Noul v. The Co-operators General Insurance Company, 2022 CanLII 87719

Citation: Noul v. The Co-operators General Insurance Company, 2022 CanLII 87719

Licence Appeal Tribunal File Number: 20-009598/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:

Baljinder Noul

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Amanda Marshall

APPEARANCES:

For the Applicant: Francesco Blasi, Paralegal

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on November 18, 2019, and sought benefits from the respondent, The Cooperators General Insurance Company (“Co-operators”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied the treatment plans in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

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 MIG?
2. If the applicant’s injuries are not considered to be predominantly minor, i. Is the applicant entitled to a medical benefit in the amount $2,460.00 for chiropractic services recommended in a treatment plan submitted on April 15, 2020 and denied by the respondent on April 28, 2020? ii. Is the applicant entitled to an examination expense in the amount of $2,382.00 for an orthopaedic assessment recommended in a treatment plan submitted on May 2, 2020 and denied by the respondent on May 14, 2020?
3. Is the respondent liable to pay an award under s. 10 of O. Reg. 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

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. It is therefore unnecessary to consider the reasonableness and necessity of the treatment plans or the issue of interest.

4The applicant is not entitled to an award under s. 10 of O. Reg 664.

ANALYSIS

Applicability of the MIG

5The Minor Injury Guideline (“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 s. 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.”

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains impairments that are predominantly a minor injury in accordance with the MIG.

7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹

The applicant did not suffer physical injuries that warrant removal from the MIG.

9The applicant relies on the clinical notes and records (“CNRs”) of his family doctor, Dr. Rohit Nagpal who assessed the applicant on November 19, 2019. Dr. Nagpal noted the applicant was in a motor vehicle accident and is experiencing pain in this neck and back and has an abrasion on his left knee. The applicant is prescribed Tylenol and Flexoril and referred for physiotherapy. Dr. Nagpal also arranged for an x-ray which was conducted on November 25, 2019.

10A Disability Certificate was completed by Amit Patel, Physiotherapist on November 26, 2019 and the applicant’s physical injuries were identified as sprain and strain of the cervical, thoracic, lumbar spine and the shoulder joint along with temporomandibular joint disorder (TMJ), and headaches. It also noted the applicant was experiencing insomnia and stress.

11In response, the respondent submits that the applicant sustained soft-tissue injuries to his neck and back and treatment within the MIG is appropriate. The respondent relies on the Disability Certificate of November 26, 2019 and the OCF-23 (Treatment Confirmation Form) from Complete Rehab Centre. The respondent also relies on the s. 44 physiatry assessment by Dr. Farooq Ismail, Physiatrist, dated September 8, 2020 which found the applicant sustained soft tissue injuries of his cervical spine (WADII), his shoulders, and lumbar spine.²

12After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not demonstrated that his accident-related injuries warrant a removal from the MIG.

13I am persuaded by Dr. Nagpal’s CNR entry of November 19, 2018, the Disability Certificate, and Insurer Examination (IE) that the physical injuries identified are captured within the definition of minor injury. Further, the x-ray of November 25, 2019 found the applicant has multilevel lumbar spondylosis and spondylosis at C5-6 which are degenerative conditions and would not be caused by the accident. Therefore, I find that the applicant does not suffer from a physical injury that warrants removal from the MIG.

The applicant does not have a pre-existing physical condition that warrants removal from the MIG.

14The applicant contends the injuries sustained in a previous accident on June 7, 2018, along with his diabetes, coronary artery disease, and hypertension should be considered pre-existing conditions and thereby warrant removal from the MIG.

15A pre-existing condition will not automatically exclude a person’s impairment from the MIG. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, 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.

16In support of the applicant’s position of suffering from a pre-existing physical condition, he relied on the CNRs of Dr. Nagpal from June 11, 2018 which noted the applicant has severe low back pain. Diagnostic imaging was taken of the applicant’s shoulders and lumbar spine on June 15, 2018 wherein he was diagnosed with osteoarthritis in both shoulders. The CNRs also provided information about the applicant’s diabetes monitoring.

17The respondent acknowledges the applicant has prior health conditions but contends the applicant provided no compelling evidence that he requires further treatment due to his diabetes or other chronic conditions.

18After considering the submissions of the parties, based on the balance of probabilities, while I find that the applicant has demonstrated that he has pre-existing physical conditions, he has failed to prove that his physical conditions were exacerbated or prevent maximal medical recovery if he is confined to the MIG. My reasons are as follows:

i. The applicant visited his doctor a day after the accident. His doctor prescribed medication and suggested he attend physiotherapy which the applicant did.

ii. The applicant did not visit his doctor again until January 9, 2020. While Dr. Nagpal’s written records are difficult to decipher, it states that the applicant is attending physiotherapy two times per week and feels better³.

iii. The CNRs of Dr. Nagpal’s from June 10, 2020 state that the applicant has low back pain but not continuous. Worse upon lifting, pulling, and pushing. While this information was noted, no recommendations are provided nor is there any suggestion that his pre-existing physical conditions have worsened due to the accident.

iv. The applicant visited his doctor again on September 2, 2020 and October 16, 2020. These visits pertain to his diabetes monitoring.

v. There are no references in Dr. Nagpal’s CNRs that suggest the applicant’s pre-existing physical conditions were exacerbated by the subject accident or that his pre-existing physical conditions would prevent maximal medical recovery if confined to the MIG.

The applicant does not suffer from a pre-existing psychological condition that warrants removal from the MIG.

19The applicant submits that he was depressed and suicidal prior to the accident. He relies on the clinical notes and records of Dr. Nagpal from August 22, 2019 to October 23, 2019.

20As outlined above, a person may be exempt from the $3,500 cap on benefits if they have a pre-existing condition documented by a health care professional and the pre-existing condition will prevent maximal medical recovery.

21Upon review, on August 22, 2019, Dr. Nagpal referred the applicant to a psychiatrist, for counselling and prescribed Cipralex as the applicant feels depressed and anxious. He is experiencing poor sleep, drinking excessively, and has had occasional thoughts of suicide.⁴

22The applicant attended at this family doctor on August 29, 2019. The CNRs noted the applicant has an appointment for counselling today. His sleep is poor.⁵

23On October 23, 2019, Dr. Nagpal noted that the applicant feels depressed about losing his garage shop and having to have his wife work two jobs. The applicant “feels sometimes that life is not worth living”.⁶ The applicant attended at the William Osler Health System on the same day and the reason noted was “depression suicidal”. ⁷

24The applicant has demonstrated that he was suffering from a pre-existing psychological condition around the time of the accident. However, the applicant has not provided compelling medical evidence or has directed me to any evidence of such, that the pre-existing psychological condition would prevent maximal medical recovery which is what is required to be considered outside of the MIG.

The applicant does not suffer from a psychological condition as a result of the accident.

25The applicant contends that he experienced fear of driving, poor sleep, anxiety, depression, frustration, anger, irritability, sadness, and changes with concentration and focus since the accident. He relies on the CNRs of Dr. Andrew Shaul, Psychologist at Complete Rehab, the Disability Certificate dated November 26, 2019, as well as the May 21, 2020 orthopaedic consultation report of Dr. Darrell J. Ogilvie-Harris, Orthopaedic Surgeon.

26The respondent submits the applicant did not suffer a psychological condition as a result of the accident. The respondent states the information provided through the psychological pre-screen at Complete Rehab Centre as well as the applicant’s own affidavit is unreliable. Also, the applicant has not been diagnosed with a psychological condition. The applicant relies on the CNRs of Dr. Nagpal as well as s. 44 report of Psychologist, Dr. John Lee.

27I have already identified and acknowledged that the applicant was experiencing a psychological impairment around the time of the accident.

28I do not put much weight on the Disability Certificate as it was completed by a chiropractor who is not qualified to diagnose psychological conditions. I also do not put much weight on the physiatry report of Dr. Ogilvie-Harris as Dr. Ogilvie-Harris is an orthopaedic surgeon and not a psychologist.

29I find the psychological pre-screen by Dr. Shaul and the applicant’s affidavit to be inconsistent with the CNRs of Dr. Nagpal and the s. 44 assessment of Dr. Lee. The pre-screen information noted the applicant’s physical conditions of high blood pressure, diabetes, and heart issues. There are no notations about the applicant’s pre-existing psychological issues which I have already established he had.

30The applicant stated in his affidavit that he has had trouble sleeping since the accident. However, as noted in the CNRs of Dr. Nagpal on February 8, 2021, the applicant has had “poor sleep for 2 years”⁸ which predates the accident.

31The affidavit was completed on April 1, 2021, nine months after the psychological report of Dr. Lee, and states that Dr. Lee spent only 15 minutes with the applicant wherein the contemporaneous information from the psychological report records the assessment lasting two hours and twenty minutes. As such, I find the psychological assessment of Dr. Lee’s to be persuasive.

32As part of the assessment, Dr. Lee reviewed the applicant’s medical records from 2017 to 2020, interviewed the applicant, and administered three psychological tests: Pain Patient Profile; Trauma Symptom Inventory; and Million Clinical Multiaxial Inventory.

33Dr. Lee noted the applicant reported “quite explicitly and repeatedly that he did not feel he required psychological treatment related to the motor vehicle accident.”⁹ He found that the applicant did not present with a psychological impairment related to the accident that falls outside of the MIG and I agree with his findings.

The applicant does not suffer from chronic pain as a result of the accident.

34The applicant submits he suffers from chronic pain and relies on the orthopaedic report of Dr. Ogilvie-Harris. Dr. Ogilvie-Harris found the applicant had features of chronic pain syndrome.

35The respondent does not agree that the applicant suffers from chronic pain syndrome and relies on the physiatry assessment of Dr. Ismail and the CNRs of Dr. Nagpal.

36The American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition 2008, pp 23-24 (AMA Guides) identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome:

1. the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. excessive dependence on health care providers, spouse, or family;
3. secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
4. withdrawal from social milieu, including work, recreation, or other social contacts;
5. a 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
6. the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.

37The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule for chronic pain purposes. The Tribunal has adopted the use of the AMA Guides as an interpretative tool for evaluating chronic pain claims and I see no reason why I should deviate from that.

38I do not find that the applicant has three or more criteria of the characteristics of chronic pain syndrome and, therefore, removal from the MIG is not warranted. My reasons are as follows:

i. In the s. 44 physiatry report, Dr. Ismail recorded the applicant was prescribed Tylenol 3 and Lorazepam after the accident, both to be used on an as-needed basis. I note that the applicant was prescribed Lorazepam prior to the accident on August 22, 2019 for anxiety and depression as indicated from the CNRs of Dr. Nagpal. However, by August 25, 2020, in the psychological assessment of Dr. Lee, it states that the applicant is no longer taking any accident-related medications.

ii. There is no indication that the applicant has been using prescription medication beyond the recommended duration and/or abuse or dependence on prescription drugs. While there is some indication the applicant had issues with alcohol, there is no reference that his alcohol intake increased since the accident.

iii. The applicant visited his family doctor eight times from November 19, 2019 to February 8, 2021. Only three of the appointments, November 19, 2019, June 10, 2020 and February 8, 2021 were primarily to discuss the applicant’s accident-related concerns. Three visits in 15 months does not denote a dependence on health care providers. Nor was the applicant dependent on family or friends. Dr. Ismail, in the physiatry report recorded that the applicant reported he was fully independent in personal care and hygiene. The applicant has not referenced any evidence to show that he needed assistance from family or friends after the accident.

iv. The CNRs of Dr. Nagpal do not suggest that the applicant has experienced deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.

v. The s. 44 physiatry assessment vocation information section noted the applicant stopped working for two weeks after the accident but has been working since then. With respects to leisure/recreational activities, the applicant reported he attends temple and goes to the movies but stopped due to COVID.

vi. The applicant continued to work, drive and engage with family and friends after the accident. He has not developed psychosocial sequelae.

39I do not find the applicant has chronic pain that warrants removal from the MIG.

40Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required. As no benefits are overdue, no interest is payable under s. 51.

The applicant is not entitled to a Section 10 Award.

41The applicant also sought an award under s. 10 of O. Reg. 664 as the respondent failed to provide any medical evidence with respect to the denial of the treatment plans in dispute, failed to address the MIG by not taking into consideration all the available medical evidence, and did not provide the adjuster’s log notes. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

42I find an award is not appropriate. As no benefits are overdue and the applicant has not demonstrated that his impairments warrant treatment beyond the MIG, it follows that the Tribunal cannot award up to 50% of zero. In any event, I find no indication that the respondent failed to provide any medical evidence to the denials, failed to address the MIG, failed to provide the adjuster’s log notes, or unreasonably withheld or delayed the payment of benefits.

CONCLUSION

43The applicant has not demonstrated that their accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.

Footnotes

1. 1Scarlett v Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct)
2. 2Insurer’s Physiatry Evaluation of September 8, 2020, Tab 2
3. 3Dr. Nagpal CNRs, Applicant’s document brief Tab 2 page 23
4. 4Dr. Nagpal CNRs, Applicant’s document brief Tab 2 page 11
5. 5Dr. Nagpal CNRs, Applicant’s document brief Tab 2 page 9
6. 6Dr. Nagpal CNRs, Applicant’s document brief Tab 2 page 11
7. 7Dr. Nagpal CNRs, Applicant’s brief Tab 3 page 14
8. 8CNRs Dr. Nagpal, Respondent’s brief, page 29
9. 9S. 44 Psychological assessment, Applicant’s brief, Tab 13 page 14