Rowe v. Economical Mutual Insurance Company, 2022 CanLII 93717

Citation: Rowe v. Economical Mutual Insurance Company, 2022 ONLAT 20-010448/AABS

Licence Appeal Tribunal File Number: 20-010448/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:

Patsy Rowe

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Adam Somogyi, Counsel

For the Respondent:

Mai T. Nguyen, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Patsy Rowe, (“the applicant”), was a seat-belted driver of a motor vehicle involved in accident on December 5, 2018. The applicant hit her head on the roof of the vehicle but did not lose consciousness. Air bags deployed as a result of the collision. She attended Lakeridge Hospital the following day and was diagnosed with a bilateral trapezius myofascial strain and left quadricep strain. She was directed to take Tylenol for pain and discharged from hospital.

2The applicant received chiropractic and physiotherapy treatment for her accident-related impairments. The applicant has exhausted the $3,500.00 limit pursuant to the Minor Injury Guideline (“MIG”).

3The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by Economical Mutual Insurance Company, (“the respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

4The following issues are in dispute:

i. 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?

ii. Is the applicant entitled to a medical benefit in the amount of $2,516.89 for chiropractic services recommended by Dr. Dimakis in a treatment plan (“OCF-18”) dated September 20, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $2,264.00 for a chronic pain assessment recommended by Dr. Wilderman in a plan dated May 1, 2020?

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

RESULT

5I find:

a. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit and in the MIG;

b. The OCF-18 for chiropractic services and a chronic pain assessment are not reasonable and necessary as the $3,500.00 MIG treatment limit has been exhausted;

c. No interest is payable.

ANALYSIS

The Minor Injury Guideline

6The 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.

7Section 18(1) limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding 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 or if they provide evidence of an injury that is not included in a “minor injury”, such as a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹

8Neither party disputes that the applicant suffered soft tissue injuries in the accident, including neck pain and sprain/strain of the shoulder. These injuries fall squarely within the definition of a minor injury as defined in s. 3(1) of the Schedule. However, the applicant submits she suffers from chronic pain syndrome, which removes her from the treatment limits of the MIG.

Chronic Pain and the MIG

9The applicant must demonstrate on a balance of probabilities that her functionality has been affected in order to be removed from the MIG. In this matter, I have been provided little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on her functionality

10The applicant refers to the American Medical Association Guides (“AMA Guides”)² in attempting to establish the applicant suffers chronic pain as a result of the accident in this case. The AMA Guides state that at least three of the following criteria must be met for a diagnosis:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) 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

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

11These criteria can provide helpful guidance as an interpretative tool for understanding how pain affects an individual’s functional capacity.

12The applicant reported pain in her neck, bilateral shoulder pain, and dizziness.³ The clinical notes and records of her Family Physician, Dr. Janet Krulewitz, demonstrate a pattern of reported neck soreness and shoulder pain eight times in the period between December 7, 2018 and May 28, 2021.⁴

13An ultrasound of the applicant’s left shoulder, conducted on February 16, 2019, detailed a small amount of fluid in the subacromial/subdeltoid bursa – raising the possibly of bursitis. Otherwise, there was no evidence of definitive rotator cuff tear and impingement was negative.⁵ Similarly, an x-ray conducted on February 17, 2019 of the applicant’s left shoulder indicated “very mild degenerative changes”.⁶

14On March 25, 2019 Dr. Krulewitz reviewed a CT scan of the applicant’s lower back which indicated erosive sacroiliitis. Dr. Krulewitz also conducted an examination whereby the applicant exhibited tenderness at SI joint of her lower back. A referral was made to a Rheumatologist.⁷ The applicant was examined by Dr. Shelly Dunne, Rheumatologist, on May 1, 2019. Dr. Dunne indicated the applicant was complaining of pain in the left SI joint area. The applicant reported inconsistent morning stiffness, no pain that kept her awake at night, and did not require pain medications. Dr. Dunne noted no inflammatory changes in any of her joints, good range of motion in her cervical and lumbar spines. She concluded that the symptoms were not particularly suggestive of inflammatory spondylitis, and her symptoms were not severe enough to warrant treatment. Clinical monitoring was recommended.⁸

15The applicant sought treatment from The Physio Clinic of West Durham. The initial evaluation form dated December 11, 2018 indicated a diagram with pain in the neck regions. However, by April 25, 2019 the treatment records indicated the applicant “feels better; full ROM [range of motion] without pain”.⁹ By May 9, 2019 the records indicated the applicant was “feeling better from shoulder; she has full ROM without pain” and tolerated exercises very well.¹⁰

16The applicant relies primarily on the Chronic Pain Medical Assessment Report by Dr. Igor Wilderman, Pain Specialist, dated July 15, 2020. The applicant reported neck pain, bilateral shoulder pain, dizziness as part of the assessment. Upon examination he noted significant tenderness in the upper spinal vertebrae and paraspinal muscles, and some decreased range of motion in her neck.¹¹ When examining her shoulders, he noted no swelling, asymmetry, deformity, or wasting muscle.¹² He noted that she no longer participates in activities of daily living including attending the gym, bike rides, and going dancing with friends, due to her ongoing symptoms. Her housekeeping and home maintenance functions were also impacted as she required assistance grocery shopping and was no longer able to move furniture or clean windows. Employed as a full-time caretaker, the applicant reported she struggled to perform numerous tasks, including heavy lifting and overhead reaching, often requiring assistance from colleagues. Dr. Wilderman noted the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment due to pain.¹³

17Dr. Wilderman undertook psychometric testing as part of his assessment. Nothing that her test results revealed moderate anxiety, mild depression, and moderate symptoms of post-traumatic stress disorder (“PTSD”). Utilizing the American Medical Association Guides, 4th Edition, he highlighted eight criteria in assessing whether a person suffers from chronic pain syndrome. He noted the applicant met six of the eight criteria. As a result, he diagnosed her with chronic pain syndrome, chronic whiplash disorder (WAD) type II, bilateral impingement syndrome of the shoulder, bilateral rotator cuff syndrome, post-traumatic osteoarthritis of the acromioclavicular joint on the right, bilateral myofascial pain syndrome of the rhomboid region, depression, anxiety, and PTSD.¹⁴ He noted her prognosis was guarded, as her degree of functional limitation is considered serious, as it interferes with a substantial amount of her pre-accident activities and employment. Dr. Wilderman concluded, given the applicant’s chronic pain condition with a psychological component, her injuries fall outside of the MIG.¹⁵

18The respondent relies on the Insurer’s Examination (“IE”) Report of Dr. Mohamed Khaled, General Practitioner, dated November 29, 2019. The applicant reported shoulder and neck pain, aggravated by activity, bending, lifting or carrying, and overuse. Her reported recovery from these symptoms was 26-50% post-accident.¹⁶ Examination of the applicant’s cervical spine was normal, including no spasm, wasting, or atrophy identified. She had full functional range of motion with mild-end range pain. Her lumbosacral spine was also normal upon examination, noting no spasm, wasting, or atrophy identified, and no tenderness on palpation. He diagnosed the applicant with grade 2 whiplash of the neck with associated shoulder sprain/strain, noting these were uncomplicated soft-tissue injuries. These symptoms were benign and there was no evidence of overt pathology or disability that could be attributed to the subject accident.¹⁷ Finally, Dr. Khaled indicated that these sprains and strains were considered minor injuries as per the Schedule and could be treated within the MIG.¹⁸

19When I examine the AMA Guides, 6th Edition, I am not satisfied the applicant has demonstrated a functional impairment with regard to three of the six criteria. Although there has been a diagnosis of chronic pain, there must still be evidence of a functional impairment. Given the evidence before me, I can identify only two potential criteria of the six that may apply to the applicant. I have been provided with some self-reported evidence that the applicant has withdrawn from the social milieu by no longer attending the gym, going on bike rides, and going dancing with friends. Similarly, I have self-reported evidence that she is no longer able to complete all the required tasks of her employment, including heavy lifting and overhead reaching. The applicant’s employment records are not before me however, it is apparent she returned to her full-time employment as a caretaker by September 2019. Otherwise, I have been provided no evidence of an over-reliance on prescription medication, excessive dependence on health care providers, spouse, or family. I also have no evidence of secondary physical deconditioning due to disuse or fear avoidance. The reports of Dr. Wilderman and Dr. Khaled specifically indicated there was a lack of muscle wasting and/or atrophy.¹⁹ I do not place any weight upon Dr. Wilderman’s conclusions regarding the psychometric testing undertaken that identified symptoms of moderate anxiety, mild depression, and PTSD. These psychological conclusions are beyond the scope of his practice, despite being a Pain Specialist. Aside from Dr. Wilderman’s conclusions, I have no evidence of psychosocial sequelae including anxiety, fear, depression or non-organic illness behaviours.

20I place most weight upon the clinical notes and records provided. Reports of pain to Dr. Krulewitz were sporadic and inconsistent between December 2018 and May 2021. Of the eight reports of pain, four were in the immediate period following the accident, and the four others made no reference to the motor vehicle accident. The diagnostic imaging in 2019 also indicated no rotator cuff tear or impingement, only mild degenerative changes in the shoulder. Similarly, the records of The Physio Clinic of West Durham indicated the applicant’s physical condition was improving by May 2019 with full range of motion and no pain. The report of Dr. Dunne also noted the applicant was having good improvement in issues with the neck, shoulders, and lower back, demonstrated good range of motion in her cervical and lumbar spine, and her symptoms did not warrant treatment. Finally, Dr. Khaled noted only uncomplicated soft tissue injuries with residual pain, and that her injuries could be treated within the MIG.

21Only Dr. Wilderman’s report made any reference to chronic pain syndrome or a chronicity of pain symptoms as a result of the accident. Given the preponderance of the evidence, I view this report as an outlier, and place little weight upon it as a result. There is simply a lack of objective evidence in the records provided to support Dr. Wilderman’s diagnosis of chronic pain syndrome. While I do not doubt the applicant continues to suffer from some residual pain, I am persuaded that this pain is the sequelae of the soft-tissue, or minor injuries she sustained in the accident.

22Based on the evidence adduced, and in consideration of the AMA Guides, 6th Edition criteria, I find the applicant has failed to demonstrate on a balance of probabilities that her injuries fall beyond the treatment limits of the MIG. The applicant has not provided sufficient medical evidence to establish that her functionality is otherwise impaired and chronic pain is the cause of the disability.

OCF-18 and Assessment at Issue

23Given that the $3,500.00 treatment limit was previously exhausted, no additional analysis is required to determine if the treatment plan for $2,516.89 for chiropractic services, nor the $2,264.00 for a chronic pain assessment are reasonable and necessary pursuant to the Schedule.

Interest

24Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

25The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit and in the MIG;

ii. The OCF-18 for chiropractic services and a chronic pain assessment are not reasonable and necessary as the $3,500.00 MIG treatment limit has been exhausted;

iii. No interest is payable.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
2. 2American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
3. 3Applicant’s Submissions, Chronic Pain Medical Assessment by Dr. Igor Wilderman, July 15, 2020, Tab 6.
4. 4Applicant’s Submissions, Clinical Notes and Records of Dr. Janet Krulewitz, Tab 2.
5. 5Document Brief of the Respondent, EXR Medical Imaging, February 16, 2019, Tab 11.
6. 6Document Brief of the Respondent, EXR Medical Imaging, February 17, 2019, Tab 11.
7. 7Applicant’s Submissions, Clinical Notes and Records of Dr. Janet Krulewitz, March 25, 2019, Tab 2.
8. 8Document Brief of the Respondent, Rheumatology Report of Dr. Shelly Dunne, May 1, 2019, Tab 14.
9. 9Document Brief of the Respondent, Records of The Physio Clinic at West Dundas, April 25, 2019, Tab 13.
10. 10Document Brief of the Respondent, Records of The Physio Clinic at West Dundas, May 9, 2019, Tab 15.
11. 11Applicant’s Submissions, Chronic Pain Medical Assessment by Dr. Igor Wilderman, July 15, 2020, Tab 5.
12. 12Ibid.
13. 13Ibid.
14. 14Ibid.
15. 15Ibid.
16. 16Document Brief of the Respondent, Insurer’s Medical Examination by Dr. Mohamed Khaled, November 29, 2019, Tab 17.
17. 17Ibid.
18. 18Ibid.
19. 19Applicant’s Submissions, Chronic Pain Medical Assessment by Dr. Igor Wilderman, July 15, 2020, Tab 5, Document Brief of the Respondent, Insurer’s Medical Examination by Dr. Mohamed Khaled, November 29, 2019, Tab 17.