Citation: LaGuerre v. TD General Insurance Company, 2024 ONLAT 22-012945/AABS

Licence Appeal Tribunal File Number: 22-012945/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:

Jean-Claude LaGuerre

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

SUBMISSIONS BY:

For the Applicant:

Sofia Katyshev, Paralegal

For the Respondent:

Jessica Pandza, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Jean-Claude LaGuerre, the applicant, was involved in an automobile accident on November 29, 2019, 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 General 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 $2,456.20 for physiotherapy services, proposed by Trainyards Medical Centre in a treatment plan (OCF-18) dated February 26, 2021?

iii. Is the applicant entitled to $2,260.00 for a chronic pain assessment proposed by All Health Medical Centre in a treatment plan (OCF-18) dated August 10, 2022?

iv. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by All Health Medical Centre in a treatment plan (OCF-18) dated August 10, 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?

RESULT

3The applicant has demonstrated that he has sustained injuries that warrant removal from the MIG.

4The applicant is not entitled to the treatment plan for physiotherapy services.

5The applicant is entitled to the treatment plans for a chronic pain assessment and an orthopaedic assessment.

6The respondent is not liable to pay an award.

ANALYSIS

The applicant’s injuries warrant removal from the MIG

7I find that the applicant has proven, on a balance of probabilities, that his accident-related injuries warrant removal from the MIG.

8Section 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.”

9An 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.

10The applicant submits that following the accident, he has sustained injuries to his back, spine, neck, and left shoulder. The applicant further submits that his injuries are not minor as defined by the Schedule, as he has suffered severe injury to his left shoulder, such as a full-thickness tear resulting in surgical intervention and chronic pain.

11The respondent submits that the applicant has provided little medical evidence to support any ongoing medical issues or a need for further treatment from accident-related injuries that would warrant removal from the MIG. The respondent submits that the applicant sustained a partial thickness tear of the left shoulder, not a full-thickness tear, and that neither the partial thickness tear nor the need for the reported surgery are related to the accident. Moreover, the respondent argues that the applicant has not produced any reports to refute the findings of its s. 44 assessors, orthopaedic surgeon Dr. Jamie Rusen, and physiatrist Dr. Mohammed Abdul Khan.

12I find that the evidence substantiates that the applicant sustained a full-thickness tear, as a result of the accident.

13On September 28, 2020, the applicant underwent a telephone consult with orthopaedic surgeon, Dr. Rajiv Prihar. The applicant reported to Dr. Prihar that since the accident the applicant has pain and weakness in his left shoulder. Dr. Prihar requisitioned an MRI to rule out any underlying rotator cuff pathology. An MRI of the applicant’s left shoulder dated November 29, 2020, revealed a small rim rent tear and delamination of the infraspinatus tendon, severe tendinosis of the biceps tendon with tear of the long head of the biceps tendon with 4 cm distance between the 2 stumps, moderate degenerative changes seen in the glenohumeral joint, and moderate to severe degenerative changes in the AC joint. I find that the evidence also shows that on February 22, 2021, the applicant followed-up with Dr. Prihan, and was advised of the MRI findings, interpreted by Dr. Prihan as: a small full-thickness rotator cuff tear severe biceps tendon tenodesis, AC joint osteoarthritis, and severe left glenohumeral joint osteoarthritis. The applicant was recommended treatment options such as pain medication or surgical intervention. The applicant opted for surgery, and subsequently underwent a left total shoulder arthroplasty cuff tear repair excision of clavicle biceps tenodesis with Dr. Prihan on April 9, 2021.

14The applicant relies on the Tribunal’s decision in G. K. v Coseco Insurance, 2020 CanLII 34433 (ON LAT) (“G.K.”), in that the applicant would not have suffered the impairment “but for” the accident. Additionally, the applicant notes that in G.K. little weight was placed on the orthopaedic surgeon IE report because it was silent on the issue of causation and does not comment on pivotal medical imaging.

15The Divisional Court held in Sabadash vs. State Farm et al., 2019 ONSC 1121, that to establish causation, the applicant bears the onus to prove that his impairments would not have occurred “but for” the accident.

16I find that the evidence supports that the applicant consistently reported left shoulder pain to Dr. Boyd post-accident, and that Dr. Boyd wrote letters on November 16, 2021, and April 1, 2022, stating that the applicant’s left shoulder pain began immediately following the accident and as such “the pain was clearly triggered by the MVA.” I am not pointed to any intervening act, between the date of the accident and the discovery of the left shoulder full-thickness tear, nor am I pointed to any pre-accident complaints of left shoulder pain or impairment. As such, I am persuaded that, on a balance of probabilities, “but for” the accident the applicant would not have suffered from the left shoulder impairment of a full thickness tear and subsequent surgical intervention.

17In reaching this conclusion, I give little weight to the s. 44 reports of Dr. Khan and Dr. Rusen. I find that the physiatry report of Dr. Khan, dated October 28, 2020, does not comment or opine on the MRI dated November 29, 2020, that revealed the full-thickness tear, nor the left shoulder surgery, as both occurred after this physiatry assessment. As such, I find that this report does not provide any compelling evidence that would speak to the causation of the applicant’s left shoulder injury.

18Moreover, I am not persuaded that the s. 44 orthopaedic surgeon report of Dr. Rusen, dated July 14, 2021, accurately reflects the applicant’s medical history or speaks to whether the applicant’s injuries would have occurred but for the accident. Dr. Rusen, in his orthopaedic report dated July 14, 2021, and addendum reports dated October 18, 2021, April 26, 2022, and September 16, 2022, opined that the left shoulder impairment is primarily related to non-accident degenerative conditions as opposed to any accident-related orthopaedic impairment. However, despite Dr. Rusen noting that the applicant denied any pre-accident complaints of left shoulder pain, Dr. Rusen does not comment on this lack of left-shoulder related complaint prior to the accident in the applicant’s medical record. Moreover, Dr. Rusen opines that “it is more probable than not that these findings are not directly attributable to the subject accident and are of a pre-existing degenerative etiology” despite the lack of pre-accident evidence to support this conclusion. Accordingly, I am more persuaded by the applicant’s family practitioners CNRs, given that they provide a more comprehensive picture of the applicant’s pre-and post-accident medical condition.

19The applicant bears the onus to prove, on a balance of probabilities, that he has sustained an accident-related impairment that would warrant removal from the MIG. Although I am not bound by Tribunal decisions, the respondent correctly identifies, relying on the Tribunal’s decision in Semih v Aviva Ins. Co., 2022 CanLII 27252 (ON LAT), that a full-thickness tear would remove the applicant from the MIG. In the present case, the applicant not only sustained a full-thickness tear, but also underwent surgery for this injury. As I have found that it is more probable than not that the full-thickness tear is accident related, both the surgical intervention and the full-thickness tear would warrant removal from the MIG, as they do not fit within the definition of a “minor injury” as defined by the Schedule.

20For these reasons, I find that the applicant has met his burden in proving, on a balance of probabilities, that he has sustained an accident-related non-minor injury and should be removed from the MIG.

21To 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 not entitled to the physiotherapy services

22I find that the OCF-18 for physiotherapy services is not reasonable and necessary.

23The applicant did not provide the OCF-18 for physiotherapy services, dated February 26, 2021, in his submissions and made no reply submissions. Therefore, this treatment plan was not before me to allow me to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.

24Even if it was, I find that the applicant has not met his onus. The applicant submits that the respondent denied the treatment on the basis of a MIG determination. However, the applicant argues that the injuries he sustained as a result of the accident are not “minor injuries” and the proposed physiotherapy services are reasonable and necessary.

25The respondent argues that the OCF-18 for physiotherapy services is not reasonable and necessary based on s. 44 orthopaedic report of Dr. Rusen, in which Dr. Rusen opined that “any need for further physical therapy would be related to non-accident related degenerative conditions” and that “no further formal facility-based physical therapy treatment is required in direct relation to the subject accident.”

26I place little weight on the report of Dr. Rusen, given that as I have found above, on a balance of probabilities, “but for” the accident the applicant would not have suffered from the left shoulder impairment and subsequent surgical intervention. In this respect, I find Dr. Rusen’s opinion unpersuasive regarding the applicant’s need for formal facility-based physical treatment.

27While I prefer the CNRs of the applicant’s family practitioner, Dr. Boyd, of which give a detailed account of the applicant’s post-accident clinical sequelae, I find that there is a lack of contemporaneous medical records around the date that the proposed treatment plan was submitted for consideration by the respondent that would endorse the need for the proposed treatment. On May 20, 2020, Dr. Boyd reported that the applicant was “at physio 1/wk.” I am not pointed to any further medical record of Dr. Boyd referring or recommending physical therapy between May 2020 and the proposed treatment plan, dated February 26, 2021. Moreover, orthopaedic surgeon, Dr. Prihar, did not recommend physiotherapy in either the September 28, 2020 or February 21, 2021 consults. In fact, Dr. Prihar, on February 21, 2021, provided treatment options such as “conservative management, live with it the way it is take pain medications modify his activities Carreon, or surgical intervention.” The applicant opted for surgical intervention.

28Give the above, I find that on a balance of probabilities, the applicant has not proven that the proposed treatment plan for physiotherapy services is reasonable and necessary.

The applicant is entitled to the chronic pain assessment

29I find that the applicant has proven, on a balance of probabilities, that the chronic pain assessment is reasonable and necessary.

30The OCF-18 for the proposed chronic pain assessment submitted on August 10, 2022, by Dr. Inese Robertus, physician, indicates that the applicant reports “difficulty with completing self care and housekeeping tasks. Any activity that requires bending, kneeling, pushing, pulling, aggravates the injuries.” The OCF-18 identifies goals of pain reduction, increased range of motion, increase in strength, and to return to activities of normal living.

31The applicant submits that he has ongoing severe pain and limited range of motion in his left shoulder four years after the accident, which is now chronic. The applicant relies on the decision in A.G v Coseco Insurance, 2020 CanLII 12734 (ON LAT) where it was found that the applicant has suffered injuries which have persisted for over four years following the accident, and therefore by definition are chronic.

32The respondent argues that the applicant has stopped all forms of treatment for well over three years and there is no evidence of any decline in function or attempts to obtain treatment. The respondent further argues that the applicant is working in the same pre-accident role, which indicates that there is no impairment in the applicant’s ability to function.

33I find that the evidence supports that the applicant has presented to his family practitioner, Dr. Boyd, complaining of ongoing left shoulder pain with a decreased range of motion on a number of occasions between the date of his first accident-related complaint on November 30, 2019, and the date of the proposed treatment plan, August 10, 2020. The evidence also indicates that the applicant has continued to make complaints thereafter. For example, a CNR of Dr. Boyd, dated August 16, 2023, reports that the applicant “continues to have disabling left shoulder pain and loss of motion. It has not improved since his surgery in 2021. He continues to need manual therapy to treat this.” I find that it is more probable than not, that the proposed chronic pain assessment is reasonable and necessary, given the length of time that has elapsed since the accident, the consistency of complaints despite surgical intervention, and evidence of functional impairment.

34As such, I find that the applicant has proven, on a balance of probabilities, that the proposed chronic pain assessment is reasonable and necessary.

The applicant is entitled to the orthopaedic assessment

35I find that the applicant has proven, on a balance of probabilities, that the orthopaedic assessment is reasonable and necessary.

36The OCF-18 for the proposed orthopaedic assessment submitted on August 10, 2022, by chiropractor, Dr. Mikhail Shleynberg, seeks to identify impairments and help achieve maximum recovery. The OCF-18 lists treatment goals of pain reduction, increased range of motion, increase in strength, and treatment recommendations.

37The applicant submits that given the extent of his left shoulder injury, his ongoing severe pain and limited range of motion, which was a direct cause of the accident, he is entitled to further explore his symptoms and treatment recommendations with an orthopaedic assessment.

38The respondent does not provide any argument with respect to the orthopaedic assessment, but rather indicates that there is no compelling evidence to suggest that an occupational therapy assessment is reasonable and necessary.

39I am persuaded by the applicant’s submissions, given that the evidence supports that since the accident, and more significantly, despite the surgical intervention, the applicant has continued to complain of ongoing left shoulder pain and loss of motion. On April 1, 2022, Dr. Boyd once again wrote a letter indicating that the applicant’s “L shoulder pain began immediately following the MVA of November 29, 2019, and has persisted ever since.” While s. 44 orthopaedic surgeon, Dr. Rusen, completed an additional paper review addendum report on September 16, 2022, I find that this lacked physical observation of the applicant’s reported complaints that the proposed OCF-18 seeks to identify.

40As such, I find that the applicant has proven, on a balance of probabilities, that the proposed orthopaedic assessment is reasonable and necessary.

Award

41I find that the applicant is not entitled to an award pursuant to s. 10 of Reg. 664.

42Pursuant to s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

43The applicant submits that if the respondent had adjusted the file in a fair and timely manner, s. 44 physiatry assessor, Dr. Khan, would have been requested to provide an addendum report, and s. 44 orthopaedic surgeon, Dr. Rusen, would have conducted an updated in-person examination, all of which would likely be favorable to the applicant. The applicant further submits that there was more than enough medical evidence to substantiate his need for benefits, which should not have been ignored by the respondent.

44The respondent submits that it did not unreasonably delay, deny or withhold payment of any kind. The respondent alternatively argues that the insurer does not have to be perfect in adjusting the claim, and simply being wrong will not attract a special award.

45The denial letters for the proposed treatment plans, dated March 12, 2021 and August 24, 2022, among other things, notify the applicant of its denial on the basis of a MIG determination. I agree with the respondent, in that simply being wrong about the applicant’s MIG status does not prove unreasonable conduct that would rise to a level that would substantiate the request for an award. As such, I do not find that the applicant is entitled to an award.

ORDER

46I find that:

i. The applicant is removed from the MIG on the basis of a non-minor physical injury;

ii. The applicant is not entitled to the physiotherapy services;

iii. The applicant is entitled to a chronic pain assessment and orthopaedic assessment; and

iv. The respondent is not liable to pay an award.