Citation: Rutkovsky v. Certas Home and Auto, 2024 ONLAT 22-012260/AABS

Licence Appeal Tribunal File Number: 22-012260/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:

Nikita Rutkovsky

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Virginia Essipova, Counsel

For the Respondent: Stacey N. Karellas, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Nikita Rutkovsky, the applicant, was involved in an automobile accident on June 14, 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, Certas Home and Auto 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 $2,000.00 for a chronic pain assessment, proposed by Chronic Pain Clinic in a treatment plan/OCF-18 (“treatment plan”) dated November 6, 2020?

iii. Is the applicant entitled to $4,159.93 for physiotherapy services by Physiocan Greenlane in a treatment plan dated August 18, 2021?

iv. Is the applicant entitled to $325.27 for physiotherapy services by Physiocan Greenlane in a treatment plan dated August 18, 2021?

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 that that applicant’s injuries are predominantly minor, and as such, she is subject to the MIG.

4The applicant is entitled to expenses incurred under the disputed OCF-18 for a chronic pain assessment pursuant to s. 38(11) of the Schedule, plus interest.

5The applicant is not entitled to the treatment plans for physiotherapy services.

6The respondent is not liable to pay an award.

ANALYSIS

The applicant’s injuries are predominantly minor

7I find that the applicant has not proven, on a balance of probabilities, that she should be removed from the MIG on the basis of accident-related physical injuries or chronic pain.

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.

The applicant’s accident-related physical injuries are predominantly minor

10I find that the applicant has not established, on a balance of probabilities, that her accident-related physical injuries warrant removal from the MIG.

11The applicant submits that as a result of the accident, she sustained injuries to her neck, low back, knees, and a disc protrusion at the L4-L5 of the lumbar spine. The applicant argues that “there is no pre-accident history,” she is only 18, and is not expected to have any degenerative changes to her lumbar spine. As such, the applicant submits that her injuries are not subject to the MIG limits.

12The respondent submits that the applicant has not established that the L4-L5 mild broad disc protrusion is accident related, or that the disc protrusion falls outside of the MIG. The respondent further argues that the applicant has failed to explain why the L4-L5 disc protrusion did not appear in the imaging completed six months post-accident, but instead, is present over a year after the accident after working a physically demanding job, citing Clements v. The Co-operators General Insurance Company, 2023 CanLII 15045 (“Clements”).

13I agree with the respondent because while I accept that an MRI of the applicant’s lumbar spine, dated February 2, 2021, indicated that “at L4-L5, a mild broad-based central disc protrusion results in abutment of the traversing L5 nerve roots in the later recess bilaterally, left greater than right”, the applicant has not directed me to a medical opinion that establishes a connection between these results and the accident.

14In reaching this conclusion, I find that the clinical notes and records (“CNRs”) of physician, Dr. Alona Kuzmina, as provided by the applicant, only go up to February 2020. The CNRs of Dr. Kuzmina, as provided by the respondent, indicate that a requisition for an MRI of the low back was sent to KHM Cardiology Centers Inc., on January 13, 2021, for “low back pain with sensation in both legs/Hx of bus hit in 2019.” Despite this MRI appearing to have taken place on February 2, 2021, there is no evidence of the applicant returning to Dr. Kuzmina to discuss the results of the MRI in both the applicant and respondent’s submissions. I am also not pointed to, nor have I been provided with any further evidence of Dr. Kuzmina beyond 2021.

15In any event, I find that the findings within a medical imaging report, on its own, do not substantiate that the L4-L5 disc protrusion is related to the subject accident. I do not consider the requisition identifying a history of a ‘bus hit’ in 2019 as a medical opinion or conclusion, rather it is simply a reason for the inquiry. There is no medical interpretation or opinion linking the alleged injury to the accident in evidence. As a result, I find that there is a lack of compelling medical evidence to establish that the L4-L5 disc protrusion is causally related to the subject accident.

16Furthermore, notwithstanding the applicant’s submission that she has an unremarkable pre-accident medical history, I find that the CNRs of Dr. Kuzmina identify “mild scoliosis – from childhood” on the applicant’s “problem list”. An x-ray of the applicant’s lumbar spine, sacrum, and coccyx dated December 10, 2019, roughly six months after the subject accident, found mild dextroscoliosis in the mid lumbar spine with mild disc space narrowing at L3-S1 that may be related to curvature, and concluded mild scoliosis. On December 23, 2019, Dr. Kuzmina reviewed the medical imaging with the applicant, however, Dr. Kuzmina neither comments on the findings in relation to the subject accident, nor the applicant’s pre-existing condition. I note that the applicant did not make any submissions with respect to a pre-existing condition that would warrant removal from the MIG.

17Although not binding on me, I agree with the respondent’s reasoning in Clements. There is a significant lapse in time between the medical imaging, dated December 10, 2019, and the MRI of February 27, 2021. In between this time, a CNR entry of the applicant’s physiotherapy clinic (name unknown), on May 18, 2020, indicates that the applicant reported that she thinks her low back pain “is more sore than normal because of lifting of heavy boxes at work.” The applicant’s submissions do not explain the lengthy gap in medical imaging. In my view, this evidence, without a medical expert or opinion commenting on its impact to the L4-L5 disc protrusion, makes the allegation that the L4-L5 disc protrusion is related to the subject accident less persuasive.

18Lastly, I am not persuaded by the evidence that the applicant’s knee and neck pain warrant removal from the MIG. Complaints of physical pain, alone, are not sufficient to establish a non-minor injury. I am not pointed to any evidence, or objective imaging, that would support a finding that the applicant’s reported neck pain is a non-minor injury that would warrant removal from the MIG.

19The first complaint of knee pain is nearly six months post-accident on December 2, 2019, where a CNR of Dr. Kuzmina reports the applicant “presents with 1 month history of pain to the lower back and left knee post MVA.” Dr. Kuzmina requisitioned medical imaging of the left knee and lower back. An x-ray of the applicant’s left knee, dated December 10, 2019, resulted in a normal study. What is unclear is why the applicant also underwent an ultrasound of the right knee, on December 10, 2019, which revealed a baker’s cyst. Dr. Kuzmina’s CNR, dated December 2, 2019, does not reference pain or accident-related complaints with respect to the applicant’s right knee. I find the CNRs of Dr. Kuzmina to be unclear, as a requisition for an MRI of the applicant’s left-knee, dated February 27, 2020, identifies a clinical history of “left knee, Hx of trauma in 2018”, which pre-dates the accident. In any event, the applicant has not pointed me to evidence that would establish that her left-knee pain is non-minor in nature, such that it would warrant removal from the MIG. Additionally, I find that there is insufficient evidence to establish if the applicant’s right knee injury is as a result of the subject accident.

20Given the foregoing, I find that the applicant has not proven, on a balance of probabilities, that her accident-related physical injuries warrant removal from the MIG.

The applicant does not suffer from chronic pain warranting removal from the MIG

21Based on the evidence before me, I am not satisfied that the applicant suffers from chronic pain that warrants removal from the MIG.

22Chronic pain, if established, can remove an insured from the MIG, as chronic pain conditions are not captured by the definition of a “minor injury” within the Schedule. The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain or chronic pain syndrome that causes functional impairment.

23The applicant submits that she suffers from chronic pain, and as such, she is not subject to the MIG, citing Arruda v Western, FSCO A13-003926 (“Arruda”), B.U. v Aviva, 2016 CanLII 96167 (“BU”), and 17-000835 T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (“TS”). The applicant further submits that the respondent did not send the applicant for a s. 44 Insurer Examination, despite receiving the MRI report, dated February 2, 2021, and the chronic pain diagnosis.

24The respondent submits that the applicant has not been diagnosed with chronic pain syndrome, she does not meet three of the six American Medical Association Guides 6th Edition criteria and has not provided evidence of a functional impairment. The respondent relies on Gayadeen v Aviva Insurance Company of Canada, 2024 CanLII 13102.

25It is well established, as set out above, that to be taken out of the MIG, the applicant must demonstrate that the chronic pain diagnosis or ongoing pain is accompanied by functional impairment. The applicant has presented to Dr. Kuzmina, on a number of occasions complaining of ongoing pain, and CNRs of Dr. Kuzmina note chronic pain. However, it is the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury, and in this case, I find that the applicant has not met her onus of establishing chronic pain with functional limitations.

26I find that although Dr. Kuzmina’s CNRs comment on the level of the applicant’s lower back pain and range of motion, the CNRs are silent with respect to whether the applicant’s reported chronic pain presents a functional impairment of her day-to-day living. In fact, the evidence before me would support that the applicant is engaged in work-related activities and heavy lifting, as the applicant has indicated to her physiotherapy clinic, that she thinks her low back pain “is more sore than normal because of lifting of heavy boxes at work.” I find that this is inconsistent with the applicant having a functional limitation as a result of accident-related chronic pain. Moreover, I am not directed to any further evidence that would substantiate a functional impairment. As such, I am unpersuaded that the applicant’s chronic pain is more than mere sequelae of a minor injury.

27Lastly, I differentiate Arruda and TS from the present case, as in both of Arruda and TS, the applicant was diagnosed with chronic pain syndrome and displayed functional limitations. As discussed, I am not pointed to any compelling evidence of functional impairment that would warrant the applicant’s removal from the MIG on the basis of chronic pain. Moreover, in BU, the applicant was removed from the MIG on the basis of psychological impairment, rather than chronic pain.

28I find that the applicant has not met her onus of establishing, on a balance of probabilities, that she has chronic pain with functional limitations that warrants removal from the MIG. I find that the applicant is subject to the MIG.

29As I have found the applicant remains within the MIG, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

30However, the applicant submits that for the OCF-18 for a chronic pain assessment, dated November 6, 2020, the respondent failed to provide a medical reason, and as such, is prohibited from taking the position that the applicant has an impairment to which the MIG applies.

The denial letter is not compliant with s. 38(8) of the Schedule

31I find that the respondent’s denial letter dated November 12, 2020, is not complaint with s. 38(8) of the Schedule.

32Sections 38(8) and 38(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 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.

33If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

34The denial letter dated November 12, 2020, for the OCF-18 for a chronic pain assessment, in the amount of $2,000.00, submitted on November 6, 2020, stated:

“I compared your injuries to the criteria in the Minor Injury Guideline and have concluded your injuries fall within the guideline. I reviewed your pre existing conditions and the clinical notes and records I have received but the information I have does not support that your pre existing condition and the bakers cysts would prevent you from recovering within the Minor Injury Limit. I am unable to approve the recommendations as it is not appropriate for this type of injury.”

35The applicant submits that the reasons provided by the respondent in its denial letter do not constitute a sufficient medical reason. As such, the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies, pursuant to s. 38(11) of the Schedule.

36The respondent submits that the denial indicated that the applicant suffers from a minor injury, does not suffer from a pre-existing condition based on the clinical notes and records reviewed, and confirmed that the applicant’s baker cyst does not prevent recovery within the MIG. The respondent argues that it has therefore provided a medical reason and the letter was clear and sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the issue.

37While I appreciate that the respondent indicated in its denial letter that the applicant’s injuries are considered to be within the MIG, some or partial compliance with the Schedule is not enough. The respondent’s denial letter does not reference any of the CNRs or information that it considered when rendering its decision. The respondent, in its submissions, argues that it considered the applicant’s bakers cyst noted in the CNRs of the applicant’s family doctor, Dr. Kuzmina. If the respondent relied on this information when rendering its decision, then the respondent should have indicated same in the denial letter.

38Simply referring to the ‘clinical notes and records’ without providing a single reference, is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. This also does not serve the Schedule’s consumer protection goal.

39Given the foregoing, I find that the respondent’s denial letter is not complaint with s. 38(8) of the Schedule. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under the treatment plan between the 11th business day after the plan was submitted until the day the respondent cured its deficient notice. If the respondent did not cure its deficient notice prior to this hearing, the applicant may incur these expenses, and provided they are properly invoiced, the respondent is thereafter liable to pay these expenses. To be clear, it is no longer open to the respondent to cure the denials that I have found deficient: Aviva v Suarez, 2021 ONSC 6200 at paras. 35-36.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for any incurred expenses under the OCF-18 for a chronic pain assessment, only.

Award

41Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

42As the applicant has made no submissions to justify an award in this case, I find that the applicant is not entitled to one.

ORDER

43For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor.

ii. The expenses incurred under the treatment plan for a chronic pain assessment are payable pursuant to s. 38(11) of the Schedule, plus interest.

iii. The applicant is not entitled to the treatment plans for physiotherapy services.

iv. The applicant is not entitled to interest.

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