Citation: Nguyen v Intact Insurance Company, 2024 ONLAT 22-002646/AABS

Licence Appeal Tribunal File Number: 22-002646/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:

Tam Nguyen

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Fayola Benjamin, Counsel

For the Respondent:

Caroline Theriault, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tam Nguyen (“the Applicant”) was involved in an automobile accident on December 4, 2019, and sought benefits from Intact Insurance Company (“the Respondent”) 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 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 a minor injury as defined in section 3 of the Schedule and subject to treatment within the MIG and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to medical benefits proposed by VJ Health Care Clinic as follows:

i. $1,299.98 for a physiotherapy treatment plan, dated June 20, 2020; and

ii. $2,598.76 for a physiotherapy treatment plan, dated September 12, 2020?

iii. Is the Applicant entitled to medical benefits proposed by Medex Health:

i. $2,200.00 for an orthopaedic assessment plan, dated July 14, 2020;

ii. $2,200.00 for a chronic pain assessment plan, dated May 31, 2021; and

iii. $2,200.00 for a psychological assessment plan, dated March 4, 2021?

iv. Is the Applicant entitled to intertest on the overdue payment of benefits?

RESULT

3I find that the Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

4The treatment and assessment plans are not reasonable and necessary because they propose goods and services which fall outside the MIG.

5No interest is payable because no payments went overdue.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck from behind while in stop-and-go traffic on a major urban highway. No police or ambulance arrived at the scene of the accident and the Applicant was able to drive his vehicle home after the collision. He met with Dr. J. Reyhanian, chiropractor, at VJ Health Care Clinic about three days later, who completed a disability certificate and noted that the Applicant sustained a right shoulder full-thickness tear according to an ultrasound, but it appears that reference to a full-thickness tear is with respect to a pre-existing injury.

7The Applicant met with his family physician, Dr. D. N. Dong, two days later with complaints of increased back pain radiating down his right leg, as well as neck and shoulder pain. He was prescribed anti-inflammatory medication and referred for an x-ray and ultrasound of the right shoulder. An x-ray report dated December 16, 2019, notes that the Applicant has a full-thickness/complete tear of the right shoulder.

8The Applicant was referred to Dr. S. Halman, orthopaedic surgeon, who on April 2, 2020, recommended surgical intervention for the Applicant’s right shoulder. However, such surgical procedures were paused during the pandemic, and the procedure was not available to the Applicant for a period of time. Eventually, the Applicant was offered the surgical procedure, but a note dated January 6, 2023 states that he does not want to proceed with surgery.

9This issue of the application of the MIG primarily turns on whether the Applicant sustained a full-thickness tear in his right shoulder as a result of the accident. For the following reasons and on a balance of probabilities, I find that the full-thickness tear is an injury which pre-dates the subject accident.

ANALYSIS

Minor Injury Guideline (“MIG”)

10The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

11The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

Full-thickness tear in right shoulder is not as a result of the accident

12I find that the full-thickness tear in the Applicant’s right shoulder most likely pre-dates the accident.

13The Applicant’s medical records include ongoing right shoulder pathology leading up to the accident. The OCF-3 by Dr. J. Reyhanian, chiropractor, dated December 7, 2019, refers to an ultrasound report that concluded the Applicant had a full thickness tear. Yet, the ultrasound report is not included in the evidence before me and the timing pre-dates the Applicant’s first post-accident visit to his family physician, Dr. Dong, on December 9, 2019, suggesting that the imaging occurred prior to the accident. Additionally, the referral from Dr. Dong to Dr. Halman, along with other documents in the Applicant’s medical records, fail to persuasively connect the complete tear in the Applicant’s right shoulder to the accident. The summary report from Dr. Halman to Dr. Dong states that the Applicant’s right shoulder pain has been an issue fore more than a year, which pre-dates the subject accident.

14The insurer’s examination (“IE”) assessment reports concluded that the Applicant’s right shoulder rotator cuff tear pre-dated the accident. In a report dated March 10, 2020, Dr. M. Hershberg, physician, concluded that the Applicant’s right shoulder tear is not an accident-related injury and that it pre-dates the accident. The position was maintained in a subsequent report by Dr. Hershberg, dated October 26, 2020, and a separate report by Dr. G. Gelman, dated July 20, 2021.

Pre-existing injuries

15I find no compelling evidence of a pre-existing medical condition which would preclude the Applicant’s recovery if subject to the MIG.

16The Applicant submits that he has a pre-existing right shoulder injury and work-related back injury which precludes his recovery if subject to the MIG. He highlights that he was diagnosed with chronic pain syndrome as recently as August 27, 2017. He also notes that IE assessor, Dr. M. Hershberg, physician, noted a history of neck, shoulder, and back complaints and opined that they were likely exacerbated by the accident and may be contributing to his current symptoms.

17The Respondent submits that the Applicant’s pre-existing health conditions are not of the severity to warrant treatment outside the MIG. It relies on Dr. Hershberg’s opinion and report, dated March 10, 2020. Dr. Hershberg acknowledged the Applicant’s pre-existing health condition and even agreed that his symptoms were likely exacerbated by the accident. However, Dr. Hershberg observed that the Applicant demonstrated good range of motion (“ROM”) and strength in the absence of any orthopaedic or neurological findings and concluded that he sustained a minor injury. The Respondent also notes that Dr. G. Gelman, physician, report July 2021, also acknowledged the Applicant’s pre-existing health condition but found that he could be treated within the MIG and that his accident-related exacerbation had resolved.

18I find no evidence in Dr. Dong’s CNRs indicating that the Applicant’s pre-existing health status, including the pre-existing full thickness tear in his right shoulder, will impact his recovery from soft tissue injuries sustained in the accident. While Dr. Dong noted the Applicant’s pre-existing neck, back, and shoulder complaints, the CNRs do not suggest that Dr. Dong or Dr. Halman had any concern about the affects of the Applicant’s pre-accident condition on his recovery and there is no evidence that the Applicant required additional post-accident care due to his pre-existing shoulder injury.

Chronic pain condition

19I find that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

20The Applicant submits that he suffers from a chronic pain condition and focuses primarily on his right shoulder pain. He submits that he suffered a full tear of the supraspinatus tendon, for which Dr. Halman recommended surgical intervention. He submits that his ongoing complaints of pain have become chronic and give him a serious functional impairment.

21The Respondent submits that the Applicant does not suffer from an ongoing functional impairment due to pain and does not meet the criteria for a chronic pain condition as outlined in the AMA Guides. It further submits that Dr. Gelman assessed the Applicant for chronic pain but found he did not suffer from the condition. He noted that the Applicant experienced occasional symptoms involving back pain, but they were resolved with stretching. Otherwise, the Respondent submits that the Applicant remained independent with his self-care and activities of daily living, returned to work, and persisted with active hobbies such as walking and biking.

22I find that the Applicant’s ongoing right shoulder pain pre-dates the subject accident thus, the Respondent is not liable for any chronic pain complaints related to the right shoulder. Nevertheless, the Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment “AMA Guides”). The Applicant has returned to work and is independent with his activities of daily living and self care. His medical records do not indicate that he is deconditioned due to disuse, nor do they indicate any reliance on healthcare providers or family members. Similarly, the Applicant’s medical record makes no indication that he is abusing or using prescription medication or other substances, and as I will further elaborate, he has not developed any psycho-social sequalae.

Psychological impairment

23I find that the Applicant has not demonstrated that he sustained a psychological impairment as a result of the accident.

24The Applicant submits that he suffers a decline in cognitive functioning, has difficulty concentrating, and experiences sleep disturbances and other issues as a result of the accident. He submits that the pre-screen psychological assessment report by E. Webster, psychotherapist, dated March 30, 2021 found a provisional diagnoses of depressive disorder, post-traumatic stress, panic disorder, and phobia.

25The Respondent submits that the Applicant does not suffer from an accident related psychological impairment because he has not been diagnosed with a psychological impairment, nor engaged in psychological treatment or consumed any psychotropic medication since the subject accident. It relies on the report of Dr. D. Saunders, psychologist, dated May 15, 2023, who concluded that the Applicant did not meet the criteria for any accident-related psychological impairment.

26I prefer the report of Dr. Saunders over psychotherapist Webster and conclude that the Applicant does not suffer from a psychological impairment as a result of the accident. I find the symptoms described by psychotherapist Webster to be anomalous to the balance of the Applicant’s medical records and discount the weight the report holds because of this. No rationale is provided for the pre-screen report by psychotherapist Webster and no CNRs were provided that suggest that the Applicant was suffering psychologically following the accident. Further, psychotherapist Webster’s report noted that the Applicant reported a decline in cognitive function, feeling distracted and forgetful, overwhelming sadness, a dramatic decrease in appetite, and other issues. However, these symptoms are not reported to Dr. Dong, the Applicant’s family physician, despite multiple meetings between the two after the accident.

27I prefer the report by Dr. Saunders, dated May 15, 2023, because it is more consistent with the balance of the Applicant’s medical evidence. Dr. Saunders interviewed the Applicant and administered psychometric testing. During the interview, the Applicant expressed no interest in receiving psychological treatment. On psychometric testing, the Applicant scored in the normal range for depression and anxiety and other scores indicated a low risk of experiencing clinical problems. I find these results to be consistent with Dr. Dong’s CNRs, which include virtually no complaints of a psychological nature made by the Applicant. Accordingly, I find that the Applicant has not suffered a psychological injury as a result of the accident.

The disputed plans are not reasonable and necessary

28Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit on treatment.

No interest is payable

29Interest is payable on the overdue payment of benefits pursuant to section 51 of the Schedule. Having found that no payments went overdue, it follows that no interest is payable.

CONCLUSION AND ORDER

30The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

31The evidence demonstrates on a balance of probabilities that the full thickness tear in the Applicant’s right shoulder pre-dates the accident and there is no evidence suggesting that his pre-existing right shoulder tear precluded his recovery within the MIG.

32The treatment and assessment plans in dispute are not reasonable and necessary because they propose goods and services that fall outside the MIG and the funding limit.

33No interest is payable as no payments went overdue.

34The application is dismissed.