Citation: Brown v. Security National Insurance Company, 2024 ONLAT 22-011290/AABS

Licence Appeal Tribunal File Number: 22-011290/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:

Venice Brown

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Terio Francis, Counsel

For the Respondent:

Orest Kuchar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Venice Brown (the "applicant") was involved in an automobile accident on January 15, 2022, 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 Security National 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:

1. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?
2. Is the applicant entitled to $3,266.43 for chiropractic services, proposed by Humber Civic Care Centre Inc., in a treatment plan/OCF-18 ("OCF-18") dated May 4, 2022?
3. Is the applicant entitled to $1,995.33 for psychological services, proposed by Humber Civic Care Centre Inc., in a OCF-18 dated April 25, 2022?
4. Is the applicant entitled to $2,629.85 for chiropractic services, proposed by Humber Civic Care Centre Inc., in a OCF-18 dated August 4, 2022?
5. Is the applicant entitled to interest on any overdue payment of benefits?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

i. The applicant's accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. ii. She is not entitled to the treatment plans, nor interest. iii. The respondent is not liable to pay an award. iv. The application is dismissed.

PROCEDURAL ISSUES

The Applicant's Submissions will not be excluded

4The Case Conference Report and Order ("CCRO"), released on June 2, 2023, stipulated a 12-page limit for initial submissions.

5The respondent argued in its submissions that the applicant's submissions are longer than 12 pages, and therefore the excess pages should be excluded.

6The applicant did not provide a reply with respect to this issue.

7The applicant is in breach of the CCRO. Upon review of the applicant's submissions, I note that they are 15 pages in length, which includes a cover page. As a cover page is not included in the total page limit, the applicant's submissions are one and half pages over the limit.

8In accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 ("the Rules"), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

9When weighing procedural fairness and any potential prejudice brought, I find that the applicant would be severely prejudiced if portions of her submissions were otherwise excluded in this matter. The respondent also did not provide particulars of the prejudice it would suffer as a result of the applicant exceeding the page limit.

ANALYSIS

The Minor Injury Guideline

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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."

11An insured person 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 from any accident-related minor injury 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.

12In all cases, the burden of proof lies with the applicant.

13The applicant submits she should be removed from the MIG on the following three grounds:

i. She had a pre-existing diagnosis of left knee osteoarthritis; ii. She has chronic pain; and iii. She has psychological impairments.

14The respondent argues that the applicant has failed to prove that her pre-existing conditions, physical and psychological impairments would remove her from the MIG.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

15I find that the applicant has not established that she should be removed from the MIG on the basis of her pre-existing conditions.

16The applicant in her submissions summarized the clinical note and record ("CNR") of Dr. Rajiv Gandhi, physician, dated December 10, 2021, where her diagnosis of left knee osteoarthritis was discussed. I infer from this submission that she is seeking removal from the MIG on the basis of a pre-existing condition.

17The respondent argues that the applicant has not demonstrated how her pre-existing condition will prevent her from achieving maximum medical recovery if restricted to the MIG limits.

18The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents her from achieving maximal recovery within the MIG.

19Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has presented, as she was diagnosed with left knee osteoarthritis by Dr. Gandhi, on December 10, 2021. However, the last part of s.18(2) is where I find the applicant fails. There is no compelling evidence from any medical practitioner that her pre-existing left knee osteoarthritis will prevent her from achieving maximal recovery from the minor injury if she is limited to the $3,500 monetary limit.

20As a result, I find that the applicant has not shown on a balance of probabilities that she has a pre-existing injury in accordance with s. 18(2) to be removed from the MIG.

The applicant is not removed from the MIG due to chronic pain

21I find that the applicant has not established on a balance of probabilities that she has a chronic pain condition as a result of the accident.

22The applicant argues that she was diagnosed with bilateral chronic shoulder pain by Dr. Anthony Di Fonzo, physician, on June 20, 2023, and that this diagnosis prevents her from falling within the MIG. She further argues that she meets all six criteria for chronic pain as outlined in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th Edition (the "Guides").

23The respondent argues that the applicant had a number of pre-existing conditions, including two previous Workplace Safety and Insurance Board ("WSIB") claims where she injured her left shoulder, left hip, left thigh, right shoulder and back. The respondent also argues that the applicant was involved in two subsequent WSIB claims on February 17, 2022 and March 16, 2022, which resulted in injuries to her right shoulder, right hand, and left knee.

24To this end, it relies upon the CNRs of Dr. Emmanuel Ogueri, the applicant's family physician, the various WSIB files, and the s. 44 reports of Dr. Inderdeep Manhas, physician, dated July 12, 2022, and November 9, 2023.

25I find that the records of Dr. Ogueri do not support the applicant's position that she has chronic pain injuries from this accident because on January 18, 2022, Dr. Ogueri diagnosed the applicant with musculoskeletal pain to her shoulder, hip, and neck, which falls within the MIG definition. While he also referred the applicant for physiotherapy, these referrals are separate from and do not impact his diagnosis of a minor injury.

26Further, I find that it is probable that the applicant's accident-related injuries were resolved prior to being involved in the subsequent two workplace incidents, and the subsequent issues are not as a result of the accident. In reaching this conclusion, I note that on January 28, 2022, the applicant reported that she had no new complaints to Dr. Ogueri. On February 3, 2022, approximately two weeks before being involved in two subsequent workplace incidents, the applicant reported to Dr. Ogueri that she had no complaints and he reported her condition as stable.

27It is not until after these workplace incidents (March 11, 2022 to March 11, 2023), the applicant was diagnosed with unrelenting musculoskeletal pain, left shoulder pain, back pain, and referred to a pain clinic. There is no reference to the accident in these CNRs.

28Next, I acknowledge that the applicant in large part relies upon the diagnoses made by Dr. Di Fonzo, to support her position that her injuries cannot be within the MIG. However, I assign minimal weight to this CNR because Dr. Di Fonzo was not aware of the applicant's previous and post WSIB claims. Notably, Dr. Di Fonzo noted that the applicant had been referred for cervical pain, shoulder pain, and lumbar pain, and that the onset was from many years ago and increased following the accident. Ultimately, Dr. Di Fonzo diagnosed the applicant with: mechanical neck pain with myofascial features, bilateral chronic shoulder pain, and mechanical back pain with left piriformis syndrome and greater trochanteric pain syndrome. As noted above, the applicant injured both her shoulders and back in the previous and subsequent workplace incidents.

29Significantly, the applicant did not advise Dr. Di Fonzo of the five WSIB claims that she has been involved in. Indeed, there are five WSIB files before me, that document three pre-existing incidents, and two subsequent incidents following the accident.

30Prior to the accident, the applicant was involved in three previous WSIB claims (November 8, 2019, November 17, 2020, and July 20, 2021), where she sustained injuries to her: left shoulder, left thigh, left hip, upper back, lower back, and right shoulder.

31Following the accident, she was involved in another two incidents on February 17, 2022 and March 16, 2022, which resulted in injuries to her right shoulder, right hand, and left knee. As already noted, Dr. Di Fonzo was not aware of these incidents because the applicant did not advise him. Dr. Manhas in his report also noted that the applicant had denied vocational injuries in the previous assessment and deferred further comment upon receipt of the five WSIB files. As a result, I have no medical opinion before me as to whether the applicant's diagnoses are connected to the accident.

32To summarize, I place negligible weight on Dr. Di Fonzo's diagnoses because he was not aware of the applicant's extensive workplace incidents, and he did not provide an opinion of whether these diagnoses are connected to the accident. In reaching this conclusion, I acknowledge the applicant's position that Dr. Di Fonzo diagnosed the applicant with these impairments because of the accident. I find, however, that Dr. Di Fonzo provided no opinion on the origin of these diagnoses, or whether they were connected to the accident.

33Finally, I find that the applicant has not established that she meets three out of the six criteria as set out in the Guides for establishing chronic pain. While the Guides are not binding on the Tribunal when assessing the existence of a non-minor injury, this Tribunal has consistently applied them as a useful interpretive tool on chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; ii. Excessive dependence on health care providers, spouse, or family; iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain; iv. Withdrawal from social milieu, including work, recreation, or other social contacts; v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

34The applicant has not pointed me to or tendered evidence that shows she is drug-dependent or abuses prescription drugs or other substances. I am aware that the applicant argues that she was prescribed pain and sleep medication and nerve block injections, however this does not establish drug dependency or abuse. Likewise, the last time the applicant sought medical attention for her accident-related injuries was on February 3, 2022, which does not establish she is dependent on health care practitioners. Similarly, the applicant did not refer me to evidence to establish she has secondary physical deconditioning. Therefore, she does not meet the first three criteria outlined in the Guides.

35With respect to the remaining three criteria, I acknowledge that Dr. Di Fonzo noted that the applicant had restrictions with daily household tasks, work function, and social activities. However as noted above, I find that he was not aware of the applicant's prior and subsequent WSIB claims or the applicant's pre-accident function history and therefore I place little weight on his report.

36Furthermore, I find that the medical evidence indicates that the applicant had restrictions before the accident.

37For example, ten months before the accident (March 16, 2021), Dr. J. Zev Shainhouse, internal medicine, noted that the applicant was "quite sedentary" because of arthritis in her knees and shoulders. Likewise, two months before this car accident, Dr. Babaloa Akeem Ganiya, physiotherapist, opined that as a result of the applicant's July 20, 2021 workplace incident, she continued to have limitations with: carrying, pushing/pulling, reaching, repetitive work, overhead work, shoulder level work, and keeping extremity away from the body. Dr. Ganiya also opined that the applicant had limitations with: self-care, sleep, and housekeeping.

38Likewise, following the accident, on May 2, 2022, and May 9, 2022, Dr. Darryl Bloom, chiropractor, noted that the applicant had moderate difficulty with self care, and severe difficulty with sleep and housekeeping, and issues with walking, going up/down the stairs, and standing following both workplace incidents.

39Finally, while the applicant reported to Dr. Manhas that she required assistance with showering from her husband and participated in less than 10% of the housekeeping and worked reduced hours and modified duties, I place little weight on this evidence. As noted above, the applicant did not advise Dr. Manhas of the five workplace incidents she has been involved in. Further, Dr. Manhas did not provide an opinion of whether the accident impacted the applicant's function.

40In a similar vein, the applicant referred me to a denial letter, dated May 9, 2022, and a summary of the OCF-18 completed by Dr. Konstantinos Papazoglou, psychologist contained in the s. 44 report of Dr. Shahriar Moshiri, psychologist, to support her position that she has psychological sequalae from this accident. This letter does not support her position because there is no indication that the applicant was diagnosed with psychological sequalae from this accident, as argued. Instead, the letter demonstrates that the respondent denied an OCF-18 because the applicant is in the MIG. Likewise, the summary of the OCF-18 contains no information on who completed the interview, or whether a file review was conducted. Moreover, the unknown assessor determined based solely on the applicant's self-reporting that a provisional diagnosis of Adjustment Disorder (with mixed anxiety and depressed mood) was supported.

41Accordingly, the applicant has not met her burden to demonstrate that she meets any of the six criteria under the Guides.

42Therefore, I am not persuaded that the applicant has established that she has accident-related chronic pain that would warrant removal from the MIG.

The applicant has not established that she has psychological impairments

43I find that the applicant has not led evidence that she has a psychological impairment as a result of the accident.

44The applicant argues that she was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, however as noted above an unknown assessor opined that provisional diagnosis of adjustment disorder (with mixed anxiety and depressed mood) was supported. This is not sufficient to remove the applicant from the MIG because this diagnosis lacked any psychometric testing to substantiate the provisional diagnosis nor was a full psychological assessment undertaken to conclusively determine the applicant's current psychological state. Consequently, the applicant has not met her evidentiary onus to establish that she should be removed from the MIG on the basis of a psychological impairment.

45The applicant did not address in her submissions whether the MIG limits have been exhausted. The respondent submits that the MIG limits have been exhausted, however the Standard Benefit Statement, dated August 1, 2022, notes that $333.73 remain under the MIG limits. As I have found the applicant's injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.

46However, the applicant argues that the respondent's denial letter with respect to the OCF-18 for chiropractic services, in the amount of $2,629.85 (issue four) was non-compliant with s. 38(8) because it lacked sufficient reasons.

47The respondent argues that in its denial letter, dated August 11, 2022, it advised the applicant that the OCF-18 was being denied as there was no compelling medical evidence and due to the insurer's examinations conducted by Drs. Minhas and Moshiri. It argues that the denial letter was compliant with s. 38(8) because it was clear and unequivocal, and medical reasoning was provided on why the MIG applied.

48Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

49I disagree with the applicant that the respondent was non-compliant with s. 38(8), because the denial letter dated August 11, 2022 was a clear and unequivocal denial of the OCF-18. The denial letter clearly advised the applicant that Dr. Manhas had diagnosed her with: WAD II, bilateral shoulder sprain/strain, cervicogenic/tension headaches, and lumbar spine sprain/strain, which all fall within the MIG. Further, the letter advised that Dr. Moshiri had concluded that the applicant did not sustain a psychological condition from this accident. Therefore, the respondent advised the applicant that her injuries remained within the MIG and the $3,500.00 limit, and the OCF-18 was not payable.

50This letter complies with the requirements of s. 38(8) because the respondent provided clear reasons that the applicant's injuries remained within the MIG, and therefore the OCF-18 was not payable by referring to specific medical records, being the reports of Drs. Manhas and Moshiri.

51Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.

The respondent is not liable to pay an award

52As the applicant has been found to have sustained minor injuries and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

53For the reasons outlined above, I find that:

i. The applicant's accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. ii. She is not entitled to the treatment plans, nor interest. iii. The respondent is not liable to pay an award. iv. The application is dismissed.