Arouh v. The Co-Operators Insurance Company, 2023 CanLII 50612

Licence Appeal Tribunal Decision

Citation: Arouh v. The Co-Operators Insurance Company, 2023 ONLAT 20-009220/AABS

Licence Appeal Tribunal File Number: 20-009220/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:

Isaac Arouh

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Joshua Gautreau, Counsel

For the Respondent: Julianne Brimfield, Counsel Arijana B. Schrauwen, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Isaac Arouh, the applicant, was involved in an automobile accident on August 31, 2018, 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 Co-Operators Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2An 18-wheel transport truck side-swiped the applicant’s car while it was stopped at a light. The applicant alleges that he suffers from chronic pain syndrome due to the accident, and that pre-existing medical conditions impede his recovery from his injuries.

3At issue is whether the applicant sustained a predominantly minor injury limited to $3,500 in medical and rehabilitation benefits, and whether he is entitled to a non-earner benefit (“NEB”), physiotherapy, a chronic pain assessment, and interest.

ISSUES

4The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit and in the Minor Injury Guideline?
2. Is the applicant entitled to an NEB of $185.00 per week from September 28, 2018 to August 31, 2020?
3. Is the applicant entitled to $381.24 ($1,293.11 less $911.87 approved) for physiotherapy, proposed by Inline Rehabilitation Centre Inc. in a treatment plan dated January 21, 2019?
4. Is the applicant entitled to $3,948.91 for physiotherapy, proposed by Inline Rehabilitation Centre Inc. in a treatment plan dated February 11, 2019?
5. Is the applicant entitled to interest on any overdue payment of benefits?

5The parties also made submissions on whether the applicant is entitled to $2,460.00 for a chronic pain assessment proposed by Dr. M. Gofeld in a treatment plan dated August 10, 2021. Although this is not listed as an issue in the Case Conference Report and Order of April 19, 2021, both parties proceeded as if it were. I have therefore considered it.

RESULT

6The applicant sustained a non-minor injury and is therefore not limited to $3,500 in medical and rehabilitation benefits.

7The applicant is not entitled to an NEB.

8The applicant is not entitled to the services proposed in the treatment plans dated January 21, 2019 and February 11, 2019.

9The applicant is entitled to the cost of the chronic pain assessment with interest.

THE APPLICANT SUSTAINED A NON-MINOR INJURY

10I find that the applicant suffers from chronic pain syndrome. As this is not a minor injury as defined in s. 3 of the Schedule, the applicant is entitled to $65,000 in medical and rehabilitation benefits under s. 18(3)(a).

11Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the Minor Injury Guideline (“MIG”). A minor injury is defined in s. 3 of the Schedule 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.

12Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

13The onus is on the applicant to prove that his injuries are not subject to treatment under the $3,500 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

14The applicant alleges that he suffers from chronic pain syndrome and that he has pre-existing medical conditions within the meaning of s. 18(2).

The applicant suffers from chronic pain syndrome

15The applicant relies on an assessment by Dr. M. Gofeld, a chronic pain physician. Dr. Gofeld opined that the applicant met the diagnostic criteria for chronic pain syndrome under the sixth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). The applicant also relies on a letter dated April 15, 2022 by Dr. A. Sasson, his family doctor. Dr. Sasson stated that his current accident-related injuries are insomnia and nightmares, persistent headaches, neck pain and reduced range of motion, increasing low back pain, and forgetfulness, and that he suffers from fatigue due to his insomnia, increasing difficulty with activities of daily living, and “not enjoying life” as he did before the accident.

16The respondent relies on an independent assessment by Dr. R.J. Zabieliauskas, a physiatrist. Dr. Zabieliauskas opined that at most, the applicant’s injuries were a cervical strain, whiplash associated disorder II, and a mild lumbosacral strain, all of which are minor injuries as defined in s. 3 of the Schedule. In his view, any such soft-tissue injuries would have healed within six months of the accident at the latest, and that any continuing impairments were the result of the applicant’s pre-existing medical issues.

The applicant suffers from ongoing pain due to the accident

17The hospital’s and Dr. Sasson’s clinical notes and records show that the applicant experienced headaches and neck and back pain immediately after the accident. Dr. Sasson stated in his April 15, 2022 letter that these are continuing symptoms of his injuries. As the applicant’s family doctor for more than 30 years, he was in the best position to differentiate between pain caused by the accident and pain from pre-existing medical conditions. The applicant reported the same symptoms, among others, to Dr. Gofeld and Dr. Zabieliauskas more than three years after the accident.

18The respondent submits that Dr. Sasson’s letter is not persuasive because the applicant did not produce Dr. Sasson’s post-2018 clinical notes and records to corroborate it. The respondent also argues that Dr. Sasson did not diagnose the applicant with chronic pain, the injuries he did diagnose are minor injuries, and the applicant’s medical records show that forgetfulness was an issue before the accident. I do not accept these arguments. Dr. Sasson’s letter shows that the applicant suffers from ongoing pain due to the accident. It does not purport to diagnose the applicant with chronic pain syndrome or non-minor injuries. I do not rely on it for that purpose, nor for the proposition that the applicant’s issues with forgetfulness were caused by the accident. While Dr. Sasson’s clinical notes and records might have provided additional support for his diagnoses, the letter carries independent weight. The applicant requested Dr. Sasson’s updated clinical notes and records three times but did not receive them by the deadline for productions. I am satisfied that he made best efforts to obtain these documents and therefore do not draw an adverse inference from his failure to produce them.

19It is plausible that the applicant’s pre-existing medical issues contribute to his pain. However, he need only prove that his accident-related injuries are a necessary cause of his impairments, and not that they are the sole cause: Sabadash v State Farm et al., 2019 ONSC 1121 (Div Ct) at para 39. I do not accept Dr. Zabieliauskas’s opinion that the applicant’s pain is solely the product of pre-existing issues for three reasons:

1. Dr. Zabieliauskas opined that the applicant cannot suffer from chronic pain due to his soft-tissue injuries because such injuries would have healed within six months. This conclusion begs the question because chronic pain syndrome is by definition pain that persists beyond the expected healing time: AMA Guides at 32.
2. Dr. Zabieliauskas emphasized that Dr. J. Csumrik, the author of a Disability Certificate (OCF-3) dated January 24, 2019, stated that the anticipated duration of the applicant’s disability was 9-12 weeks. While that may have been a reasonable prediction at the time, it was only a prediction. Given that more than three years had passed by the time of Dr. Zabieliauskas’s assessment, this prediction was no longer relevant. Had Dr. Csumrik predicted that the applicant’s disability would last indefinitely, it is hard to believe that Dr. Zabieliauskas would have deferred to him.
3. Dr. Zabieliauskas did not identify any pre-existing medical issues that would explain the applicant’s neck pain or headaches.

The applicant meets the test for chronic pain syndrome under the AMA Guides

20The AMA Guides require that at least three of six criteria be met for a diagnosis for chronic pain syndrome. I find that the applicant meets criteria two, three, four, and six.

21Criterion two is excessive dependence on health care providers, one’s spouse, or family. Both Dr. Gofeld and Dr. Zabieliauskas noted that the applicant lives with a family member (either his daughter or his niece) and her husband, who take care of all aspects of housekeeping and meal preparation and assist him with personal care tasks such as bathing and dressing. This is an excessive level of dependence for injuries from which he was expected to recover within six months.

22Criterion three is secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain. Dr. Gofeld observed that the applicant had poor posture and weak stamina, and that he moved slowly with disrupted biodynamics, potentially indicating severe kinesiophobia. The applicant reported that pain limited many of his basic physical abilities, including rotating his head and looking up and down, reaching, lifting and carrying, walking, sitting, standing, crouching, squatting, bending, and gripping and grasping objects. He emphasized having difficulty climbing stairs, stating that he must “pull” himself up the stairs due to pain.

23Criterion four is withdrawal from the social milieu, including work, recreation, or other social contacts. The applicant reported to Dr. Gofeld that due to his pain and functional restrictions, he has lost interest in recreational activities such as going out to restaurants or movies, running, and walking, and that he spends more time at home. His daughter/niece—who attended Dr. Zabieliauskas’s assessment—reported that he spends most of his time lying down at home rather than going out.

24Criterion six is development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours. Dr. Gofeld’s report and Dr. Sasson’s letter document that the applicant developed psychosocial sequelae after the accident. He reported to Dr. Gofeld that that since the accident he has experienced depression, passive suicidal thoughts, difficulty falling and staying asleep, and occasional nightmares and flashbacks of the accident, he self-isolates, and he is unmotivated to engage in activities such as showering or shaving. Dr. Sasson noted that he experiences insomnia, accident-related nightmares, and anhedonia (i.e. “not enjoying life”). There is no indication in Dr. Zabieliauskas’s report that he discussed psychosocial sequelae with the applicant.

25The respondent submits that Dr. Gofeld’s report should not be accepted because his conclusions are not corroborated by medical evidence and are simply based on the applicant’s subjective self reporting. It argues that the applicant did not produce Dr. Sasson’s post-2018 clinical notes and records to corroborate the claims in his letter, a prescription summary to corroborate Dr. Gofeld’s finding that he has used medication beyond the recommended duration or at all, or medical records that corroborate Dr. Gofeld’s finding that he suffers from psychological sequelae. I do not accept these arguments for the following reasons:

1. It is incorrect that Dr. Gofeld simply relied on the applicant’s subjective self reporting. He conducted a thorough physical examination that corroborated the applicant’s complaints. Among other things, he observed significant tenderness on palpation of the applicant’s neck and back, limited active range of motion of the neck and back with pain in several planes, that the applicant exhibited significant pain behaviour including grimacing, eye closure, moaning, guarding, and apprehension, and that his movements were very slow with disrupted biodynamics, potentially indicating severe kinesiophobia (i.e. fear of physical activity due to pain).
2. Dr. Gofeld did not rely on Dr. Sasson’s letter, which post-dates his report by five months. While he might have benefited from seeing Dr. Sasson’s post-2018 clinical notes and records, his report carries independent weight.
3. My finding that the applicant has chronic pain syndrome does not depend on Dr. Gofeld’s opinion about the applicant’s medication use.
4. There is evidence that corroborates the applicant’s statements to Dr. Gofeld that he suffers from psychosocial sequelae. Dr. Sasson’s letter identified insomnia, nightmares, and anhedonia as accident-related injuries. In a statement taken by the respondent on July 8, 2019, the applicant reported having difficulty with his emotions since the accident and being depressed. Given that there is no indication that Dr. Zabieliauskas discussed psychosocial sequelae with the applicant, his report does not disprove that such sequelae exist.

26As the applicant sustained a non-minor injury, he is entitled to $65,000 in benefits.

Pre-Existing Medical Condition

27As I have found that the applicant sustained a non-minor injury, I need not decide whether his pre-existing medical conditions exempt him from the $3,500 limit on benefits pursuant to s. 18(2) of the Schedule.

THE APPLICANT IS NOT ENTITLED TO A NON-EARNER BENEFIT

28Section 12(1)1 of the Schedule provides that the applicant is entitled to an NEB if, due to an impairment sustained as a result of the accident, he suffers a complete inability to carry on a normal life within 104 weeks after the accident and does not qualify for an income replacement benefit. Section 3(7) provides that the impairment must continuously prevent the applicant from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The Court of Appeal set out the governing principles in Heath v Economical Mutual Insurance Company, 2009 ONCA 391 at para 50.

29The applicant was 79 years old at the time of the accident. He was retired and lived with a family member (either his daughter or his niece) and her husband.

30The applicant relies on Dr. Gofeld’s assessment, which notes the applicant’s activities of daily living before and after the accident. The respondent argues that Dr. Gofeld’s report should not be accepted, and that the applicant has not specified what his ordinary pre-accident activities were and to what extent he engages in them now.

31Dr. Gofeld was asked whether the applicant suffered a complete inability to carry on a normal life, and whether his impairments interfered with or rendered him substantially unable to engage in certain activities of daily living. Dr. Gofeld gave qualified answers that do not meet the test for an NEB:

1. Dr. Gofeld opined that the applicant is “substantially impaired in almost all normal life activities,” but did not claim that his impairments are so severe that they continuously prevent him from engaging in those activities.
2. Dr. Gofeld was reluctant to opine on the applicant’s ability to engage in specific activities of daily living based on a single encounter. He was willing to assume that the applicant could not vacuum, mop, and sweep, but was not willing to make that assumption for other activities: i. Dr. Gofeld stated that the applicant was “reportedly limited” in basic activities of daily living such as showering, shaving, and stair climbing, that he requires more time and effort, and can complete tasks with substantial assistance. ii. Dr. Gofeld stated that chronic pain “negatively interferes with the ability and desire” to engage in hobbies, recreational activities, and driving, and that the applicant is “reportedly substantially limited” in this respect.

32I find that the applicant has not established that he suffers a complete inability to carry on a normal life. Consequently, he is not entitled to an NEB.

THE APPLICANT IS PARTIALLY ENTITLED TO THE BENEFITS IN DISPUTE

33The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for the medical benefits enumerated in s. 15, including the costs of assessments prepared in connection with those benefits. The onus is on the applicant to prove that the proposed services are reasonable and necessary.

Procedural Issue

34The parties did not file the treatment plans in dispute with their materials. When the Tribunal requested that they provide them, the respondent submitted that it is improper to request additional evidence after submissions have been filed. The applicant argues that he inadvertently omitted to file the treatment plans and that they should be admitted because they are uncontroversial and necessary to decide the issues in dispute. I directed the parties to file the treatment plans and advised that I would rule on the respondent’s objection.

35I find that the treatment plans are admissible. I disagree that it is improper for the Tribunal to request them. Rule 9.1 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission provides that the Tribunal may, at any stage in a proceeding, order any party to provide such further particulars or disclosure as it considers necessary for a full and satisfactory understanding of the issues in the proceeding. As the treatment plans set out the services in dispute, they are necessary for the Tribunal to have a full and satisfactory understanding of the issues in this case. The respondent cannot claim that it is prejudiced by admitting these documents because it knows they are the foundation of the claims for medical benefits. To the contrary, the Tribunal held in J.R. v Certas Home and Insurance Company, 2018 CanLII 13161 (ON LAT) (Reconsideration) that in many cases the Tribunal must request the treatment plans in dispute as a matter of procedural fairness to the applicant.

Physiotherapy

36The services proposed in the treatment plans are chiropractic services and massage therapy, not physiotherapy. I find that the applicant is not entitled to these services.

37The applicant argues that the proposed services are reasonable and necessary because their goals are reasonable, his chronic pain syndrome is not a minor injury, and it was unreasonable to deny the services given his pre-existing conditions, his medical records, and Dr. Gofeld’s findings. The respondent argues that the applicant has not provided evidence that establishes the proposed services are reasonable and necessary.

38The applicant has not met his burden of proof. His submissions incorrectly state that the proposed services are physiotherapy, and he has not identified any evidence that shows chiropractic treatment and massage therapy are reasonable and necessary. Dr. Gofeld’s treatment recommendations in his report do not include these services.

Chronic Pain Assessment

39The applicant is entitled to the cost of Dr. Gofeld’s chronic pain assessment.

40The applicant relies on Dr. Gofeld’s opinion that he suffers from chronic pain syndrome and argues that Dr. Zabieliauskas’s opinion should not be accepted. The respondent argues that the applicant has not provided evidence that demonstrates the need for a chronic pain assessment.

41I find that the chronic pain assessment is reasonable and necessary. Given that I have found the applicant suffers from chronic pain syndrome, there was good reason for an assessment to make a diagnosis and treatment recommendations.

INTEREST

42The applicant is entitled to interest pursuant to s. 51 of the Schedule.

ORDER

43The applicant sustained a non-minor injury and is therefore entitled to $65,000 in medical and rehabilitation benefits.

44The applicant is not entitled to the chiropractic services and massage therapy in dispute.

45The applicant is entitled to the cost of Dr. Gofeld’s chronic pain assessment with interest.