Danicus Jacob v. Intact Insurance Company, 2023 CanLII 96376

Citation: Jacob v. Intact Insurance Company, 2023 ONLAT 21-006450/AABS

Licence Appeal Tribunal File Number: 21-006450/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:

Danicus Jacob Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Ryan Jeffries, Paralegal For the Respondent: Callum Micucci, Counsel

HEARD: In Writing

OVERVIEW

1Danicus Jacob, the applicant, was involved in an automobile accident on January 1, 2020, 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, Intact Insurance Company, 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 in the Minor Injury Guideline?

ii. Is the applicant entitled to $2,576.40 for an attendant care/in-home assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 (“plan”) submitted February 24, 2020, and denied February 28, 2020?

iii. Is the applicant entitled to $1,713.57 for physiotherapy services, proposed by Physiomed Westwood in a treatment plan submitted November 19, 2020, and denied December 3, 2020?

iv. Is the applicant entitled to $2,576.40 for a functional ability evaluation assessment, proposed by Medex Assessments Inc. in a treatment plan submitted March 2, 2020, and denied March 5, 2020?

v. Is the applicant entitled to $2,576.40 for psychological assessment, proposed by Medex Assessments Inc. in a treatment plan submitted February 20, 2020, and denied February 28, 2020?

vi. Is the applicant entitled to $2,576.40 for an orthopaedic assessment, proposed by Medex Assessments Inc. in a treatment plan submitted April 24, 2020, and denied April 28, 2020?

vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

4The applicant is not entitled to the disputed treatment plans, an award or interest.

ANALYSIS

The applicant’s accident-related injuries are predominantly minor

5I find the applicant’s accident-related injuries are predominantly minor and treatable within the treatment limits of the MIG.

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

8The applicant submits that he suffered chronic pain and psychological impairments as a result of the accident and warrant removal from the MIG. His position is that his reported symptoms and subsequent treatment demonstrate that his condition deteriorated after the accident, resulting in a chronic pain condition. He further submits that he has been unable to get back to his pre-accident level of functioning due to pre-existing conditions. The applicant relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Deung Young Choi; the CNRs of Dr. Joseph Chu, neurologist; and the CNRs of Dr. Pezhman Mehrabian, a pain specialist.

9In response, the respondent asserts that the applicant had not led compelling evidence to justify the removal from the MIG and relies on its s. 44 Insurer Examination (“IE”) assessments reports by Dr. Melissa Hershberg, general practitioner, and Dr. Deborah Cowman, psychologist, who concluded that the applicant sustained injuries that were treatable within the MIG.

10I find the applicant suffered minor injuries as a result of the accident which are treatable within the MIG. The hospital record, from the day of the accident, noted that the applicant sustained delayed onset of neck pain following a low-risk motor vehicle accident and prescribed Tylenol and recommended warm compresses. An x-ray was not ordered as the applicant demonstrated a “range of motion of 45 degrees with no issues.” The diagnostic imaging results dated January 8, 2020, revealed no skull fractures and the CT scans of the head and cervical spine were normal, with no acute intracranial injury and no acute c-spine injury. On January 24, 2020, Dr. Choi, family physician, diagnosed the applicant with neck pain and headache, and prescribed Tylenol, Baclofen and Naproxen. The diagnostic imaging results dated March 7, 2020, revealed that the applicant’s right shoulder and right thumb were normal with no acute fractures. These findings are all evidence that the applicant sustained minor injuries within the definition of the Schedule.

11I find the applicant’s physical injuries sustained as a result of the accident are predominantly minor as defined in s. 3 of the Schedule, and therefore they do not warrant his removal from the MIG. I now turn to the other routes for removal from the MIG as advanced by the applicant.

The applicant has not proven a pre-existing condition that would prevent his recovery from his accident-related minor injuries if he were kept in the MIG

12I find that the applicant has not proven a pre-existing condition that would prevent his recovery from his accident-related minor injuries if he were kept in the MIG.

13The applicant submits he has a history of neck and back pain since as early as 2017 and relies on a CNR entry dated December 27, 2019, where Dr. Choi diagnosed the applicant with “neck strain/sprain, right lower back strain/sprain, right lower chest wall posterior, right thumb strain/sprain, physio, massage,” as evidence of a pre-existing condition prior to the accident and that he was predisposed to neck and back injuries as a result of his pre-existing condition which would prevent full recovery in the treatment limits of the MIG.

14The respondent disagrees that there is any pre-existing condition that would prevent the applicant from achieving maximal recovery within the MIG and submits that Dr. Choi’s diagnosis allegedly dated December 27, 2019, is more likely a post-accident note as it does not correspond with the OHIP records.

15I agree with the respondent and find that Dr. Choi’s CNR entry in question to be more likely a post-accident CNR entry. During this appointment, the applicant complained of pain in his right thumb. There were no pre-accident CNRs about pain in the right thumb. The x-ray report dated March 7, 2020, noted that Dr. Choi referred the applicant to undergo x-rays of the right shoulder and right thumb because the applicant experienced “Pain post MVA” which is evidence these were the areas of concern post-accident. The x-ray results were normal. Therefore, I find that Dr. Choi’s CNR in question to be a post-accident CNR entry.

16Upon review of the rest of the CNRs, I find that the applicant’s pre-existing medical conditions are limited to sleep apnoea, pre-diabetes and allergies. I also find that these pre-existing conditions are not medical conditions which would interfere with the healing and recovery times of the applicant’s accident-related minor injuries. There is also no compelling and contemporaneous evidence from the applicant’s medical documents tendered of neck and back pain prior to the accident.

17I note that the applicant was found to have mild degenerative changes in the cervical spine in 2017; however, the CNRs and examinations do not show that any medical professionals believed the applicant was unable to achieve maximal recovery from the accident-related minor injuries if he were kept within the MIG.

18I am persuaded by the respondent’s s. 44 IE reports dated December 24, 2020, and September 10, 2021 by Dr. Melissa Hershberg, general physician, as they are consistent with the rest of the applicant’s CNRs and medical records. Dr. Hershberg noted that other than the applicant self-reported a previous musculoskeletal injury in 2017, the “medical history was otherwise unremarkable”. Dr. Hershberg also noted that the applicant described himself as a healthy individual prior to the accident and was taking medications for seasonal allergies. She reviewed the applicant’s medical documents, conducted a physical examination and opined that the applicant sustained cervical strain and right shoulder strain, and stating that “there are no pre-existing injuries from a musculoskeletal perspective” and “there are no physical or functional limitations or impairments identified that would hinder Mr. Jacob from achieving maximal medical recovery within… the Minor Injury Guideline…”. I find that Dr. Hershberg conducted thorough examinations of the applicant and her findings to be persuasive as it is in line with the rest of the applicant’s medical records tendered.

19Given the above reasons, I find that the second limb of s. 18(2) of the Schedule is not satisfied, and the applicant has not proven a pre-existing condition that would prevent his recovery from his accident-related minor injuries if he were kept in the MIG.

The applicant has not proven an accident-related psychological impairment

20I find that the applicant has not proven accident-related psychological impairment that would warrant removal from the MIG.

21Although the applicant made general submissions that he suffers from cognitive symptoms as a result of the accident, there is limited compelling medical evidence that he suffers from any psychological impairments caused by the accident that justify him being taken out of the MIG.

22The applicant pointed to only one CNR entry, dated February 16, 2021, by Dr. Chu, neurologist, where he recommended the applicant undergo a formal psychological assessment by a psychiatrist to determine whether the applicant has post-traumatic disorder. This was not a formal diagnosis of any accident-related psychological disorder or impairment, but only recommending a further, formal assessment to investigate whether such might exist. There is no evidence before me that such an assessment was ever done or of any results following Dr. Chu’s recommendation.

23The only formal psychological assessment in evidence before me is the respondent’s IE psychological report of Dr. Deborah Cowman, psychologist, dated July 29, 2020, where she was requested to address the MIG and a treatment plan. Dr. Cowman reviewed the file documentation, conducted a clinical interview, administered four psychometric tests and concluded that the applicant exhibited features of an Adjustment Disorder and Somatic Symptom Disorder, but opined that the test results do not meet the full diagnostic criteria of these conditions. Dr. Cowman opined that the applicant’s presentation, at the time of the assessment, was not of the magnitude to warrant a psychological diagnosis in direct relation to the injuries from the accident that would justify the removal from MIG, and therefore the injury remains a minor injury from a psychological perspective. I find this IE report to be persuasive because it also appears consistent with the rest of the applicant’s medical evidence and in line with my previous finding that there were no post-accident CNRs that recorded any psychological or cognitive complaints or that the applicant was undergoing any psychological treatment.

24The applicant did not offer anything to rebut Dr. Cowman’s findings.

25Given the above reasons, I find that the applicant has not sustained any psychological impairment as a result of the accident which warrants his removal from the MIG.

The applicant has not proven he has chronic pain with functional impairment as a result of the accident

26I find that the applicant does not suffer from a functional impairment in connection with chronic pain to justify the removal from the MIG.

27As stated earlier, the applicant submits that he suffered chronic pain which warrants his removal from the MIG and relies on the CNRs of Dr. Mehrabian, pain specialist, who diagnosed the applicant with chronic neck and back pain.

28The respondent disagrees and submits that the CNRs of Dr. Mehrabian should not be relied on as Dr Mehrabian expressly stated that he did not explore the details of the accident including causation and there was a disclaimer in his CNR which state that his assessments are not suitable for medical-legal purpose. The respondent also submits that chronic pain alone is insufficient to remove the applicant from the MIG but there must be a significant reduction in the applicant’s physical functionality or functional impairment.

29The applicant did not offer any substantive reply submissions but submits that the applicant was unable to obtain a formal chronic pain assessment report as the OCF-18 was denied by the respondent.

30Despite the absence of a fulsome description of Dr. Mehrabian’s credentials and the disclaimer in his CNRs, Dr. Mehrabian stated that he is a medical doctor and an interventional pain specialist with certifications from American Board of Anesthesiology and American Board of Anesthesiology-Pain Medicine. As Dr. Mehrabian had been treating the applicant for his ongoing pain complaints between June 11, 2020 until April 14, 2021 (i.e. 10 months), I find his CNRs to be relevant and helpful in ascertaining the applicant’s progress in the treatment under Dr. Mehrabian’s care during the said period. Therefore, I have assigned the appropriate weight on Dr. Mehrabian’s CNRs accordingly.

31While I agree with the respondent that Dr. Mehrabian did not explore the causal link between the ongoing pain complaints and the subject accident, I find the causal link was established when Dr. Choi referred the applicant to Dr. Mehrabian, around six months after the accident, to address the applicant’s ongoing pain complaints. In my view, this referral is clear and sufficient evidence that Dr. Choi formed the opinion that the applicant’s ongoing pain complaints as a result of the accident-related injuries would be better addressed by a further medical professional.

32Based on the evidence tendered, I find that the applicant had experienced ongoing pain post-accident for a period of time; however, the pain was largely reduced or resolved by the medication prescribed by Dr. Mehrabian. Dr. Mehrabian wrote to Dr. Choi on June 11, 2020, that he prescribed Gabapentin 300mg to the applicant and “will gradually increase its dose if side effects allow”. On August 28, 2020, Dr. Mehrabian reported the applicant had a “very remarkable response to Gabapentin, minimal intermittent cervical pain compatible with muscle spasm.” Dr. Mehrabian maintained the same Gabapentin dosage throughout the treatment period. In the last CNR entry tendered and dated April 14, 2021, Dr. Mehrabian recommended the same medication, physiotherapy and to “follow up in 6 months” rather than the previous suggested “3 months”. This demonstrates that Dr. Mehrabian is of the opinion that the applicant’s pain condition has either subsided or is stable enough without the need for more regular or frequent appointments.

33Throughout Dr. Mehrabian’s CNRs, there is no indication that the applicant was prescribed any other pain medications or received other forms of treatment, such as injections, to relieve his ongoing pain complaints. There is no evidence that the applicant was heavily reliant on Gabapentin or any other pain medications. Dr. Mehrabian reported “no intervention offered” in all of his CNRs. I agree with the respondent that Dr. Mehrabian did not provide a formal diagnosis of chronic pain or chronic pain syndrome; rather, he only assessed the applicant’s physical condition and provided recommendations for treatment such as physiotherapy and prescribed pain medication for relieving the applicant’s pain complaints.

34I also agree with the respondent that chronic pain alone is insufficient to remove the applicant from the MIG but there must be a significant reduction in the applicant’s physical functionality or functional impairment. In response, the applicant only refers to Dr. Chu’s CNR dated February 16, 2021, where it was noted that the applicant no longer works in his second job as an Uber driver and is doing very little sports activity post-accident.

35In the IE assessment reports dated December 24, 2020 and September 10, 2021, Dr. Hershberg, the IE general physician, noted that since the accident, the applicant “continues performing his daily living activities independently without assistance” and the applicant “was off work for two days following the accident and then resumed working full-time with regular duties” to his first job. It was also noted that the applicant reported that he continues to drive without functional difficulty. Although the applicant reported that he did not return to his second job as an Uber driver, Dr. Hershberg opined that the applicant did not demonstrate any physical or functional limitations or impairments and that the applicant should continue self-directed exercise program and be educated on hurt versus harm by his family physician. I find that Dr. Hershberg’s findings to be persuasive as she conducted an in-person examination during both assessments, for the duration of 60 minutes and 53 minutes respectively, and her findings appear consistent with the rest of the applicant’s medical evidence tendered.

36Overall, while I acknowledge that the applicant’s ongoing pain, caused by the accident-related minor injuries, had persisted for some time post-accident, the evidence revealed that it was relieved by the appropriate pain medication. Further, I find that the applicant has not presented compelling or contemporaneous evidence of chronic pain that is severe enough and accompanied by some functional impairment to prevent him from pursuing work, family and recreational needs. As a result, I find that the applicant’s ongoing pain has not adversely affected his well-being and functionality to warrant removal from the MIG.

37Accordingly, I find the applicant has not met his burden of demonstrating on a balance of probabilities that his accident-related pain warrants removal from and treatment beyond the MIG.

38As I find that the applicant is within the treating limits of the MIG and that the MIG funding has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required because the OCF-18s propose treatment outside the MIG funding limit.

39As an alternative argument with respect to the remaining OCF-18s, the applicant submits that the respondent failed to provide medical and other reasons in its denial letters, thereby contravening the requirements in s. 38(8) of the Schedule and therefore should be deemed payable pursuant to s. 38(11).

40Section 38(8) of the Schedule requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

41The requirement of medical and other reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), in which Executive Chair Lamoureux stated:

The ultimate purpose underlying s. 38(8) is to require an insurer to respond to a treatment plan not only quickly but also reasonably, in a manner that respects an insured’s ability, when entitled, to access timely treatment. To that end, an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. They should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment.

42If an insurer fails to comply with its obligations under s. 38(8), s. 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all incurred goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day until such time that it gives a valid denial.

43Bearing that in mind, I have addressed each of the claims in turn below.

The applicant is not entitled to payment for a psychological assessment

44I find the respondent’s denial letters dated March 19, 2020 and August 5, 2020, to be valid under s. 38(8) of the Schedule. As I have previously found the applicant to be within the MIG, and the MIG has been exhausted, I am not required to analyse whether the treatment plan is reasonable and necessary. The applicant is not entitled to payment for a psychological assessment.

45The applicant submits that the respondent’s denial of the subject OCF-18 was issued out of the 10 business days pursuant to s. 38(8) and the only reason for denial provided was the applicant is within the MIG and without any medical or other reasons provided. He submits that the obligations under s. 38(11) are triggered and thus, the treatment plan should be deemed approved and payable.

46The respondent concedes that the denial letter was delivered outside of the 10 business days as required under s. 38(8) but it submits that the defect was properly cured by way of its letter dated March 19, 2020 or alternatively, in a subsequent denial letter dated August 5, 2020.

47Upon review of the denial letter dated March 19, 2020, I find the letter provides sufficient medical and other reasons for denying the applicant’s OCF-18. In this letter, the respondent stated that the OCF-18 was denied because there was insufficient compelling evidence of any pre-existing medical condition that would prevent the applicant from achieving maximal recovery; there was insufficient objective and compelling medical documentation within the file to support the medical diagnosis specified in the OCF-18 and the respondent required a second medical opinion by way of a s. 44 Insurer Examination. A notice of examination was enclosed with the denial letter.

48Subsequently, in the letter dated August 5, 2020, the respondent confirmed its denial based on the IE report by Dr. Cowman where she opined that the OCF-18 was not reasonable and necessary as the applicant did not report a level of accident-related emotion distress that would warrant treatment outside of the MIG. Therefore, I find that the respondent cured the defect on March 19, 2020.

49As the applicant did not incur the subject treatment plan between February 20, 2020 and March 19, 2020, the obligations under s. 38(11) are not triggered. Hence, the applicant is not entitled to the treatment plan and no interest is payable.

The applicant is not entitled to payment for the treatment plans for attendant care/in-home assessment, physiotherapy and functional ability evaluation

50The respondent’s denial letters for the subject OCF-18s contained the essentially the same reasons as mentioned in the above section, whereby there was insufficient compelling evidence of any pre-existing medical condition that would prevent the applicant from achieving maximal recovery; second medical opinions were required, and notices of examination were attached to each of the denial letters.

51I find the respondent had validly denied each of the subject treatment plans and provided sufficient reasons for its denial in accordance with s. 38(8) of the Schedule.

52As I have previously found the applicant to be within the MIG, and the treating limit of the MIG has been exhausted, the applicant is not entitled to payment of the disputed treatment plans.

The applicant is not entitled to payment for the orthopedic assessment

53The applicant did not advance any submissions or reply submissions with respect to the OCF-18 relating to an orthopedic assessment. I note that the onus of proof remains on the applicant to establish that he is entitled to the cost for assessment or treatment plans. I find the applicant has not met its onus of proof for the orthopedic assessment and therefore it is not payable.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are payable, no interest is owing.

Award

55The applicant sought an award under s. 10 of Reg. 664. Under s. 10, and the Tribunal may grant an award of up to 50 per cent of the total benefits payable with interest, if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As the applicant did not make any submissions on this point, I find that the applicant is not entitled to an award.

ORDER

56I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

57The applicant is not entitled to the disputed treatment plans, an award or interest.

58The application is dismissed.