Poblete v. TD General Insurance Company, 2024 CanLII 83743

Citation: Poblete v. TD General Insurance Company, 2024 ONLAT 22-001446/AABS

Licence Appeal Tribunal File Number: 22-001446/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:

Ronald Poblete

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Steve Clarke

APPEARANCES:

For the Applicant: Ronald Poblete, Applicant Ronald Pryce, Paralegal

For the Respondent: TD General Insurance Company, Noura Bagh, Counsel

HEARD: In Writing

OVERVIEW

1Ronald Poblete, the applicant, was involved in an automobile accident on April 28, 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.

2The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

SUBSTANTIVE ISSUES

3The 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 Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $2,390.79 for physiotherapy services, proposed by Physiomed Yonge and Bloor in a treatment plan/OCF-18 ("plan") submitted on February 17, 2021, denied on March 2, 2021?

iii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Dr. Jacqueline Brunshaw, in a treatment plan dated December 28, 2021, denied March 23, 2022?

iv. Is the applicant entitled to the assessments proposed by Downsview Healthcare as follows:

(a) $2,000.00 for a chronic pain assessment, in a treatment plan submitted May 29, 2021, denied June 4, 2021?; and

(b) $13,082.04 for medical services in a plan, submitted August 27, 2021, denied October 4, 2021?

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

RESULT

4I find that:

i. The applicant has not met his burden to prove that he is entitled to treatment beyond the MIG limit of $3,500.00, including not providing any compelling medical evidence of a pre-existing medical condition that would prevent achievement of maximal recovery if the applicant was subjected to the $3,500 MIG limit.

ii. As the applicant is not eligible to be removed from the MIG, the treatment plans in dispute are not payable beyond the limit of the MIG.

iii. As no payments are overdue, no interest for any claim beyond the MIG is owed to the applicant.

PROCEDURAL ISSUES

5The respondent submits that the applicant failed to deliver any written submissions by the due date of October 5, 2023.

6The Motion Order of December 8, 2024 ordered that submissions were due 30 days before the Hearing date. The Hearing date was set for November 3, 2023. Therefore, submissions were due October 5, 2023. The applicant's submissions were received by the LAT on October 3, 2023. Counter to the respondent's claim that the applicant's submissions are not compliant with the LAT Order of December 8, 2022, the respondent was sent an email, from the LAT on October 3, 2023, containing the applicant's submissions. I find that the applicant's submissions are indeed compliant.

ANALYSIS

Minor Injury Guideline

7The applicant's accident-related injuries are minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

8I find that the applicant did not direct me to, or submit, medical evidence that supports his claim for benefits outside the MIG limits.

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 of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury".

10An injured person may be removed from the MIG if they can establish their accident-related injuries fall outside the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence 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.

11The applicant submits he sustained significant injuries in the accident including whiplash disorder with complaint of neck pain with musculoskeletal signs, superficial injury of neck, cervicalgia, sprain and strain of thoracic spine, dorsalis, sciatica, lumbago with sciatica, low back pain, strain and sprain of lumbar spine, hip, sprain and strain of sacroiliac joint, sprain of the cervical spine, pain of the lower back, nervousness, restlessness and agitation, irritability and anger, acute pain, malaise and fatigue, dizziness and tension type headache. I find many of the injuries listed are consistent with injuries that fall within the definition of "minor injury". I find the claims regarding psychological and emotional issues do not warrant the removal from the MIG. These are addressed below.

12The respondent submits that the applicant's injuries fall within the MIG, and that the applicant has failed to prove any pre-existing conditions would prevent full recovery under the MIG.

13The applicant has not provided compelling medical evidence that prove his injuries are beyond minor and the medical documentation he directs me to does not demonstrate his accident injuries are beyond minor.

14For example, the OCF-3 disability certificate completed by Dr. Phillips (Family Physician) noted the applicant sustained sprains and strains to his shoulders and back, as well as headaches, as a result of the accident and suggests the applicant's injuries are minor and will resolve within 12 weeks. Dr. Phillips recommended massage and Voltaren. Further clinical notes were submitted of his family physician regarding imaging that occurred approximately one and a half years after the accident. Analysis showed the cervical spine was within normal limits and the lumbar spine demonstrated minimal degenerative changes. The thoracic spine demonstrated mild to moderate degenerative disc disease at around the level of T7/T8. This evidence points to nothing beyond "minor injuries" or age-related conditions. These minimal degenerative changes can be natural and occur with age, occupation and normal use and not necessarily accident-related.

15Again, all of these injuries listed above fall within the definition of "minor injury".

16The applicant submitted clinical notes of a physical examination by Physiomed Yonge Bloor that found the applicant's cervical spine range was within normal limits, all joints examined were within normal limits and the applicant informed the assessor that he was physically able to perform all of his pre-accident self-care, housekeeping, home maintenance, and childcare duties with no difficulties. Nothing in this evidence submitted by the applicant suggests any injury beyond the definition of "minor".

17The CNRs from the s. 44 assessor, Dr. Chris Aldridge, Medical Director of the Pain Clinic, submitted by the applicant, note that the applicant only missed one day of work and is able to perform his regular work duties and full-time hours, suggesting there were no significant injuries at that time. Dr. Aldridge also found the applicant to have "full-range of motion in abduction, flexion, and external rotation bilaterally on examination of shoulders and cervical spine. All joints were within normal limits and the applicant is neurologically intact." This evidence does not point to any condition that would not fall within the MIG.

18Although the applicant's submissions, from Dr. Karmy, s. 25 chronic pain assessor, recommended a comprehensive assessment and multimodal rehabilitative treatment, for a contention of chronic pain, the submissions also provided the following findings and again suggests the applicant's injuries are not beyond the Minor Injury Guideline.

i. All cranial nerves 2-12 were grossly normal;

ii. The ranges of movement of the cervical spine were within normal limits;

iii. Shoulder examination showed no swelling or deformity, and ranges of motion were all within normal limits;

iv. Flexion and extension of the lumber spine were within normal limits although, flexion elicited pain in the lower back;

v. No tenderness to palpation; and

vi. Examination of the upper and lower extremities revealed no gross neurological deficits.

19The respondent states that the applicant's injuries are "entirely musculoligamentous (i.e. soft tissue) in nature and therefore fall into the Minor Injury Guidline." The respondent points to the fact that the applicant is relying on subjective anecdotal evidence as each of the examiners reference complaints of various conditions of the applicant. I agree in that there appears to be very little medical evidence to support these contentions. I further agree with the respondent that on a balance of probabilities, the applicant has failed to demonstrate that he is entitled to the benefits claimed and therefore should remain in the MIG.

20I agree with the respondent that the injuries sustained are minor injuries as defined by the Schedule and that the applicant has not demonstrated on a balance of probabilities that he should be removed from the MIG on that basis.

Pre-existing condition

21I find the applicant's pre-existing health condition will not remove him from the MIG pursuant to s. 18(2).

22The applicant submits that an insured person's impairment does not come within the MIG if the insured person's impairment is predominantly minor injury, but based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if she or he is subject to the $3,500.00 limit. However, the applicant does not identify what the "pre-existing medical condition" is.

23Further, I was not directed to compelling medical evidence in support of such a pre-existing health condition. It appears the only reference to a pre-existing condition was the applicant's family doctor record of August 15, 2018 referencing neck and lower back pain. The resulting x-rays ordered found the neck and lower back within normal limits. Additionally, the applicant states that he does not recall taking any prescribed or over-the-counter medications for pain at that time.

24In the applicant's submissions, Dr. Karmy's report observed that the applicant had transient neck and back pain in August, 2018, that the applicant attributed to work-related fatigue and that this did not restrict his functionality.

25Further, clinical notes submitted by the applicant, from Dr. Chris Aldridge, state that the applicant reported being in good physical health prior to the accident. The notes go on to say that the applicant specifically denied experiencing symptoms of headaches, neck, shoulder, hip, low back, knee, ankle, or other pain in the months prior to the date of loss.

26The respondent submitted the applicant has not provided any compelling documented medical evidence by a healthcare practitioner that shows he suffers from a pre-existing condition that would prevent him from achieving maximum medical recovery if restricted to the MIG.

27The applicant did not point me to any further documentation of these complaints existing prior to the accident. I agree with the respondent that there are no submissions of a documented pre-existing injury or condition combined with compelling medical evidence that the condition precludes recovery if the applicant is kept within the confines of the MIG.

28I find the applicant does not satisfy the test in s. 18(2) to be removed from the MIG.

Chronic Pain

29The applicant submits that he began to suffer chronic pain symptoms approximately one year after the accident and that he has met the burden of proof for removal from the MIG based on medical evidence and supporting documents. The submissions state: "the physical impairments supported in the clinical notes and records demonstrate ongoing impairments, disability and should not be considered in the minor injury guideline"

30The Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG.

31Dr. Karmy's report states that "the claimant developed chronic pain in the neck, shoulders and mid and lower back." He contends that chronic pain is usually associated with additional mood and sleep disturbances. Dr. Karmy opines that the applicant sustained a sleep disorder/impairment caused by the subject accident. However, I rely on the applicant's statement while attending a s. 44 assessment by Dr. Chris Aldridge, that is inconsistent with this contention. At that time, the applicant reported that his sleep was within normal limits and denied being awakened by pain symptoms. I find this to be contradictory to, and undermining, of Dr. Karmy's statement.

32Further, Dr. Aldridge's conclusions included the finding that the applicant's injuries were entirely musculoligamentous (soft tissue) in nature and that the applicant had attained maximal medical improvement with respect to the injuries sustained in the subject accident. The evidence submitted by Dr. Karmy regarding functional impairment references complaints made by the applicant regarding reduced productivity in his employment and housekeeping. I have not been pointed to any medical evidence that indicates the applicant has suffered any obvious functional impairment.

33I find that the applicant has not established that he suffers from chronic pain with functional impairment as a result of the accident and is not removed from the MIG on that basis.

Psychological impairment

34With respect to the issue of a psychological impairment, the applicant submits medical evidence from Dr. Jaqueline Brunshaw, Psychologist. However, the submitted CNRs of Dr. Brunshaw only reference a Ms. Elsie Cordova Poblete, not the applicant, Ron Poblete. As the applicant's submissions do not explain this discrepancy I am left to place reliance on the s. 44 IE diagnosis of Dr. Syed, psychologist, who conducted a comprehensive assessment of the applicant and the medical evidence. Dr. Syed opines that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 (Diagnostic Statistical Manual of Mental Disorders) as a result of the subject accident and that the applicant did not suffer any identifiable psychological impairment as a result of the accident.

35The other evidence provided by the applicant regarding psychological impairment was from Dr. Karmy. He notes the claimant has suffered substantial psychological distress because of the accident. He references complaints from the applicant of nervousness, restlessness and agitation, irritability and anger, malaise and fatigue. These contentions/complaints from the applicant appear to be anecdotal in nature and without medical evidence. I find this falls short of a diagnosis of a psychological impairment.

36Further, these psychological/emotional issues were not included in the OCF-3 form. In fact, many of the issues listed in the submissions as being contained in the OCF-3 form are indeed not contained in the form.

37I find that the evidence the applicant pointed me to failed to demonstrate that he suffers from a psychological injury as a result of the accident.

MIG

38I find the applicant's injuries are minor as defined in the Schedule. He remains in the MIG and is subject to it's $3,500.00 limit on treatment.

Treatment Plans

39As the applicant remains in the MIG, an analysis of the reasonableness and necessity of the treatment plans in dispute is not required.

Interest

40As no payments are overdue, there is no interest applicable under s. 51.

ORDER

41I find that:

i. The applicant has failed to demonstrate that he is entitled to removal from the MIG.

ii. The treatment plans are not reasonable and necessary.

iii. The applicant is not entitled to interest.