return to activities of normal living and a return to pre-accident work activities.⁴ According to the treatment plan, barriers to recovery include the applicant’s ongoing psychological and physical symptoms.⁵

17Both Dr. Y. Ko, who conducted two IEs on the applicant, and Dr. O. Bojic-Ognjenovic, psychologist, who conducted a psychological assessment at the request of the applicant, provide a medical opinion on the applicant’s physical injuries. I prefer the report of Dr. Ko to the report of Dr. Bojic-Ognjenovic as a physiatrist is more qualified than a psychologist to conduct a physical assessment especially in relation to a proposed physiotherapy treatment. Moreover, the purpose of one of Dr. Ko’s IEs conducted on August 18, 2020 and dated Sept. 18, 2020⁶ was to specifically determine whether the proposed physiotherapy treatment plan dated June 9, 2020 is reasonable and necessary.⁷ The physiatry examination conducted by Dr. Ko showed no evidence of ongoing nerve impingement.⁸ Dr. Ko’s diagnosis was that the applicant had experienced a sprain/strain of the lumbar spine and the thoracic spine.⁹ Dr. Ko opined that the physiotherapy treatment was not reasonable or necessary.¹⁰ Dr. Ko also stated that the applicant’s injuries meet the definition of a minor injury.¹¹

18The applicant has not submitted any physiatry reports in response to Dr. Ko’s assessment. He, instead, is relying on the psychological assessment conducted by Dr. Bojic-Ognjenovic.¹² Although Dr. Bojic-Ognjenovic conducted a psychological assessment of the applicant at his request, she noted that the applicant was experiencing significant pain in his neck, shoulders, back and legs at the time of the accident and that these physical symptoms have persisted. The physical functioning section of her report, however, is a very minor part of her report and is not her area of expertise.

19Dr. Ko also noted in his report that the applicant has been attending physiotherapy sessions since the accident. In the summer of 2020, the applicant started going to a new clinic where he received physiotherapy, chiropractic and acupuncture treatment once a week. However, the applicant admitted to Dr. Ko during the physiatry assessment that the physiotherapy and chiropractic treatment helped relieve his pain only for one day. It seems, therefore, that the treatments have not been very effective. It is not reasonable or necessary for the respondent to continue to fund ineffective treatment.

Is the July 10, 2020 Chronic Pain Assessment reasonable and necessary?

20I find that the chronic pain assessment is not reasonable and necessary.

21Dr. Ko diagnosed the applicant with sprain/strain of the lumbar spine and the thoracic spine. Dr. Ko deferred his opinion as to whether the treatment plan was reasonable and necessary and stated that he did not have sufficient documentation to make a final diagnosis.

22When Dr. Ko was sent additional information from the applicant’s family doctor, Dr. Sheldon, Dr. Ko issued an addendum to his September 1, 2020 IE on November 1, 2020.¹³ In this document, he stated that these new documents from Dr. Sheldon were still not sufficient to enable him to make a diagnosis.¹⁴

23In addition, the respondent submits that the applicant does not exhibit the hallmarks of a chronic pain condition that might warrant a chronic pain assessment. It submits that the applicant returned to work immediately after accident, has actively participated in sporting activities in the year following the accident and has not sought any physical treatments lately. In the January 24, 2018 notes of Melrose Physiotherapy, the applicant was “doing lots of skiing”.¹⁵ In the same notes, on February 23, 2018 and April 15, 2018, the applicant was reported as stating during his appointment that he went skiing at Tremblant and was starting to golf soon.¹⁶ Furthermore, the respondent submits that the applicant has not sought any treatments from physiotherapy clinics, medical specialists or his family doctor since December 2020.¹⁷ I agree with the respondent that the physical functionality required for activities such as downhill skiing and golfing indicates that the applicant does not suffer from a chronic pain condition.

Interest

24Interest is payable on the overdue payments, pursuant to section 51 of the Schedule.

25As there are no benefits owning, interest is not payable pursuant to s.51 of the schedule.

Award

26Section 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.

27I have found that there is no payment of benefits owing, so the applicant is not entitled to an award.

CONCLUSION

28I find that the applicant has not met his burden to prove on a balance of probabilities that the physiotherapy treatment and the chronic pain assessment are reasonable or necessary.

29The applicant is not entitled to interest or an award.

30The application is dismissed.

Footnotes

1. 1Respondent’s Submission, Letter to the Applicant, January 3, 2019, page 69.
2. 2Respondent’s Submission, page 2.
3. 3Respondent’s Submission, OCF-18, page 89.
4. 4Respondent’s Submission, OCF-18, page 87.
5. 5Respondent’s Submission, OCF-18, page 87.
6. 6Respondent’s Submission, IE Report, Dr. Ko, Physiatrist, September 1, 2020, page 108.
7. 7Respondent’s Submission, IE Report, Dr. Ko, Physiatrist, September 1, 2020, page 109
8. 8Respondent’s Submission, IE Report, Dr, Ko, Physiatrist, September 1, 2020, page 113.
9. 9Respondent’s Submission, IE Report, Dr. Ko, Physiatrist, September 1, 2020, page 113.
10. 10Respondent’s Submission, IE Report, Dr. Ko, Physiatrist, September 1, 2020, page 113.
11. 11Respondent’s Submission, IE Report, Dr. Ko, Physiatrist, September 1, 2020, page 114.
12. 12Applicant’s Submission, Psychological Assessment Report, Dr. O. Bojic-Ognjenovic, page 149.
13. 13Respondent’s Submission, IE Report, Dr. Ko, Physiatrist, November 1, 2020, page 126.
14. 14Respondent’s Submission, IE Report, dr. Ko, Physiatrist, November 1, 2020, page 128.
15. 15Respondent’s Submission, Clinical notes and records from Melrose Physiotherapy, page 19.
16. 16Respondent’s Submission, Clinical notes and records from Melrose Physiotherapy, page 18.
17. 17Respondent’s Submission, Excepts from Dr. Sheldon’s notes, page38.