Worthington v. The Co-operators General Insurance Company, 2023 CanLII 30788

Licence Appeal Tribunal

Citation: Worthington v. The Co-operators General Insurance Company, 2023 ONLAT 20-012798/AABS

Licence Appeal Tribunal File Number: 20-012798/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:

Mary-Anne Worthington

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Ramendeep Minhas, Counsel Golan Mergui, Counsel

For the Respondent: Patrick M. Baker, Counsel

HEARD by way of written submissions

OVERVIEW

1Mary-Anne Worthington (the “applicant”) was involved in a motor vehicle accident on October 14, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Co-operators General Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that the single-vehicle accident that she experienced as a driver when she suffered a sudden migraine that caused her to black out and collide with a hydro pole exacerbated longstanding physical and psychological impairments. These impairments include fibromyalgia with chronic pain, post-traumatic stress disorder (“PTSD”), depression, and anxiety. As a result, she claims to have suffered from an inability to carry on a normal life and to be entitled to a non-earner benefit (“NEB”). She also submits that the accident has exacerbated prior impairments including chronic pain, which warrants treatment outside of the Minor Injury Guideline (the “MIG”) in the form of two treatment plans/OCF-18s for a psychological assessment and physical therapy. The applicant is also claiming interest on all of the above.

3The respondent argues that the applicant is not eligible for an NEB as she does not suffer from a complete inability to carry on a normal life as a result of accident-related impairments. The insurer also challenges the eligibility period of the NEB. Co-operators further submits that the applicant has not demonstrated that she has sustained a chronic pain condition as a result of the accident that warrants treatment outside of the MIG, and that the two treatment plans/OCF-18s in dispute have at any rate not been proven reasonable and necessary. The respondent also holds that as no benefits are payable, interest is not applicable.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to an NEB in the amount of $185.00 per week from May 4, 2020 to October 14, 2021?
2. 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 of the MIG?
3. Is the applicant entitled to $2,460.00 for a psychological assessment, recommended by 101 Assessments in a treatment plan/OCF-18 dated July 31, 2020?
4. Is the applicant entitled to $3,805.69 for physiotherapy and massage therapy services, recommended by 101 Assessments in a treatment plan/OCF-18 dated November 1, 2020?
5. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

PROCEDURAL ISSUE

What is the eligibility period of the NEB?

5I agree with the respondent and find that the applicant’s NEB eligibility period is from May 4, 2020 to October 14, 2021, not the “November 11, 2019 to date and ongoing” period of time as listed in the case conference and order (“CCRO”) dated August 24, 2021 that set this matter down for a written hearing.

6In its submissions, the respondent notes that the applicant did not submit a Disability Certificate/OCF-3 until May 4, 2020, which is a requirement for claiming an NEB benefit according to s. 36(3) of the Schedule. This OCF-3, which is dated November 1, 2019, has been provided in the respondent’s submissions in the form of a fax that shows it was sent from the treatment facility, Green Lane Physiotherapy and Wellness, to Co-operators on May 4, 2020. The applicant does not respond to the respondent’s assertions on this issue in her reply submissions. There is no explanation as to why the OCF-3 was apparently sent later than the date it was completed. As a result, I accept the argument of the respondent and change the onset of the applicant’s NEB eligibility period to May 4, 2020.

7Additionally, according to s. 12(3)(c) of the Schedule, the maximum term for an NEB benefit is 104 weeks. As I have not been provided with submissions requesting me to consider anything outside of the standard 104 weeks, I am changing the final date for NEB eligibility to 104 weeks from the accident, namely October 14, 2021.

8For the above reasons, I am amending the applicant’s NEB eligibility period to May 4, 2020 to October 14, 2021.

RESULT

9I find that:

i. The applicant is not entitled to an NEB, as she has not demonstrated that she suffered from a complete inability to carry on a normal life as a result of the accident. As there are no benefits owing, no interest is payable.

ii. The applicant has demonstrated that she suffers from a chronic pain condition, which is not included in the Schedule’s definition of a minor injury. As a result, she is no longer subject to treatment within the MIG and its $3,500.00 limit.

iii. The applicant is entitled to $2,460.00 for a psychological assessment, recommended by 101 Assessments in a treatment plan/OCF-18 dated July 31, 2020, as she has demonstrated it to be reasonable and necessary. She is entitled to interest on all overdue and incurred benefits with regard to this OCF-18, in accordance with s. 51 of the Schedule.

iv. The applicant is not entitled to $3,805.69 for physiotherapy and massage therapy services, recommended by 101 Assessments in a treatment plan/OCF-18 dated November 1, 2020, or interest, as she has not demonstrated it to be reasonable and necessary.

ANALYSIS

Is the applicant entitled to a Non-Earner Benefit (“NEB”)?

10I find that the applicant is not entitled to an NEB, or interest, as she has not demonstrated that she suffers from a complete inability to carry on a normal life.

11Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally requires a comparison of the applicant’s pre- and post-accident activities.

12Here, the applicant relies primarily on the OCF-3 dated November 1, 2019 that was completed by Dr. Kathryn Monaghan, chiropractor. Dr. Monaghan checks off the box confirming that the applicant suffers a complete inability to carry on a normal life due to extreme pain, specifically noting extreme chest pain. She explicitly diagnoses the applicant with whiplash associated disorder with complaint of neck pain with neurological signs, migraine with aura, sprain and strain of the thoracic and lumbar spine, headache, rib fracture, sleep disorders (insomnia), and nervousness. Dr. Monaghan assesses that the applicant’s disability is expected to have a duration of 9-12 weeks. The applicant further submits that the clinical notes and records (“CNRs”) of Dr. Gaurav Bhardwaj, family physician, and Dr. Ken Lai, general practitioner, demonstrate that she suffered from new chronic pain and exacerbated chronic pain from previous impairments as a result of the subject accident that prevented her from carrying on a normal life.

13The respondent argues that the applicant has provided insufficient evidence speaking to her pre-accident or post-accident activities of daily life to meet the standard requirements of the NEB test as noted in Heath. Consequently, she has not demonstrated that she suffers a complete inability to carry on a normal life and has not met her burden under the Schedule to show entitlement to an NEB.

14I agree with the respondent, which submits a strong argument that the applicant has not demonstrated such an inability in relation to the subject accident even while acknowledging that the applicant has been in poor physical and mental health for many years prior to the accident. Specifically, Co-operators accepts that the applicant has well supported her claims of longstanding pre-existing impairments and limitations, noting that these go back to an Ontario Disability Support Program (“ODSP”) claim in 2005 and an August 7, 2014 decision of the Social Benefits Tribunal that ruled she met the definition of ODSP disability. This decision held that the applicant suffered from chronic pain since 2001, migraines from the age of 13, and depression and anxiety for an extended period of time, along with other physical impairments such as bilateral carpal tunnel syndrome, Reynaud’s Syndrome, and right shoulder bursitis. Co-operators also accepts that the applicant has provided extensive evidence in CNRs from Dr. Bhardwaj and Dr. Lai dating from 2016 to 2021 regarding treatment for a variety of ailments, including headaches, neck pain, shoulder pain, back pain, leg pain, herniated disc, chronic pain, PTSD, depression, and anxiety. In all of the above, the respondent essentially concurs with the applicant.

15Where the respondent differs is with its assessment of the applicant showing a significant change in her functional limitations before and after the accident. I find this argument persuasive, as despite the lengthy chronology of the applicant’s medical history featured in the submissions of both parties, there is no detailed comparison of her pre- and post-accident activities that meets the test as specified in Heath. The applicant instead points to the OCF-3 and the CNRs, which I do not view as sufficient to meet her burden. Also, the OCF-3 describes the applicant’s disability related to the accident to last an anticipated 9-12 weeks, a much shorter period than that claimed for the NEB. In my view, this undermines the NEB claim, as this initial 9-12-week estimation has not been supplanted by a second OCF-3 indicating a longer duration of disability.

16While I accept that the applicant has suffered from limitations to her daily activities because of chronic pain and psychological issues since at least 2005, I see no evidence that these limitations have been impacted upon or exacerbated by the subject accident in such a way that she suffered a complete inability to carry on a normal life. Submissions before me also indicate that the applicant resumed driving post-accident, and that she was independent enough to drive a significant distance to Northern Ontario on more than one occasion in the months following the accident. As a result, I do not agree with the applicant’s contention that she suffered from an accident-related driving phobia that limited her activities, at least in a significant enough fashion that she would meet the test for an NEB.

17In accordance with the above reasons, I find that the applicant has not demonstrated a complete inability to carry on a normal life as a result of the accident. It follows that she is not entitled to an NEB, or interest.

Does the applicant suffer from injuries that warrant removal from the Minor Injury Guideline (“MIG”)?

18I find that the applicant has demonstrated that she has a chronic pain condition that warrants removal from the MIG and its $3,500.00 limit on treatment.

19Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.” An 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.

20The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside the MIG. In this instance, the applicant submits that a pre-existing chronic pain condition was exacerbated as a direct result of the subject accident, warranting her removal from the MIG. She relies on the OCF-3 and the CNRs of Dr. Bhardwaj and Dr. Lai noted above, as well as an argument that the applicant meets most if not all of the six criteria for assessing claim to a chronic pain condition listed in the 6th edition of the American Medical Association’s (“AMA”) Guides to the Evaluation of Permanent Impairment (the “Guides”). At least three of the following six criteria must be met to support a diagnosis of chronic pain according to the AMA Guides (which I accept as a useful tool for the evaluation of chronic pain by this Tribunal, while also noting that meeting its standards is not necessary):

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;

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

21I largely agree with the applicant’s assertions, and find that she meets three of these criteria, specifically #i, #ii, and #vi. Her CNRs from Dr. Bhardwaj and Dr. Lai and the prescription drug summary that has been submitted show the significant use of prescription medication following the accident, including naproxen, nabilone, hydromorphone, gabapentin, baclofen, bupropion, and sertraline for physical and psychological issues, satisfying the first criteria in the Guides. The applicant visited Dr. Bhardwaj and Dr. Lai on seemingly dozens of occasions from immediately following the accident on October 19, 2019 to September 2021, making consistent complaints about pain that aligns with the diagnoses on the OCF-3, and receiving treatment in the form of the prescription medication listed above along with nerve block injections. This satisfies the second criteria in the Guides. Finally, the applicant has provided evidence of the development of psychosocial sequelae following the accident, including depression and anxiety. I place significant weight on a psychological assessment report by Dr. Peter H. Waxer, psychologist, dated September 15, 2019. Dr. Waxer diagnosed the applicant with persistent somatic symptom disorder with predominant (severe) pain, a specific phobia (situational type vehicular), and a chronic adjustment disorder with mixed disturbance of emotions and conduct, along with psychosocial problems (pain that triggers familiar tension and social withdrawal). All of these diagnoses were reconfirmed in a psychological progress report dated April 15, 2021. This satisfies the sixth criteria in the Guides, in my view, even if I do not accept the driving phobia, for reasons mentioned above.

22By my assessment, there is more limited evidence for criteria three, four, and five, as listed in the Guides, as insufficient information has been provided regarding the applicant’s physical deconditioning, withdrawal from social milieu, and her post-injury level of functioning. There are some allusions to a decline in her level of physical functionality (not psychological functioning, which as noted above is well-supported) post-accident, although in my view this is not well supported, largely for reasons already outlined above in the section on the NEB issue. It seems as if she was unemployed both before and after the accident, for example, so there is no evidence of any additional functional impairment relating to employment. Regardless, I find that the applicant meets three of these criteria as established in the Guides, and as a result find that she suffers from chronic pain as a result of the accident.

23I am also persuaded by the applicant’s argument that her prior physical and psychological impairments have been exacerbated by the subject accident. The medical evidence demonstrates that the applicant suffered physical and psychological injuries and sequelae as a result of the accident and required additional treatment as a result in the form of medication, nerve block injections, and the psychological injuries noted in the psychological assessment described above. While I agree that the applicant has a lengthy and complicated medical history overall, making it difficult to separate issues and assign specific causes and effects, her extensive post-accident medical history, in my view, speaks for itself and meets the burden required to demonstrate that she warrants treatment outside of the MIG.

24I am not convinced by Co-operators’ argument that the applicant’s CNRs demonstrate that she was largely stable in her physical and psychological conditions since 2016. The number of medical appointments and amount of prescribed medication after the accident do not speak to someone in a stable condition, at least in my opinion. Co-operators also raises the possibility that two slip-and-fall accidents sustained by the applicant between December 11, 2019 and January 7, 2020 played “great significance” in exacerbating her existing injuries. I do not find that this sort of characterization is borne out, however, as the respondent does not point to a specific part of the CNRs of Dr. Bhardwaj or Dr. Lai to warrant such a claim. Finally, Co-operators weakens its argument, in my assessment, by acknowledging in its submissions that the applicant “did experience some limited degree of exacerbation of her chronic pain and fibromyalgia symptoms” as a result of the accident. I find it significant that even the respondent is at least somewhat indecisive regarding the level of impact that the accident had on exacerbating the applicant’s injuries and sequelae.

25Consequently, I find that the applicant has demonstrated that she suffers from a chronic pain condition directly related to and exacerbated by the subject accident that is not included in the Schedule’s definition of a minor injury. As a result, she is removed from the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

26To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

27In regard to the two treatment plans/OCF-18s in dispute here, one for a psychological assessment and the other for physiotherapy and massage therapy, the applicant relies on the OCF-3, the CNRs of Dr. Bhardwaj and Dr. Lai, the psychological assessment of Dr. Waxer and the follow-up progress report, and the OCF-18s in question to demonstrate that the recommendations in both plans were reasonable and necessary. The respondent argues that nether treatment plan has been proven to be reasonable and necessary, as the applicant’s psychological and physical impairments and sequelae are pre-existing issues that have not been shown to have been exacerbated by the accident.

Is the applicant entitled to $2,460.00 for a psychological assessment in a treatment plan/OCF-18 dated July 31, 2020?

28I find that the applicant is entitled to $2,460.00 for a psychological assessment, recommended by 101 Assessments in a treatment plan/OCF-18 dated July 31, 2020, plus interest, as she has demonstrated that it is reasonable and necessary.

29In my view, the applicant’s medical evidence is persuasive. The diagnoses of Dr. Waxer as a result of his psychological assessment, which was apparently completed as a result of the OCF-18 in dispute that was prepared by Lital Grinberg, psychological associate, are conclusive. While I will not repeat all of the diagnoses in this assessment that I have already noted above, I will underline that Dr. Waxer found that the applicant’s overall level of functioning had been dramatically affected by the accident. Dr. Waxer concluded that the applicant was extremely depressed and at an almost maximal level of anxiety due to obsessive worries about her health as a result of the accident. As a result, the argument that the applicant adduces regarding the reasonable and necessary nature of the psychological assessment is well-founded.

30Although it is the applicant’s burden to demonstrate that any treatment plan is reasonable and necessary, I note that the respondent has produced no medical evidence here. Co-operators relies solely on the argument in its written submissions that the applicant’s pre-existing and “well documented and longstanding psychological difficulties” account for her issues reflected in this treatment plan, not the subject accident. I do not find this to be a compelling argument, particularly in the absence of medical support.

31For the above reasons, the applicant is entitled to this treatment plan, plus interest on any overdue and incurred amount.

Is the applicant entitled to $3,805.69 for physiotherapy and massage therapy in a treatment plan/OCF-18 dated November 1, 2020?

32I find that the applicant is not entitled to $3,805.69 for physiotherapy and massage therapy, recommended by 101 Assessments in a treatment plan/OCF-18 dated November 1, 2020, as she has not demonstrated that it is reasonable and necessary. She is also not entitled to interest, as there are no overdue amounts owing of this treatment plan.

33Although the applicant has submitted similar medical evidence in support of this physical therapy treatment plan as she did with regard to the psychological assessment plan detailed above, she has not met her burden here because she has not included the treatment plan in dispute. In order to assess such a plan and determine if the applicant has demonstrated its recommendations to be reasonable and necessary, I need to be able to review its particulars. As I cannot do that in this instance, the applicant cannot meet her burden of demonstrating on a balance of probabilities that the benefit in dispute is reasonable and necessary as a result of the accident.

34For the above reason, the applicant is not entitled to this treatment plan, nor interest as there are no benefits overdue and owing.

ORDER

35I find that:

i. The applicant is not entitled to an NEB in the amount of $185.00 per week from May 4, 2020 to October 14, 2021, nor interest, as no benefits are owing and overdue.

ii. The applicant’s injuries are not predominantly minor in nature. As a result, she is no longer subject to treatment within the MIG and its $3,500.00 limit on treatment.

iii. The applicant is entitled to $2,460.00 for a psychological assessment, recommended by 101 Assessments in a treatment plan/OCF-18 dated July 31, 2020, as she has demonstrated it to be reasonable and necessary. She is entitled to interest on all overdue and incurred benefits with regard to this OCF-18, in accordance with s. 51 of the Schedule.

iv. The applicant is not entitled to $3,805.69 for physiotherapy and massage therapy services, recommended by 101 Assessments in a treatment plan/OCF-18 dated November 1, 2020, as she has not demonstrated it to be reasonable and necessary. It follows that as there are no benefits owing, no interest is payable.