Citation: Campbell v. Unifund Assurance Company, 2024 ONLAT 22-001057/AABS

Licence Appeal Tribunal File Number: 22-001057/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:

Paula Campbell

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Lorne Climans, Counsel

For the Respondent: Thulasi Kandiah, Counsel

HEARD: In Writing

OVERVIEW

1Paula Campbell, the applicant, was involved in an automobile accident on April 11, 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, Unifund Assurance 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 $2,931.74 ($3,586.88 less $655.14 approved), for physiotherapy services, proposed by West Queensway Health Clinic (“WQH Clinic”) in a treatment plan/OCF-18 (“plan”) submitted September 17, 2020, and denied September 21, 2020?

Note: The parties agree the MIG limit was reached with this partial approval.

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by WQH Clinic in a treatment plan/OCF-18 (“plan”) submitted September 14, 2020, and denied September 29, 2020?

iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by WQH Clinic in a treatment plan/OCF-18 (“plan”) submitted September 2, 2021, and denied September 14, 2021?

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

RESULT

3The applicant’s injuries are not minor as defined by the Schedule. Therefore, she is no longer subject to the MIG funding limit.

4The applicant is entitled to the treatment plans, and any applicable interest in accordance with s. 51.

ANALYSIS

The Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 person may be removed from the MIG if they can establish that their accident-related injuries fall outside the definition of “minor injury” in s. 3. Previous decisions of the Tribunal have recognized chronic pain with functional impairment and/or a psychological impairment, as examples of injury profiles that may justify treatment outside the MIG.

7Additionally, s.18(2) stipulates that the MIG does not apply to an insured person if:

i. their health practitioner determines a medical condition or injury, and documents it prior to the accident; and

ii. there is compelling medical evidence stating that the condition precludes maximal medical recovery from any accident-related minor injury if they are limited to the provisions of the MIG.

8In all cases, the burden of proof lies with the applicant.

Does the Minor Injury Guideline apply?

9I find that the MIG does not apply on account of the applicant’s chronic pain syndrome (“CPS”). As a result, the applicant is no longer subject to the $3,500.00 treatment limit.

10The applicant submits that her impairments are not covered by the definition if minor in s. 3 of the Schedule, as she suffers from chronic pain symptoms that have developed into a CPS. Further, she points to evidence of prior medical conditions and other psychological factors that affect her ability to recover. She relies on a disability certificate (“OCF-3”), application for accident benefits (“OCF-1”), the disputed treatment plans (“OCF-18s”), and a chronic pain assessment by Dr. Brooks, family medicine specialist. She also relies on the clinical notes and records (“CNRs”) from Brampton Civic Hospital (“the hospital”), her general physicians (“GPs”) Drs. Yu and Swaich, and her treatment providers at WQH Centre. She seeks an order that her impairments fall outside the MIG and that the treatment plans in dispute be found reasonable and necessary.

11The respondent submits that the applicant has the burden to prove any physical impairments fall outside the definition of minor, and to prove any psychological complaints are more than sequelae to a minor injury. It argues that neither a diagnosis of chronic pain, nor notations of chronic pain, justify an automatic removal from the MIG, without additional medical evidence and/or results from functional evaluations. It seeks an order that the MIG applies, and the applicant is not entitled to the disputed treatment plans or interest.

Physical Impairment

12There is no indication in the medical evidence that the applicant suffered any physical injuries in the accident that would fall outside the definition of minor. The applicant attended the hospital following the accident. Neck pain and headache were recorded and she was discharged the same day.

13The applicant first sought treatment at WQH Centre shortly after the accident. The OCF-3 and CNRs from WQH Centre all contain reference to, or treatment of, minor injuries such as whiplash associated disorder with complaint of neck pain, sprains and strains, and headache. The applicant received chiropractic and physiotherapy services between April and October of 2020.

14The CNRs of the applicant’s GPs also record minor injuries. The applicant advised Dr. Swaich of the subject accident during a telephone appointment on April 21, 2020, and reported pain in her neck, back, and shoulders. There were ongoing complaints of back pain in the CNRs of Dr. Swaich throughout 2020 and into 2021. Most but not all of the records reference the accident. Dr. Swaich ordered x-rays of the applicant’s spine on May 5, 2020, which found osteoarthritis and mild degenerative disc disease (“DDD”), although no fracture.

15All of this medical evidence indicates that the applicant’s post-accident injury profile was well within the scope of a minor injury as defined by the Schedule.

Pre-existing Medical Condition or Injury

16The parties agree that the applicant’s pre-accident medical history included a number of conditions including but not necessarily limited to: Type 2 diabetes, dyslipidemia, hypertension, hypothyroidism, high BMI, metabolic syndrome, and multinodular goiter.

17However, there are no healthcare providers who state anywhere in the medical evidence that the applicant is precluded from reaching maximal medical recovery due to one or more of her pre-existing conditions. Dr. Brooks, s. 25 assessor, found that the applicant’s pre-existing medical problems may be contributing to her slow recovery from the accident, although he does not go so far as to say it prevents it.

18As a result, section 18(2) does not apply as a basis for removing the applicant from the MIG.

Chronic pain

19Beyond the applicant’s early reports of back pain as already addressed, she continued to report back pain in January 2021. Dr. Swaich’s CNR for January 13, 2021, referenced the accident and the applicant described worsening pain with all over body aches, joint pain, and severe pain in the lower back and right buttock.

20Dr. Swaich also documented the applicant’s nerve-related pain including a diagnosis of meralgia paresthetica in the right leg, on September 30, 2020; and MRI results on February 5, 2021, that indicated diffuse degenerative changes and stenosis in the spine.

21With the MRI results for consideration, Dr. Swaich referred the applicant to a pain clinic and the applicant was seen by Dr. Kostovic, neurologist, at the Centres for Pain Management. The reasons for referral are listed as a two-year history of chronic back pain, the subject motor vehicle accident in 2020, and worsening pain.

22Dr. Kostovic administered questionnaires and the results indicated that the applicant was experiencing impairments, both physical and mental, despite a normal physical examination. She made treatment recommendations for the applicant to attend a Chronic Pain Self-Management Program, begin exercising, and lose weight. Other treatment options listed for consideration were Cognitive Behavioural Therapy (“CBT”), Mindfulness-based Pain Reduction, nerve blocks, pharmacotherapy, and nutritional supplements.

23The applicant subsequently attended four appointments at the clinic between April 14, 2021, and June 30, 2021. The applicant’s condition was recorded at each appointment, however there is little indication of any progress with many notations that her condition is “the same”.

24Next, the applicant was assessed by three separate evaluators:

i. s. 25 assessor Dr. Brooks, family medicine specialist, on December 9, 2021;

ii. s. 44 assessor Dr. Ko, physical medicine and rehabilitation specialist, on June 23, and

iii. s. 44 assessor Dr. Gooden, psychologist, on August 3, 2022.

25Although I draw on content from all three reports in reaching my conclusion, of the three, in my view, the report of Dr. Brooks is the most persuasive. All three assessments included components of subjective information provided by the applicant, objective examination and testing, document review, and a diagnosis/conclusion. Each report has its strengths and weaknesses, but overall, I find Dr. Brooks’ report to be the most influential as it provides a diagnosis that accounts for the findings of all three assessors, with a unifying description and diagnosis.

26I am convinced by Dr. Brooks’ opinion that the applicant suffers from a Chronic Pain Syndrome (“CPS”) secondary to unresolved pain from the motor vehicle accident. It is apparent the applicant’s psychological factors are secondary to the pain experienced. Dr. Brooks references the definition of CPS from the College of Physicians & Surgeons of Ontario (“CPSO”) in the Guidelines for Treatment of Chronic Non-Malignant Pain 2002. It describes CPS as “a complex physical and psychological ailment which does not directly correlate with the objective physical findings”.

27While there may be other influences beyond the accident that factor into her situation – such as other medical conditions and/or an inactive lifestyle – nevertheless, the applicant did not have CPS before the accident but does so after. Further, she reported her continuous experience of back pain from the date of the accident through to the CPS diagnosis. Based on the totality of the evidence before me, I find that the accident was a necessary if not fully responsible cause.

28As a result, the applicant’s injury profile is more complex than what is defined in s. 3 of the MIG, taking it beyond the scope of either the prescribed definition of minor, or the intention behind the MIG’s short-term functional restoration model using a $3,500.00 funding envelope.

29For the following reasons, I have prioritized the diagnosis of Dr. Brooks over that of Drs. Ko and Gooden, having regard for the strengths and weaknesses of each report.

30The strength of Dr. Brooks’ report lies in its clarity and presentation of the information, the explanations behind the diagnosis, and the determination of a recommended treatment program. The report concisely lays out the applicant’s previous medical history, accident information, and post-accident treatment. Dr. Brooks reviewed relevant medical documents and identified the applicant’s three main presenting complaints with consideration for the aggravating and relieving factors of each. These three complaints reflect the injuries reported by the applicant on the day of the accident, and to her doctors and treatment providers in the months thereafter: neck and shoulder pain, headache, and low back pain.

31Further, despite examination results that were all within normal functional limits, she complained of “decreased functional endurance” in her regular activities. This backs up her claim that although she has been able to continue with most of her work, home, and social activities, she suffers from fatigue and pain that prevent her from performing them at the same level as before the accident – but always more slowly and with medication for pain. This echoes Dr. Brooks’ clinical opinion that the applicant presented with clinical features of pain, generalized weakness, and fatigue.

32Dr. Brooks observes that the applicant’s symptoms, taken as a group, were suggestive of CPS with muscular dysfunction of the neck and lower back. Of note, he states, “it is likely that her facet joints, discs, and myofascial tissue have become chronically inflamed” and “her anxiety and depression are due to not being able to carry on what was for her a normal life”. Thus, the psychological impact of the pain is secondary to the pain itself, although both types of symptoms are present. Also, in the testing results, the report states that the applicant’s Central Sensitization Inventory score was severe, suggesting a very high perceived disability for her lower back. Overall, the impairments impact her ability to achieve her daily tasks, in her pre-accident manner.

33He concludes that the applicant’s chronic pain condition meets the criteria for CPS “on almost every level” and acknowledges that in his opinion, her claim is a legitimate one and she is a good candidate for a comprehensive treatment plan using a multidisciplinary approach with functional restoration.

34In contrast, Dr. Ko concluded that the applicant’s physical impairments are minimal, and she does not have any organic pathology such as structural musculoskeletal injuries, nerve impingement, or fractures. While a strength of his report are the extensive credentials he holds as an assessor, a weakness is that the applicant’s appointment lasted only 30 minutes. His exam found no signs of systemic inflammation, with a full range of motion and good manual strength. During the half hour he recorded her need for occasional assistance with household tasks and personal grooming, with frequent breaks required while working.

35In his document review, Dr. Ko found that the highlights were the diagnosis of Dr. Brooks as well as the x-ray and MRI results which showed a mild degree of DDD, facet osteoarthritis of the lumbar spine, and diffuse degenerative changes with stenosis. However, ultimately, he found that his exam revealed no evidence to substantiate her claims.

36As Dr. Ko did not make any diagnosis beyond strain/strain of the lumbar spine, he opined that the applicant could achieve her maximal medical recovery within the MIG. Further, in his view the degenerative changes present in her spine can also occur in many asymptomatic people. In summary, he concludes that the applicant suffered sprain/strain of the lumbar spine with a guarded prognosis given symptom duration.

37For her part, the strength of Dr. Gooden’s report is the manner in which the applicant’s symptoms are recorded and the testing results. She notes in several places that the applicant is having a “perceived pain experience”. The tests administered revealed no pathology from the M-FAST, a structured interview methodology designed to check for malingering psychiatric illness. Consequently, the possibility of the applicant imagining or feigning her symptoms can be set aside.

38Further, Dr. Gooden’s Pain Catastrophizing Scale indicated clinically significant evidence of psychological factors affecting the perception of pain and disability. Clinically significant results were also found with the Clinical Assessment of Depression test in the areas of Diminished Interest, Depressed Mood, Anxiety/Worry, and Cognitive and Physical Fatigue. Of note, in the “Current Symptoms” section, the report records how the applicant reported that “when her pain experience is perceived as severe, she tends to think of her subject accident”. In my view, this echoes Dr. Brooks’ observation that both physical and psychological symptoms are present and have intermixed and manifested as a CPS.

39Dr. Gooden’s assessment did not result in a diagnosis. While I accept Dr. Gooden’s conclusion that the applicant’s symptoms do not rise to the level of a psychological impairment or diagnosis on their own, it remains that the assessment confirms that the applicant’s psychological symptoms exist and play a role in her chronic pain condition.

40In my view, both Dr. Ko’s and Dr. Gooden’s conclusions support Dr. Brook’s diagnosis. It appears that the applicant’s experience of chronic pain is aggravated by secondary psychological symptoms. Taken together, I accept Dr. Brook’s medical opinion that this amounts to CPS.

Conclusion

41Neither 18(1) nor 18(2) apply. However, the applicant has met her burden to prove, on a balance of probabilities, that she suffers from CPS. The constellation of physical and psychological symptoms associated with CPS have been recognized by the CPSO as sometimes being undetectable by objective tests and examinations. While Dr. Brooks addressed the six criteria established by the American Medical Association Guides 6th edition (“the Guides”) for conducting a functional evaluation in order to make a diagnosis of chronic pain, I place little weight on this aspect of the report as my decision did not turn on his comments.

42I find that the applicant’s presentation with regard to her physical and psychological symptoms represent a condition that lies outside the definition of a minor injury and the intent of the treatment available under the MIG. The Schedule does not offer a definition of chronic pain or CPS. However, it does provide a definition of impairment as the loss or abnormality of a psychological, physiological, or anatomical structure or function. In this context, I accept the definition of CPS provided by Dr. Brooks, and recognize it as an impairment, given the limitations experienced by the applicant with regard to her combined mental and physical health.

43In my view, the most credible explanation for the applicant’s condition is the diagnosis of Dr. Brooks as it unifies the totality of the medical evidence under the parameters of a specific and recognized medical condition. This condition falls outside the scope of the MIG.

The Treatment Plans

44I find that the three treatment plans in dispute are reasonable and necessary.

45To 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.

OCF-18 in the amount of $2,200.00 for a chronic pain assessment

46The applicant submits that the incurred assessment by Dr. Brooks was a reasonable and necessary expense to establish a diagnosis and associated treatment recommendations.

47Specifically, the plan identified eventual treatment goals of pain reduction, increased strength, and increased range of motion, in order to return to her activities of normal living. The plan for the assessment itself outlines several evaluative tools and identifies the chronicity of her pain symptoms coupled with her physical deconditioning as barriers to recovery.

48Dr. Brooks’ report identified how the applicant has biomechanical, psychosocial, and nociplastic impairments resulting in a CPS. He endorses an inclusive treatment program to support the applicant in reaching her maximal medical recovery. I am of the view that the diagnosis and recommended treatment plan from Dr. Brooks offers the possibility of additional recovery for the applicant and there is sufficient contemporaneous evidence of her symptomology to find the assessment a necessary precursor to embarking on a chronic pain treatment protocol.

49Section 44 assessor Dr. Ko did not address the possibility of CPS. However, he did acknowledge that the applicant had difficulty coping with the pain and described Dr. Brooks’ report as one of the highlights of his review of the medical documentation.

50Further, section 44 assessor Dr. Gooden found that the applicant’s psychological symptoms were not due to any malingering psychopathology, and while not rising to the level of an independent psychological impairment, were still clinically-significant in some areas and were having an impact on her perception of pain and disability.

51While I acknowledge that the applicant did not report any psychological symptoms to GP Dr. Swaich, they were captured by the treatment providers at WQH Centre as well as Dr. Kostovic. Dr. Haluskay, chiropractor at WQH Centre, identified that the applicant was experiencing psychological issues exhibited as caution, fear, anxiety, and irritability – all recorded in the OCF-18 for physiotherapy services. Dr. Haluskay’s treatment plan recommended chiropractic, massage, and physiotherapy treatments as therapeutic techniques for her physical impairments, while referring the applicant for a psychological assessment with Dr. Pilowsky, psychologist at the same clinic.

52Dr. Swaich had recommended physiotherapy for the applicant on April 25, 2021, not long before the date of the OCF-18 and had also been the referring agent for her treatment with D. Kostovic who recommended various treatments including cognitive behavioural therapy (“CBT”). Dr. Kostovic’s pain management program was self-managed and included a variety of treatment suggestions. Based on the evidence before me, it is unclear how many of the treatments were pursued in total and what overall results were achieved. It is clear however from the documentation submitted that the applicant attended only a few appointments with limited results. Dr. Kostovic did however document that the applicant had both impaired mental and physical health and recommended CBT.

53The chronic pain assessment from Dr. Brooks recommends an intensive multidisciplinary rehabilitation program combining exercise, psychological treatment, and rehabilitation services. While the Guides has been recognized by the Tribunal as a valuable tool for assessing an applicant’s pain and disability in the absence of a diagnosis, in this case, there is a diagnosis and ample evidence of both physical and psychological impairments. Taken together, the symptoms amount to chronic pain with evidence of dysfunction, impacting both her mental and physical health.

54Accordingly, the applicant has demonstrated entitlement to the plan for a chronic pain assessment.

OCF-18 in the amount of $2,931,74 for physiotherapy services

55The chronic pain assessment recommends an intensive multidisciplinary rehabilitation program combining exercise, psychological treatment, and rehabilitation services.

56The related goals of this OCF-18 for physiotherapy services are pain reduction and a return to pre-accident work activities. The planned evaluation tools include questionnaires and testing, with barriers to recovery being multiple injury sites and psychological issues. Dr. Haluskay’s plan is a nine-week program of chiropractic, massage, and physiotherapy, with monitoring and education. The intended result is to use treatments along with exercises, to promote flexibility and mobility, achieve improved core stability, and alleviate muscle tension and spasming as well as increase circulation within the tissue.

57I find that the plan and its associated goals are in alignment with the recommendation from Dr. Brooks for a multidisciplinary rehabilitation program.

58Accordingly, the applicant has demonstrated that the plan for physiotherapy services is reasonable and necessary.

OCF-18 in the amount of $2,200.00 for a psychological assessment

59Dr. Pilowsky’s proposed psychological assessment identifies that the applicant’s impairments from the accident have impacted her ability to carry out her work and daily living activities. Specifically, it indicates that since the subject accident, the applicant’s “activities of daily living have been impacted from a psychological perspective, as she is saddened by the changes that have transpired in her life since the accident”.

60Under “Additional Comments” the results of an intake screening are discussed including a description of the psychological symptoms reported by the applicant, the proposed format of the assessment including the type of planned testing, and a statement that the cost would fall within the allowable fees under the Schedule.

61Dr. Pilowsky’s preliminary opinion identifies that the applicant experiences depressive and anxiety symptoms in addition to difficulties coping with pain. This reflects the findings of both Drs. Brooks and Gooden. Further, Dr. Kostovic made similar observations in his consultation report, as did Dr. Haluskay in the OCF-18 for physiotherapy services.

62While I appreciate the information submitted by the respondent about Dr. Pilowsky’s undertaking with her professional regulatory body in April 2021, I do not find it relevant given the OCF-18 in dispute is dated after the period for which she was not permitted to supervise psychological services.

63I find that the planned assessment and its associated goals are in alignment with the recommendation from Dr. Brooks for a multidisciplinary rehabilitation program.

64Accordingly, the applicant has demonstrated that the plan for a psychological assessment at WQHC is reasonable and necessary.

Conclusion

65The applicant has established that a comprehensive and multidisciplinary treatment program for her CPS is reasonable and necessary to explore any additional medical recovery it may offer. Taken together, the three OCF-18s in dispute fulfill this goal and the cost is in line with the Professional Services Guideline.

66The applicant has demonstrated entitlement to the three treatment plans in dispute.

Interest

67Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

68I order as follows:

i. The MIG does not apply.

ii. The applicant is entitled to the treatment plans for physiotherapy services (issue ii), a psychological assessment (issue iii), and a chronic pain assessment (issue iv).

iii. The applicant is entitled to interest pursuant to s. 51.