Licence Appeal Tribunal File Number: 20-002765/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:
Norman Sarsonas
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Norman Sarsonas, Applicant
Lawrence H. Calenti, Counsel
For the Respondent:
Stanislav Bodrov, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Norman Sarsonas, the applicant, was involved in an automobile accident on July 2, 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 respondent, Cooperators General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant submits that injuries to his left shoulder as a result of the motor vehicle accident have become chronic in nature. He asserts that his left shoulder chronic pain has caused functional impairment taking him outside the Minor Injury Guideline (“MIG”). The respondent disagrees and has denied the treatment plans and held the applicant within the MIG.
ISSUES
3The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
ii. Is the applicant entitled to services proposed by North Toronto Rehabilitation and Physiotherapy in its treatment plans, as follows:
a. $1,385.17 for chiropractic services, in a treatment plan (“plan), submitted on March 5, 2019, denied on April 2, 2019;
b. $1,102.48 for chiropractic services, in a plan, submitted on April 9, 2019, denied on May 21, 2019;
c. $1,328.10 for chiropractic services, in a plan, submitted on May 28, 2019, denied on June 24, 2019;
d. $1,215.29 for chiropractic services, in a plan, submitted on July 3, 2019, denied on July 22, 2019;
e. $1,102.48 for chiropractic services, submitted in a plan on August 9, 2019, denied on October 10, 2019;
f. $1,892.15 for chiropractic services, submitted in a plan, on November 4, 2019, denied on November 19, 2019; and
g. $1,779.34 for chiropractic services, submitted in a plan on December 19, 2019, denied on January 30, 2020.
iii. Is the applicant entitled to physiatry examination, in the amount of $3,034.05, recommended by Dr. Yen Fu Chen, of Access Rehab Inc., submitted in a plan, on February 28, 2020, denied on March 12, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
i. The applicant’s injuries/impairments fall outside the MIG and are not predominantly minor injuries.
ii. The applicant is entitled to all the treatment plans at issue.
iii. The applicant is entitled to interest, in accordance with the Schedule, on any incurred amounts for the approved treatment plans.
ANALYSIS
The Applicability of the MIG
6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) 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.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the MIG.
7In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisional Court held the onus is on the applicant to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the $3,500.00 limit for minor injuries.
The Applicant has established that his injuries/impairments fall outside the MIG.
8I find that the medical evidence shows that the applicant’s physical injuries/impairments fall outside the definition of a “minor injury” as listed in section 3(1) of the Schedule. The applicant has met his burden.
9The applicant submits that he continues to be functionally limited as a result of his left shoulder injury and his pain has become chronic in nature.
10I find that a diagnosis of chronic pain syndrome is not required to remove the applicant from the MIG. Although a diagnosis is not required, the evidence around the applicant’s impaired functionality and pain limitation is clearly set forth in the medical evidence.
11In particular, I found persuasive the physiatry medical assessment report, dated August 24, 2020, of Dr. Yen-Fu Chen, physiatrist, and his conclusion that the applicant does not fall within the MIG and has developed chronic pain disorder with associated psychological impacts. Dr. Chen further diagnosed the applicant with sprain and strain injuries of the spine muscles, left shoulder tendinopathy, contusion of rib cage/chest wall, post-traumatic insomnia, and post-traumatic headache. Dr. Chen opined that the applicant still experiences persistent pain and impairments and the prognosis for full recovery to a pre-accident functional and physical level is poor.
12Dr. Chen notes the ongoing functional impairments of the applicant including on his housekeeping and home maintenance tasks. He notes the applicant continues to receive assistance from his wife and son in order to complete his tasks. He is limited in his ability to cook and instead frequently orders take-out food. He is limited in his ability to take his son to various activities, and has assistance from his brother and sister-in-law. He continues to have limitations in attending church, going for long walks, running and traveling. He is limited in his ability to wash his back and his son assists him. He also continues to experience ongoing difficulties at work including with lifting, pushing and performing repetitive tasks with the left arm and has difficulty working at the pre-accident capacity.
13Dr. Chen’s diagnosis of chronic pain is shared by the applicant’s treating family physician, Dr. Silvino Decena. In his October 18, 2022 clinical note, Dr. Decena diagnoses the applicant with left rotator cuff tendonitis and agrees with Dr. Chen’s diagnosis of chronic pain. For the period up until January 2020, Dr. Decena describes the applicant’s level of pain in his left shoulder as sharp, constant, with an intensity of 9/10 and aggravated by lifting, elevating and putting pressure on the left arm. Dr. Decena confirms ongoing limited movement in the applicant’s left arm and notes the applicant has severe difficulty handling, moving or carrying most objects using his left arm. The pain in the left shoulder is described as worse with movement, including overhead, behind the back movements and across the front of his body.
14In his clinical notes and records, Dr. Decena repeatedly notes the applicant’s level of pain in his left shoulder and the resulting functional limitations. Specifically:
a. January 15, 2019 – “Location: left shoulder. Character: sharp, intermittent. Aggravated by lifting, elevating arm. . . Left shoulder tendinitis.”
b. February 19, 2019 – “Location: left shoulder. Character: sharp, constant. Intensity: 9/10. Aggravated by lifting, elevating, putting pressure on the arm. . . . Problem #1: left shoulder tendinitis . . . physiotherapy.”
c. June 17, 2019 – “C/O shoulder pain . . . left shoulder . . . intensity 7/10. Aggravated by lifting, elevating, abduction, pushing. . . left shoulder tendinitis. . .”
d. October 2, 2019 - “left shoulder pain . . . sharp, constant, aggravated by reaching up above the shoulder, intensity 9/10. Ongoing therapy. Had one IA steroid injection. . . left shoulder tendinitis. therapy.”
e. January 28, 2020 – “shoulder pain . . . left shoulder . . . sharp, intermittent. Aggravated by pushing, lifting, elevating. . . . Left shoulder tendinopathy. . . . physiotherapy.”
15In addition, Dr. Decena referred the applicant to a rheumatologist, Dr. Nathaniel Dostrovsky. On May 21, 2019, Dr. Dostrovsky noted the applicant’s tender left shoulder, pain with abduction of greater than 90 degrees and internal rotation. He concluded that the left shoulder pain was likely due to rotator cuff tendonitis, and he administered a steroid injection into the applicant’s left subacromial space. On an October 22, 2019 visit, Dr. Dostrovsky again provided a cortisone injection and concluded the applicant’s left shoulder pain was due to biceps tendonitis and a suspected resolving frozen shoulder +/- myofascial pain.
16The clinical notes and records from North Toronto Rehabilitation and Physiotherapy (“NTR”) similarly contain references to the applicant’s ongoing pain symptoms and functional limitation after the motor vehicle accident. A January 7, 2019 entry states “neck still hurts. Shoulder still restricted movement abduction. . .” A February 19, 2019 entry states “he exp sharp P at night, unable to sleep well. He uses his R arm to wipe the glass bc his L arm is too heavy & P to raise…” An October 2, 2019 entry states “L SH is still in P especially when sleeping on it. . . ”
17A May 21, 2019 ultrasound on the applicant’s left shoulder confirmed tenosynovitis involving the left biceps tendon and limitation of abduction to approximately 45 degrees.
18When weighing the evidence, I did not find as persuasive the section 44 reports of Dr. Shafik Dharamshi, general practitioner, dated June 27, 2019, January 29, 2020, February 21, 2020 and April 29, 2020, wherein he found that the applicant’s injuries were minor, that he had reached maximal medical recovery and that no further treatment or rehabilitation services were required. I did not find the reports as detailed as that of Dr. Chen when reviewing the applicant’s functional abilities and activities of daily living. I found that Dr. Chen’s report provided a better overall picture of the applicant’s medical condition, reported pain symptoms and resulting functional limitations. Dr. Dharamshi generally states that the applicant has resumed most of his pre-accident housekeeping and home maintenance activities but provides no particulars. I do not know what activities he is referencing. Similarly, he states the applicant does not have any social or recreational activities that have been affected but he does not advise what these activities are.
19I found the section 44 report of Dr. Christopher Aldridge, general practitioner, dated June 28, 2021, to be of more assistance, but ultimately not as persuasive as that of Dr. Chen and the clinical notes and records of the family physician, Dr. Dostrovsky and NTR. Notably, Dr. Aldridge states that, given the accident occurred 35 months prior to his examination of the applicant, he is unable to comment as to whether the applicant suffers from a predominantly minor injury.
20The evidence before the Tribunal is that the applicant consistently sought medical attention for his ongoing left shoulder pain symptoms and he suffered ongoing functional impairments, and was prescribed continued physical treatments to assist in his pain management. I find that the medical evidence establishes that the applicant’s functionality is limited by his chronic left shoulder pain and that his injuries/impairments require treatment outside of the MIG.
21I am not persuaded by the respondent’s submission that the applicant’s left shoulder injury was not directly caused by the accident and the applicant did not report his left shoulder pain or injury until several months after the accident. The respondent relies upon the section 44 report of Dr. Aldridge which was completed about 35 months after the accident. Dr. Aldridge noted that the applicant had previously been diagnosed with tendinitis of his shoulder in September 2012 and has reported left shoulder numbness to his family doctor in March 2017. Dr. Aldridge opined that the applicant’s left shoulder pain symptoms and evolution of the left shoulder injury is not accident related given his occupational duties of repetitive bilateral shoulder movements. I did not find Dr. Aldridge’s report convincing when weighted against the report of Dr. Chen and the clinical notes and records of the family physician. Dr. Chen opined that the pain impairments are directly caused or made worse by the motor vehicle accident.
22I am further not convinced that a 2012 diagnosis and a 2017 notation of left shoulder numbness necessarily indicate that the applicant did not sustain a left shoulder injury from the accident. The test for determining causation in accident benefit cases is the “but for test.” See: Sabadash v. State Farm et al., 2019 ONSC 1121 I find that the applicant meets the test on a balance of probabilities. The medical evidence of left shoulder pain after the accident is robust and I am persuaded that the motor vehicle accident is the cause of the impairment.
23I note that the applicant submits that while no shoulder pain was noted in the first six weeks of treatment, an August 21, 2018 entry from NTR notes that the applicant’s left arm felt numb and “suspected impact left shoulder.” An October 3, 2018 entry states: “left shoulder is getting worse. Left supraspinatus . . .” The applicant submits that since he was attending physiotherapy, he did not think it necessary to involve his family doctor in his treatment until NTR told him that his left shoulder pain was becoming serious enough that he should involve his family doctor. He subsequently attended Dr. Decena’s office on January 15, 2019.
24I further note that the respondent’s other medical expert, Dr. Dharamshi, in his four reports makes no assertion that the left shoulder injury is not the result of the motor vehicle accident. Instead, he states the applicant’s accident-related impairments include left shoulder strain with pain and reduction in range of motion, and further that there is no compelling evidence of any pre-existing medical condition.
25For these reasons, on the balance of probabilities, I find that the medical evidence establishes that the applicant’s functionality is limited by his chronic left shoulder pain, and the applicant has proven that his physical injuries/impairments are not predominantly minor. Accordingly, I find that the applicant has injuries that do not fall within the definition of “minor injury” as per the Schedule.
The treatment plans for chiropractic/physical treatment are reasonable and necessary
26I find the seven treatment plans for chiropractic/physical services are reasonable and necessary. The treatment plans were submitted between March 2019 and December 2019, and I believe they have all been incurred. I find the applicant’s reports of pain as a result of the motor vehicle accident were consistent, credible and ongoing, and therefore, treatment is reasonable and necessary. My reasons are as follows.
27The test for the payment of medical benefits as set forth in section 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses as a result of the accident. The onus is on the applicant to establish that he meets this test on a balance of probabilities. The applicant has met his burden.
28The treatment plans contain goals which are relevant to the applicant’s subjective situation. They include reducing pain, and increasing strength and range of motion, and returning the applicant to activities of normal living and employment. Pain reduction, increase in strength, increased range of motion are legitimate goals for a treatment plan. Given that the applicant suffers from ongoing pain in his left shoulder, it is reasonable and necessary that he receive physical treatments to lesson his pain level and facilitate his rehabilitation.
29I find the applicant received pain relief and improved physical functionality from engaging in physical treatment. There is evidence of this throughout the applicant’s medical records during the relevant time period, including:
The clinical notes and records of Dr. Dostrovsky note that the pain symptoms improve with physiotherapy and he recommends the applicant continue with physical treatment;
The physiatry report notes that the applicant reported therapeutic benefit from the treatment which reduced the effect of the pain.
The NTR records reveal that the applicant finds hands-on-therapy more effective and he is eager to continue attending treatment until he feels better.
The clinical notes and records of Dr. Decena prescribes physiotherapy and pain medication and note that the pain has improved with going to physiotherapy;
The IE assessor Dr. Dharamshi notes the applicant’s statement that the pain decreases with exercising and attending massage therapy;
30The reduction of pain for the applicant is, in my opinion, a reasonable and necessary goal and he is entitled to choose treatment that reduces pain and increases strength.
31As a result, on a balance of probabilities, I find that all the treatment plans for chiropractic treatment are reasonable and necessary to address his physical injuries/impairments resulting from the accident.
The treatment plan for a physiatry assessment is reasonable and necessary
32I find the applicant is entitled to the physiatry assessment for the following reasons.
33In the OCF-18, dated February 13, 2020, Dr. Chen lists the applicant’s injuries as sprain and strain of shoulder joint, bicipital tendinitis, segmental and somatic dysfunction, sprain and strain of ribs and sternum, nervousness, and nonorganic sleep disorders. The goals of the treatment are, in part, pain reduction, increase in range of motion and increase in strength. Further, Dr. Chen states that the assessment is necessary to aid in determining the full extent of the injury, determine whether it possibly involves misalignment of bone and/or joint, and whether the injury involves damage to adjacent ligament and tendon structures and result in a consequent barrier to recovery. Given the ongoing pain in the applicant’s left shoulder that had become chronic in nature, the goal of determining the extent of the injury and any barriers to recovery would appear to be reasonable and necessary.
34In particular, determining any barrier to recovery and making recommendations for treatment would lead to the increased wellness of the applicant and pain management/reduction. The applicant’s family doctor, Dr. Decena, agreed that Dr. Chen’s report was helpful in understanding the applicant’s symptoms, diagnosis and that it assisted in treatment recommendations.
35As a result of the above, I find that a physiatry assessment is reasonable and necessary to allow for an assessment to be done which would assist in determining the applicant’s injuries/impairment, barriers to recovery and ongoing medical care.
36Accordingly, the applicant is entitled to payment for a physiatry assessment as it is reasonable and necessary.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found all the treatment plans to be reasonable and necessary, the applicant is entitled to interest, in accordance with the Schedule, on any incurred amounts for the approved treatment plans.
ORDER
38I order that:
i. The applicant’s injuries fall outside the MIG and are not predominantly minor injuries.
ii. The applicant is entitled to all the treatment plans at issue.
iii. The applicant is entitled to interest, in accordance with the Schedule, on any incurred amounts for the approved treatment plans.
Released: September 18, 2023
Rupinder Hans
Adjudicator