Testa v. TD General Insurance Company, 2022 CanLII 98058

Citation: Testa v. TD General Insurance Company, 2022 ONLAT 20-006447/AABS

Licence Appeal Tribunal File Number: 20-006447/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:

Fabio Testa

Applicant

and

TD General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Patrick D’Aloisio, Counsel

For the Respondent: Brendan Lanigan, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on June 11, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016¹). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be decided by the Tribunal:

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 medical benefits proposed by VIP Health Care Clinic Limited in the following treatment plans (OCF-18s): a) $1,452.81 for chiropractic treatment submitted August 10, 2018; b) $3, 303.76 for chiropractic treatment submitted October 29, 2018; c) $1,272.81 for chiropractic treatment submitted January 16, 2019; d) $1,944.93 for psychological treatment submitted March 14, 2019; e) $2,172.81 for chiropractic treatment submitted April 8, 2019; f) $1,512.81 for chiropractic treatment submitted August 14, 2019; g) $2,013.75 for medical services submitted by invoice (OCF-6) and denied on August 10, 2018?

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

LAW

3Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

4Sections 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an insured so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the insured as a result of the accident.

5Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of their medical and rehabilitation benefits payable shall not exceed $3,500.00.

6Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an insured provides compelling medical evidence that they have a pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the MIG funding limit.

7Section 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.

8The onus is on the applicant to show that his injuries fall outside of the MIG.²

EXCLUSION FROM THE MIG

Does the applicant have any pre-existing conditions?

9The applicant argued that he should be removed from the MIG on the basis of his pre-existing conditions preventing him from reaching maximum medical recovery if confined to the MIG’s monetary limits.

10The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

Submissions and Evidence

11The applicant submitted that he suffers from pre-existing conditions that prevent him from reaching maximum medical recovery if confined to the monetary limit of the MIG. The applicant argued that before the accident, he was diagnosed with depression, hypertension, dyslipidemia, chronic neck discomfort and headaches. The applicant also submitted he has received bilateral carpal tunnel surgeries and fissure repair.

12The applicant relied on the matter of 17-002565 v Aviva Insurance Company of Canada³, which the applicant argued dealt with an injured person who had similar, pre-existing health conditions including high blood pressure. The applicant submitted that similarly to this matter, his pre-existing impairments have been exacerbated as a result of his accident-related injuries, which poses an active barrier to recovery for the applicant and prevent him from achieving maximal medical recovery under the MIG.

13To support this position, the applicant relied on the clinical notes and records⁴ of Dr. Jack Sussman, family doctor, which the applicant alleged state that the applicant has a history of depression, chronic neck discomfort and headaches⁵.

14The applicant submitted that he visited Dr. Sussman after his accident with complaints of neck and back pain and daily headaches⁶. The applicant submitted that due to his upper body complaints, he was subjected to an x-ray of his cervical spine, which found mild degenerative disk diseases at his C3-C4 and C5-C6 vertebrae, with “right inter vertebral foramen narrowing at these levels”⁷.

15The applicant also relied on the clinical notes and records⁸ of his subsequent family physician, Dr. Jennifer Mejule, where the doctor diagnosed the applicant with cervical spinal osteoarthritis. The applicant submitted that he later had magnetic resonance imagining (“MRI”) done on his spine, which found that the applicant had a diffuse, bulging of his C3-C4 vertebrae, with spondylitis disease on his right side causing right lateral recess and moderate foraminal stenosis. The applicant also submitted that this MRI showed a small, central bulge of his C4-C5 disks, with right sided spondylitis causing mild foraminal encroachment.

16The applicant submitted that Dr. Mejule reviewed the applicant’s MRI and opined⁹ his pain was likely related to his canal stenosis in his C3-C4 vertebrae and was referred to a spinal specialist.

17The applicant also relied on the clinical notes and records¹⁰ of his paramedical clinic, where the applicant received the following treatments: physiotherapy, chiropractic services, acupuncture and active-based rehabilitation. The applicant submitted that though these treatments provided some pain relief, the applicant reported¹¹ that his symptoms were worsening over time and his upper body pain was now radiating into his lower body and impeded the applicant from being able to sit and stand for prolonged periods of time and climbing stairs.

18The applicant also submitted that at the time of his accident, he was not working due to recovery from his anal fissure surgery, creating another barrier to his recovery.

19The respondent disagreed that the applicant’s pre-existing medical condition warranted removal from the MIG. The respondent also argued that the applicant has the onus of showing that said condition prevents him from reaching maximum medical recovery if confined to the MIG and has not done so.

20In terms of Dr. Sussman’s pre-accident clinical notes and records, the respondent submitted that though Dr. Sussman acknowledged the applicant experienced pre-accident neck discomfort¹², the doctor’s notes did not say if or how this pre-existing issue would impact the applicant’s recovery or prevent him from reaching maximum medical recovery if confined to the MIG.

21Furthermore, the respondent submitted that though the applicant visited his family doctor after his accident and was diagnosed with “acute neck strain¹³”, the doctor provided no information with respect to the MIG or the applicant’s maximum medical recovery.

22The respondent relied on further clinical notes and records of Dr. Sussman from approximately 6 months after his accident¹⁴, where the doctor noted that the applicant complained of neck pain which radiated to his upper back for 1 week with no note of injury.

23The respondent also noted that in April 2019¹⁵, Dr. Sussman noted that the applicant reported he had “improved now” and had “no further pain”. Moreover, less than a month later¹⁶, reported returning to his regular duties.

24The respondent also submitted that the applicant did not report further accident-related injuries in 2019 and nothing until October 2020 to Dr. Sussman¹⁷, despite many visits.

25The respondent also relied on the Insurer’s Examination¹⁸ (“IE”) of Dr. Yong-Kyong Michael Ko, physiatrist, which found that the applicant suffered soft tissue injuries as a result of his accident and said injuries fell within the MIG. Dr. Ko also opined that the applicant did not provide compelling evidence of a pre-existing condition that would create a barrier to the applicant’s recovery if limited to the $3,500.00 limit of the MIG. Dr. Ko also authored a Paper Review, which reaffirmed his previous findings.

26In terms of the applicant’s submissions with respect to Dr. Mejule and the diagnosis of bulging vertebra, stenosis, spondylosis and spinal degeneration, the respondent submitted that as these issues were only diagnosed in 2021, and that the applicant has not provided evidence as to when these conditions developed, nor their connection to the applicant’s accident, they should be given little to no weight.

27After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive medical evidence that as a result of his pre-existing conditions, he cannot reach maximum medical recovery if confined to the MIG.

28I agreed with the respondent’s submissions, namely that neither of the applicant’s family doctors’ commented on the applicant’s pre-existing neck issues and pain and its impact on the applicant and his recovery. Without objective, medical evidence that supports the applicant’s position, he has not fulfilled his evidentiary onus, and therefore, cannot escape the MIG’s limitations on the basis.

29In terms of the applicant’s anal fissure recovery, as I was not presented with medical evidence that spoke to the applicant’s condition as a barrier to recovery, I did not find this argument to be persuasive. The applicant also did not provide evidence that countered the findings of Dr. Ko.

30Moreover, I also agreed with the respondent’s submissions that it is curious that the applicant failed to mention his neck and back pain from 2019 to 2021. Though the applicant did complain about his pain to his paramedical health care providers, they too did not provide specific, persuasive evidence that the applicant’s pre-existing conditions prevented him from reaching maximum medical recovery.

Does the applicant have a pre-existing and accident-related psychological impairment(s)?

31The applicant also claims that he sustained a psychological injury, namely an exacerbation of his pre-existing depression as a result of the accident that place his claims outside of the MIG.

32Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. As noted above, a pre-existing condition may provide the applicant a way to be removed from the MIG, provided he is able to provide persuasive medical evidence that said pre-existing condition creates a barrier to reaching maximum medical recovery if confined to the MIG.

33The applicant submitted that before his accident, he was diagnosed with depression, which he was able to manage¹⁹. However, the applicant submitted that as a result of his accident-related pain, his depression has been amplified and therefore creates a barrier to his recovery.

34The applicant relied on the Psychological Assessment²⁰ of Dr. Rick Lindal, psychologist, which diagnosed the applicant with major depressive disorder with anxious distress, somatic symptom disorder with predominant pain and specific phobia – situational type – driving/passenger related. Dr. Lindal recommended that the applicant receive psychological treatment to restore the applicant to pre-accident functionality and should not be confined to the MIG, and that his psychological state created a barrier to recovery as it worsened the applicant’s physical pain.

35The respondent disagreed with the applicant’s position and submitted that Dr. Mejule’s clinical notes and records contradict this position. The respondent submitted that after the applicant changed family doctors in 2021²¹, he called the doctor in order to wean off his psychiatric medication. The respondent submitted that Dr. Mejule’s notes indicate the applicant reported experiencing his last anxiety attack in 2004 and none since.

36The respondent then directed the Tribunal’s attention to Dr. Mejule’s clinical notes and records from two days later²², where the applicant wanted to: “come off Celexa” and that Dr. Mejule agreed to wean him off. The doctor also noted the applicant reported he “feels well”, was “not anxious” and had no issues with his mood or sleep.

37The respondent also relied on the IE of Dr. Ralph Lubbers, psychologist, which found that--based on the doctor’s interview and psychometric testing, which found mild depression--the applicant did not meet the criteria for a Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) mental or behavioral disorder as a result of his accident. Dr. Lubbers found that the applicant’s pre-existing and current psychological conditions fell within the MIG.

38The respondent also relied on the Dr. Lubber’s subsequent IE to consider the applicant’s new medical records, and again, found that the applicant’s pre-existing and current psychological issues did not qualify for a DMS-5 diagnosis and were found to be within the MIG.

39The respondent noted that the evidence of Dr. Mejule and Dr. Lubbers contradicts the findings of Dr. Lindal, and therefore, should be preferred.

After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that his pre-existing conditions requires removal from the MIG, or that he suffered psychological injuries as a result of his accident.

40I agreed with the respondent’s submissions, namely that the applicant’s clinical notes and records of Dr. Mejule strongly contradict the findings of Dr. Lindal. I would have expected Dr. Lindal’s observations to have been supported by contemporaneous evidence from the applicant’s family doctor or psychiatric treatment provider, which was not the case.

41The applicant also failed to address these inconsistencies, nor why he was reporting feeling well and trying to wean of his psychological medication.

42I also noted that Dr. Mejule did not comment on the applicant’s pre-existing condition and any alleged psychological injuries or if either would be a barrier to the applicant’s recovery.

43Finally, when considering the findings of Dr. Lindal in contrast to those of Dr. Lubber, again, as Dr. Lubber’s findings were supported by the applicant’s family doctor’s clinical notes and records, I found them to be more persuasive. Therefore, I find the applicant has not provided persuasive evidence that his pre-existing depression and post-accident psychological injuries warrant removal from the MIG.

Does the applicant suffer from chronic pain?

44The applicant submits that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

45The applicant submitted that as a result of his accident-related injuries, he is now living with pain that impacts his day to day functioning and requires removal from the MIG.

46The applicant relied on the matter of Nova Scotia (Workers' Compensation Board) v. Martin²³, which found that there was no authoritative definition of chronic pain but it was generally considered: “pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques.”

47The applicant also relied on the matter of Ali and Ferozuddin and Certas Direct Insurance Company²⁴, where the Financial Services Commission of Ontario (“FSCO”) found that the MIG served the purpose of having insured people receive fast treatment of a short duration, within 12 weeks of the accident. FSCO also found that the MIG was not meant to address chronic pain as a clinically, associated sequelae.

48The applicant submitted that that as a result of his accident, the applicant has been suffering from long term neck pain which has not resolved after over 3 years and therefore, has become chronic and requires removal from the MIG.

49The applicant relied on the clinical notes and records of Dr. Sussman, which noted the applicant’s complaints of pain after his accident²⁵. The applicant also relied on the clinical notes and records of Dr. Mejule, which also captured the applicant’s continuous complaints of pain in 2021.

50The applicant also relied on the clinical notes and records²⁶ of his paramedical clinic, which noted the applicant’s continuous issues with pain from 2018 until 2021.

51The respondent submitted that the applicant has not met his evidentiary onus of demonstrating that he suffers from chronic pain requiring removal from the MIG.

52The respondent relied on the matter of 16-000438 v The Personal Insurance Company²⁷, which held that, for chronic pain to be considered more than sequelae from soft tissue injuries, the pain must be: “chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.”

53The respondent submitted that based on the applicant’s family doctors’ clinical notes and records, and the gap in 2019, the applicant has failed to meet his onus, as the evidence does not demonstrate that the applicant’s pain was continuous.

54The respondent submitted that the applicant has not provided evidence that discusses the applicant’s level of pain, its impact on his function, or if the pain is bearable without treatment and therefore has not shown that his pain was more than sequelae from the applicant’s soft tissue injuries.

55The respondent also observed that the applicant has not provided any medical records from his treating practitioners that discusses or diagnoses the applicant with either chronic pain or chronic pain syndrome.

56Instead, the respondent argued that the applicant only provided evidence of his self-reported pain without any medical evidence to support his position and therefore, has not shown based on a balance of probabilities that he suffers from chronic pain as a result of his accident.

57After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that as a result of his accident, he suffers from chronic pain requiring removal from the MIG.

58I agree that chronic pain is a serious condition, and I am persuaded that the applicant has been experiencing pain after his accident. I also agree that the applicant has provided persuasive evidence from this family doctors and paramedical providers that capture his continuous complaints of pain.

59I also agree that chronic pain is pain that persists beyond the normal healing time for the injury, or is disproportionate for said injury, as found in Nova Scotia (Workers' Compensation Board) v. Martin²⁸. I also agree that chronic pain was not envisioned to be treated within the MIG, as seen in Ali and Ferozuddin and Certas Direct Insurance Company²⁹.

60However, I also agreed that matter 16-000438 v The Personal Insurance Company³⁰, which considered the matter of Ali and Ferozuddin and Certas Direct Insurance Company when assessing chronic pain requiring removal from the MIG. Though I am not bound by this decision, I found this matter to be a useful decision when considering chronic pain.

61I agree that the applicant must provide persuasive medical evidence that his chronic pain must be either diagnosed as chronic pain syndrome or provide evidence that his chronic pain is continuous, severe and causing suffering and distress with a functional impairment or disability that discusses the applicant’s pain levels and impact on the applicant’s level of function, meaning medical evidence that demonstrates that the applicant’s pain consists of more than sequelae.

62In this case, I was not presented with this evidence; I was surprised that neither of the applicant’s family doctors discussed the applicant’s pain in relation to his function nor suggested that the applicant’s pain required a referral to a specialist.

63Though the applicant’s paramedical providers did comment on the applicant’s pain in general, these comments did not fully address or probe the applicant’s limitations, pain levels, or in light of his pain with objective testing or other methodologies.

64Without objective evidence coupled with a medical opinion that the applicant suffers from chronic pain, I find he has not met his onus and that his pain falls within the MIG.

65Since I have found that the applicant’s injuries are found to be within the MIG, and the parties agree that the MIG has been exhausted, I do not need to consider the disputed treatment plans.

INTEREST

66As I have found that the applicant’s injuries fall within the MIG, and no benefits are outstanding, the applicant is not entitled to interest.

COSTS

67The applicant also sought to add the issue of costs to the hearing.

68Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure – October 2, 2017, as amended (” Rules”) provides parties a way to request costs should they believe another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

69Rule 19.2 allows a party to make a written request for costs at a hearing or at any time before a decision is released. Therefore, the applicant’s request for costs is properly before me.

70The applicant submitted that based on the duty of good faith, the respondent ought to have reviewed and considered the applicant’s compelling evidence that he should be removed from the MIG nor acknowledge the severity of the applicant’s accident-related injuries.

71The respondent did not make submissions with respect to costs.

72After considering the submissions of the applicant, I find that he has not provided persuasive evidence that the respondent acted unreasonably, frivolously, vexatiously or in bad faith.

73Though it is common for parties to not agree what medical evidence demonstrates, this alone is not a basis for an award for costs. Moreover, the applicant has not provided any evidence that the respondent acted in bad faith in confining the applicant’s injuries to the MIG. Therefore, no costs are payable.

CONCLUSION AND ORDER

74The applicant’s injuries are found to be within the definition of a minor injury.

75Given that the MIG limits are exhausted, I do not need to decide whether the applicant is entitled to any of the disputed treatment plans.

76The applicant is not entitled to interest.

77The applicant is not entitled to costs.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 317-002565 v Aviva Insurance Company of Canada, 2018 CanLII 140338 (ON LAT) at paras 14, 15 and 21.
4. 4Dated May 10, 2017.
5. 5Clinical notes and records of Dr. Sussman, dated May 10, 2017.
6. 6Clinical notes and records of Dr. Sussman dated June 14, 2018.
7. 7Clinical notes and records of Dr. Sussman dated July 9, 2018.
8. 8Clinical notes and records of Dr. Mejule dated March 21, 2021.
9. 9Clinical notes and records of Dr. Mejule dated April 11, 2021
10. 10Clinical notes and records from VIP Health Care Clinic dated June 11, 2018 – May 12, 2021.
11. 11Ibid.
12. 12Clinical notes and records of Dr. Sussman, dated May 10, 2017.
13. 13Clinical notes and records of Dr. Sussman dated June 14, 2018, and July 8, 2018.
14. 14Clinical notes and records of Dr. Sussman dated January 16, 2019.
15. 15Clinical notes and records of Dr. Sussman dated April 18, 2019.
16. 16Clinical notes and records of Dr. Sussman dated October 17, 2019.
17. 17Clinical notes and records of Dr. Sussman of 2020.
18. 18Insurer’s Examination authored by Dr. Ko dated April 23, 20291.
19. 19Clinical notes and records of Dr. Sussman, dated May 10, 2017.
20. 20Psychological Assessment of Dr. Lindal dated February 1, 2021.
21. 21Clinical notes and records of Dr. Mejule dated March 8, 2021.
22. 22Clinical notes and records of Dr. Mejule dated March 10, 2021.
23. 23Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 SCR 504 at para. 1.
24. 24FSCO A13-002459 and A13-002460, March 23, 2016.
25. 25Based on the clinical notes and records of Dr. Sussman dated June 14, 2018.
26. 26Clinical notes and records from VIP Health Care Clinic dated June 11, 2018 – May 12, 2021.
27. 2716-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 28.
28. 28Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 SCR 504 at para. 1.
29. 29FSCO A13-002459 and A13-002460, March 23, 2016.
30. 3016-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 28.