Licence Appeal Tribunal File Number: 21-001201/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:
Christine Felix
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Shane Baker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Christine Felix, the applicant, was involved in an automobile accident on February 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, The Personal Insurance Company, 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 limit in the Minor Injury Guideline ("MIG")?
ii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Excel Medical Diagnostics, in a treatment plan dated February 26, 2020 and denied on March 26, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3Two further issues ($16.95 for physiotherapy services denied August 27, 2019, and $14,029.19 for medical services denied January 15, 2021) were previously in dispute. The applicant has withdrawn those issues and they are no longer in dispute.
RESULT
4The applicant's injuries are predominantly minor as defined in s. 3 of the Schedule.
5The respondent failed to provide proper notice in compliance with s. 38(8) of the Schedule with respect to the treatment plan in dispute. It is accordingly payable pursuant to s. 38(11)2.
6Interest is payable pursuant to s. 51 of the Schedule.
ANALYSIS
Applicability of the Minor Injury Guideline
7Section 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."
8An insured 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.
9The applicant argues that she has been diagnosed with chronic pain that would remove her from the MIG. She also submits that she has a documented pre-existing medical condition that would prevent her from achieving maximum medical recovery if she was subjected to the limits under the MIG. The respondent's position is that the applicant has not established that she meets the criteria for chronic pain syndrome, and she has not provided any evidence that her pre-existing medical condition will prevent her from achieving maximum medical recovery from her injuries within the MIG.
Chronic Pain
10For the reasons below, I do not find that the applicant has established that she is suffering from a chronic pain condition that would allow her to seek treatment outside of the MIG.
11The applicant has not provided very much medical evidence in support of her position. She relies on the medical records of her family physician, Dr. Lei, which consist of three entries – one from before the accident, and two after. She also relies on an MRI report from October 30, 2019 which shows issues that pre-date the accident. Finally, she relies on a December 28, 2020 report from Dr. Stephen Brown, anaesthesiologist.
12The first time the applicant saw Dr. Lei after the accident was March 17, 2020, approximately 13 months later. His note indicates that she was in a car accident last year, has some back pain, and was doing physiotherapy. Dr. Lei recommended that she continue with physiotherapy. The second note from Dr. Lei is from September 17, 2020, and indicates that she was told by another doctor she had a lipoma. Dr. Lei noted that she was still going for physiotherapy but did not make any diagnoses or recommendations related to anything other than the lipoma. No medical records from the other doctor mentioned are before me.
13The only medical document that refers to chronic pain is the report of Dr. Brown. He diagnoses the applicant with chronic pain to her lumbar spine and left shoulder. For the reasons below, I have difficulty accepting the findings in his report.
14Dr. Brown's report does not indicate what medical records he reviewed. He states that "according to Ms. Felix she saw her family physician Dr. Calvin Lei shortly after the MVA". The medical records show that the applicant did not see Dr. Lei "shortly after" the accident – she saw him for the first time approximately 13 months after the accident. He appears to rely largely on the applicant's self-report throughout his assessment.
15Dr. Brown indicates that the applicant missed two days of work after the accident, she has been given modified duties, and her work performance has suffered. Dr. Brown does not explain how long the modified duties lasted for, or what they were. There is no evidence that her work performance or attendance has suffered. His statement that her "physical restrictions, chronic pain, and psychological distress have been disruptive to her occupational pursuits" is not grounded in evidence.
16One of Dr. Brown's accident-related diagnoses was sleep disorder, due to insomnia and possible obstructive sleep apnea. He does not explain why she is suffering from insomnia (e.g. whether it is related to pain), or how the sleep apnea or insomnia are related to the accident. He does not discuss how much sleep the applicant was getting or compare her sleep to before the accident.
17Dr. Brown indicates that the applicant's responses to the Pain Catastrophizing Scale suggest a severe level of psychological distress. Conversely, Dr. Lei's records do not depict any level of psychological distress. The only other evidence that refers to the applicant's psychological condition is a May 19, 2021 s. 44 report of Dr. Monique Costa El-Hage, psychologist. Dr. El-Hage explained that the applicant "stated multiple times during the assessment that she did not have any psychological issues." The applicant reported feeling "pretty good" and said, "I am always happy". She becomes anxious when other cars are close to her or she is at a stop sign, and she avoids the area where the accident occurred. However, she still drives every day. On testing, she scored in the below average range for depression, anxiety, and somatic problems. There were no marked elevations to suggest that she was experiencing any clinical psychopathology. I find it difficult to reconcile the sheer lack of evidence of psychological difficulties, and the applicant's statements to Dr. El-Hage, with Dr. Brown's suggestion that the applicant's psychological distress was severe.
18Dr. Brown recommends a multidisciplinary rehabilitation program, physiotherapy, exercise, and behavioural therapy. He also recommends using Tylenol, Celebrex, and a medication to treat secondary hyperalgesia and/or neuropathic pain. He also recommends diagnostic and/or therapeutic nerve blocks/injections. He stated that the applicant should have a sleep study to see if a CPAP device was warranted. He also suggests that she be investigated to rule out hyperparathyroidism, as thyroid function testing is indicated in the presence of chronic fatigue, weight gain, and mood disturbances. Finally, he recommends psychiatric or psychological treatment.
19As far as the evidentiary record before me, the applicant has never discussed any of these treatment modalities (except physiotherapy) with Dr. Lei. The applicant argues that much of the recommended treatment is not covered by OHIP. However, it is possible that some of these recommendations could be accessed through OHIP, upon referral from the applicant's family physician. There is no evidence that the applicant has even asked Dr. Lei about this.
20The opinions of Dr. Brown starkly contrast with those of the s. 44 assessor, Dr. Mark D'Souza. The only functional limitations that Dr. D'Souza noted in his report were that the applicant's daughter and sister help her with the heavy-duty cleaning, and she does not wash her back anymore. Dr. D'Souza found issues with effort and validity that indicate her abilities were greater than she demonstrated. Her range of motion was limited, but greater ranges of motions were observed casually. Dr. D'Souza's opinion was that the applicant sustained a WAD II cervicothoracic sprain/strain, a left knee and shin contusion/abrasion, a right thumb sprain from the steering wheel, and perhaps a left sided chest contusion from the seatbelt. He did not believe she met the criteria for chronic pain and opined that her injuries fell within the MIG.
21The respondent notes that Dr. Brown did not discuss the criteria under the American Medical Association Guides 6th Edition ("AMA Guides") for a diagnosis of chronic pain syndrome. Under the AMA Guides, chronic pain syndrome is diagnosed by the presence of three or more of the following criteria:
(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(2) Excessive dependence on health care providers, spouse, or family;
(3) Secondary physical deconditioning due to disuse and/or fear – avoidance of physical activity due to pain;
(4) Withdrawal from social milieu, including work, recreation, or other social contracts;
(5) 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;
(6) Development of psychosocial sequelae after the initial incident, including anxiety fear-avoidance, depression, or nonorganic illness behaviours.
22Although I am not bound by the AMA Guides, I find it helpful as an interpretive tool. Dr. Brown states in his report that he is certified to use the AMA Guides, so I find it puzzling that he would not use them. Dr. D'Souza, on the other hand, found that the applicant only met the criteria under item 3, as she is deconditioned and avoids physical activity.
23In terms of the other factors, the applicant does not take prescription medication. She advised Dr. D'Souza that she only takes over the counter Tylenol at night. There is no evidence to suggest that she relies excessively on healthcare providers, her spouse, or her family; she rarely sees her family physician, does not require assistance with self-care tasks, and only occasionally requires help with some heavier housekeeping. Dr. Brown notes that she has reduced her social engagements and now rarely goes to the movies, dines out, or sees friends. Dr. Brown does not explain why she has reduced these engagements, however his assessment took place in the middle of the Covid-19 pandemic, so that is likely a strong factor. The applicant only took two days off work after the accident. It may be that she has some psychological sequelae, but it is very difficult to assess this based on the sparse evidentiary record before me and the conflicting opinions of Dr. Brown and Dr. El-Hage. Although it is not determinative of the issue, I find that there is insufficient evidence that the applicant meets the AMA Guides criteria for chronic pain.
24The respondent also points to NJ v. TD General Insurance Company, 2020 CanLII 57413 (ON LAT), which states that ongoing pain alone does not take the applicant out of the MIG; it must be continuous or be a chronic pain syndrome, and it must be 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 sequelae. I am not bound by this authority, but I find it persuasive.
25Dr. Brown did not diagnose the applicant with chronic pain syndrome. He indicated that she had chronic pain. In any event, I find that the applicant has failed to prove that her pain is continuous, or that it has had a detrimental effect on her functionality.
Pre-Existing Medical Condition
26The applicant submits that she has a pre-existing medical condition, namely multilevel degenerative desiccation with small posterior disc bulges/herniations. This condition was diagnosed from an MRI on October 30, 2019. The respondent accepts that this condition likely predated the accident. However, having a pre-existing condition is not enough to remove the applicant from the MIG. The applicant must prove that her pre-existing conditions will prevent her from achieving maximal recovery under the MIG. I find that she has not proven this to be the case on a balance of probabilities.
27Nowhere in the medical records does anyone suggest that the above noted condition is preventing the applicant from achieving maximum medical recovery. Dr. Brown briefly discusses her pre-accident medical history, including this MRI, but does not say anything further about how her recovery might be affected by it. Dr. D'Souza states that "she has no significant pre-existing or concurrent conditions that would delay her recovery". Submissions are not evidence; the applicant simply stating that this condition will prevent her from recovering is not sufficient.
28As such, the applicant has not proven on a balance of probabilities that her injuries fall outside of the MIG as a result of a pre-existing condition.
Did the respondent fail to provide proper notice in accordance with s. 38(8) such that the treatment plan in dispute is payable?
29I find that the respondent failed to provide proper notice in its denial letter, thus triggering the consequences of s. 38(11)2.
30A treatment plan dated February 26, 2020 for a chronic pain assessment was submitted to the respondent by Excel Medical Diagnostics. In a letter dated March 26, 2020, the respondent denied the treatment plan, stating the following:
"I received recommendations dated Feb. 26, 2020 from Excel Medical Diagnostics Inc. The total recommendation of $2,460.00 has not been approved because I believe your injuries are categorized as Minor Injury. Recommendations must address your diagnosis. I provided some guidance below in 'Additional details' to help you understand the minor injury category.
I reviewed your list of injuries and see no pre-existing conditions described. In comparing your injuries to the criteria in the Minor Injury Guideline, I've concluded your injuries are minor and fall within the Guideline. 18(1) of the Statutory Accident Benefits Schedule sets a policy limit for minor injuries. I am unable to approve the recommendations because I've paid the maximum amount".
31On the second page of the letter, there is a box entitled "additional details" that states: "a minor injury includes injuries such as a sprain, strain, bruising, whiplash injuries, cuts and scrapes, back pain and anything resulting from those injuries". It explains that when someone has a minor injury, they are entitled to $3,500 towards their recovery. It further states that if the applicant cannot recover from her minor injuries due to a pre-existing medical condition, additional treatment may be available. A separate page was included with the letter outlining the applicant's right to dispute the denial at the Tribunal.
32Despite the denial, the chronic pain assessment went ahead on October 16, 2020, with a report from Dr. Stephen Brown being generated on December 28, 2020.
33The applicant submits that the respondent failed to provide meaningful and adequate reasons for their denial of the treatment plan, and thus is non-compliant with s. 38(8) of the Schedule. She argues that this triggers the consequences in s. 38(11)2, making the treatment plan fully payable without an analysis as to whether it is reasonable and necessary. The respondent submits that the denial of the treatment plan complied with s. 38(8).
34Section 38(8) of the Schedule states that within 10 business days after it receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments, and examinations that it does not agree to pay for, and the "medical reasons and all of the other reasons" why the insurer does not consider them to be reasonable and necessary. Under s. 38(9), if the insurer believes the MIG applies, the notice must advise the insured of that as well. The consequences of failing to comply with the notice requirements for each treatment plan are indicated in s. 38(11): the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and the insurer shall pay for the goods and services in the treatment plan starting on the 11th business day after the insurer received the application, and ending when proper notice is provided.
35Both parties rely on the decision of the Divisional Court in Varriano v. Allstate, 2021 ONSC 8242 ("Varriano"), which discussed the sufficiency of notice and meaning of "medical and other reasons". In summarizing previous Tribunal cases1, the Divisional Court noted that the insurer should comply with the following "imminently reasonable baseline standards" when providing valid notice:
a. explain its decision with reference to the insured's medical condition and any other applicable rationale;
b. include specific details about the insured's condition forming the basis for the insurer's decision or, alternatively, identify information about the insured's condition that the insurer does not have but requires;
c. refer to the specific benefit or determination at issue, along with any section of the SABs upon which it relies; and
d. be clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
36The Court of Appeal recently overturned the order of the Divisional Court in Varriano, however the question on appeal was whether insurers always have to provide a "medical reason" if they have also already provided "any other reason".2 The Court of Appeal did not comment on the above standards. I find that there is no reason to disregard the Divisional Court's summary above, and that it is a helpful tool for analysis.
37I find that the respondent's notice letter failed to satisfy the first, second, and fourth principles listed above. The respondent's letter refers to a "list of injuries", without listing said injuries, specifying what list they are referring to, or stating what medical or other documents it reviewed or was relying on. It is not enough to simply list the criteria in the MIG without any further reference to how the applicant's injuries fit within it. An unsophisticated person would not have any idea what the respondent relied on to make its determination.
38The respondent relies on Mateluna v. Scottish & York, 2022 CanLII 8656, and states that reference to a specific diagnosis or condition is not a strict requirement under s. 38(8). While that may be the case, the respondent did not even make vague reference to areas of the applicant's body that were injured in the accident, or the types of injuries sustained. The requirements under s. 38(8) as set out in the Schedule are to provide medical reasons and all the other reasons. Referring to an unknown list of injuries that no one, except the respondent, has the ability to review, is much more vague than failing to provide a specific diagnosis or condition.
39The respondent also relies on Davidenko v. Unifund Insurance Company, 2021 CanLII 13189 ("Davidenko"), stating that Vice-Chair Farlam upheld a similar denial letter in that case. I agree with the applicant that the reasons provided by the insurer in Davidenko are not the exact same as in this case. At least in Davidenko, the adjuster indicated that it reviewed and compared all medical documentation that had been provided. Referring simply to a "list of injuries" does not direct the reader to the type of documentation reviewed; for all anyone knows, the adjuster could have reviewed a list of injuries they jotted down in their own file, and not medical documentation. In any event, previous Tribunal decisions are not binding on me, and I do not find that case to be particularly persuasive on this issue.
40I agree with the respondent that the third principle was satisfied as the letter referred directly to s. 18(1) of the Schedule and the monetary limit under the MIG. However, that alone is not determinative of the issue. There is still a lack of clarity regarding how the applicant's injuries were applied to the Schedule.
41I find that the respondent failed to comply with s. 38(8) in providing adequate notice in denying the treatment plan. As such, the consequences in s. 38(11)2 are triggered, and the treatment plan is payable. The respondent has lost its ability to find that the treatment plan is not payable because of the limits in the MIG. An analysis as to whether the treatment plan is reasonable and necessary is not required.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest on the overdue benefit is payable.
ORDER
43The applicant has not met her onus in demonstrating that her injuries entitle her to treatment outside the Minor Injury Guideline.
44Pursuant to s. 38(11)2 of the Schedule, the applicant is entitled to $2,460.00 for a chronic pain assessment, proposed by Excel Medical Diagnostics, in a treatment plan dated February 26, 2020 and denied on March 26, 2020.
45Interest is payable pursuant to s. 51 of the Schedule.
Released: May 15, 2023
Rachel Levitsky
Adjudicator