Tabone v. Economical Insurance Company, 2024 CanLII 118806
Licence Appeal Tribunal File Number: 22-012036/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:
Peter Tabone
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
WRITTEN SUBMISSIONS:
Applicant: Vince Angelillo, Counsel
Respondent: Sonya Katrycz, Counsel
HEARD: By way of written submissions
OVERVIEW
1Peter Tabone, the applicant, was involved in an automobile accident on September 7, 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, Economical 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $3,099.84 for physiotherapy services, proposed by Wilson Health and Wellness Clinic in a treatment plan submitted on October 13, 2020, and denied on October 29, 2020?
iii. Is the applicant entitled to $1,536.65 for physiotherapy services, proposed by Wilson Health and Wellness Clinic in a treatment plan submitted on March 5, 2022, and denied on March 22, 2022?
iv. Is the applicant entitled to $1,480.00 for chiropractic services, proposed by Humber Family Chiropractic Rehab and Wellness Clinic in a treatment plan submitted on November 26, 2022, and denied on December 12, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant has demonstrated that removal from the MIG is warranted on the basis that he sustained a concussion.
4The applicant is entitled to $3,099.84 for physiotherapy services in the treatment plan submitted on October 13, 2020.
5The applicant is not entitled to $1,536.65 for physiotherapy services in the treatment plan submitted on March 5, 2022.
6The applicant is not entitled to $1,480.00 for chiropractic services in the treatment plan submitted on November 26, 2022.
7The respondent is not liable to pay an award.
8The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Applicability of the Minor Injury Guideline
9Section 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.”
10An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. Further, jurisprudence has established that concussions are not part of the definition of minor injury. In all cases, the burden of proof lies with the applicant.
11The applicant submits that he suffers from post-concussive syndrome, chronic pain, and post-traumatic pain syndrome because of the accident. The respondent submits that the applicant has not demonstrated that he sustained a concussion, nor does he suffer from chronic pain.
The applicant sustained a concussion as a result of the accident
12I find that the clinical notes and records of the applicant’s family physician, Dr. Matthew Ng and the report of Dr. Harmanjit Sandhu, upon which the applicant relies in support of his position, establish that the applicant sustained a concussion as a result of the accident.
13First, I note that throughout their submissions, the respondent refers to the fact that the applicant was not involved in an “accident.” The applicant was a passenger in an Uber and the driver had to apply the brakes suddenly to avoid hitting another vehicle. The applicant reports having hit his head on the head rest after the sudden stop. The respondent refers to this as a “non-accident” since there was no collision. The applicant points out that section 3(1) of the Schedule defines an “accident” as an incident in which the use or operation of the vehicle directly causes an impairment. For there to be an “accident” pursuant to the Schedule, a collision is not required. I agree with the applicant and find that he was involved in an accident on September 7, 2020, as defined by the Schedule.
14Turning now to whether the applicant sustained a concussion in the accident, I am persuaded by the evidence before me that he did. Specifically, I find that the evidence shows that the applicant contacted Dr. Ng on September 8, 2020, and advised that, when the vehicle he was in suddenly stopped, he hit his head in the front seat head rest. He attended to see Dr. Ng the next day for an assessment. The applicant reported pain in the head, neck, shoulders, upper back, some tightness around the brows, a bit of photosensitivity, and some fatigue. Dr. Ng assessed the applicant with post accident cervicogenic headache, a possible mild concussion, and whiplash. He referred the applicant for physiotherapy, massage, and chiropractic therapy.
15On October 5, 2020, the applicant met with Dr. Ng, with complaints of feeling tired, and his energy was not quite normal. The applicant advised that ongoing therapy on his neck and shoulders was helpful. Dr. Ng assessed the applicant with “post concussion” and whiplash type injury and advised him to continue with chiropractic treatment and physiotherapy. On December 3, 2020, Dr. Ng again noted “ongoing post concussive symptoms”, fatigue, headaches, and insomnia.
16On December 17, 2020, the applicant attended to see Dr. Ng with complaints of feeling a bit off balance, like the room was spinning. Dr. Ng did not believe that this was related to the accident. Dr. Ng advised the applicant to continue with therapy.
17On January 26, 2021, the applicant met with Dr. Ng for a follow-up “concussion & sleeping issues.” He complained of ongoing difficulties with sleep, uncomfortable neck musculature and advised that the dizziness improved but it was off and on. Dr. Ng observed that the applicant appeared anxious, there was some ongoing tension in his neck and shoulders, and his range of movement was hesitant due to discomfort. He assessed the applicant with chronic post concussive symptoms and post whiplash type injury. Dr. Ng prescribed Gabapentin and advised that the applicant needs ongoing therapy.
18Dr. Ng referred the applicant to The Centre for Chronic Headache and Pain Management for his headache pain. Dr. Harmanjit Sandhu assessed the applicant by phone on August 10, 2021, due to the pandemic. The applicant reported constant headache pain since the accident, occasional nausea, poor sleep quality, poor energy level, as well as photophobia. The applicant also complained of constant neck pain since the accident and advised that he obtains mild transient pain relief following sessions of physiotherapy, chiropractic treatment and massage therapy. Dr. Sandhu diagnosed the applicant with post-traumatic pain syndrome and educated the applicant regarding common migraine triggers. Further, they discussed different courses of treatment, including medications and local anesthetic nerve blocks, as well as the need for ongoing regular physical therapy, of which he is in definite need. The applicant attended for one nerve block treatment but did not return.
19I find that the evidence submitted by the applicant supports a finding that, on a balance of probabilities, he sustained a concussion. In reaching this conclusion, I have considered that the respondent submits that Dr. Ng noted on September 9, 2020, that the applicant had a “possible” mild concussion, but did not, at any point, confirm that diagnosis. I disagree. Since that appointment, the applicant consistently complained of headaches, fatigue, insomnia, and dizziness. Dr. Ng made the following further assessments:
i. October 5, 2020: post concussion
ii. December 3, 2020: ongoing post concussive symptoms
iii. January 26, 2021: chronic post concussive symptoms.
20Considering these multiple assessments in the notes and records, I find that Dr. Ng did confirm a diagnosis of concussion.
21I have also considered that the respondent relies on the Insurer’s Examination that was conducted by Dr. Davar Nikneshan, Neurologist, on August 21, 2023. Dr. Nikneshan reviewed the applicant’s medical history and conducted a physical examination of the applicant. He concluded that, from a neurological perspective, the applicant has a whiplash associated headache which falls within the MIG. I place little weight on this opinion as I note that the examination was conducted almost three years after the accident. Further, in his review of medical records, Dr. Nikneshan only cited two of Dr. Ng’s clinical notes and records that referred to concussion or concussive symptoms, namely, September 8, 2020, and January 26, 2021. I find that the applicant’s family doctor, who had regular contact with the applicant in the months following the accident, is in a better position to make a proper diagnosis. I find that Dr. Ng consistently diagnosed the applicant with a concussion.
22On a consideration of the evidence, I find that the applicant has established, on a balance of probabilities, that he sustained a concussion because of the accident.
23The applicant also raises the argument that he suffers from chronic pain that would warrant removal from the MIG. Due to my conclusion about his concussion, I do not find it necessary to address this argument.
24To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is entitled to the treatment plan for physiotherapy services in the amount of $3,099.84
25I find that the clinical notes and records of Dr. Ng and the report of Dr. Sandhu, upon which the applicant relies in support of his position, establish that this treatment plan is reasonable and necessary.
26The treatment plan was prepared by Dr. Tessa Lam, Chiropractor. It was submitted on October 13, 2020. The injuries outlined are whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs, headache, concussion, as well as sprain and strain of the thoracic spine, ribs and sternum, and lumbar spine. The goals of the treatment plan are listed as pain reduction, increased range of movement, decrease in frequency and duration of headaches, return to activities of normal living, and return to pre-accident work activities. It was noted that progress on these goals would be determined by re-evaluations to assess pain levels, frequency and severity of headaches, range of motion, and physical activity capacity. The duration of the treatment plan is estimated at 12 weeks, to include 45-minute sessions of the following services: 16 sessions of chiropractic services, 16 sessions of physiotherapy and 8 sessions of massage therapy.
27The applicant relies on the continued recommendations from Dr. Ng for therapy to address his accident-related injuries. On September 9, 2020, Dr. Ng referred the applicant for physiotherapy, massage, and chiropractic therapy. On October 5, 2020, the applicant advised that ongoing therapy on his neck and shoulders was helpful. Dr. Ng. advised him to continue with chiropractic treatment and physiotherapy. On December 17, 2020, Dr. Ng once again advised the applicant to continue with therapy. On January 26, 2021, Dr. Ng again advised that the applicant needs ongoing therapy.
28Dr. Sandhu assessed the applicant on August 10, 2021. The applicant complained of constant neck pain since the accident and advised that he obtains mild transient pain relief following sessions of physiotherapy, chiropractic treatment and massage therapy. Dr. Sandhu discussed the need for ongoing regular physical therapy, of which he believed the applicant was “in definite need.”
29The respondent relies on the opinions of Dr. James Stewart, General Practitioner and Dr. Nikneshan to support their position that the treatment plan is not reasonable and necessary.
30Dr. Stewart assessed the applicant on February 17, 2023, and believed the applicant would have likely sustained a grade I-II WAD sprain/strain of the cervical spine and possible strain/strain of the right shoulder as a result of the accident. He indicated that the natural history for full recovery from this type of injury is, at most, 12 weeks. He concluded that the applicant’s injuries fell within the MIG and that no further chiropractic, massage, or physiotherapy was reasonable and necessary.
31I place little weight on the opinion of Dr. Stewart as it relates to this treatment plan because Dr. Stewart assessed the applicant on February 17, 2023, two years and four months after the treatment plan was submitted. Further, I note that Dr. Stewart’s examination was conducted to determine whether the treatment plan in the amount of $1,480.00 for chiropractic services that was submitted on November 26, 2022 (issue iv above) was reasonable and necessary, and not the treatment plan that was submitted on October 13, 2020.
32Dr. Nikneshan was asked to comment on the treatment plan that was submitted on October 13, 2020. He believed that the treatment plan is not reasonable and necessary. He concluded that, from a neurological perspective, the applicant has a whiplash associated headache, and there is no role for massage therapy, physiotherapy, or chiropractor assessment in the management of headaches. Since I have found that the applicant is removed from the MIG, I must now determine whether the treatment plan is reasonable and necessary, without limiting the need for treatment to headaches alone. As such, I place little weight on Dr. Nikneshan’s opinion as it relates to this treatment plan.
33I am satisfied that there is contemporaneous medical support from Dr. Ng and Dr. Sandhu with respect to the applicant’s ongoing need for physiotherapy, chiropractic treatment and massage therapy in relation to the treatment plan that was submitted on October 13, 2020. I find that the applicant has demonstrated that the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. As such, I find that this treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plans set out in issues iii and iv
34I find that the applicant has not established that the treatment plan for physiotherapy services submitted on March 5, 2022, or the treatment plan for chiropractic services submitted on November 26, 2022, are reasonable and necessary.
35The treatment plan for physiotherapy services was prepared by Dr. Lam. The goals of the plan are pain reduction, increased range of motion, increase in strength, return to activities of normal living, and return to pre-accident work activities. Dr. Lam indicated that there has been minimal improvement since the end of the previous treatment plan. Headaches have increased in frequency to daily. Barriers to recovery were listed as chronicity of complaints, multiple areas of complaints, and severity and duration of post-concussion symptoms. Dr. Lam advised the applicant to follow up with the chronic pain clinic where he reported significant pain relief with his neck and headaches from one nerve block treatment to his neck in September of 2021, however the applicant has not scheduled any follow up treatments. The proposed treatment plan includes 8 sessions of chiropractic treatment, 8 sessions of physiotherapy and 4 sessions of massage therapy over an eight-week period.
36The treatment plan for chiropractic services was prepared by Dr. Adrian Rossi, Chiropractor. He indicates that he has already provided 8 sessions and recommends a further 16 sessions.
37The applicant has not pointed to any contemporaneous clinical notes and records from a physician recommending physiotherapy, chiropractic therapy or massage therapy from the date of the last treatment plan submitted on October 13, 2020, to the date of the proposed treatment plans that were submitted on March 5, 2022 and November 26, 2022. Considering Dr. Lam reports that there has been minimal improvement since the end of the previous treatment plan, and there are no contemporaneous recommendations by a physician for physiotherapy, massage, or chiropractic treatment, I find that the applicant has not demonstrated on a balance of probabilities that these treatment plans are reasonable and necessary.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with the Schedule on any overdue payment of benefits.
Award
39The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
40The applicant submits that the respondent’s position that his injuries fall within the MIG is unreasonable in that their denial letters do not address the applicant’s concussion, post-concussion syndrome, chronic pain, and post-traumatic pain syndrome. Further, the insurer’s assessment reports do not rebut these diagnoses. The applicant argues that the respondent’s behavior in denying all his claims warrants a special award to set an example that assessing a file in this manner is capricious and contrary to an insurer’s duty to the insured.
41It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the respondent’s behavior does not reach that high standard. The respondent continued to adjust the file by obtaining reports from two assessors. Further, having found that no benefits are payable with respect to two of the proposed treatment plans, I find that there is no basis for ordering an award under Regulation 664.
ORDER
42The applicant is removed from the MIG on the basis that he sustained a concussion.
43The applicant is entitled to $3,099.84 for physiotherapy services in the treatment plan submitted on October 13, 2020.
44The applicant is not entitled to the treatment plans set out in issues iii and iv.
45The applicant is entitled to interest on any overdue payment of benefits.
46The respondent is not liable to pay an award.
Released: November 25, 2024
Laura Goulet
Adjudicator