Daniel Lustig v. Economical Insurance, 2023 CanLII 136

Citation: Lustig v. Economical Insurance, 2023 ONLAT 20-012636/AABS

Licence Appeal Tribunal File Number: 20-012636/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:

Daniel Lustig

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Andrea Seecharan, Counsel

For the Respondent:

Riley McIntyre, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on January 3, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE

2With respect to parties’ submissions for this written hearing, the applicant filed initial submissions dated December 6, 2021 and reply submissions dated January 11, 2022.

3On January 12, 2022, the respondent filed a Notice of Motion with the Tribunal to strike the applicant’s reply submissions. The respondent argued that the applicant’s reply submissions were improper as they split his case with the introduction of new evidence and reformation of new arguments. The respondent also submitted that the applicant had included privileged settlement communications in his reply.

4By Motion Order² dated February 28, 2022, Vice-Chair Maedel denied the respondent’s motion to strike the applicant’s reply and held that the hearing adjudicator would determine what weight would be accorded to the reply submissions. Vice-Chair Maedel also permitted the respondent to submit a brief sur-reply to the applicant’s reply submissions, in order to address the respondent’s concerns of procedural fairness.

5I have reviewed the alleged privileged emails included with the applicant’s reply submissions, and agree with Vice-Chair Maedel that they are not prima facie subject to settlement privilege, as they do not reference specific settlement offers or include privileged details. Further, I find that the respondent’s concerns about the applicant splitting his case and reforming arguments, have been addressed by the fact that the respondent was permitted to file a sur-reply.

6As such, I will consider both the applicant’s reply submissions and the respondent’s sur-reply as part of this written hearing.

ISSUES

7The 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 Guideline³ (“MIG”)?

ii. Is the applicant entitled to $1,803.73 for physiotherapy services, proposed by Complete Rehab Centre in a treatment plan (“OCF-18”) dated October 3, 2019?

iii. Is the applicant entitled to $1,528.11 for physiotherapy services, proposed by Complete Rehab Centre in an OCF-18 dated January 3, 2020?

iv. Is the applicant entitled to $2,680.00 for an orthopaedic assessment, proposed by Complete Rehab Centre in an OCF-18 dated August 8, 2020?

v. Is the applicant entitled to $1,076.91 for physiotherapy services proposed by Complete Rehab Centre in an OCF-18 dated May 4, 2021?

vi. Is the applicant entitled to $1,212.29 for physiotherapy services proposed by Complete Rehab Centre in an OCF-18 dated October 13, 2020?

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

RESULT

8For 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 MIG.

9As 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

10The 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.

11Section 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.

12The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁴

The Parties’ Positions

13The applicant submits that he should be removed from the MIG on the basis of chronic pain. The applicant states that he continues to suffer from neck and shoulder pain as a result of the accident from the date of accident, to present. The applicant also asserts that his orthopedic impairments, namely degenerative disc disease and foraminal stenosis, warrant his removal from the MIG.

14To establish his chronic pain, the applicant relies on the clinical notes and records (“CNRs”) of various doctors at his walk-in medical clinic⁵, and the CNRs of his subsequently retained family physician Dr. Steven MacDonald⁶, which document his ongoing reports of shoulder, chest and neck pain. The applicant also submits the CNRs of his treating physiotherapy clinic⁷, which the applicant asserts show that he has consistently sought treatment for his accident-related impairments, despite the respondent’s ongoing denials of physiotherapy treatment.

15The applicant further relies upon an orthopedic assessment dated October 2, 2020, conducted by Dr. Duong Nguyen, orthopedic surgeon. Dr. Nguyen diagnosed the applicant with accident-related myofascial injury of the cervical spine and left shoulder, cervicogenic tension headaches and chronic pain syndrome.⁸

16Finally, to establish his physical injuries, the applicant submits magnetic resonance imaging (“MRI”) conducted on June 28, 2021, which revealed multilevel degenerative disease of the cervical spine with severe bilateral neural foraminal stenosis and mild spinal stenosis at the C5-6 level and moderate to severe bilateral C6-7 neural foraminal stenosis.⁹

17In contrast, the respondent submits that the applicant has not provided sufficient evidence that he suffers from chronic pain or accident-related physical injuries that warrant removal from the MIG. The respondent argues that the applicant has not met any of the six criteria to establish chronic pain, as referenced in the American Medical Association Guides¹⁰ (“AMA Guides”). The respondent also asserts that the CNRs of the applicant’s family physicians show that the applicant has not reported severe pain post-accident and, in fact, reported improvement in his accident-related symptoms¹¹.

18The respondent also submits the Insurer’s Examination (“IE”) report dated November 18, 2019, by Dr. Todd Levy, family physician. Dr. Levy found that the applicant suffered from accident-related, uncomplicated soft tissue injuries to his posterior neck and left shoulder and diagnosed the applicant with whiplash associated disorder – I, and left shoulder sprain/strain¹². Dr. Levy found that the applicant’s injuries fall within the MIG.

19Finally, the respondent argues that with respect to the June 28, 2021 MRI, the findings are more likely degenerative and age-related changes, rather than accident-related. The respondent further asserts that the applicant has not provided any medical opinion linking these orthopedic injuries to the accident or established that the injuries found on the MRI are the cause of the applicant’s present symptoms.

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

20Upon my review of the evidence and submissions of the parties, I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

21I agree with the respondent’s submissions that the CNRs of the applicant’s medical walk-in clinic and family physician do not indicate that the applicant reported severe, ongoing pain to his family physicians. In 2019, there are multiple instances where the applicant attended at his walk-in clinic and reported that his neck and shoulder pain were much better¹³, or that there was just mild tenderness or neck stiffness¹⁴. In 2020 when the applicant had obtained a family physician, Dr. MacDonald, the CNRs indicate that for most visits the applicant was noted as “doing well”¹⁵ and “really had no complaints”¹⁶.

22The applicant cites the Tribunal decision A.R. v. Unifund Assurance Company as authority for his position that an absence of accident-related entries in a doctor’s CNRs is not necessarily inconsistent with a finding of ongoing chronic pain. However, I agree with the respondent’s submissions that this decision can be distinguished from the case at hand.

23In A.R. v. Unifund Assurance Company, the Tribunal found that the fact that the applicant only visited his family doctor once in 2.5 years did not preclude the possibility of a chronic pain diagnosis. However, in the present matter the applicant regularly visited his treating family doctors for unrelated matters and reported minimal pain, or stated that he was doing well. I agree with the respondent’s submissions that this is not a situation where the CNRs are silent with respect to the issue of ongoing pain. Rather, there are numerous CNR entries where the applicant reported positive progress and that he was doing well.

24In addition, I note that an applicant can still be found to be within the MIG, even if he suffers from ongoing, post-accident pain. A certain degree of pain can be expected as a clinically associated consequence of minor, soft tissue injuries and their sequalae. Treatment for pain of this kind is contemplated in the $3,500.00 funding limit under the Schedule.

25Therefore, it is not simply reports of ongoing pain that establish a finding of chronic pain. Rather, 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. I agree with the respondent’s submissions that the AMA Guides have often been used as an interpretive tool by the Tribunal when assessing chronic pain and therefore, I chose to also adopt them.

26The applicant’s evidence does not establish that he meets three of the six criteria for chronic pain under the AMA Guides, namely:

(i) The applicant has not led any submissions or evidence that he has used prescription pain medication beyond the recommended duration. The CNRs of his walk-in medical clinic indicate that the applicant reported on May 8, 2019 that he was no longer taking any pain medication¹⁸.

(ii) The applicant has not provided any evidence of excessive dependence on health care providers or family, or of secondary deconditioning due to fear-avoidance of pain. Rather, the applicant reported to Dr. MacDonald that he was very active¹⁹ and reported to the respondent’s IE assessor Dr. Levy, that he was doing strength training and walking indoors for a period of 2-5 hours each time²⁰.

(iii) The applicant has not withdrawn from social milieu, such as work or social contacts. The applicant reported to Dr. Levy that he returned to full-time hours and regular duties at work in April 2019. The applicant has not submitted any evidence that he has withdrawn from social contact and there is no evidence that the applicant has reported any psychosocial sequelae post-accident.

(iv) Finally, the applicant has not led sufficient evidence to establish that he has failed to be restored his pre-injury function. The applicant points to the fact that Dr. Levy’s IE assessment noted some limitation to the applicant’s range of motion in his cervical spine and submits that this establishes his functional limitations. However, the applicant does not provide any evidence as to how this limited range of motion makes him unable to pursue work, family or recreational needs, as stipulated in the AMA Guides.

27The applicant relies in large part on the orthopedic assessment of Dr. Duong Nguyen, orthopaedic surgeon, and the doctor’s diagnosis of chronic pain syndrome. However, I place limited weight on this diagnosis. In his report, Dr. Nguyen provides minimal analysis for his conclusion that the applicant suffers from chronic pain syndrome. No definition of chronic pain syndrome or a description of the diagnostic criteria used in the assessment, are provided. Further, Dr. Nguyen’s findings about the applicant’s self-reported level of dysfunction are not supported elsewhere in the medical record.

28As such, I find that the applicant has not demonstrated that he suffers from chronic pain that is functionally disabling as a result of the accident which requires treatment interventions outside the MIG limit.

Are the Applicant’s Physical Injuries within the MIG?

29I find that the applicant has not demonstrated that his physical accident-related impairments warrant treatment beyond the MIG.

30In addition to claiming that he had developed chronic pain as a result of the accident, the applicant also asserts that his orthopedic impairments remove him from the MIG. Specifically, the applicant submits that the MRI dated June 28, 2021 indicates that he suffers from multilevel degenerative disc disease, most advanced at the C5-C6 Level and severe foraminal stenosis which the applicant asserts can only be treated by surgery or physiotherapy.

31The applicant argues that he had sent the respondent the MRI results on August 11, 2021, and the respondent should have considered this new medical information and provided the MRI results to its assessor Dr. Levy, to conduct a further assessment.

32The respondent submits that this MRI was conducted two and a half years after the accident, and that the applicant did not provide the respondent with the MRI results until August 11, 2021, six weeks after the production deadline set by the Case Conference Order²¹. As such, the respondent asserts that it would not have even been able to obtain an addendum report within its production deadlines. Moreover, the respondent asserts that it is not required by the Schedule to refer an applicant to a section 44 assessment or to obtain addendum reports.

33In addition, the respondent submits that there is no medical opinion linking the degenerative changes in MRI results to the accident. Given that the MRI was conducted two and a half years after the accident, the respondent asserts that it is likely that the degenerative disc disease, and severe foraminal stenosis are age-related physical impairments rather than accident-related ones.

34Upon a review of the totality of the evidence, I agree with the respondent’s submissions that the applicant has not provided any medical evidence that the degenerative changes and severe foraminal stenosis found in the MRI results were caused by the accident.

35From my review of the CNRs of Dr. MacDonald, it does not appear that the doctor had recommended doing an MRI to investigate the applicant’s physical impairments. Rather, the CNR entries indicate that the applicant had called Dr. MacDonald to request an MRI - the CNR entry for March 25, 2021 states that the applicant called to report neck stiffness and that his “lawyer now requesting an MRI of neck and neuro assessment”²².

36A subsequent CNR entry for April 27, 2021 indicated that Dr. MacDonald further discussed the MRI request and that the applicant had informed him that it had been recommended in the orthopedic assessment²³. Therefore, it does not appear that the applicant’s family physician had initially suggested that an MRI was needed to assess his neck and shoulder pain.

37Once the MRI results were obtained, they did show findings of degenerative disc disease and stenosis. However, no additional medical review or opinion of this MRI was provided, by any treating physician. I agree with the respondent’s submissions that without a medical opinion as to the cause of these conditions, namely, whether they were caused by the accident or whether they were simply age-related degenerative changes, the applicant has not met his onus to establish that they were accident-related impairments.

38It is not sufficient for the applicant to show that he suffered orthopedic impairments. He must also establish that such impairments are accident related. The applicant has not led sufficient evidence in this regard.

39As a result, I find that the applicant has not met his evidentiary onus to establish that his accident-related impairments warrant removal from the MIG.

40As 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

41Section 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.

42As no benefits are overdue, no interest is payable under s.51.

ORDER

43For 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.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Respondent’s Sur-Reply, Tab 2 – Motion Order dated February 28, 2022.
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Applicant’s Submissions, Tabs C and E, Clinical Notes and Records of Shoppers World Medical Centre
6. 6Applicant’s Submissions, Tab F, Clinical Notes and Records of Dr. MacDonald
7. 7Applicant’s Submissions, Tab I, Clinical Notes and Records of Complete Rehab Centre
8. 8Applicant’s Submissions, Tab G – Orthopedic Assessment of Dr. Nguyen dated October 2, 2020.
9. 9Applicant’s Submissions, Tab H – MRI dated June 28, 2021
10. 10American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.
11. 11Respondent’s Document Brief, Tabs 5 and 8, CNRs of Shoppers Medical Centre and Dr. MacDonald
12. 12Respondent’s Document Brief, Tab 6, IE Report of Dr. Levy dated November 18, 2019
13. 13Respondent’s Document Brief, Tab 5 - CNRs of Shoppers Medical Centre, p. 26 and 31-33.
14. 14Respondent’s Document Brief, Tab 5 - CNRs of Shoppers Medical Centre, p. 30 and 32.
15. 15Respondent’s Document Brief, Tab 8 – CNRs of Dr. MacDonald, p. 86-90.
16. 16Respondent’s Document Brief, Tab 8 – CNRs of Dr. MacDonald, p. 86-87.
17. 18Respondent’s Document Brief, Tab 5 - CNRs of Shoppers Medical Centre at p.33.
18. 19Respondent’s Document Brief, Tab 8 – CNRs of Dr. MacDonald at p.87-88
19. 20Respondent’s Document Brief, Tab 6, IE Report of Dr. Levy dated November 18, 2019 at p.51
20. 21Sur-Reply of the Respondent, Tab A – Case Conference Report and Order dated April 12, 2021
21. 22Respondent’s Document Brief, Tab 8 – CNRs of Dr. MacDonald at p.85.
22. 23Ibid at p.84
23. 17A.R. v. Unifund Assurance Company, 2019 CanLII 76969 (ON LAT)