Licence Appeal Tribunal File Number: 20-015014/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:
Jennifer Nelson
Applicant
and
Coseco Insurance
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Gordon W. Harris, Counsel
For the Respondent:
Julianne Brimfield, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Jennifer Nelson (the “applicant”) was involved in a motor vehicle accident on June 10, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Coseco Insurance (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, who resides in Alberta, was visiting Thunder Bay on vacation when she was involved in a multi-car collision. She submits that she suffered a concussion in this accident that is not included in the definition of a minor injury as defined in the Schedule and therefore warrants treatment outside of the Minor Injury Guideline (“MIG”) and its $3,500.00 limit. The applicant also claims that psychological injuries sustained as a result of the accident and a pre-existing condition exacerbated by the accident fall outside of the definition of a minor injury. She further claims entitlement to two treatment plans, interest, and that she is due a special award because of the respondent’s unreasonable withholding of benefits.
3The respondent takes the position that the applicant has not demonstrated that she sustained a concussion, psychological injuries, or the exacerbation of a pre-existing injury as a direct result of the accident. As a result, the respondent argues that the applicant should be treated within the MIG, and that the benefits in dispute and interest are therefore not payable. Additionally, Coseco submits that the applicant is not entitled to the treatment plans or interest regardless of the MIG finding, as she has not proven them to be reasonable and necessary. Coseco lastly asserts that it has fairly discharged its obligations to the applicant and is not liable to pay an award.
ISSUES IN DISPUTE
4The following issues are in dispute:
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?
Is the applicant entitled to $1,120.00 for occupational therapy services, recommended by Green Tree Rehabilitation in a treatment plan/OCF-18 dated October 15, 2020?
Is the applicant entitled to $4,950.00 for occupational therapy services, recommended by Green Tree Rehabilitation in a treatment plan/OCF-18 dated November 4, 2020? (NOTE: I have changed the date of this treatment plan from November 5, 2020 listed in the case conference report and order dated June 4, 2021 to reflect the date on the actual OCF-18 in submissions.)
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
5I find that:
i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury.
ii. The applicant is not entitled to the treatment plans in dispute, or interest, as she remains within the MIG.
iii. The respondent is not liable to pay an award.
ANALYSIS
The Minor Injury Guideline (“MIG”)
6Section 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.”
7An 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. The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
8Although neither party confirms in submissions that the $3,500.00 MIG limit has been exhausted, the preparers of both OCF-18s in dispute checked the “No” box at the bottom of page two of each form to denote that treatment recommended therein was for an impairment that was not predominantly a minor injury. As such, these plans are outside the MIG. This means that the applicant’s entitlement to these benefits is contingent on a finding that her injuries are not included in the minor injury definition of the Schedule.
Does the applicant suffer from injuries that warrant removal from the MIG?
9I find that the applicant has failed to demonstrate that she suffered injuries as a result of the accident that are not predominantly minor as defined by the Schedule. Therefore, she remains within the MIG.
10The applicant’s claim that she sustained a concussion in the accident and suffered from post-concussion symptoms is at the centre of this dispute. Both this injury and the resulting impairments would warrant the applicant being removed from the MIG, as such brain injuries are not included in the definition of a minor injury. The applicant primarily relies on the clinical notes and records (“CNRs”) of Dr. David Ryan, family physician, of the Rivercrest Medical Clinic. At multiple appointments with the applicant, the doctor noted that she was suffering from concussion symptoms as a result of the accident, including neck pain, headache, jaw pain, sleep difficulties, fogginess, poor concentration, mood changes, nausea, and fatigue. The applicant also relies on the ambulance call report from the accident and the emergency records of Thunder Bay Regional Health Sciences Centre; the CNRs of Dr. Bryan Brodeur, chiropractor; the CNRs of Lisa Vetsch, occupational therapist with Green Tree Rehabilitation; and both of the OCF-18s in dispute.
11Coseco relies upon two insurer examination (“IE”) reports that it requested pursuant to s 44 of the Schedule. Dr. Raymond J. Zabieliauskas, physiatrist, examined the applicant on September 22, 2021 and completed a report assessing her MIG status and the two treatment plans in dispute dated September 27, 2001. Dr. Garry Moddel, neurologist, examined the applicant on January 19, 2022 and completed a report on January 25, 2022. He assessed the applicant to determine if she had sustained any accident-related neurological impairments that would warrant treatment outside of the MIG. Both examinations were conducted via videoconference, with the assessors in Ontario and the applicant in Alberta.
12I am not convinced that the applicant has been diagnosed with a concussion as a result of the accident. While she claims that Dr. Ryan diagnosed her with this condition at an appointment with him at the Rivercrest Medical Clinic on July 13, 2020, the family doctor’s notes from this assessment read: “whiplash injuries” followed by “elements of concussion.” Dr. Ryan also provided a note to the applicant’s employer on this same date, describing “concussion symptoms and neck pain and restriction of movement related to a motor vehicle accident” and that she would be away from work until August 10, 2020. At Dr. Ryan’s next appointment with the applicant on August 6, 2020, he uses the same general wording, noting “clinically syomtoms [sic] of concussion” and “elements of concussion,” but still leads with “whiplash injuries” first in the assessment section of his report.
13All of this is, in my opinion, different from a formal concussion diagnosis. Dr. Ryan does not perform concussion testing. He does not order diagnostic imaging. He does not refer the applicant to another medical expert, such as a neurologist, to further investigate head trauma. This is an unusual approach, at least in my view, if Dr. Ryan suspected that the applicant had experienced any sort of traumatic brain injury in the accident, such as a concussion. Dr. Ryan had many opportunities to begin such investigations, as well, as he continued to see the applicant until at least January 27, 2021 with regard to the same general symptoms. At any rate, I give Dr. Ryan’s CNRs as a whole limited weight. His observations alone, in the absence of medical analysis, diagnostics, and testing, do not prove that the applicant sustained a concussion.
14Other medical records concerning the applicant’s diagnoses and treatment support a conclusion that she experienced whiplash and other myofascial injuries in the accident, all covered in the definition of a minor injury in the Schedule. The ambulance call report from the accident notes that the applicant told paramedics that she did not hit her head and did not lose consciousness. She complained of a stiff neck and an “odd sensation” in her head, but said that she was not experiencing any pain. The subsequent hospital report from Thunder Bay Regional Sciences Centre, where the applicant was taken from the scene of the accident, noted neck stiffness (described as “chronic” due to the applicant’s comment to paramedics and physicians about this issue having been caused by a previous accident) and a general tension headache, but that she was moving all extremities well and was ambulatory. X-rays taken of the applicant’s cervical spine at this time were normal.
15The applicant received a similar diagnosis during her first visits to Rivercrest Medical Centre after the accident took place, when she did not see Dr. Ryan. On June 25, 2020, Dr. Hisham Ibrahim assessed her with “whiplash injuries” as a result of the accident. Dr. Ibrahim noted that the applicant’s upper neck was tender on examination. He also recorded her complaints of neck pain, headache, jaw pain, and sleep difficulties, but that she was not experiencing any nausea, vomiting, weakness, numbness, or “bluree [sic] vision.” He did not cite any suspicions of head trauma or concussion. Dr. Ibrahim saw the applicant again on June 27, 2020 for a “follow up about her neck pain.” Again, there is no mention of head trauma or concussion.
16Treatment providers document the same general injuries and diagnoses as those itemized above. Dr. Bryan Brodeur, chiropractor, recommended treatment on August 17, 2020 for whiplash, jaw pain/temporomandibular joint disorder, back pain, loss of range of motion in the lumbar spine, and muscle weakness. Other CNRs from Dr. Brodeur’s treatment facility, The Back Doctors, note ongoing foot pain, shoulder pain, foot pain, TMJ, and sleep disturbances. All fall under the definition of a minor injury in the Schedule. Ms. Vetsch, the occupational therapist from Green Tree Rehabilitation who completed the two OCF-18s in dispute here, described similar issues in these treatment plans. While Ms. Vetsch does include “concussion” on the list of injuries and sequelae in the OCF-18 dated November 4, 2020—right after whiplash and neck pain, migraines, and right knee symptoms—she does not refer to any medical analysis supporting the existence of such a condition, and of course she cannot make such a diagnosis herself as this is outside of her area of expertise as an occupational therapist. The applicant extensively cites Ms. Vetsch’s observations of the applicant’s emotional and mental state in her submissions, which are also outside of the scope of her training. None of these records demonstrate that the applicant sustained a concussion in the accident, or that she suffered from post-concussion symptoms as a result of the accident. If anything, the medical evidence draws a fairly conclusive picture of an applicant who sustained whiplash and other soft-tissue injuries in the accident, all of which are included in the definition of a minor injury in the Schedule.
17I am also not persuaded by the applicant’s references in her submissions to psychological impairments and issues related to a previous car accident some 10-20 years earlier (evidence varies as to when this accident occurred) that could also warrant removal from the MIG. As noted above, there is no medical evidence that the applicant sustained a psychological injury in the accident. The notations of Ms. Vetsch hold little weight as she has no claimed psychological training. There is little mention of mental and emotional symptoms in the CNRs of her family physicians. And there is no record of her seeking or receiving any psychological treatment following the accident. Similarly, no medical evidence has been submitted regarding the prior motor vehicle accident. Records show that the applicant made comments about chronic neck pain as a result of this earlier accident to attending paramedics and emergency room physicians at the time of the subject accident, and later on to treatment providers such as Ms. Vetsch. Still, while I do not challenge the applicant’s comments here, they are not sufficient medical proof of this pre-existing injury or that it was exacerbated by the subject accident to the point where she was impeded from reaching maximal medical recovery within the MIG. In all, there is no evidence in any of the above supporting that the applicant suffered from psychological injuries or the exacerbation of a prior injury that would require treatment outside of the MIG.
18I prefer the medical evidence of the respondent, with reservations as noted below, as it directly references the concussion claims of the applicant. I find the IE report of Dr. Moddel most convincing, as he is the only neurologist to assess the applicant and review her medical records. Dr. Moddel found no sign of any neurological impairment as a result of the accident. He acknowledged the applicant’s self-reported ongoing (and frequent) migraines, but concluded that they were most likely the result of increased stress and anxiety, not the result of neurological sequelae connected to the accident. Dr. Moddel found that the applicant suffered a predominantly minor injury in the accident and that she could reach maximal medical recovery within the MIG.
19Dr. Zabieliauskas arrived at similar conclusions in his physiatry IE report. He also noted the applicant’s complaint of recurrent migraines, chronic neck pain related to the previous car accident, ongoing muscular pain across the tops of both shoulders, and pain in her knees that she said was likely unrelated to the subject accident. Dr. Zabieliauskas found that the applicant sustained a mild cervical strain in the accident that could be treated within the MIG.
20With that said, I partially agree with the applicant’s concerns about these IE assessments being conducted by videoconference, not in person, and assign both of the resulting reports somewhat limited weight as a result. Both of these assessments apparently took place via cell phone while the applicant was sitting in her car, not the ideal location for any sort of physical examination. I agree with the applicant that these IE assessments should have been conducted in person. I do not accept the respondent’s contention that the assessments were done virtually because the applicant resides in Alberta while the accident took place in Ontario. I would think that the insurer could have arranged for its s. 44 examinations to be conducted in person near the applicant’s home in Alberta. Regardless, Dr. Moddel is the only neurologist to assess the applicant, virtually or not, and as noted above, I find his opinion to be of value regarding the concussion claims. The report of Dr. Zabieliauskas I find to be of lesser worth, due to conclusions like the applicant somehow being able to demonstrate full range of motion while “seated in her 2016 Dodge Caravan.” Regardless, it is the applicant’s burden to meet here. Even if I were to set aside these IE reports entirely—and I do not—I would still find that the applicant has not met her burden of showing, on a balance of probabilities, that her injuries fall outside of the MIG.
21For the above reasons, the applicant has failed to demonstrate that she sustained an injury that is not defined as minor by the Schedule. As a result, she remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
22As the applicant remains within the MIG and its $3,500.00 limit on treatment, she is not entitled to the treatment plans in dispute, or interest.
Award
23As the applicant remains within the MIG and no benefits are overdue, it follows that I find the respondent has not unreasonably withheld or delayed any benefits. Thus, the respondent is not liable to pay an award.
ORDER
24I find that:
i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury.
ii. The applicant is not entitled to the treatment plans in dispute, or interest.
iii. The respondent is not liable to pay an award.
Released: June 6, 2023
Brett Todd
Vice-Chair```