Licence Appeal Tribunal File Number: 21-014228/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:
Barbara John
Applicant
and
Belair Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kevin Lundy
APPEARANCES:
For the Applicant:
Barbara John, Applicant Olubunmi Akinsanmi, Counsel
For the Respondent:
Karla Barone, Representative
Omar Sewhdat, Counsel
Court Reporter:
Prashanth Thanbipillai
HEARD: by Videoconference:
June 19, 20, 22, 2023
OVERVIEW
1Barbara John (the ‘applicant’) was involved in an automobile accident on October 28, 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 Belair Insurance Company (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (‘MIG’) limit? The parties agree that the MIG limits have been exhausted.
Is the applicant entitled to a non-earner benefit of $185.00 per week from March 18, 2020 to October 28, 2021?
Is the applicant entitled to $2,910.77 for physiotherapy services, proposed by Physiomed Bramalea in a treatment plan/OCF-18 (‘plan’) submitted March 2, 2020 and denied March 16, 2020?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Scarborough Physio & Rehab Clinic in a plan submitted February 25, 2021 and denied September 2, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons to follow, I find that:
a. The applicant’s injuries fall outside of the MIG.
b. The applicant is entitled to a non-earner benefit of $185.00 per week from March 18, 2020 to October 28, 2021.
c. The applicant is entitled to $2,910.77 for physiotherapy services, proposed by Physiomed Bramalea in a plan submitted March 2, 2020 and denied March 16, 2020.
d. The applicant is entitled to $2,200.00 for a chronic pain assessment, proposed by Scarborough Physio & Rehab Clinic in a plan submitted February 25, 2021 and denied September 2, 2021.
e. The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUE
4The applicant opposed admission of the property damage file as it was disclosed after the deadlines for production as set out in the case conference order and report dated January 27, 2023. Pursuant to subsection 15(1) of the Statutory Powers Procedure Act (the ‘SPPA’), the Tribunal may admit as evidence at a hearing any oral testimony and any document or other thing relevant to the subject matter of the proceeding and may act on such evidence, but may exclude anything unduly repetitious. Further, Rule 9.4 of the Tribunal’s Rules generally disallow evidence that was not disclosed in accordance with the rule or otherwise by Tribunal order, unless the Tribunal consents. Neither the physical mechanics of the collision nor the comparatively minor physical damage to the applicant’s vehicle were contested. Photographs, repair estimates and other documents related to this damage are relevant to the severity of the applicant’s injuries and the circumstances of the accident and may assist in the determination of the issues in dispute. As a result, I admitted this evidence, subject to submissions by the parties with respect to its evidentiary weight.
ANALYSIS
Background
5On October 28, 2019, the applicant was driving with her niece to Sunnybrook Hospital to visit her husband who was being treated in the intensive care unit. She was stopped at a light when she was struck from behind in a three-vehicle collision. She was the third vehicle to be impacted when the two vehicles behind her collided and hit her. The vehicle’s airbag did not deploy and she was wearing her seatbelt. No part of her body struck the interior of the car. Police and emergency responders attended at the scene.
6She was able to exit the vehicle and inspect the damage. Her vehicle was deemed non-repairable after the accident. However, this determination may have been more related to the cost of potential repairs versus the value of the vehicle since images of the car following the accident show a largely intact vehicle. Although she recalled that her rear bumper was partially detached, her car was drivable and after the police cleared her from the scene, she drove to the hospital to visit her husband as planned. Afterwards, she went home but began to experience increasing pain that evening as well as the next day.
7On the day of the accident, the applicant was sixty-eight years old; at the time of the hearing, she was seventy-two years old and had been retired for four years. She was not employed as of the date of the accident. She resides in a three level house in Brampton that includes a basement laundry room. Her husband passed away after the accident in February 2020. She has one adult son, Perry John, who moved into her residence to assist her with daily living shortly after the accident. Her son denied that he moved in to assist his mother in response to his father’s hospitalization and subsequent death.
8The applicant testified that she was in good health prior to the accident. Her previous family physician, Dr. Robert Kemp, had retired in October 2019 and Dr. Anoja Anton took over his practice including treatment of the applicant. As a result, Dr. Kemp did not see the applicant with respect to her injuries from the motor vehicle accident. Clinical notes and records from both doctors confirmed that her only other health conditions are high blood pressure, diabetes, high cholesterol as well as diagnose for arthritis and osteoarthritis in her hip. Her diabetes is well managed through medication and injections and she experienced no symptoms related to this condition at the time of the accident.
9Prior to the subject motor vehicle accident, the applicant suffered an injury to her shoulder that she believes was exacerbated by the accident in 2019. Specifically, in October or November 2016, the applicant was walking her dog when the dog pulled hard on her arm, causing her to strike a fence with her right shoulder. Although Dr. Kemp described the mechanics of this injury in his notes as having been caused when the applicant “landed on her right shoulder,” the applicant emphasized that this was simply a poor choice of phrasing on Dr. Kemp’s part since she collided with a fence but never fell to the ground. Dr. Kemp sent the applicant to physiotherapy to treat her shoulder and she still attended this service until six months prior to the motor vehicle accident.
10An ultrasound revealed that the 2016 incident resulted in a full tear to the applicant’s rotator cuff. Dr. Anton discussed this result with the applicant on October 8, 2019 in the context of the applicant’s ongoing pain despite the physiotherapy. She sent the applicant for an MRI.
11Recovery from this prior injury temporarily interfered with the applicant’s daily routine and her sleep for a few months following the event. As Perry John noted, she was compelled to rest and “take it easy for a while.” For instance, she was unable to walk her dog for three months and asked her son to assist with this task until she recovered. However, this prior accident never interfered with her self-care activities and only temporarily affected her ability to carry on her daily routine. For instance, she was able to return to her previous routine for dog walking three months after the accident. She recalled that any limitations caused by the 2016 accident had resolved within approximately six months. She explained that the injury “was getting much better” by that time and in her view, almost healed. She was not taking any prescription medications with respect to her shoulder. Perry John recalled that his mother received some therapy following the 2016 incident but was not aware if she still availed herself of this service by the date of the motor vehicle accident.
12The applicant saw Dr. Anton on October 29, 2019, the day after the accident. She described the mechanics of the collision to Dr. Anton and complained of pain in her arm, both shoulders and her back, particularly her right shoulder. The applicant had already started using a hot water bottle and a heating pad immediately following the accident, and explaining at the hearing that these items helped with the pain to some degree. Dr. Anton conducted an examination and found that she had a good range of motion in her neck and shoulder with paraspinal tenderness with palpation and good flexion and extension in her back. She also had good lateral rotation and bending and a normal gait. At that point, Dr. Anton diagnosed her with soft tissue injuries. She prescribed an anti-inflammatory medication for four weeks and recommended that the applicant attend physiotherapy; she also sent her for an x-ray and an ultrasound. She was never diagnosed with any lacerations, fractures or breaks.
13The applicant attended physiotherapy at Physiomed Bramalea as recommended until the respondent denied coverage in March 2020, after six weeks and two sessions. Dr. Anton noted that the applicant was always very compliant with her recommendations. The applicant could not however continue to attend physiotherapy as she could not pay for the service out of pocket and stopped attending six to eight months ago. The last time she received any therapy for the pain in her right shoulder was in February or March 2023. She continued to perform exercises both at home and at a local seniors’ center. The applicant took analgesics for the pain, but noted that they did not help very much. Nonetheless, as of the hearing, she continued to take Tylenol, Tylenol 3 and Advil for her ongoing pain. She could not state whether these medications also assisted with her pre-existing arthritis.
14The applicant next saw Dr. Anton on December 20, 2019 to review her stress echo report. As the results of this test were normal, Dr. Anton suspected that the continuing pain in the applicant’s shoulder related to a musculoskeletal issue. The applicant also reported tingling and numbness in her finger. On January 6, 2020, Dr. Anton reviewed the results of the ultrasound with the applicant and confirmed a full thickness tear of the rotator cuff. On February 21, 2020, the applicant attended at Dr. Anton’s office and exhibited a decreased range of motion, but good grip strength equally in both hands. She had received a cortisone injection at Rapid Access Clinic but had not found this to be effective in resolving her pain symptoms. Dr. Anton also sent the applicant for an MRI to determine whether the applicant had sustained any nerve damage. By March 18, 2020, the MRI had been completed and confirmed a full thickness supraspinatus tear and tendinosis of the subscapularis tendon. Dr. Anton recommended a follow up with physiotherapy and orthopaedics. Physiotherapy could be helpful to reduce any inflammation.
15In the OCF-3 she prepared on March 18, 2020, Dr. Anton estimated that the applicant’s disability would last more than twelve weeks due to her symptoms and her response to physiotherapy and the cortisone injection, as well as inevitable delays to orthopaedic procedures related to the then emerging COVID-19 pandemic. Based upon the applicant’s self-reporting, Dr. Anton indicated that prior to the present accident, she had no pre-existing conditions that affected her ability to perform daily activities. She also indicated that that the applicant had not received any intervening injuries since the accident that her ability to perform daily activities.
The Applicant’s Daily Activities Before and After the Accident
16The applicant’s functionality is central to whether her injuries should be treated within the MIG as well as whether she demonstrated entitlement to non-earner benefits. As a result, consideration of her abilities before and after the accident is relevant to these determinations.
17Prior to the accident, the applicant was fully independent in her daily living, including all self-care activities. She cooked for herself and prepared meals daily. She cleaned her house regularly, including sweeping and mopping her floors and dusting her cabinets routinely at least once a week. She did her laundry at least once a week. She climbed up and down her stairs and was able to lift and carry items, such as a full laundry basket, without assistance. Although her arthritis and osteoarthritis may have rendered use of the stairs slightly more difficult, Perry John confirmed that she was still able to climb them prior to the accident.
18The applicant usually purchased groceries every two weeks in addition to more frequent errands for incidental purchases. She shovelled snow from her driveway, occasionally shovelling her neighbour’s driveway as well. She enjoyed gardening and planted a vegetable garden and flowers every year. She described all of these outdoor actions as enjoyable pursuits rather than merely obligatory tasks that needed to be completed. In particular, she enjoyed walking her dog three times each day, usually for thirty minutes at a time and emphasized the importance of this activity and its benefits in terms of exercise and fresh air. She also enjoyed working on jigsaw puzzles and playing cards. She played cards with relatives, her son and friends at least once a week.
19Perry John confirmed that prior to the 2019 accident, his mother was fully independent. Although he visited her at her house once or twice each week, she did not require his assistance with respect to any of her daily tasks.
20Following the accident on October 28, 2019, pain from the applicant’s injuries substantially reduced her functionability by reducing or preventing her engagement in activities as follows:
i. After the accident, she made several attempts to clean her house but was unable to continue as the pain in her hand overwhelmed her.
ii. She is unable to play cards or do jigsaw puzzles due to the pain in her shoulder and hands. She cannot shuffle the cards and the pain in her hands makes these activities too difficult. The applicant is right hand dominant.
iii. She can no longer walk her dog. Her niece and nephew walk the dog for her whenever they visit. Her son also assists with this task.
iv. She cannot carry her laundry basket up or down the stairs to the basement where the machines are located. Her son assists by carrying the basket up and down the stairs, folding the laundry and putting it away. The applicant is unable to conduct any of these steps continuously. As her son explained, she lacks the strength in her arms and hands to carry a full basket and it cannot be carried with one hand despite her remaining greater strength in her left hand. Given her difficulty with the stairs, her son stated that dragging the basket would be worse for her. Although the respondent noted that she remained able to accomplish all other parts of this chore apart from carrying and folding, as the applicant noted, the machines themselves complete the actual tasks of washing and drying.
v. She has difficulties preparing meals and has to take frequent breaks due to pain. As a result, her son has assumed responsibility for preparation of ingredients, such as cutting and peeling vegetables as these tasks would take an impractical amount of time given the applicant’s need for pacing and breaks.
vi. She cannot carry the garbage can to the curb as she is unable to lift anything that weighs more than 2.5 pounds with her right arm. She estimated that she was still able to carry approximately 10 pounds with her left arm. Her son has therefore assumed this duty.
vii. She cut her hair short as she was unable to wash or style it while it was long given the reduced function in her hands.
viii. She is unable to wash her back also due to the diminished functionality in her hands and arms.
ix. She has not conducted any gardening since the accident. Perry John plans to take on this project in the future as the availability of fresh vegetables and flowers was very important to his mother. He recalled that the preparation of meals from garden to table was an important element of meals in his mother’s home. For example, his mother always grew tomatoes in her garden.
x. She has been unable to remove snow from her driveway or that of her neighbour. Unlike many people, she enjoyed shovelling snow.
xi. She is unable to shop for groceries as she cannot lift or carry the grocery bags. Her son has also assumed this task.
xii. Perry John also stated that his mother has exhibited some difficulty with walking generally.
xiii. Pain from the accident also interferes with her ability to remain asleep at night. Perry John confirmed that his mother regularly wakes up in the night due to pain.
21Approximately two or three months after the 2016 injury, the applicant hired a housekeeper to assist with sweeping and mopping twice a week. However, this appears to have been a temporary requirement involving a minimal proportion of the household duties, compared to the housekeeper’s later duties following the accident in 2019. The applicant had never previously needed the services of a housekeeper as she had been completely independent. As of the date of the hearing, the housekeeper continues to assist with housework, including sweeping, mopping and dusting.
22Perry John emphasized the dramatic change in his mother’s ability to accomplish tasks in and around her house following the 2019 accident. He described the valiant efforts she made to remain independent and maintain her pre-accident level of functionality. For instance, he recalled that she purchased additional vacuum cleaners and mop buckets for each floor of her house so that she would not have to transport these items up or down the stairs. However, the physical acts of cleaning despite these adaptations still proved too onerous. While she still insists on performing some comparatively minor cleaning when the housekeeper is absent, these are largely symbolic undertakings borne more out of a refusal to give up than mounting any substantive campaign on the total daily chores. Her son has also assumed a significant share of the housekeeping when the housekeeper is unavailable.
23The applicant also remains proactive in her physical rehabilitation despite the loss of funding by the respondent. She attends at Bramalea Senior Centre for an exercise class involving various stretching, punching, balancing and breathing exercises in which she can participate virtually. This is distinct from another senior centre where she attended long ago for leisure and social activities. At the Bramalea centre, she participates in a stretching exercise that simulates climbing a wall. She engages in these exercises between twice and three times each week, including the Thursday preceding the hearing. These exercises are similar to those she did prior to her shoulder surgery in November 2021. Although she is better able to perform the exercises, occasionally pain prevents her from doing so. She has been advised not to continue if in pain. Although these self-directed exercises assist with her pain to some extent, without more comprehensive therapy, they are limited in their efficacy.
The Minor Injury Guideline
24Subsection 3(1) of the Schedule 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 and includes any clinically associated sequelae to such an injury.” Subsection 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident. The applicant bears the burden of proving, on a balance of probabilities, that her injuries are not minor within the meaning of the Schedule.
25The applicant takes the position that she should be removed from the MIG because she has a pre-existing injury that has prevented her from achieving maximal recovery and because she experiences chronic pain as a result of the accident.
26Dr. Allan Kopyto, a general practitioner, saw the applicant in person on April 3, 2020 and performed an independent assessment to provide an objective opinion regarding the applicability of the MIG, as well as medical and rehabilitation benefits with the OCF-18 plan dated March 2, 2020 ($2,910.77). This assessment lasted approximately 75 minutes.
27Dr. Kopyto reported that the applicant walked with a normal gait and appeared healthy. She sat with a normal posture and appeared comfortable throughout the assessment. There was no evident impairment in memory or balance. She also reported no anxiety or depression. She described the circumstances and mechanics of the collision as well as the earlier 2016 accident.
28Dr. Kopyto conducted a physical examination and measured the applicant’s range of motion with a goniometer. Examination of her cervical region revealed no abnormalities on visual inspection. She reported tenderness at the superior aspect of the right trapezius. However, her active ranges of motion were measured and noted to be normal and her neck movements were fluid. Axial loading test was negative. The right shoulder sat higher than the left. Otherwise, both shoulders appeared normal and demonstrated a full active range of motion with respect to adduction. Abduction was also normal bilaterally.
29The applicant reported tenderness at the anterior aspect of the right shoulder and her right shoulder movements were correspondingly slightly guarded. Upper extremity reflexes (biceps, triceps and brachioradialis) were normal bilaterally, as was their tone and bulk. Grip strength was normal and equal bilaterally, as was sensitivity to light touch in the upper extremities. Examination of her hands and wrists was normal and he observed no swelling or tenderness. Range of motion was within normal limits. Examination of the upper and lower back regions revealed no abnormalities on inspection. Iliac crests appeared level and symmetric and there was no tenderness present. Ranges of motion of the lumbar spine were also measured and found to be normal. Forward flexion was normal and lumbar movements were fluid. Lower extremity reflexes were equal and normal bilaterally as was lower extremity tone.
30Dr. Kopyto noted a slight degree of atrophy involving her left lower leg compared to the right though sensory testing was normal and range of motion in both legs was normal and there was no tenderness present. Examination of the applicant’s knees revealed some bulkiness involving the anterior aspects of the knees compatible with arthritis, more noticeable on the left. However, there was no tenderness or effusion present in this area either. There was normal flexion and full extension bilaterally, with no signs of ligamentous instability. The applicant was also able to independently transfer from sitting to standing, standing to sitting and to get on and off the examination table without any difficulty. At the end of the examination, she confirmed that she had no questions, concerns, or additional information to provide.
31The applicant reported to Dr. Kopyto that she underwent an MRI evaluation of her right shoulder on March 3, 2020, as arranged by Dr. Anton, but had yet to be informed of the result. She had not undergone any other X-rays or other imaging tests. She had been prescribed an analgesic by Dr. Anton since the accident, but believed it was an anti-inflammatory medication. Nonetheless, she complained of ongoing pain to her neck, shoulder and back as a result of the accident. She had no prior history of back issues or musculoskeletal problems and she denied experiencing any other pain since the accident.
32Based on the history obtained, his clinical findings and the documentation reviewed, Dr. Kopyto diagnosed the applicant with sustained uncomplicated musculoligamentous strains of her neck, right shoulder and back. Although the applicant did not describe her torn rotator cuff by name, he stated that it was sufficient that she disclosed this injury by describing the event.
33He stated that his prognosis for full recovery was good. He determined that despite the potential for the accident to exacerbate her pre-existing history of chronic neck and right shoulder pain he had not been provided with any clinical notes and records to suggest that they would necessarily prevent the applicant from achieving maximal recovery from the injuries directly related to the 2019 motor vehicle accident. He did not change his opinion in a subsequent addendum dated November 4, 2020.
34Dr. Alan Kruger is a general and urgent care doctor qualified as an independent medical physician. He examined the applicant once on August 18, 2021 for an independent assessment for approximately thirty minutes. He reviewed the facts of the accident and the applicant’s medical history with her. As with Dr. Kopyto, although the applicant did not use the phrase “torn rotator cuff” with respect to her 2016 injury, she did describe the circumstances of that accident and the resulting injury. She also reported no anxiety, depression or any other psychological issues with respect to the motor vehicle accident to Dr. Kruger. Based upon the applicant’s description of the collision and her ability to exit the car unassisted, he concluded that it was a minor accident.
35In terms of housekeeping and home maintenance, she reported to Dr. Kruger that with pacing techniques she can perform all of her pre-accident tasks and chores, such as laundry, meal preparation and cleaning. She indicated that she had hired a cleaning person who visits twice a month to perform cleaning of the house. In terms of her other activities of daily living, pertaining to self-care, she reported current independence with personal hygiene, dressing and undressing, self-feeding, functional transfers, bowel and bladder management, and ambulation. Dr. Kruger did not recall if the applicant had stated whether she had resumed driving.
36Dr. Kruger observed no apparent abnormality of the applicant’s gait as she ambulated from the waiting room into the evaluation room and she did not use any supportive devices. She was able to sit through the interview without changing position or shifting. She was able to get on and off the examination table without any assistance. The claimant was able to change position from sitting and then standing.
37Dr. Kruger conducted a physical examination of the applicant’s shoulders, neck and lower back as well as a cardiovascular examination. He found that her range of motion and strength testing were essentially normal although some movements in the cervical spine were painful at the terminal ranges. Essentially, all of the applicant’s movements and range of motion were within the normal range albeit painful. He stated in his report, dated August 20, 2021, notwithstanding the applicant’s prior shoulder injury, he failed to identify any significant barriers to recovery for the applicant in terms of her past medical history and upon his clinical musculoskeletal examination. He opined that the applicant should have been expected to have returned to her pre-accident level of functioning at that time. He also detected no inconsistencies between his physical examination and his observations of the applicant’s movements. From a musculoskeletal perspective, he ultimately diagnosed the applicant with cervical spine strain/sprain (whiplash associated disorder I) and a non-specific soft tissue exacerbation of prior right shoulder injury, which was now resolved.
38He added that all of this was based upon the applicant’s own reporting. However, he also acknowledged that he saw the applicant a considerable period of time after the accident and therefore well after her pain would have been expected to resolve. He explained that the applicant’s pain was not in the shoulder joint but in the trapezius muscle over the top of her shoulder
39Overall, he described his physical examination as relatively unremarkable. He found no evidence of any objective neurological or radicular pathology related to the subject accident. Therefore, he offered the opinion that, strictly from a musculoskeletal perspective, the claimant has suffered soft tissue injuries that would be consistent as ‘minor injuries’ as defined by the Schedule.
Effect on the Pre-Existing Injury
40Section 18(2) of the Schedule provides for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500.00 MIG limit. To access the increased benefits, the insured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident and that will prevent the insured person from achieving maximal recovery if benefits are limited to the MIG limit.
41Evidence regarding the applicant’s recovery following the 2016 injury was to some extent contradictory. While the applicant testified that she was almost healed prior to the motor vehicle accident, Dr. Kemp’s clinical notes and records related to the 2016 injury indicated that as of a November 12, 2018 visit to his office, the applicant reported that the pain was getting worse. However, on a subsequent visit on May 2, 2019, Dr. Kemp reported that the “shoulder was resolving nicely.” Dr. Anton added that records of a lymphoma on the applicant’s shoulder were associated with an issue unrelated to the applicant’s subsequent injuries in the motor vehicle accident.
42While these notes appear to suggest a gradual improvement, the subsequent interventions prompted by unresolved pain suggest that the older injury had not healed. As the applicant’s right shoulder continued to cause her pain, Dr. Anton recommended surgery. The surgery took place at Creditview Hospital at some point before a recorded follow up visit on March 21, 2022, according to the clinical notes and records of Dr. Bill Manolopoulos at the Mississauga Hospital Fracture Clinic. After the surgery, she also received a nerve block injection treatment. While the pain lessened somewhat following the surgery, the pain in her hand and under her arm did not improve. Perry John confirmed that his mother still complained of pain in her shoulder and hand even after the surgery.
43Dr. Kopyto acknowledged that the accident may have temporarily exacerbated her pre-existing injury but emphasized that it would not have interfered with her maximal recovery. When asked if the six months that had elapsed between the accident and the date of his assessment fell under the term “temporary,” Dr. Kopyto drew a distinction between an injury that exacerbates a condition and one that aggravates it, stating that the latter did not apply in the present case as aggravation relates to a longer term condition.
44Having reviewed Dr. Anton’s records, Dr. Kruger acknowledged that the applicant had reported and the documents reviewed indicated that she had chronic neck and right shoulder pain prior to the accident. In contrast to the wording used by Dr. Kopyto, Dr. Kruger acknowledged that it was likely that the accident may have aggravated her pre-existing soft tissue injuries in the neck and right shoulder. However, he maintained that he was unable to identify any significant barriers to recovery for the applicant in terms of her past medical history and upon his own clinical musculoskeletal examination. Unlike Dr. Kopyto, he expressed no distinction between exacerbation and aggravation of the prior injury.
45Ultimately, I find that the evidence on whether the pre-existing injury had been worsening or improving prior to the 2019 accident was ambiguous at best. While the applicant testified that the injury was almost healed in the months preceding the accident, she continued to seek treatment for the pain caused by this accident and relied upon the assistance of the housekeeper with respect to some portion of her cleaning tasks, although not the extent that this assistance was later required. It was also unclear whether the accident had any discernable effect upon this injury given that the pain associated with the earlier injury may have simply resurfaced but in and of itself posed no causal barrier to the applicant’s recovery from the injuries caused by the accident. As a result, I do not find that the applicant demonstrated on the balance of probabilities that she should be removed from the MIG on the basis that this pre-existing medical condition will prevent her from achieving maximal recovery if benefits are limited to the MIG limit.
Chronic Pain
46The effect on a pre-existing medical condition is not however the only route out of the MIG. In T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (‘T.S.’), the Tribunal held that that chronic pain is not captured by the Schedule’s minor injury impairment level. Although this decision is not binding upon me, I find it persuasive in terms of whether chronic pain properly falls within the limitations of the MIG.
47Dr. Nayyar Razvi is qualified as a chronic pain specialist who assessed the applicant in person on July 23, 2021. The assessment lasted one hour and fifteen minutes and involved an interview, a physical examination and a report dated August 16, 2021. Dr. Razvi explained the visual analogue pain scale (VAS) to the applicant and this scale was implemented to quantify changes in pain magnitude over time. For instance, VAS 0/10 represents no pain and 10/10 a maximal level of pain. The applicant was also asked to complete a BPI (Brief Pain Inventory) prior to the assessment which provides an overview of current levels of pain and interference. The S-LANSS questionnaire that indicates the possibility of neuropathic pain was also completed. In addition, a pain catastrophizing scale was also completed.
48With respect to the applicant’s scores for this testing, her S-LANSS score was 13 where a score of 12 or more suggests pain of neuropathic origin. Her score on the Pain Catastrophizing Scale (‘PCS’) was 45, indicating a high degree of catastrophizing where a total PCS score of 30 indicates a higher than average level of catastrophizing. In his report, Dr. Razvi explained that catastrophic thinking in relation to pain is a risk factor for chronicity. Catastrophizing contributes to heightened levels of pain and emotional distress and increases the probability that pain will persist over an extended period of time. The primary treatment for catastrophizing is cognitive behavioural therapy.
49Lastly, the applicant’s score on the Pain Disability Index (‘PDI’) was 52. Significantly, the PDI is an instrument for measuring the impact that pain has on the ability of a person to participate in essential life activities. This can be used to evaluate patients initially to monitor them over time and to judge the effectiveness of interventions. To that end, treatment may reduce a high score, though all of these measures would be more useful if Dr. Razvi were treating the applicant on a long term basis. At an assessment, they serve strictly as guidelines for treatment.
50Dr. Razvi observed that the applicant experienced some mild difficulty getting out of a chair when called into the interview room. He observed no other pain behaviours, such as wincing or other expressions related to pain.
51During his musculoskeletal examination, Dr. Razvi observed that with respect to her cervical spine and occiput, the applicant held her head in an anterior carriage position, typical for rear end collisions. She also had palpable tenderness in the paraspinal muscles, trapezius and rhomboids as well as base of the occiput bilaterally. Flexion was to 45° and extension was to 15°. Reflexes and sensation distally were within normal limits.
52With regard to the right shoulder, he noted mild wasting. She also had palpable tenderness over the supraspinatus tendon. Flexion was to 90° and extension was normal. Abduction was difficult and stopped at about 45° to 50°. She had a positive supraspinatus sign. With regard to the lumbar spine, there was palpable tenderness in the paraspinal muscles as well as sacroiliac joints bilaterally. Flexion was to 70° and extension was to 15°. Distal reflexes, strength and sensation were within normal limits.
53Ultimately, Dr. Razvi diagnosed the applicant with chronic pain syndrome secondary to the motor vehicle accident; zygapophyseal/myofascial pain, cervical spine; right-sided rotator cuff pathology; zygapophyseal/myofascial pain, lumbar spine; mood disorder (depression to be confirmed by appropriate specialists); and a general diagnosis of deconditioning secondary to the above. At the hearing, he explained that unlike acute pain that fades after tissue heals, chronic pain can be defined as any pain lasting more than three months. Chronic pain syndrome is a psychological condition resulting from chronic pain and as noted in A. A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT), the two terms are often used interchangeably, even by physicians. Patients with chronic pain tend to become deconditioned with a decreased range of motion. Treatment involves removing the pain to allow the patient to recover range of motion, thereby improving physical activity. Regarding the above guidelines, Dr. Razvi explained that the objective of treatment is to reduce scores by 30%.
54Having determined that the applicant suffers from chronic pain syndrome with an associated mood disorder and diminished functioning, Dr. Razvi found that she falls outside of the MIG. Barriers to recovery include the length of time that she has had the pain since the accident. He also found that her pre-existing myofascial pain from the previous shoulder injury would pose a barrier to recovery. As the Tribunal noted at paragraph 19 in T.S.,
…the MIG provides a “functional restoration model” for treating minor injuries. It outlines a structured 12-week treatment program for those injured in car accidents that sustain a minor injury. The MIG references treatment for ‘Whiplash Associated Disorder’ (“Whiplash”) but includes no reference on how to treat or diagnose chronic pain. By definition, chronic pain is a condition that persists for three to six months after an initial trigger or injury.
55To that end, the Tribunal went on to state that the accident benefits system cannot fulfill its purpose of providing timely access to treatment if the minor injury framework restricts applicants suffering from chronic pain.
56Dr. Razvi also noted that the applicant’s concomitant mood disorder needs to be further evaluated and treated and this may represent a barrier to recovery if not assessed properly. He explained that he used the term “concomitant” as a synonym to concurrent or simultaneous rather than any associated substance abuse indications. He acknowledged that psychiatric or psychological determinations are beyond the scope of his expertise, but should be investigated through a qualified professional. Within the context of a chronic pain assessment, Dr. Razvi determined that the applicant has sustained an impairment that continuously prevents her from engaging in all of the activities in which she ordinarily engaged before the accident.
57Although the chronic pain evaluation is substantially based upon the patient’s self-reporting, like all of the assessors, Dr. Razvi found the applicant very cooperative and forthright. Although his assessment lacked a validity testing component, neither he nor any of the other assessors expressed any basis to suspect malingering or symptom magnification. Nonetheless, he noted that observation of any discrepancy between physical activity and injuries will reveal any malingering and he detected none during the course of the assessment. He added that his observation of the applicant began from the moment he ushered her in from the waiting area and lasted to the end of the assessment. Conversely, the physical wasting observed around the applicant’s right shoulder supported her reporting of pain in this area.
58Following her surgery on November 20, 2021, Dr. Razvi saw the applicant a second time and generated an addendum report to account for this new event. However, he maintained his original diagnoses and made no changes to his findings. He completed the associated OCF-18 on February 25, 2021 for a chronic pain assessment to confirm his diagnosis and optimize the applicant’s recovery. He would not be the doctor to treat her for chronic pain.
59The respondent submitted that little weight should be accorded to Dr. Razvi’s evidence including his August 16, 2021 report due to his arguably imprecise language in several areas. In addition to his use of the term “concomitant,” he employed ambiguous language regarding her psychological state that could suggest that she suffered from a cognitive impairment regarding mathematical calculations. However, at the hearing, he clarified that he intended to state that the applicant instead faced financial barriers to treatment as she was unable to fund therapy out of pocket. Like his explanation of the use of “concomitant,” I find not only that he provided a reasonable explanation for his wording, but this explanation also accords with the other uncontested evidence submitted by the applicant and Parry John. I find that little turns on these alleged errors not only as the respondent failed to demonstrate that its definition of “concomitant” for instance is preferable or that these trivial issues in any way serve to undermine the medical conclusions advanced in Dr. Razvi’s report. At most, they may simply indicate that Dr. Kopyto and Dr. Kruger are better writers than him, but eloquent prose is not the objective of the assessment.
60In addition, the respondent takes issue with the absence of a diagnosis of psychological impairment in Dr. Razvi’s evidence. I find that this represents another red herring in the respondent’s argument. Although he testified that the applicant reported depression following the accident, he simply stated that investigation on this issue should be referred to the appropriately qualified professionals if need be. The applicant never advanced the issue of psychological impairment as an injury that may exempt her from the limitations of the MIG and sought no benefits related to a treatment plan or assessment related to such services.
61I also make no adverse inference over the applicant’s occasional inability to recall specific dates and medical terms. Unlike the assessors who examined her, she was under no obligation to make comprehensive notes and cannot be reasonably expected to know the clinical terms for her injuries or the anatomy affected. At the time that she experienced various events and symptoms, her concern would have been recovery not documentation. All of the assessors commented on her cooperation and raised no concerns over validity issues or symptom magnification.
62Although Dr. Kopyto did not discount her reports of pain and found no indication of symptom magnification or exaggeration, he also observed evidence of wasting. He ultimately stated that he could find no objective medical evidence to account for her ongoing pain. He did not change his opinion in any of the subsequent addenda, including the final one dated March 24, 2022 and issued in response to the receipt of additional records from Dr. Anton.
63Dr. Razvi’s evidence was the only expert evidence submitted with respect to chronic pain. Although Dr. Kruger is qualified to provide a diagnosis regarding chronic pain, he was not asked to do so. Both he and Dr. Kopyto took the position that because they expected the applicant to recover from her injuries within the time limitations of the MIG, she should have done so. However, neither contested the truthfulness of her pain complaints and both confirmed tenderness in her shoulder area long after the date of the accident. That the applicant differs from the average patient in terms of her recovery time does not negate the severity of the pain she has endured since the accident. As well, all of the witnesses agreed that the applicant was cooperative and compliant with medical advice and there was no indication she interfered with her own recovery or gave less than her full effort with respect to the self-directed exercises to which she was limited once the respondent discontinued funding her treatment.
64In light of all of the evidence, I find that the applicant demonstrated on the balance of probabilities that she has chronic pain. I am also persuaded by the analysis in T.S. that the diagnosis of chronic pain falls outside the minor injury framework.
Entitlement to Non-Earner Benefit
65Based upon the applicant’s evidence of impaired functionality as detailed above, I prefer her evidence and submissions over those of the respondent and find that the applicant has demonstrated on the balance of probabilities that she is entitled to a non-earner benefit.
66Subsection 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an 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 and does not qualify for an income replacement benefit. Subsection 3(7)(a) of the Schedule defines “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.”
67In Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (‘Heath’), the Ontario Court of Appeal set out the guiding principles relating a claimant’s entitlement to non-earner benefit:
a. The starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life involves a comparison between the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident. Both the applicant and her son presented a stark contrast between her total dependence prior to the accident and her complete inability to carry on a host of activities after the accident.
b. Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.
c. In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life. The applicant is unable to engage in several of her pre-accident activities at all. Although the applicant could theoretically carry out others, even these require frequent breaks, pacing and assistance and any effort involves significant pain. The applicant is unable to engage in several activities that were important to her pre-accident life.
d. It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his or her pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.” Pain from her injuries prevent the applicant from engaging in several activities entirely on a continuous basis.
e. The phrase “engaging in” should be interpreted from a qualitative perspective to indicate more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity. Despite her best efforts, the applicant has been unable to engage in the majority of her pre-accident activities without frequent breaks, pacing and delegation of parts of the activity to others to the extent that she cannot accomplish these tasks independently and within a practical timeframe.
f. In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities. I find that the applicant demonstrated that pain has effectively prevented her from engaging in many of the pre-accident activities. It is not incumbent upon her to attempt to “push through” debilitating pain simply on the basis that this may be physically possible.
68The applicant bears the burden of proving her claim for a non-earner benefit on a balance of probabilities and must demonstrate both a causal link between the accident and her impairment and that her impairment results in a complete and continuous inability to carry on a normal life.
69Dr. Anton stated her position in the OCF-3, dated March 18, 2020, that the applicant is entitled to a non-earner benefit. Part 8 of the OCF-3 includes the following question: “Does the applicant suffered a complete inability to carry on a normal life (i.e. has the applicant sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?). In her response, Dr. Anton indicated in the affirmative and stated that the applicant is not able to clean or cook for herself and is not able to sleep. Dr. Anton clarified that this explanation was not intended to serve as an exhaustive list of the applicant’s impairments. For instance, while the applicant reported an inability to do her laundry following the accident, this issue is not listed in the modest space allocated on the OCF-3 form. Dr. Anton also noted that the applicant was able to complete these various tasks herself prior to the 2019 accident despite the torn rotator cuff caused by the 2016 incident.
70Loreta Stanulis-Duz has been a registered occupational therapist for approximately twenty-seven years. She was retained by the respondent to conduct an in-home assessment with respect to the applicant’s entitlement to non-earner benefits. She conducted the assessment at the applicant’s residence on June 22, 2020 to determine if the applicant suffers a complete inability to carry on a normal life from an occupational therapy perspective. The assessment took forty minutes.
71Ms. Stanulis-Duz determined that the applicant was independent with all pre-accident personal care tasks and most housekeeping tasks. Specifically, she found that functional cervical, lumbar, bilateral upper and lower range of motion and that the applicant demonstrated functional bilateral grip strength with an ability to lift or carry 5 lbs. in each hand. She found that the applicant was able to access lower levels from a seated position. She also disclosed that her ability to squat and knee was limited prior to the accident. She also demonstrated functional sitting, standing and walking tolerances. According to the OT report, dated June 7, 2020, the applicant demonstrated as able to gradually resume all her normal life activities that she regularly performed prior to the motor vehicle accident at a slower pace and taking rest breaks. At the time of the assessment, Ms. Stanulis-Duz reported that the applicant claimed to be independent with all pre-accident personal care tasks and most housekeeping tasks.
72She concluded that, based on the assessment and the documents reviewed, that the applicant does not suffer a complete inability to carry on a normal life. She found that the applicant has not sustained a functional impairment that continuously prevents her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
73Much of Ms. Stanulis-Duz’s evidence differed significantly from the assessments of functionality offered by both the applicant and her son. I find that in comparison to the detailed and forthright depiction of the applicant’s daily living presented by the applicant and Perry John, Ms. Stanulis-Duz’s assessment was based upon a very brief conversation in which she made numerous generalizations and questionable inferences to arrive at a superficial and somewhat biased evaluation of the applicant’s abilities.
74Ms. Stanulis-Duz outlined her standard routine for conducting I.E. assessments, frequently describing the process in the conditional tense. This resulted in a rather generic overview of her usual methodology with limited references to the specific details of this applicant’s abilities and daily activities. She declined to conduct any cognitive screening as the applicant disclosed no cognitive issues. She also chose not to administer any questionnaires or other objective forms. Instead, she relied primarily upon direct observations of the applicant’s unsolicited actions during the rather short sit-down interview without asking her to perform more than a few tasks. Combined with a number of presumptions on tasks she did not observe, I find that this minimalist approach may have led to a misleading portrait of the applicant’s functionality. For instance, from having observed the applicant climb the two steps at her front door, Ms. Stanulis-Duz extrapolated an ability to climb the lengthier stairs to the upper floor of her house and to the basement, where significantly the laundry facilities are located. As well, she acknowledged that if the applicant did not volunteer a specific task that she could no longer perform, Ms. Stanulis-Duz presumed that she was capable and independent with respect to that task and indicated this as a determination in her evaluation without offering the applicant an opportunity to refute this presumption.
75As well, the applicant recalled that Ms. Stanulis-Duz opted not to ask her about several seemingly relevant issues regarding her daily living. For instance, she did not ask about whether the applicant walked her dog, made her bed, engaged in outdoor activities or various items of self-care.
76I also find that Ms. Stanulis-Duz exaggerated the reliability of her findings with respect to abilities that she claimed in her report that the applicant had “demonstrated.” Specifically, under cross-examination, she acknowledged that in several instances, she did not ask that the applicant actually demonstrate her ability to perform a specific action, but instead simply assumed a result from her “opinion based upon assessment findings.” For example, she chose not to ask the applicant to demonstrate her functionality regarding cooking, dressing, stair climbing within the house or taking out the garbage, but instead assumed functionality as this “finding” better conformed with her overall conclusions.
77Other witnesses in this matter included minor factual errors in their reports. For instance, Dr. Razvi incorrectly believed that the applicant had stated that she did not have any pets and Dr. Kopyto listed the wrong month for Perry John’s move into the applicant’s residence. However, unlike the more widespread methodological problems evident in the OT report, these trivial inaccuracies would have had no little to no overall impact on the experts’ conclusions.
78In light of all of the evidence with respect to the applicant’s functionality, I prefer the evidence of the applicant herself and her son as more credible and reliable. In particular, I find that Perry John presented and cogent and detailed account of his mother diminished functionality, substantially unchallenged under cross-examination. Both he and the applicant detailed a comprehensive list of activities that the applicant can no longer perform at all or with multiple breaks and pacing. Taken together, I find on the balance of probabilities that the changes in the applicant’s functionality amounted to her being continuously prevented from engaging in substantially all of these pre-accident activities.
79With respect to the applicant’s functionality, Dr. Razvi agreed that although the applicant could still accomplish various tasks, it would take her longer to do so and would require breaks. Similarly, the applicant herself speculated that may be able to finish housekeeping, meal preparation, laundry and other tasks, but she would be in a prohibitive amount of pain if she attempted them. Other more onerous tasks such as gardening, lifting heavy objects or anything involving the motor skills of her hands, such as shuffling cards and assembling jigsaw puzzles appeared simply too difficult.
80I find that this nuanced distinction accounts for the applicant’s apparently optimistic reporting of her own functionality to Drs. Kopyto and Kruger. For instance, the applicant agreed that at the time that she met with Dr. Kopyto she denied any specific deficit with respect to housekeeping. However, she emphasized that the pain in her shoulder worsened since that April 2020 meeting, over a year before her surgery. Similarly, she agreed with Dr. Kruger that she could perform all pre-accident activities with pacing. More accurately, she explained that although theoretically she could perform these activities but did not do so due to the resulting and debilitating pain.
81The applicant gave a general overview of her activities of daily living but reported minimal impact upon her personal care activities to Dr. Kopyto. She stated that performing activities of daily living exacerbated her pain symptoms but described no specific deficits. Dr. Kopyto defined “deficits” as any inability to complete or perform an activity of daily living that she was normally able to perform prior to the accident. Essentially, she experienced pain but was able to complete the tasks described. Again, a contextual reading of the applicant’s testimony reveals that the applicant was stating a theoretical possibility but clarified at the hearing that her ongoing pain had so compromised the prospect of completing these tasks through interruptions and necessary assistance that she was substantially unable to perform them.
82Ultimately, in light of all of the evidence and in consideration of the applicant’s functionality pursuant to the criteria set out in Heath, I find that the applicant demonstrated on the balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and is therefore entitled to a non-earner benefit.
Entitlement to Treatment Plans
83Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary medical expenses incurred by or on behalf of the applicant. The respondent denied both of the disputed treatment plans because the applicant had exhausted her MIG limits and no further funding was available for the requested treatments.
84The respondent relies upon the evidence of Dr. Kopyto and Dr. Kruger for its denial of both plans as neither reasonable nor necessary. Dr. Kopyto stated in his initial report that the goods and services in the OCF-18 plan for physiotherapy services, dated March 2, 2020, are “not reasonable, necessary or essential.” Based on his assessment findings and review of the documentation provided, he determined that the applicant’s injuries are treatable within the parameters of the MIG. At the time of his initial report, the applicant had not yet applied for the chronic pain assessment and he was apparently never asked to comment on this plan in a subsequent addendum or paper review.
85Dr. Kruger offered a medical opinion that the proposed treatment and Chronic Pain Assessment plan, dated February 25, 2021, is not reasonable or necessary. He found no evidence of any objective neurological or radicular pathology related to the accident and did not identify any significant barriers to recovery for the applicant in terms of her past medical history and upon his own clinical musculoskeletal examination. Therefore, he was of the opinion, strictly from a musculoskeletal perspective, that the applicant had suffered soft tissue injuries that would be consistent as ‘minor injuries’ as defined by the Schedule and the plan proposing a chronic pain assessment was not medically reasonable or necessary. He found no necessity to change his conclusions in a subsequent addendum despite receiving additional clinical notes and records.
86However, as noted above, this perspective does not account for the uncontested evidence that the applicant continues to experience chronic pain more than three years after the date of the accident and has not reached maximal recovery despite her own best efforts at self-directed physiotherapy. This leaves the cause and avenue for treatment the subject of further necessary investigation. To this end, the chronic pain assessment proposed would be both necessary and reasonable hopefully to resolve this impairment.
87In addition, the applicant’s evidence that she was deriving some benefit from physiotherapy was uncontested. She was also clear in her testimony that if she could pay for continued treatment, she would do so. As the purpose of the Schedule is not to overburden patients with the cost of treatment but instead to permit timely recovery, as I have found that the MIG does not apply to the applicant’s chronic pain, I find that the benefits of the proposed physiotherapy plan by Physiomed Bramalea is both necessary and reasonable to treat the applicant’s injuries.
Interest
88Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.
ORDER
89For the reasons outlined above, I find that:
a. The applicant’s injuries fall outside of the MIG.
b. The applicant is entitled to a non-earner benefit of $185.00 per week from March 18, 2020 to October 28, 2021.
c. The applicant is entitled to $2,910.77 for physiotherapy services, proposed by Physiomed Bramalea in a plan submitted March 2, 2020 and denied March 16, 2020.
d. The applicant is entitled to $2,200.00 for a chronic pain assessment, proposed by Scarborough Physio & Rehab Clinic in a plan submitted February 25, 2021 and denied September 2, 2021.
e. The applicant is entitled to interest on any overdue payment of benefits.
Released: July 20, 2023
Kevin Lundy
Adjudicator