Rolling v. Co-operators General Insurance Company, 2024 CanLII 33199

Licence Appeal Tribunal

Citation: Rolling v. Co-operators General Insurance Company, 2024 ONLAT 22-003875/AABS

Licence Appeal Tribunal File Number: 22-003875/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:

Rebecca Rolling

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Trina Morissette

APPEARANCES:

For the Applicant: Ardi Deti, Paralegal

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rebecca Rolling, the applicant, was involved in an automobile accident on April 11, 2021, 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, Co-operators 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:

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 $3,795.50 for chiropractic treatments, proposed by Dr. Jennifer Violante in a treatment plan/OCF-18 ("plan") submitted April 22, 2021 and denied April 29, 2021?

3. Is the applicant entitled to $2,026.55 for chiropractic and rehabilitation treatments, proposed by Tan Thanh Vong and Dr. Cindy Jakeevr in a plan submitted August 17, 2021 and denied August 27, 2021?

4. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by Dr. Ogilvie-Harris in a plan submitted February 22, 2022 and denied March 7, 2022?

5. Is the applicant entitled to $2,144.93 for a psychology assessment, proposed by Dr. Judith Pilowsky in a plan submitted October 27, 2021 and denied November 11, 2021?

6. Is the applicant entitled to $1,497.76 for massage therapy, physical therapy, active therapy and chiropractic treatments, proposed by Dr. Aaron Pereira in a plan submitted March 17, 2022 and denied March 31, 2022?

7. Is the applicant entitled to interest on any overdue payment of benefits?

3Neither the CCRO that set this matter down for a hearing, nor the parties in their submissions, confirmed if there was any funding remaining within the MIG limit of $3,500.00.

RESULT

4I find that:

i. The applicant has not established that her impairments arising from the accident fall outside of the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary, if incurred, pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

The applicant's impairments are within the MIG

5Section 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."

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 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.

7The applicant submits that she suffers from pre-existing mental health issues and a prior drug addiction that impact her ability to recover from the injuries sustained in the accident if kept within the confines of the MIG. She also argues that she has developed chronic pain syndrome and suffers from psychological impairments that, when combined with her pre-existing condition, make the treatment protocols within the MIG insufficient. She relies on an orthopaedic assessment report by Dr. Ogilvie-Harris, orthopaedic surgeon, dated March 28, 2022, a psychological report prepared by Drs. Sagrati and Pilowsky, psychologists, dated August 17, 2022, and medical documentation by general practitioners and her treating facility.

8The respondent submits there is no diagnosis of any injury beyond a sprain/strain injury or a diagnosable psychological impairment and relies on an orthopaedic assessment dated November 7, 2022 by Dr. Omar Dessouki, orthopaedic surgeon, and a psychological assessment report by Dr. Arnold H. Rubinstein, psychologist, dated October 27, 2022, which support the applicant's injuries are confined to the MIG.

The applicant does not suffer from chronic pain or chronic pain syndrome

9Minimal evidence has been submitted by the applicant to support her claim that she suffers from chronic pain with functional limitation as a result of the accident that would warrant her removal from the MIG.

10The impairments listed in the clinical notes and records ("CNRs") of the walk-in clinic the applicant attended after the accident, and the CNRs from the applicant's treating facility, support she sustained strain and sprain-type injuries to her right shoulder, neck and lower back.

11The applicant does not have a family physician but she regularly attended at the Canadian Addictions Treatment Centres ("CATC") and relied on these CNRs in support of her position. I find these CNRs unhelpful because they do not document any complaints of chronic pain with functional impairment, nor do the physicians document pain to her neck and lower back. In fact, any pain complaints made to her CATC physicians reference pain limited to her shoulder. The complaints of shoulder pain appear several times in the CNRs but there is nothing to support that the pain interfered with her ability to function. These CNRs also indicate that physiotherapy treatments were "helping" with the management of her pain.

12There is also no evidence to suggest that the applicant required additional medication to assist with her pain aside from the Naproxen initially prescribed by the walk-in clinic physician following the accident. Although the applicant submitted she also took over-the-counter Tylenol and could not take any pain medication due to her previous issues with addiction, the CNRs of the CATC from April 2022 to August 2023 support that her pain medication prescription (methadone) – a medication prescribed in the context of her issues with addiction – actually decreased post-accident. I find this unhelpful to her position that she suffers from chronic pain as a result of the accident.

13The applicant also relied on a s. 25 orthopaedic assessment by Dr. Ogilvie-Harris, an orthopaedic surgeon, who found that she sustained soft tissue injuries. Despite the finding of soft tissue injuries, Dr. Ogilvie-Harris opined that because the injuries continued beyond 3 months and because of the applicant's pre-accident medical condition (past addiction problems and pre-existing psychological and emotional difficulties), the injuries developed into features of a chronic pain syndrome.

14In response, the respondent relied on a s. 44 insurer's examination assessment of Dr. Dessouki, orthopaedic surgeon, dated November 7, 2022. Dr. Dessouki found there were no objective signs of ongoing musculoskeletal impairment noted on examination. He found that the applicant's range of motion was mildly reduced which he opined to be self-limited in the absence of positive orthopaedic testing or neurological finding.

15I give more weight to Dr. Dessouki's report because he assessed the applicant in person and conducted a clinical examination, including full-body range of motion testing. In contrast, Dr. Ogilvie-Harris conducted a telephone consultation and virtual assessment. Although an interview and three questionnaires were administered by Dr. Ogilvie-Harris, no objective testing is referenced. Furthermore, I note that Dr. Ogilvie-Harris' report states that further investigations were necessary including x-rays, ultrasound and "probably" an MRI to determine if there is a rotator cuff tear present. The expert noted that if so, this might require further treatment such as surgical intervention or repair. Despite Dr. Ogilvie-Harris' recommendations, the applicant did not follow through with these investigations.

16I am not persuaded by the applicant's argument that Dr. Dessouki's report should garner less weight than Dr. Ogilvie-Harris' report because Dr. Dessouki did not mention Dr. Ogilvie-Harris' opinion that the applicant suffers from features of chronic pain syndrome. Both experts opined that the applicant sustained soft tissue injuries to her neck, back and right shoulder as a result of the accident. Dr. Dessouki obtained, reviewed and noted Dr. Ogilvie-Harris' report but found the applicant's injuries were within the definition of minor injury based on an objective assessment of the applicant's physical injuries. I find there was no obligation for Dr. Dessouki to provide a formal critique of Dr. Ogilvie-Harris' finding that the applicant suffers from chronic pain.

17The applicant has not provided sufficient evidence that she suffers a functional impairment as a result of her pain. There is no information to support a functional impairment in the CNRs of the CATC. Her self-reports to the various assessors include that she continues to perform household tasks and chores with pacing, performs home-based exercises, continues to attend meetings and cares for her daughter. In addition, the applicant submitted that she was unable to return to her part-time work yet she also reported she had engaged in this work over a period of three months until she was laid off due to COVID-19. Although the applicant reported that these and other activities have decreased post accident, the applicant has failed to provide sufficient evidence to support that her limitations amount to functional impairment.

18For the foregoing reasons, I find that the applicant has not established that she suffers from chronic pain or chronic pain syndrome which requires treatment beyond the MIG.

Psychological Impairment & Pre-Existing Psychological Impairment

19I find the applicant has not demonstrated that she should be removed from the MIG on the basis of a psychological impairment or a pre-existing psychological impairment.

20First, there is no reference to any accident-related psychological impairment in the CNRs from the walk-in clinic, and the post-accident psychological complaints made by the applicant to her treating facility (Mackenzie Medical Rehabilitation Centre) are inconsistent with the evidence put forward by the applicant from the CATC. As the applicant does not have a family physician, she relies on the monthly visits with the physicians at the CATC as her treating practitioner. The applicant's treating facility (Mackenzie Medical Rehabilitation Centre) documented "sleep difficulties, irritability, stress, nightmares of accident, flashbacks of accident, anxiety, and memory difficulties" however, Dr. Rosen at the CATC noted in her objective observations during several visits that the applicant showed "no obvious distress", "[g]ood eye contact, no sweating, normal thought patterns, speech normal" and "normal dress and gait." There is no documentation of any ongoing psychological impairment in the regular visits to the CATC.

21Second, I assign little weight to the psychological assessment by Drs. Sagrati and Pilowsky dated August 17, 2022 on which the applicant relies. Although it is unclear which of the psychologists performed the assessment, the assessment report concluded that the applicant was diagnosed with "symptoms of Posttraumatic stress disorder with vehicular anxiety; persistent, moderate somatic symptom disorder with predominant pain (300.82) and secondary depression – past substance dependence – currently on maintenance therapy (methadone)." These psychological diagnoses are again not supported by the CNRs documenting the monthly visits at the CATC, the applicant's treating practitioner.

22I also note that information relied on in the psychological assessment report by Drs. Sagrati and Pilowsky is inconsistent with other evidence put forward in this matter. These discrepancies include:

a) The applicant reported that she was receiving ODSP because of depression, however, she reported to Dr. Ogilvie-Harris that she was receiving ODSP because of her drug dependency and she reported to the respondent that it was due to "COPD";

b) The applicant reported difficulty with activities of daily living and anxiety in a vehicle, however, she reported to the CATC that she was traveling in June-July 2021, taking a trip in November 2021 and would be traveling out of province for work in August 2022; and

c) The applicant reported she was withdrawn, isolated and stopped maintaining her appearance however, her Instagram posts show the applicant attending a concert with her partner, travelling, taking her daughter to the beach and the park, attending her daughter's birthday party and doing arts and crafts with her daughter. The applicant's reports on her appearance are also contradicted by Dr. Rosen's objective comments noted above.

23Lastly, I give more weight to the insurer's examination report of Dr. Rubinstein because it was conducted in person (the psychological assessment by Drs. Sagrati and Pilowski was conducted virtually) and found no objective evidence of a psychological impairment as a direct result of the accident. Test results from the assessment indicated that test items were significantly elevated across several validity scales and the applicant had endorsed a high rate of symptoms rarely found in individuals with neurological disorders, and symptoms of depression and anxiety that "do not generally occur in a constellation, even in an atypical mood or anxiety disorder." I also assign Dr. Rubenstein's opinion more weight because it was more consistent with the CNRs of the CATC, the applicant's treating practitioner.

24The applicant argues that the psychometric tests used by Drs. Sagrati and Pilowski carry more weight than those used by the insurer's assessor, Dr. Rubinstein. In light of my findings above, I do not find it necessary to address this argument further.

25Regarding the applicant's pre-existing psychological condition, the evidence submitted from the CATC supports a past medical/psychological history of depression and a past issue with drug dependency, but as previously mentioned, the CNRs submitted between April 2022 and August 2023 do not mention any psychological complaints and indicate that the applicant has continued on her path to drug-dependency recovery.

26In the psychological assessment report by Drs. Sagrati and Pilowski, the applicant reported that she was diagnosed with depression in 2009 and 2010, was prescribed anti-depressants in 2019 and was doing well until her depression intensified after the accident. The details of these self-reports are not supported by any other evidence submitted in this matter. Of significance, there is no mention by Dr. Rosen at the CATC that the applicant's pre-existing psychological condition of depression was exacerbated following the accident nor is there evidence that the pre-existing psychological conditions of the applicant would prevent her from obtaining maximum medical recovery within the MIG.

27For the reasons above, I find that the applicant has not demonstrated that she suffers from a psychological impairment or a pre-existing psychological condition that precludes her recovery if she is kept within the confines of the MIG.

The Treatment Plans

28As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

29However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, once incurred. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ORDER

30The applicant has not demonstrated, on a balance of probabilities, that her impairments warrant removal from the MIG.

31The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, if incured. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

32The application is dismissed.