Prillo v. Coseco Insurance, 2022 CanLII 93709

Citation: Prillo v. Coseco Insurance, 2022 ONLAT 20-014409/AABS

Licence Appeal Tribunal File Number: 20-014409/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:

Oscar Prillo

Applicant

and

Coseco Insurance

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Darcie Sherman, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Oscar Prillo (the “applicant”) was involved in an automobile accident on September 14, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”)¹. The applicant was denied certain benefits by Coseco Insurance (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined that 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 (“MIG”)². The respondent submits that even if these injuries are found not to be minor injuries, the disputed benefits are not reasonable or necessary.

3The applicant’s position is that his injuries sustained in the accident are not included in the minor injury definition and he submits that his chronic pain removes him from the MIG.

ISSUES IN DISPUTE

4The following issues are to be decided:

a. 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?

b. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 14, 2018 to date and ongoing?

c. Is the applicant entitled to a medical benefit in the amount of $200.00 for chiropractic services proposed by Mackenzie Medical in a treatment plan (“OCF-18”) dated December 5, 2018?

d. Is the applicant entitled to a medical benefit in the amount of $1,977.05 for chiropractic services proposed by Mackenzie Medical in an OCF-18 dated January 21, 2019?

e. Is the applicant entitled to a medical benefit in the amount of $1,384.70 for chiropractic services proposed by Mackenzie Medical in an OCF-18 dated March 14, 2019?

f. Is the applicant entitled to a medical benefit in the amount of $2,569.40 for chiropractic services proposed by Mackenzie Medical in an OCF-18 dated February 7, 2020?

g. Is the applicant entitled to a medical benefit in the amount of $2,520.00 for an orthopaedic assessment, proposed by Princeton Hills Medical Assessments in an OCF-18 dated November 22, 2018?

h. Is the applicant entitled to a medical benefit in the amount of $2,055.32 for a psychiatric assessment, proposed by Princeton Hills Medical Assessments in an OCF-18 dated November 22, 2018?

i. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment, proposed by Princeton Hills Medical Assessments in an OCF-18 dated January 31, 2020?

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

5In his written submissions for this hearing, the applicant confirmed that he was withdrawing the issue of entitlement to non-earner benefits, listed in paragraph 4(b) above. Therefore, I will not be considering the applicant’s entitlement to non-earner benefits in this written hearing.

RESULT

6I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.

7The applicant is subject to the MIG and the $3,500.00 funding limit on medical benefits. An analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted as the applicant has exhausted the funding available to him for medical benefits. No benefits are payable, and no interest is owing.

ANALYSIS

The Minor Injury Guideline (MIG)

8The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. However, an applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG (see s.18(2)) or if they provide evidence demonstrating that their injuries are not included in the minor injury definition. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG.

10The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

11Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

Are the Applicant’s Physical Injuries in the MIG and Does he have Pre-existing Injuries requiring removal from the MIG?

12Based on the medical evidence provided, I find that the applicant’s physical injuries resulting from the accident are predominantly minor injuries and fall within the MIG.

13The bulk of the applicant’s submissions relate to his various ongoing pain complaints, which will be addressed in the section below when discussing the issue of chronic pain. However, with respect to physical injuries, to establish his physical impairments, the applicant relies on the emergency records of Georgetown Hospital, which indicate that as a result of the accident, the applicant was diagnosed with a head contusion⁴.

14Further, in a Disability Certificate (“OCF-3”) dated September 20, 2018 , Dr. Preety Somal, chiropractor, assessed the applicant as suffering with sprain and strain of the cervical spine, pain in the thoracic spine, headache, muscle strain, pain and stiffness of the joint and sleep disorder.⁵ At the same time, the applicant began chiropractic, physiotherapy and massage treatment at Mackenzie Medical Rehabilitation Centre, which he continued until the MIG limits were reached.

15The applicant also submits the clinical notes and records of his family physician, Dr. Shao-Jin Li, which indicate that a month after the accident, Dr. Li diagnosed the applicant with “peri cerv strain - WAD II with headache”⁶. Dr. Li continued to subsequently assess the applicant with whiplash associated disorder (WAD II) and dorsal strain and ordered X-Ray imaging of the cervical and thoracic spine.⁷ An October 23 2018 x-ray found a mild degree of degenerative disc disease of the cervical spine and thoracic spine, but no evidence of acute fracture.⁸ Subsequent X-rays also found mild scoliosis.⁹

16The respondent submits that the applicant sustained only minor physical injuries as a result of the accident, and that Dr. Li’s diagnoses of a contusion in the left parietal area, ‘peri cerv strain and WAD II with headaches” are all soft tissue injuries and are minor in nature. The respondent further asserts that the mild degenerative disc disease found in the thoracic and lumbar spine x-rays, does not warrant the applicant’s removal from the MIG. Rather, the respondent submits that the applicant has not led any evidence to establish that the degenerative disc disease was accident related, and that in similar circumstances of mild degenerative disc disease, the Tribunal has found that the MIG applied¹⁰.

17After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not adduced sufficient objective, medical evidence that he has sustained a physical impairment from the subject accident that would remove him from the MIG.

18The physical injuries the applicant details are sprain and strain type injuries of the cervical and thoracic spine, WAD-II, muscle strain, joint pain and head contusion. These are injuries that fall squarely within the definition of minor injury as defined by s.3 of the Schedule.

19With respect to the diagnostic imaging results which indicated a mild degree of degenerative disc disease and mild scoliosis, I agree with the respondent that the applicant has not led any evidence to establish that these degenerative changes were caused or exacerbated by the accident. The CNR’s of Dr. Li indicate that in the three years prior to the accident, the applicant had intermittently complained of neck and back pain, such that Dr. Li diagnosed the applicant with neck and low back myofascial pain on March 16, 2017, more than a year before the accident¹¹. Furthermore, an x-ray dated January 2, 2018 (six months before the accident) indicated moderate degenerative disc disease¹².

20Therefore, I accept that prior to the accident, the applicant was experiencing some physical pain in his back and neck. The applicant has the onus to establish that the findings on the diagnostic imaging conducted post-accident show accident-related impairments, and not degenerative changes that existed pre-accident. I find that he has not adduced sufficient evidence in this regard.

21In addition, the applicant has not provided compelling evidence to establish that his previously reported degenerative disc disease or back and neck pain, was a pre-existing medical condition which would prevent maximum medical recovery if subjected to the MIG limits. In his reply submissions, the applicant makes a general statement that as a result of the accident, he “suffered an aggravation of his pre-existing back and neck pain”¹³.

22I accept that the applicant’s degenerative disc disease or myofascial back and neck pain was a pre-existing medical condition which was documented by medical professionals prior to the subject accident. However, the applicant has not led any evidence with respect to the final requirement of the MIG exception in s.18(2). Namely, the onus is on the applicant to establish that his pre-existing medical condition prevented him from achieving maximal recovery under the MIG limits.

23The applicant did not submit medical evidence or an opinion of a medical practitioner that draws the conclusion that the applicant’s previous back or neck impairment prevents him from achieving maximal recovery under the MIG. Although a chronic pain assessment report of Dr. Ineses Robertus states that the applicant has not achieved maximum medical recovery¹⁴, Dr. Robertus did not link this delayed recovery to the applicant’s pre-accident back and neck pain. In fact, Dr. Robertus did not acknowledge the applicant’s prior back and neck issues or list it as a pre-accident condition in the applicant’s medical history. Therefore, I find that the applicant has not met his burden of proof in this regard.

Does the Applicant have Chronic Pain that would remove him from the MIG?

24I find that the applicant has not met his onus to establish that he suffers from chronic pain as a result of his accident-related injuries that would warrant his removal from the MIG.

25To establish that he suffers from chronic pain, the applicant relies in large part on the chronic pain assessment report of Dr. Inese Robertus, a family physician focused on interventional pain management, dated October 16, 2020. Dr. Robertus diagnosed the applicant with chronic pain disorder, chronic post-traumatic headaches, sprain and strain of the cervical spine, bilateral shoulder, thoracic spine, lumbar spine, anxiety, post-traumatic insomnia, post-traumatic fatigue and post-traumatic stress disorder (“PTSD”) which was to be correlated by a psychologist¹⁵. The applicant also asserts that the CNR’s of Dr. Li establish that he continued to suffer from headaches and ongoing pain to the neck, back and shoulder for years after the accident, and also demonstrate that the applicant suffers from chronic pain requiring removal from the MIG.

26The respondent disputes that the applicant suffers from chronic pain, arguing that his pain complaints to Dr. Li were infrequent, sporadic in nature and were not dissimilar to his reports of pain prior to the accident. In addition, the respondent questions the chronic pain assessment report of Dr. Robertus noting that Dr. Robertus did not review Dr. Li’s CNR’s and as such, many of the diagnoses are inconsistent with the objective medical record. The respondent also argues that a number of the noted impairments and functional limitations listed in the chronic pain assessment report are based on the applicant’s self-reports rather than being corroborated by the medical record.

27Finally, the respondent asserts that reports of chronic pain do not in and of themselves remove an applicant from the MIG. Rather, the respondent argues the Tribunal has previously held that ongoing pain must be accompanied by some functional impairment¹⁶ and must adversely affect the individual’s well-being¹⁷. In determining this functional impairment, the respondent argues that the American Medical Association’s Guides (“AMA Guides”) definition of chronic pain syndrome should be applied. The respondent asserts that the applicant does not meet at least three of the six criteria, as required by the AMA Guides.

28Upon review of the parties’ evidence and submissions, I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain as a result of the accident.

29The applicant relies heavily on the chronic pain assessment of Dr. Robertus to establish his chronic pain. However, I agree with the respondent’s submissions that a number of the symptoms and impairments listed in Dr. Robertus’ assessment are contradicted by the applicant’s medical file.

30There is an extensive medical record encompassing numerous entries in Dr. Li’s CNRs. Dr. Li was the applicant’s family physician well before and after the accident, and the applicant regularly attended at his office for a variety of conditions, many unrelated to the accident, such as prostate cancer, high blood pressure, diabetes, high cholesterol, previous back and neck pain. Given Dr. Li’s familiarity with the applicant as his treating physician, I place substantial weight on his detailed CNRs.

31With respect to some of Dr. Robertus’ diagnoses contained in the chronic pain assessment report, namely, anxiety, post-traumatic insomnia, post-traumatic fatigue and PTSD, I do not see any examples of such mental health complaints in Dr. Li’s CNRs. Although the applicant had seen Dr. Li almost 20 times after the accident, he does not point me to a visit where he had raised mental health concerns such as PTSD or anxiety. Had the applicant been dealing with psychological impairment, I would have expected to see this reflected in Dr. Li’s CNRs.

32Dr. Robertus appears to base these mental health diagnoses in large part on the applicant’s self-reports (in addition to a PTSD screening). Given that this chronic pain assessment was conducted more than two years after the accident, and the applicant has not complained of any mental health concerns to his treating physician in the intervening two years, it does call into question the reliability of Dr. Robertus’ diagnoses.

33Similarly, with respect to Dr. Robertus’ diagnosis of chronic post-traumatic headaches, I also do not see this corroborated by the medical file. Soon after the accident the applicant complained of an occipital headache. However, I do not see similar complaints raised again to Dr. Li until December 28, 2019, more than a year post-accident. In February 2020 the applicant again complained of headaches to Dr. Li, and the CNR entry for this date notes that the applicant has had a headache for two months¹⁸. This gap of over a year in between reports of headaches contradicts Dr. Robertus’ conclusion that the headaches have been “continuous since the accident”¹⁹. Moreover, I note that the applicant had complained of headaches pre-accident as well. In 2016 he had similarly complained of headaches for a period of time and had attended at an optometry assessment in July 2016 to explore the cause of his headaches²⁰. Therefore, the medical file indicates that the applicant has intermittently complained of headache pain both pre-and post-accident.

34Finally, with respect to Dr. Robertus’ diagnosis of chronic pain disorder, Dr. Robertus concluded that the applicant’s pain arising from his shoulders, lumbar, thoracic, and cervical spine “has been continuous since the accident”²¹. I again find that this conclusion is not supported by the applicant’s medical file, namely, the CNRs of the applicant’s treating physician.

35I accept Dr Robertus’ conclusion that at the time of the assessment, the applicant self-reported pain and functional limitations and exhibited some limitations in his range of motion testing. However, I agree with the respondent’s submissions that after the applicant completed facility-based treatment in March 2019, he did not again complain of back pain until October of 2019, a gap of more than six months. In a CNR entry the following year, dated August 19, 2020, Dr. Li noted that the applicant had back discomfort for the past year, and it had started when he was ironing clothing and washing dishes²². Dr. Li did not link this pain to the accident or refer to the accident as a cause for the back pain. Therefore, I find that Dr. Robertus’ conclusion that the applicant’s pain has been continuous since the accident, is not supported by the medical records.

36Similarly, I find that the applicant has failed to adduce sufficient objective, medical evidence of the severity of his pain and his functional limitations. I agree with the respondent’s submission that an applicant is not removed from the MIG as a result of ongoing pain alone. Ongoing pain must be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on an individuals’ well-being. In terms of the AMA Guides, I find these to be a useful tool when assessing chronic pain, and have chosen to accept them.

37With respect to the severity of the applicant’s pain, the applicant has not led evidence to establish that he was consuming excessive prescription medication. In fact, the CNR’s of Dr. Li do not indicate that the applicant has had to take any prescription pain medication, rather, it appears that the applicant has only taken Tylenol or used Voltaren gel when needed. Further, it does not appear that any referrals have been made or requested to a pain specialist or for any kind of pain management or intervention.

38With respect to functional limitations, Dr. Robertus concluded in the chronic pain assessment that the applicant is unable to perform his pre-accident activities of daily living and that he cannot perform his housekeeping and home maintenance tasks. However, this appears to be based in large part upon the applicant’s self-reports, and the applicant has not led any corroborating evidence in this regard. While the CNR’s of Dr. Li indicate that beginning in October 2019 the applicant began to complain about back pain when standing and washing dishes or ironing, the applicant also reported that he felt better when he moved around a bit or used Voltaren gel or took Tylenol. The applicant did not report to Dr. Li that he was unable to do these tasks and has not led any direct, corroborating medical evidence that pain has affected his functionality.

39Finally, the applicant submits that the respondent should have conducted its own insurer’s examination assessment. While I agree with the applicant that the respondent did not conduct its own chronic pain assessment, pursuant to s.44(1) of the Schedule an insurer is not obligated to conduct its own examination of the insured person. The section simply holds that an insurer may require an examination. Moreover, I do not find that the respondent’s lack of a chronic pain assessment is determinative of the issue, given that extensive objective medical evidence has been submitted. Further, the burden of proof is on the applicant to prove entitlement, and not on the respondent to disprove it.

40Based on all of the evidence before me, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain.

41As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

Interest

42Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

43As no benefits are overdue, no interest is payable under s.51.

Award

44The applicant listed an award under s.10 of Regulation 664, as an issue in dispute, despite the fact that it was not requested by the applicant in the Application, nor listed as an issue in dispute in the Amended Case Conference Report and Order dated July 7, 2021.

45While adding the issue of an award, even at the hearing, promotes efficiency and is consistent with prior Tribunal decisions²³, I find that an award is not appropriate here. The applicant has not presented any evidence to show that the respondent unreasonably withheld or delayed payment of benefits. The medical evidence supports the respondent’s position that the applicant’s accident-related impairments do not warrant removal from the MIG.

46It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.²⁴

47In this case, since I found that no benefits were unreasonably withheld or delayed, the applicant is also not entitled to interest and/or an award under Regulation 664 as no benefits are owing and/or withheld.

CONCLUSION and order

48For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans; and;

(iii) The applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s.268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Applicant’s Submissions, Tab 5, Emergency Room Records of Georgetown Hospital, dated September 14, 2018
5. 5Applicant’s Submissions, Tab 6, OCF-3 dated September 20, 2018
6. 6Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, entry dated October 23, 2018
7. 7Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, entry dated November 13, 2018
8. 8Applicant’s Submissions, Tab 9 – X-rays of Cervical and Thoracic Spine dated October 23, 2018
9. 9Applicant’s Submissions, Tab 10 X-Ray of Cervical Spine and Thoracic Spine, dated December 28, 2019
10. 10M.J.L v. Aviva General Insurance, 2020 CanLII 42651 (ON LAT); Evaristo v. Aviva Insurance Canada, 2020 CanLII 98731 (ON LAT)
11. 11Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, entry dated March 16, 2017
12. 12Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, X-ray dated January 2, 2018
13. 13Applicant’s Reply Submissions, paragraph 3.
14. 14Applicant’s Submissions, Tab 12, Chronic Pain Assessment Report of Dr. Robertus dated October 16, 2020, page 13
15. 15Applicant’s Submissions, Tab 12, Chronic Pain Assessment Report of Dr. Robertus dated October 16, 2020
16. 1616-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ONLAT)
17. 17T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ONLAT)
18. 18Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, entry dated February 2020
19. 19Applicant’s Submissions, Tab 12, Chronic Pain Assessment Report of Dr. Robertus dated October 16, 2020, page 11
20. 20Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, entry dated June 29, 2016
21. 21Applicant’s Submissions, Tab 12, Chronic Pain Assessment Report of Dr. Robertus dated October 16, 2020, page 11
22. 22Applicant’s Submissions, Tab 8, Clinical Notes and Records of Dr. Li, entry dated August 19, 2020
23. 23See 16-004312 v Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT) at paras. 14-15 and 17-001681 v Motor Vehicle Accident Claims Fund (MVACF), 2017 CanLII 87161 (ON LAT) at paras. 9-15.
24. 2417-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) at para. 28 and S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration) at para. 39 (“S.M. v Unica”).