Hayes v. The Co-Operators Insurance Company, 2023 CanLII 1445

Citation: Hayes v. The Co-Operators Insurance Company, 2023 ONLAT 20-012245/AABS

Licence Appeal Tribunal File Number: 20-012245/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:

Rachel Hayes

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR: Teresa Walsh

APPEARANCES:

For the Applicant: Teri-Ellen Haddy, Counsel

For the Respondent: Emily A. Schatzker, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant, Rachel Hayes, was injured in an automobile (motorcycle) accident on July 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”)¹ from The Co-Operators Insurance Company, the respondent.

2The applicant applied for medical and rehabilitation benefits that were denied by the respondent because it determined her injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

3The following issues are to be decided:

(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 in the MIG?

(ii) Is the applicant entitled to $1,932.67 for physiotherapy services recommended by Michelle Baldwin and Victoria Genoch in a treatment plan (“OCF-18”) submitted on August 28, 2018?

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

RESULT

4I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted,³ it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plan. The applicant is also not entitled to interest. The application is dismissed.

ACCIDENT DETAILS

5On July 8, 2017, the applicant lost control of the motorcycle she was riding in London, Ontario.⁴

6After she lost control, the motorcycle reportedly fell over onto the applicant. The applicant did not lose consciousness. She described “9/10 pain in her right knee” to the police and ambulance attendants who arrived on the scene. She was transported by ambulance to the emergency department at London Health Sciences Hospital (“Hospital”).⁵

7X-rays of the applicant’s right knee, hip and right femur taken at the Hospital on the day of the accident ruled out any fractures. The applicant was discharged home from the Hospital with pain medication the same day.⁶

ANALYSIS

The MIG

8The 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.

9Section 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 of a psychological impairment or chronic pain with a functional impairment.

10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁷

11The applicant has not submitted that any pre-existing condition has prevented maximal recovery from her injuries sustained in the subject accident within the cap imposed by the MIG. Further, the applicant does not allege a psychological impairment related to the accident.

Chronic Pain and the MIG

12As set out below, the applicant has not established on a balance of probabilities that she suffers from chronic pain removing her from the treatment limits of the MIG.

13Other than the previously mentioned Hospital records from the day of the accident, the applicant provided no medical records evidencing complaints of ongoing pain, or treatment sought for injuries, in the first four months following the accident.

14Michelle Baldwin, who provided physiotherapy treatment to the applicant starting in 2018, notes that, 14 months post-accident, the applicant appears to be “functional with work/life demands”, and that she is participating in recreational activities including “riding her motorcycle”.⁸

15The applicant relies in part on an ultrasound of her right shoulder taken on April 16, 2019, which indicates “a small focal area” with findings possibly reflecting “tendinosis or perhaps articular side fraying/low grade tearing” but “no high-grade or full-thickness tear”.⁹

16Dr. Ryan Arbeau, a sports medicine specialist who saw the applicant approximately once yearly between 2018 and 2021, notes with respect to the applicant’s right shoulder that she has “rotator cuff pathology on exam, although there is no imaging to support this”.¹⁰ Dr. Arbeau states that, despite the lack of imaging support, as the applicant has required repeat cortisone injections for her shoulder, “it is my opinion this would not be a minor injury ... this injury is still affecting Ms. Hayes’ quality of life and ability to work”.¹¹

17Additionally, the applicant relies on an MRI of her right knee conducted on February 15, 2019, which is interpreted as being “negative for meniscal or ligamentous injury” and which shows “non-specific trace joint effusion”.¹²

18The applicant’s long-time family physician, Dr. Peter Dzongowski, recommends in March 2019 that as the applicant’s right knee MRI is negative for any tendon or meniscal injury, “we simply treat symptomatically”. Dr. Dzongowski does not have the right shoulder ultrasound results at this visit, although he notes on examination of the shoulder that the applicant has “good range of motion with mild pain on resisted abduction”.¹³

19In his April 26, 2021 report, Dr. Arbeau refers to the applicant’s right knee MRI as showing “trace effusion, but nothing else”.¹⁴ Dr. Arbeau’s examination of the applicant on this date indicates “full range of motion, crepitus … special tests negative”. His diagnosis is “R[ight] knee likely degenerative changes”.¹⁵ He provides a cortisone injection for symptomatic treatment.¹⁶

20The respondent relies on an Insurer’s Examination (“IE”) Report provided by Dr. John Clifford, a physical medicine and rehabilitation specialist, dated October 25, 2018.¹⁷ Updated imaging of the applicant’s right shoulder and knee was not available at the time of the assessment. Dr. Clifford opines that the applicant’s “residual complaints of pain … likely represent ongoing mechanical pain generators (i.e. myofascial pain, musculoskeletal deconditioning)”. However, he recommends MRI imaging of the applicant’s right shoulder and knee in order to rule out any “intraarticular lesions”.¹⁸ The results of subsequent imaging are described at paragraphs 15 and 17 above.

21The respondent submits that the applicant’s injuries are confined to the MIG and that she has not submitted sufficient evidence of a functional impairment or disability.

22The respondent further notes that, based on the MIG, a sprain or strain of a tendon, ligament or muscle includes a partial tear but not a complete tear.¹⁹ Imaging of the applicant’s right shoulder shows nothing beyond a possible low-grade tendon tear. Right knee imaging shows nothing beyond trace effusion (fluid).

23Based on all of the medical evidence submitted to me, I agree with the respondent that the nature of the applicant’s physical injuries fall within the definition of “minor injury”. The applicant’s right shoulder has, at most, a partial tendon tear and such an injury is within the MIG’s definition of “sprain” (for injury to a tendon and ligament).

24I agree with the respondent that for chronic pain to take someone out of the MIG, it must be of a severity that causes suffering, distress or is accompanied by functional impairment or disability.²⁰

25While they are not incorporated into the Schedule (and therefore not binding on me), the American Medical Association Guides (AMA Guides)²¹ six criteria for evaluating chronic pain are useful in assessing an applicant’s claim of such. The Tribunal has applied them in previous decisions, and I am persuaded to apply them here. According to the AMA Guides, at least three of the following six 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.

26The applicant complained of ongoing discomfort or pain in her right shoulder and knee for a number of years post-accident. However, nothing in the applicant’s evidence establishes that, as a result of the accident, she: developed a dependency on prescription drugs or other substances; became dependent on others; experienced deconditioning due to disuse and or fear-avoidance of physical activity due to pain; withdrew from social contacts; was incapable of pursuing work, family or recreational needs; or, had any psychosocial sequelae.

27I note that none of the physicians who have treated or assessed the applicant diagnose her with chronic pain or describe her pain as being “functionally disabling”. I also note that imaging of the applicant’s right shoulder and right knee show nothing beyond minor injuries or clinically associated sequelae to such injuries.

28In short, the totality of the evidence establishes that the applicant’s injuries and clinically associated sequelae are within the MIG.

29Based on all of the evidence before me, and in consideration of prior Tribunal decisions and the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

30Sections 14 and 15 of the Schedule provide that the insurer shall pay medical and rehabilitation benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical and rehabilitation benefits sought in a treatment plan are a reasonable and necessary expense incurred by the applicant as a result of the accident.

31The applicant bears the onus of establishing entitlement to the proposed treatment plan by proving it is reasonable and necessary on a balance of probabilities.²²

32I have found that the applicant’s accident-related impairments fall within the MIG. The disputed treatment plan proposes treatment outside the MIG framework to which I have determined the applicant is not entitled. As her impairments are within the MIG and as the $3,500.00 maximum for medical and rehabilitation benefits available under the MIG has been exhausted, it is not necessary to determine if the disputed treatment plan is reasonable and necessary.

Interest

33As there are no medical and rehabilitation benefits owing, no interest is payable.

CONCLUSION

34For the reasons outlined above, I find that:

(i) The applicant sustained predominantly minor injuries as defined under the Schedule. It is not necessary for me to determine whether or not the disputed treatment plan is reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

(ii) The applicant is not entitled to $1,932.67 for physiotherapy services recommended by Michelle Baldwin and Victoria Genoch in a treatment plan submitted on August 28, 2018;

(iii) No interest is payable; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Respondent’s Written Submissions and Brief, page 109, Letter of September 6, 2018 from the respondent to the applicant re: medical benefits sought and advising that limits have been exhausted.
4. 4Applicant’s Document Brief and Brief of Authorities, Tab A, Motor Vehicle Collision Report dated July 8, 2017.
5. 5Applicant’s Document Brief and Brief of Authorities, Tab B, Ambulance Call Report dated July 8, 2017.
6. 6Respondent’s Written Submissions and Brief, page 54, Radiology Consultation Report dated July 8, 2017; Applicant’s Submissions, Page 2, paragraph 9.
7. 7Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
8. 8Respondent’s Written Submissions and Brief, page 130, CBI Health Physiotherapy Chart Notes dated September 12, 2018.
9. 9Applicant’s Document Brief and Brief of Authorities, page 25, Right Shoulder Ultrasound Report of April 16, 2019.
10. 10Applicant’s Document Brief and Brief of Authorities, page 28, Report of Dr. Ryan Arbeau dated October 2, 2020.
11. 11Ibid.
12. 12Applicant’s Document Brief and Brief of Authorities, page 20, Right Knee MRI Report of February 15, 2019.
13. 13Respondent’s Written Submissions and Brief, page 96, Notes of Dr. Peter Dzongowski dated March 5, 2019.
14. 14Respondent’s Written Submissions and Brief, page 232, Consultation Report of Dr. Ryan Arbeau dated April 26, 2021.
15. 15Ibid.
16. 16Ibid.
17. 17Respondent’s Written Submissions and Brief, pages 239 to 259, Insurer’s Assessment Report of Dr. John Clifford dated October 25, 2018.
18. 18Ibid., page 252.
19. 19Respondent’s Written Submissions and Brief, page 29, Definition of Minor Injury, Superintendent’s Guideline No. 01/14.
20. 20Respondent’s Written Submissions and Brief, page 13, 18-002569 v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT).
21. 21American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23 to 24.
22. 22Scarlett v. Belair Insurance, supra, note 7.