Arhontakis v. TD Insurance Meloche Monnex, 2023 CanLII 87386

Citation: Arhontakis v. TD Insurance Meloche Monnex, 2023 ONLAT 21-007837/AABS

Licence Appeal Tribunal File Number: 21-007837/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:

George Arhontakis

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Applicant: Jane Conte, Counsel

For the Respondent: Michael Rattray, Counsel

Heard by way of written submissions

OVERVIEW

1George Arhontakis, the applicant, was involved in an automobile accident on November 30, 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, TD Meloche Monnex Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and within the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to $1,286.75 ($1,745.75 less $459.00 approved) for physiotherapy services proposed by The Physio Clinic at West Durham Ltd. in a treatment plan/OCF-18 (“plan”) dated December 2, 2019?

iii. Is the applicant entitled to $1,466.50 for physiotherapy services proposed by The Physio Clinic at West Durham Ltd. in a plan dated February 4, 2019?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the applicant has met his burden to demonstrate that his accident-related injuries are not minor injuries subject to the MIG. He is entitled to the two disputed treatment plans and interest on the overdue payment of benefits from the date of denial.

ANALYSIS

The applicant’s injuries are not minor injuries subject to the MIG

4The applicant has proven, on a balance of probabilities, that he suffered chronic pain injuries in the accident which are beyond the definition of minor in the Schedule.

5The applicant was injured when an SUV collided with him while he was walking across a pedestrian crosswalk in a parking area on November 30, 2018. He was attended to by paramedics at the scene and declined to go to hospital at that time. While driving home from the accident he was experiencing physical pain that persisted through the night and prevented proper sleep. The next day he attended Lakeridge Health hospital in Ajax with complaints of pain in his right knee emanating to his buttocks, and right side of his neck.

6Though the Emergency Room report noted the applicant’s musculoskeletal range of motion was satisfactory and diagnostic imaging conducted at his hospital visit the day after the accident showed joint effusion (swelling) at the knee but no evidence of fracture or dislocation, the applicant’s medical evidence shows that in the months following the accident he developed chronic pain symptoms that persisted and worsened over the three and a half years after the accident.

7The treatment regime for minor injuries under the MIG is intended to address a person’s injuries and restore their functional ability within a short period of time, approximately 12 weeks. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” It does not include chronic pain.

Chronic pain

8The Tribunal has determined that a chronic pain injury is sufficient to remove an individual from the MIG when it is associated with a functional impairment or disability. Put another way, when an accident-related chronic pain injury encumbers an insured’s day-to-day functioning, it is recognized as being beyond minor and effectively removes them from the limits imposed by the MIG.

9The applicant submits that he suffers from chronic back pain and severe right knee pain as a result of the accident. He submits that the physical pain from his accident injuries became a barrier to his usual physical activity and resulted in him gaining considerable weight (75 lbs. in approximately 15 months), and the added weight and continuing pain resulted in further psychological anxiety and social withdrawal. The applicant has the onus of proving that he suffers a chronic pain impairment with related functional disability.

10The applicant supports his claim of chronic pain injury with medical evidence, as follows:

i. In February 2019, three months after the accident, his physiotherapist, Chris Skederidis, reports in the OCF-3 disability certificate that the applicant suffered multiple injuries in the accident including lumbar spine radiculopathy (nerve damage) and recommends him for diagnostic imaging.

ii. In June 2019, his family physician, Dr. H. Shogilev, reports him having developed pain in the lateral pelvis and lateral aspect of his hip and greater trochanter and that he’s attending physio regularly. He notes possible bursitis in his right hip and trochanter.

iii. In March 2021, Dr. Shogilev’s records report him experiencing chronic back pain radiating down either leg causing lack of sleep, then a little over one year later, in August 2022, he reports continued chronic back and leg pain since his motor vehicle accident 3.5 years ago that was followed by excessive weight gain. He gets no relief with Tylenol.

iv. The clinical records from The Physio Clinic show the applicant attended bi-weekly sessions, on average, for 3 years and 10 months, starting February 4, 2019 (9 weeks after the accident) through December 2022. Starting in the summer of 2019, he reported ongoing lumbar spine and low back pain and intermittent right knee and shoulder pain. Those pain reports continue into late 2022.

v. An Insurer Examination (“IE”) by Dr. Ahmad Belfon, physician, February 11, 2020, reported the applicant complains of knee and back pain and showed considerable pain at the time of the interview including being unable to perform Kemp’s Test due to low back pain.

vi. An IE by Dr. Terra Seon, psychologist, February 20, 2020, a year and three months after the accident, records the applicant continues to experience physical symptoms of pain to his right leg, right knee and back. His profile identified “a very high level of diffuse somatic complaints”. The level of pain reported was unusually high, and he obtained a valid profile on the Pain Patient Profile (P-3).

11The respondent submits that the applicant’s chronic pain is refuted by the digital imaging taken of the applicant immediately after the accident, and again on April 8, 2021. The images taken shortly after the accident showed no fracture or dislocation, and the April 2021 images demonstrated no significant change in the appearance of the applicant’s lumbar spine compared to a reference image almost nine years before the accident.

12I agree with the respondent that the diagnostic imaging from April 8, 2021 is compelling. That X-ray was initiated by Dr. Shogilev following the applicant’s visit on March 31, 2021 with complaints of chronic back pain radiating down either leg. There was no mention or discussion of those results in Dr. Shogilev’s clinical record. However, a little over one year later, the applicant was back in Dr. Shogilev’s office with complaints of even worse chronic back pain. In the same period, from April of 2021 to August 2022, the applicant’s reports of physiotherapy and massage therapy at The Physio Clinic show ongoing reports of pain in the lumbar spine.

13While the discussion of the applicant’s chronic back pain in the clinical record is admittedly intermittent (he had numerous appointments with Dr. Shogilev between June 2019 and August 2022 with little mention of back pain), the Physio Clinic record demonstrated ongoing pain in the lumbar spine. The digital imaging of April 2021 is not put into context by Dr. Shogilev’s clinical record, in relation to chronic back pain, but the pain persists over the year and more after, with limited relief from pain medication or massage therapy.

14I find that the applicant sustained a chronic pain injury as a result of the accident. None of the clinical notes or records prior the accident give any hint of a similar physical pain condition. The symptoms start less than three months after the accident and continue over 3.5 years, as reported in the clinical record of his family physician and physiotherapy clinic.

The applicant’s chronic pain caused functional disability

15The Skederidis disability certificate reported the applicant suffered a substantial inability to perform the home and housekeeping tasks that he normally performed before the accident, and that this disability would persist beyond 12 weeks.

16Skederidis’ conclusion is corroborated by Dr. Seon’s IE report. She reports him as being able to complete self-care and housekeeping tasks, but not to the same intensity as he was able to, pre-accident. For example, he had to hire help to do housekeeping in the home and seeks assistance from his son to help with tying his shoes and getting his socks on. He reported his physical pain as being the primary barrier to resuming his pre-accident activities.

17The disputed treatment plan proposals point to the applicant wanting to improve walking tolerance and return to activities of normal living, including a goal of improving mobility of the sciatic and tibial nerve. They suggest physiotherapy sessions were intended to improve the applicant’s ability to stand and walk more regularly, without pain. Similarly, they suggest the chronic pain was preventing the applicant from engaging in his usual physical activities.

18The applicant submits that he depends on his girlfriend’s help for household tasks such as laundry, cooking and cleaning because his injuries prevent him from completing these tasks himself.

19The applicant reports that he is able to continue working 50 to 60 hours per week because he can do his work from home and use his car. It is predominantly desk work. He is unable to attend sales related shows or events without experiencing debilitating pain. He remarked to Dr. Seon that “If I had to stand, I would never have been able to continue to work full-time”.

20The respondent submits the applicant has not met his burden to show that his chronic pain exists and that it is not “clinically related sequelae”. It refers me to Scarlett v. Belair Insurance, 2015 ONSC 3635 where the existence of chronic pain on its own, was not sufficient to remove an insured from the MIG. The respondent submits that if the applicant is indeed suffering from chronic pain, it would be interfering with his functional ability. The respondent submits that the applicant’s reports of chronic pain have not impeded his ability to work, and he remains independent with self-care activities.

21The respondent referred to Dr. Belfon and Dr. Seon reporting that the applicant “remained independent with self-care activities and presented without pain vocalization and did not appear to be in any distress.” However, a review of each of their IE reports contradicts the respondent’s submission. Dr. Seon makes no reference to the applicant remaining independent with respect to self-care. The closest she comes to opining on his functionality is where she concludes that the applicant shows no post-accident psychological impairment that would interfere with his social, occupational or overall level of functioning. By contrast, she corroborates that physical pain is his biggest hurdle in regaining functional abilities.

22Both Dr.’s Belfon and Seon make note of the applicant experiencing physical pain during their in-person examinations. His physical pain was reported and observed in these examinations. I am not persuaded by the respondent’s claim that the applicant gave no vocalization or expression of distress in those examinations.

23I give less weight to the respondent’s submission that the applicant suffered no functional disability. By comparison, the applicant has referred me to accounts of his physiotherapist, family physician, and the IE psychologist which point to his diminished functional ability arising from his lower back and knee/leg pain. I therefore find that the applicant’s chronic pain has resulted in a functional disability.

24Since the applicant has proven, on a balance of probabilities, that he suffered a chronic pain impairment with functional disabilities as a result of the accident, I find that his injuries where not predominantly minor and he is therefore not subject to the MIG.

Issue b) and c) – The applicant is entitled to treatment plans for physiotherapy services

25The applicant is entitled to the two disputed treatment plans in the amounts of $1,286.75, and $1,466.50 for physiotherapy services from the Physio Clinic.

26The insurer is liable to pay for all medical and rehabilitation benefits that are reasonable and necessary, pursuant to s. 15 and 16 of the Schedule. It is the applicant’s burden to demonstrate that treatment plans are reasonable and necessary.

27The applicant has already been approved for medical and rehabilitation benefits up to the MIG limit of $3,500.00. Since I have found that his injuries are beyond the MIG, the applicant is eligible for benefits exceeding the MIG limit that are reasonable and necessary. The objectives of the treatment plans in relation to the applicant’s accident injuries is indicative of their reasonableness and necessity,

28The applicant has proven, on a balance of probabilities, that he suffers from chronic pain as a result of the accident. He submits that both disputed treatment plans are reasonable and necessary because they will provide needed pain relief.

29The treatment plan in issue b) was partially approved up the MIG limit, leaving $1,286.75 in dispute. The original plan for $1,745.75 was for 17 sessions of physiotherapy. Treatment plan in issue c), for $1,466.50, is for 14 physiotherapy sessions. In each, the objectives of pain reduction, increased ROM, and improving walking tolerance are aligned with the physical impairments the applicant is suffering. The Physio Clinic clinical record shows that the applicant admitted the physiotherapy gives him some pain relief, even if temporary. He stated to Dr. Seon that he looks forward to resuming physiotherapy treatments and wishes to work toward any treatment that will address his pain symptoms and help him regain functional ability.

30The respondent submits that the applicant has failed to establish that the treatment plans identify reasonable treatment goals that could be met to a reasonable degree, and that the costs of achieving those goals were reasonable. It also submits that the treatment proposed by The Physio Clinic was not recommended by Dr. Shogilev, and Dr. Belfon concluded the applicant had reached a plateau with his facility-based therapy.

31I agree with the applicant. Dr. Shogilev’s clinical notes referenced that the applicant was attending physiotherapy sessions. They made no mention of discontinuing this treatment. Dr. Seon’s report reflects a strong desire on the part of the applicant to engage in physiotherapy to relieve his physical symptoms. It seems, therefore, that he is benefiting from this type of treatment. It is likely that the goals of the treatment plan will be met to a reasonable degree.

32I find the applicant has met his burden to demonstrate that the disputed treatment plans are reasonable and necessary because the clinical notes and records support their reasonableness and necessity, and the objectives of the plans align with the applicant’s accident injuries.

Interest is owed

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the disputed treatment plans to be reasonable and necessary, the applicant is entitled to interest on the payment of these overdue benefits from the date of denial.

ORDER

34The applicant suffers from chronic pain with a functional disability and is therefore entitled to treatment beyond the MIG;

35The applicant is entitled to treatment plans b) in the amount of $1,286.75 and c) in the amount of $1,466.50; and

36The applicant is entitled to interest on the overdue payments.

Released: September 19, 2023

__________________________

Bruce Stanton

Adjudicator