Gil v. TD Insurance Meloche Monnex, 2023 CanLII 110904

Citation: Gil v. TD Insurance Meloche Monnex, 2023 ONLAT 21-008585/AABS

Licence Appeal Tribunal File Number: 21-008585/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Baljit Gil

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Joshua Gautreau, Counsel

For the Respondent: Heena Kapoor, Counsel

HEARD: By Written Submissions

OVERVIEW

1Baljit Gil (the “applicant”) was involved in an automobile accident on March 24, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by TD Insurance Meloche Monnex (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,486.00 for psychological assessment, proposed by MediAssess Evaluations Inc. in a treatment plan submitted December 10, 2019 and denied January 8, 2020?

iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by MediAssess Evaluations Inc. in a treatment plan submitted December 10, 2019 and denied January 8, 2020?

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

3The respondent also introduced in its written hearing submissions a claim for costs against the applicant.

RESULT

4For the reasons that follow, I find that:

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

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.

iii. The respondent is not entitled to costs.

ANALYSIS

The Minor Injury Guideline (“MIG”)

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that he should be removed from the MIG on three grounds:

i. he has a pre-existing medical condition that was exacerbated by the accident;

ii. he suffers from chronic pain to the neck, right shoulder, and upper/lower back as a result of the accident; and

iii. he suffers from an accident-related psychological impairment.

8In response, the respondent submits that there is no compelling evidence that the applicant’s injuries cannot be treated within the MIG. Further, the respondent denies that the applicant suffers from chronic pain and from a psychological impairment.

The applicant did not sustain injuries that warrant removal from the MIG

9For the reasons that follow, I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

Pre-Existing Condition

10The applicant submits that his history of right knee pain and Crohn’s disease prevent him from achieving maximal recovery from any accident-related minor injury if he is treated under the MIG, and as a result, he should be removed from the MIG. The applicant relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Stevenson So, and a Chronic Pain Assessment report dated February 25, 2021 completed by Dr. Grigory Karmy.

11The respondent argues that the medical evidence does not support this finding and that the applicant’s injuries can be treated under the MIG. The respondent relies on a Physiatry Examination report dated May 26, 2020 completed by Dr. Mohammed Khan, and CNRs of the applicant’s treating gastroenterologist, Dr. Imran Rasul.

12I agree with the respondent. Section 18(2) of the Schedule requires compelling evidence of a pre-existing condition documented by a health practitioner before the accident, and which prevents the achievement of maximal recovery under the MIG. Although the applicant’s right knee pain and Crohn’s disease constitute documented pre-existing conditions, the applicant has not directed me to compelling medical evidence indicating that these medical conditions prevent him from achieving maximal recovery of any accident-related minor injury under the MIG. I find that the applicant has not met this test.

13With respect to his pre-existing right knee pain, the applicant relies on Dr. Karmy’s report. This report indicates that the applicant’s condition has significantly worsened as a result of the accident and that he cannot achieve maximum medical recovery if treated within the MIG. Dr. Karmy noted that there was some tenderness over the right knee joint on physical examination; however, no additional information was provided regarding the knee examination. Dr. Karmy relied on the applicant’s self-report, and no reference was made to Dr. So’s CNRs to support his findings.

14I prefer Dr. Khan’s report. He also examined the applicant’s knees. On examination, he noted that the applicant’s range of motion was normal and symmetric, and that the orthopaedic testing of the applicant’s knees was unremarkable. Correspondingly, I accept Dr. Khan’s finding that the applicant’s pre-existing right knee pathology does not prevent him from achieving maximal recovery from his minor injuries within the MIG.

15With respect to his Crohn’s disease, the applicant has not directed me to compelling medical evidence indicating that this medical condition prevents him from achieving maximal recovery under the MIG. Further, based on CNRs of Dr. Rasul, the applicant has not complained of flare ups of this illness affecting his ability to recover from his accident-related injuries.

16Accordingly, I find that the applicant has not provided compelling evidence that a pre-existing condition is preventing his maximal recovery under the MIG as required by s. 18(2) of the Schedule.

Chronic Pain

17The applicant submits that he suffers from chronic pain as a result of the accident which warrants his removal from the MIG. He relies on the CNRs of Dr. So, prescription summaries, Dr. Karmy’s report, Dr. Khan’s report, a Psychology Assessment report dated May 26, 2020 completed by Dr. Debra Mandel, CNRs of CBI Health, and a Psychological Assessment report dated January 22, 2021 completed by Julia Kogut, a registered psychotherapist, and Dr. Peter Waxer, a psychologist.

18The respondent submits that the applicant sustained soft tissue injuries as a result of the accident that meet the Schedule’s definition of minor injury and should be treated under the MIG. The respondent also takes the position that the applicant failed to provide any evidence to substantiate that he meets at least three out of six criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6^th Edition (the “Guides”). The respondent relies on Dr. Khan’s report, Dr. Mandel’s report, and CNRs of CBI Health.

19I agree with the respondent. The evidence supports that the applicant sustained soft tissue injuries within the definition of minor injury under s. 3 of the Schedule. Further, the applicant has failed to establish on a balance of probabilities that he suffers from chronic pain as a result of the accident.

20Following the accident, the applicant experienced pain to the right side of the neck, shoulder, and upper and lower back. He was examined by Dr. So on March 25, 2019, who noted tenderness over the neck, right shoulder blade, and upper and lower back. Dr. So diagnosed the applicant with a whiplash injury, right shoulder sprain, and upper and lower back sprain. He recommended that the applicant undergo physiotherapy and massage therapy, and he gave the applicant a prescription for Tylenol #3.

21The applicant continued to experience shoulder pain, back pain, and occasionally right knee pain, all of which is documented in Dr. So’s CNRs. Further, the applicant experienced some functional limitations which resulted in the applicant carrying out less of the heavier household chores, like lifting and shoveling, and he did not return to some of his pre-accident recreational activities, like basketball. These limitations were noted by Dr. Mandel and Dr. Karmy. However, both Dr. Mandel and the applicant’s treating massage therapist, Kimberly Kent, noted that the applicant’s functional limitations were aggravated by the applicant’s return to work as a police officer. Specifically, the applicant’s gear, such as wearing a gun belt, as well as standing or sitting for an extended period of time, have aggravated the applicant’s back and shoulder pain.

22Moreover, I am not persuaded by the applicant’s medical evidence or submissions that he suffers from chronic pain. Although Dr. Karmy diagnosed the applicant with, among other things, chronic pain syndrome, he relies heavily on the applicant’s self-reporting and there is no other evidence to support his findings. Further, there is no indication of how the physical examination results were founded or how they would lead to a chronic pain syndrome diagnosis.

23Additionally, I find that the applicant has failed to demonstrate that he meets the test for chronic pain as outlined in the Guides. While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

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 working, 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 behaviours.

24I agree with the respondent that the applicant has not established that he meets three out of the six criteria set out in the Guides for establishing chronic pain. While the applicant argues that he meets five out of six criteria, specifically, criterion i, iii, iv, v, and vi above, the evidence does not support the applicant’s position. There is no evidence of abuse or dependence on prescription drugs or other substances. Similarly, the applicant has not led any evidence of secondary physical deconditioning. Also, although the applicant has not resumed playing basketball, there is no evidence that he has withdrawn from work or other social contacts or that he failed to restore pre-injury function sufficient to pursue work or family needs. Finally, while the applicant argues that he developed a psychological sequela, as noted further below, the applicant does not meet the diagnostic threshold for any DSM-5 diagnosis.

25Considering the above, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.

Psychological Impairment

26The applicant submits that psychological impairment warrants his removal from the MIG. He relies on the report of Ms. Kogut and Dr. Waxer. The respondent denies that the applicant sustained a psychological impairment as a result of the accident. It relies on the report of Dr. Mandel.

27I agree with the respondent. The applicant has not sustained a psychological impairment as a result of the accident.

28I find Dr. Waxer’s report to be unpersuasive evidence of a psychological impairment. Dr. Waxer diagnosed the applicant with adjustment disorder with depressed mood and somatic symptom disorder with predominant pain. Further, there is no evidence to support Dr. Waxer’s finding, aside from the report itself. Indeed, there are no contemporaneous records documenting any psychological complaints or impairments, and there are no regular complaints of functional limitations documented to support Dr. Waxer’s diagnosis. Moreover, Dr. Waxer indicated that the applicant continued to experience difficulties with his overall psychological and emotional functioning, which is inconsistent with the applicant’s self-report that he is able to carry on his normal activities, and he returned to work.

29Additionally, Dr. Mandel found that the applicant’s subjective description of his psychological complaints was a reasonably accurate representation of his current psychological and functional status, and consistent with the objective psychometric test findings. Dr. Mandel concluded that the applicant continued to experience lingering pain symptoms to his right shoulder and lower back as well as occasional headaches, but that there was no change to his mood, sleeping patterns, appetite, weight, or overall level of functioning since the accident. As such, Dr. Mandel noted that the applicant appeared to be coping quite well with the consequences of the accident and opined that that applicant did not meet DSM-5 criteria for any psychological disorder.

30Accordingly, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.

The Treatment Plans

31As I have found the applicant to remain within the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans in dispute.

32Further, both parties confirmed in submissions that the respondent has paid $929.25 in medical and rehabilitation benefits. This leaves $2,570.75 remaining under the MIG limit of $3,500.00.

33Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. Therefore, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule.

Costs

34Pursuant to Rule 19.1 of the Common Rules of Practice and Procedure, October 2, 2017, costs may be ordered where a party has acted unreasonably, frivolously, vexatiously, or in bad faith.

35In its written hearing submissions, the respondent sought costs against the applicant for the first time, and the applicant did not address the respondent’s request for costs in his reply submissions.

36Although costs may be requested in writing at a hearing at any time before the decision is released, the respondent’s submissions do not set out the reasons for its request for costs and the particulars of the applicant’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith, as required by Rule 19.4. Also, the respondent did not identify the amount of costs being requested, as required by Rule 19.3.

37Accordingly, I decline to make an order for costs against the applicant.

ORDER

38For the reasons outlined above, I find that:

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

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.

iii. The respondent is not entitled to costs.