Prillo v. Coseco Insurance Company, 2022 CanLII 98043

Citation: Prillo v. Coseco Insurance Company, 2022 ONLAT 20-014401/AABS

Licence Appeal Tribunal File Number: 20-014401/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:

Teresita Prillo

Applicant

and

Coseco Insurance Company

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

1Teresita 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 Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in this hearing are:

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 Minor Injury Guideline?

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

iii. Is the applicant entitled to a medical benefit of $200.00 for chiropractic services proposed by Mackenzie Medical in a treatment plan dated December 5, 2018?

iv. Is the applicant entitled to a medical benefit of $1,977.05 for chiropractic services proposed by Mackenzie Medical in a treatment plan dated January 21, 2019?

v. Is the applicant entitled to a medical benefit of $1,384.70 for chiropractic services proposed by Mackenzie Medical in a treatment plan dated March 14, 2019?

vi. Is the applicant entitled to a medical benefit of $2,569.40 for chiropractic services proposed by Mackenzie Medical in a treatment plan dated February 7, 2020?

vii. Is the applicant entitled to a medical benefit of $12,497.04 for psychological services proposed by Princeton Hills Medical Assessments in a treatment plan dated November 23, 2020?

viii. Is the applicant entitled to a medical benefit of $2,520.00 for an orthopaedic assessment, proposed by Princeton Hills Medical Assessments in a treatment plan dated November 22, 2018?

ix. Is the applicant entitled to a medical benefit of $2,200.00 for a chronic pain assessment, proposed by Princeton Hills Medical Assessments in a treatment plan dated January 31, 2020?

x. Is the applicant entitled to a medical benefit of $750.00 for orthotics recommended by Princeton Hills Medical Assessments on an OCF-6 dated November 23, 2020?

xi. Is the applicant entitled to a medical benefit of $566.49 for assistive devices recommended by Princeton Hills Medical Assessments on an OCF-6 dated November 23, 2020?

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

3In her written submissions for this hearing, the applicant confirmed that she was withdrawing the issue of entitlement to non-earner benefits, listed in paragraph 2(ii) above. Therefore, I will not be considering the applicant’s entitlement to non-earner benefits in this written hearing.

RESULT

4For the reasons outlined below, I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the Minor Injury Guideline (“MIG”)².

5As the MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted. No benefits are payable, and no interest is owing.

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) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. 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 or if they provide evidence demonstrating that their injuries are not included in the minor injury definition.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

9Sections 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 Minor Injuries?

10To establish accident-related physical impairments, the applicant submits the emergency records of Georgetown Hospital, which noted that applicant attended at the hospital immediately after the accident and complained of a frontal headache and knee pain.⁴ Soon afterwards, a Disability Certificate (“OCF-3”) dated September 20, 2018, was submitted by Dr. Preety Somal, chiropractor, who opined that the applicant was suffering with sprain and strain of the cervical spine, knee, contusion, muscle strain, pain and stiffness of the joint and generalized anxiety disorder.⁵

11The applicant also submits the clinical notes and records (“CNR”s) of her family physician Dr. Lita Malig, which indicate that approximately a month after the accident, Dr. Malig assessed the applicant as suffering from a whiplash injury, low back pain and headache due to the accident⁶. In November 2018 and January 2019, the applicant again attended at Dr. Malig’s office to discuss her soft tissue strain complaints. The treatment records of Mackenzie Medical Rehabilitation Centre (“Mackenzie Medical’) indicate that the applicant received chiropractic, physiotherapy and massage treatments from September 2018, until the MIG limits were reached.⁷

12Finally, the applicant submits the chronic pain assessment report⁸ of Dr. Inese Robertus, a family physician focused on interventional pain management, dated October 16, 2020. In addition to diagnosing the applicant with chronic pain and psychological diagnoses, discussed in the sections below, Dr. Robertus diagnosed the applicant with chronic post-traumatic headaches, sprain and strain of the bilateral shoulder, contusion, sprain and strain of the left knee and sprain and strain of the bilateral hip.⁹

13I find that the applicant’s physical injuries from the accident are minor injuries and fall within the MIG, because none of the applicant’s medical reports and records indicate any physical injuries arising from the accident other than soft tissue injuries.

14From my review of Dr. Malig’s CNRs, it does not appear that diagnostic imaging was ordered immediately after the accident to substantiate any physical injury. The only reference I see to diagnostic imaging was almost two and a half years after the accident, when the applicant began to complain of right shoulder pain. A subsequent ultrasound conducted disclosed a full-thickness tear of the rotator cuff¹⁰, which led Dr. Malig to refer the applicant to an orthopedic surgeon, Dr. Vaselios Manolopoulos.

15However, neither Dr. Malig nor Dr. Manolopoulos linked this injury to the accident. In his reporting letter dated May 26, 2021, Dr. Manolopoulos states that the applicant had been experiencing shoulder pain for only two months and that it began without apparent acute injury¹¹. Given that this injury arose two and a half years after the accident, and that the applicant did not provide any medical evidence or submissions linking this shoulder injury to the accident, I find that this is not an accident-related impairment.

16The medical evidence before me that establishes the applicant had a contusion and sprain and strain type physical injuries from the accident all of which fall within the definition of “minor injury”. Although Dr. Robertus also diagnosed the applicant with chronic post-traumatic headaches, this is not corroborated by the medical record.

17In the October 2020 chronic pain assessment report, Dr. Robertus noted that the applicant had suffered from chronic post-traumatic headaches “continuously” since the accident¹². It appears that this diagnosis is based solely on the self-reports of the applicant and is not corroborated by the medical record. Rather, the CNRs of the applicant’s family physician indicate that within a few months after the accident, in November 2018, the applicant reported that she was not experiencing any further headaches. The applicant only complained of headaches twice more in the three years post- accident, once on January 18, 2020 and once on June 1, 2021, despite having attended at Dr. Malig’s office numerous times for unrelated ailments.

18Therefore, I find that the applicant has not adduced sufficient medical evidence to establish, on a balance of probabilities, that she sustained chronic headaches or other physical impairments as a result of the accident that warrant treatment outside of the MIG.

19However, the applicant also submits that she suffers from chronic pain and psychological injury that removes her from the MIG, which I will now consider.

Did the Applicant Sustain a Psychological Injury as a Result of the Accident?

20Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.

21In the chronic pain assessment report dated October 16, 2020, Dr. Robertus diagnosed the applicant with anxiety, post-traumatic fatigue and post-traumatic stress disorder (“PTSD”) – to be correlated by a psychologist¹³. However, these mental health complaints are not corroborated by the medical file and appear to be based in large part on the applicant’s self-reports to Dr. Robertus.

22In the three years post-accident, the applicant did not report any mental health concerns to Dr. Malig, despite attending at her office numerous times for check ups and consultations. In fact, in a number of these visits, Dr. Malig appeared to specifically review psychological factors as part of the check up and noted - “N/A” or “no complaints”¹⁴. No psychological diagnosis or referral was ever made by Dr. Malig nor did the applicant ever request or mention such.

23At the time of the chronic pain assessment, meaning September 2020, the applicant had visited Dr. Malig’s offices twice, once for a check up, and once with respect to a viral gastrointestinal complaint. In the September 1, 2020 visit, Dr. Malig noted that psychological factors affecting diabetic care were reviewed, and none were found. In the September 8, 2020 visit, the applicant reported that she had good energy, sleep and was feeling happy. It is difficult to reconcile these self-reports of feeling happy and well-rested, with Dr. Robertus’ diagnoses of anxiety, post-traumatic fatigue and PTSD, only a few weeks later.

24Given that the totality of the medical record and the contemporaneous reporting to her family physician do not substantiate any mental health concerns, I find that the applicant has not led sufficient evidence to establish that she sustained a psychological impairment as a result of the accident.

Did the Applicant Sustain Chronic Pain as a Result of the Accident?

25The applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove her from the MIG. The objective medical evidence submitted by the applicant does not show, on a balance of probabilities, that her accident-related injuries developed into a chronic pain condition.

26To establish chronic pain, the applicant relies on the diagnosis of Dr. Robertus. In the chronic pain assessment report dated October 16, 2020, Dr. Robertus assessed the applicant as suffering from “disabling pain for 25 months” and having continuous pain in her shoulders, left knee, hips and headaches, leading to a diagnosis of chronic pain disorder.¹⁵ I agree with the respondent’s submissions that the objective medical record of the applicant’s family physician does not indicate ongoing pain post-accident.

27The CNRs of Dr. Malig and the treatment records of Mackenzie Medical indicate that in the months immediately after the accident, the applicant complained of, and received treatment for, neck, knee and back pain and headaches. However, after this initial stage, the applicant did not continue to report ongoing accident-related pain to Dr. Malig. The only additional pain complaints in the year and a half leading up to the chronic pain assessment report, were with respect to bladder pain¹⁶, and a mild headache that the applicant attributed to “cell phoning”¹⁷. The applicant does not provide any supporting evidence that after she completed her physical rehabilitation treatment at Mackenzie Medical, she reported ongoing accident-related pain to her primary care providers. In addition, the applicant did not appear to take any prescription pain medication or require a referral for pain management or intervention.

28The only evidence of functional impairment the applicant directs me to is contained in the chronic pain assessment report of Dr. Robertus. However, I agree with the respondent’s submissions that Dr. Robertus’ finding of functional impairment was based solely on the applicant’s self-reports and is not corroborated by the objective medical record. Moreover, the substantial majority of the applicant’s range of motion testing conducted by Dr. Robertus, was within normal limits. Therefore, based on the evidence before me I am not persuaded that the applicant is suffering from functional impairment as a result of chronic pain.

29Given the lack of contemporaneous medical evidence supporting any ongoing pain complaints or functional limitations, I find that the applicant has not met her evidentiary burden to prove that she suffers from chronic pain, sufficient to warrant removal from the MIG.

30As I have found that the applicant has failed to prove that her 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

31Section 51(1) 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.

32As no benefits are overdue, no interest is payable under s.51.

Award

33In her submissions, the applicant includes an award under s.10 of Regulation 664, as an issue in dispute. The respondent disputes the inclusion of an award, as it was not requested by the applicant in the Application¹⁸, nor listed as an issue in dispute in the Amended Case Conference Report and Order dated July 7, 2021¹⁹.

34As I have both parties’ positions on the merit of the applicant’s claim for an award, I will consider this issue. Further, adding the issue of an award to the issues in dispute, even at the hearing, promotes efficiency and is consistent with prior decisions of the Tribunal²⁰.

35However, I do not find that the applicant is entitled to an award, as I have determined that she has sustained a minor injury. In addition, I find that the respondent properly considered the medical evidence in adjusting the applicant’s file. Further, I do not find that the respondent unreasonably withheld or delayed payment of any benefits.

ORDER

36For 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. Malig, entry dated October 12, 2018
7. 7Applicant’s Notes, Tab 7 – Treatment Records of Mackenzie Medical Rehabilitation Centre
8. 8Applicant’s Submissions, Tab 9, Chronic Pain Assessment Report by Dr. Inese Robertus
9. 9Applicant’s Submissions, Tab 9, Chronic Pain Assessment Report by Dr. Inese Robertus
10. 10Applicant’s Submissions, Tab 8 – Clinical Notes and Records of Dr. Malig, Ultrasound dated April 10, 2021
11. 11Applicant’s Submissions, Tab 8 – Clinical Notes and Records of Dr. Malig, Reporting Letter of Dr. Manolopoulos dated May 26, 2021
12. 12Applicant’s Submissions, Tab 9, Chronic Pain Assessment Report by Dr. Inese Robertus, page 10.
13. 13Applicant’s Submissions, Tab 9, Chronic Pain Assessment Report by Dr. Inese Robertus
14. 14Applicant’s Submissions, Tab 8 – Clinical Notes and Records of Dr. Malig, entries dated April 27, 2019, November 16, 2019, January 18, 2020, September 1 and 8, 2020
15. 15Applicant’s Submissions, Tab 9, Chronic Pain Assessment Report by Dr. Inese Robertus, page 10
16. 16Applicant’s Submissions, Tab 8 – Clinical Notes and Records of Dr. Malig, entry dated March 31, 2020
17. 17Applicant’s Submissions, Tab 8 – Clinical Notes and Records of Dr. Malig, entry dated January 18, 2020
18. 18Applicant’s Submissions, Tab 2, LAT Application dated December 4, 2020
19. 19Applicant’s Submissions, Tab 3, Amended Case Conference Report and Order, dated July 7, 2021
20. 20See 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.