Citation: Quan v. Belair Direct Insurance, 2025 ONLAT 24-001441/AABS

Licence Appeal Tribunal File Number: 24-001441/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:

Annie Quan

Applicant

and

Belair Direct Insurance

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Anthony Matiya, Counsel

For the Respondent:

Patricia Dimakos, Counsel

HEARD:

By way of written submissions

1Annie Quan, the applicant, was involved in an automobile accident on October 7, 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, Belair Direct Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 limit (“MIG”)?
Is the applicant entitled to $1,290.38 for physiotherapy services, proposed by True Life Rehab in a treatment plan dated January 22, 2022?
Is the applicant entitled to $5,530.76 for physiotherapy services, proposed by True Life Rehab in a treatment plan dated March 12, 2022?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by True Life Rehab in a treatment plan dated April 20, 2022?
Is the applicant entitled to the assessments/treatment plans proposed by Princeton Hills Medical, as follows:

i. $2,200.00 for a chronic pain assessment, in a treatment plan dated September 1, 2022; and

ii. $11,599.56 for chronic pain services, in a treatment plan dated December 9, 2022?

iii. $960.58 for medical devices, in a treatment plan dated December 9, 2022?

iv. $2,520.00 for a neurological assessment, in a treatment plan dated March 1, 2023?

v. $750.00 for medical devices, in a treatment plan dated December 9, 2022?

vi. $2,200.00 for a psychological assessment, in a treatment plan dated February 22, 2023?

vii. $4,938.83 for psychological services, in a treatment plan dated June 1, 2023?

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

RESULT

3I find that:

i. The applicant’s accident-related impairments warrant removal from the MIG;

ii. The applicant is entitled to the treatment plans for physiotherapy services dated January 22, 2022 and March 12, 2022;

iii. The applicant is entitled to the treatment plan dated September 1, 2022 for a chronic pain assessment and the treatment plan dated March 1, 2023 for a neurological assessment;

iv. The applicant is not entitled to the remaining treatment plans in dispute;

v. The applicant is entitled to interest in accordance with s. 51 of the Schedule, on the treatment plans for physiotherapy services, the chronic pain assessment and a neurological assessment.

ANALYSIS

Minor Injury Guideline

4Section 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.”

5An insured person 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.

6The applicant submits that she should be removed from the MIG on the grounds of pre-existing impairment and chronic pain.

Pre-existing medical condition

7I find that the applicant has met her onus to prove, on a balance of probabilities, that she should be removed from the MIG as a result of her pre-accident lower back pain and sciatica.

8To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to s. 18(2) of the Schedule. She must provide documented evidence of a pre-existing medical condition by a health practitioner, and she must also provide evidence that the pre-existing condition will prevent her from achieving maximal medical recovery from the minor injury if she is subject to the MIG limits.

9I find that the medical evidence submitted by the applicant establishes that she meets both parts of the two-part test under s. 18(2). The clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Ngoc Khong, establish that the applicant attended the emergency room at Humber River Hospital on July 14, 2020, 15 months before the accident, reporting lower back pain and left thigh pain. The assessment was “Most likely sciatica”. Diagnostic imaging revealed mild scoliosis convex left apex L3. The applicant continued to report ongoing pain to Dr. Khong in the following months, and he diagnosed her with scoliosis and sciatic leg pain and noted that the applicant had been unable to work due to pain.

10The applicant underwent a chronic pain assessment on November 20, 2020 with Dr. Leon Rivlin at the Chronic Pain Treatment Centre, where the history of left thigh pain and sciatica was noted. She was diagnosed with left resolving sciatica and mechanical back pain, but it was noted that the applicant was able to return to full work duties with a caution on heavy lifting or strenuous activities. I find the medical record establishes a pre-existing medical condition documented by a health practitioner.

11I further find that the medical evidence supports the applicant’s position that these pre-existing impairments prevented her from achieving maximal medical recovery from her accident-related impairments, if she were subject to the MIG limits. The applicant does not direct me to back or sciatica complaints between November 20, 2020 and the October 7, 2021 accident. However, soon after the accident the applicant attended at her new family doctor, Dr. Allan Leung’s office, and was diagnosed with cervical and lumbar sprain as a result of the accident.

12On October 16, 2021 the applicant reported neck and low back pain and being unable to work. Dr. Leung found reduced cervical and lumbar ranges of motion. This continued through October and November 2021. The applicant reported returning to work, but doing light duties. Dr. Leung noted that her range of motion in the cervical and lumbar spine continued to be mildly to moderately reduced, and recommended that the applicant continue physiotherapy and anti-inflammatory medication, if required. During this period, the applicant attended physiotherapy treatment, and the CNRs of True Life Rehab reveal ongoing low back pain “radiating to left leg”.

13The applicant reported to Dr. Leung that physiotherapy had helped her, and on December 6, 2021 and June 29, 2022 the applicant reported that she had improved by 80% due to physiotherapy and had returned to work. However, in a follow-up visit on November 28, 2022 the applicant reported to Dr. Leung that her improvement was now only at 60%, and she was still diagnosed with cervical and lumbar strain. The applicant similarly reported to a number of assessors that when she stopped attending physiotherapy treatment in 2022 once funding ran out, her condition deteriorated.

14I agree with the applicant that these ongoing pain symptoms overlapped with her pre-accident-symptoms and that her pre-existing diagnoses of mechanical low back pain and sciatica impaired her recovery within the MIG. This is supported by the s. 25 chronic pain assessment report of Dr. Inese Robertus dated November 29, 2022. In this report Dr. Robertus noted the applicant’s pre-existing lower back pain aggravated by the accident, and found that this condition prevented the applicant from achieving maximal recovery under the MIG.

15The respondent relies on its s. 44 General Practitioner assessment reports of Dr. Khaled dated May 9, 2022 and of Dr. Loritz dated October 25, 2022, where its assessors found that the applicant remained in the MIG. However, Dr. Loritz continued to note the applicant’s continuing symptoms in subsequent paper reviews dated January 17, 2023 and March 20, 2023. He noted that the applicant’s accident-related injuries were myofascial soft tissue injuries, which “likely initially exacerbated her underlying sciatica”, and that the applicant was still experiencing recurrent myofascial pain in relation to her activities of daily living. Although Dr. Loritz found that this pain could be mitigated through accommodation, pacing and improvement of general physical conditioning, in my view, his finding of ongoing myofascial pain supports the applicant’s argument that she had not achieved maximal recovery. The applicant’s continued symptoms, which were linked to her underlying back pain and sciatica, are well-documented, and I find that the medical record establishes that she was unable to achieve maximal recovery under the MIG due to her pre-existing medical condition.

16As such, I find that the applicant has established that she should be removed from the MIG.

17Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

18The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

OCF-18s for physiotherapy dated January 22, 2022 and March 12, 2022

19I find that the applicant has established that the two physiotherapy treatment plans are reasonable and necessary.

20The applicant submitted an OCF-18 dated January 22, 2022 in the amount of $1,290.38 for a combination of physiotherapy, exercise, massage, and an Obus Form seat. The OCF-18 dated March 12, 2022 in the amount of $5,530.76 proposed eighteen sessions of physiotherapy, exercise, massage, a cervical pillow, heat pad, biofreeze, back support and a therapy ball. The respondent denied the OCF-18s relying on its s. 44 assessment report of Dr. Khaled who found that the applicant remained within the MIG, and that the proposed treatment was not reasonable and necessary as the applicant had already had appropriate facility-based treatment.

21I find that the applicant has established that further physiotherapy treatment is reasonable and necessary. At the time the OCF-18s were submitted, the applicant continued to report ongoing back and neck pain to her family doctor, Dr. Leung. Dr. Leung recommended that the applicant continue with physiotherapy. The applicant attended physiotherapy until her funding ran out, and the treatment records noted that she continued to report ongoing, radiating pain. However, the applicant consistently reported to Dr. Leung and her assessors that physiotherapy treatment was helpful, and while she was attending, she was 80% improved. Dr. Leung’s CNRs reveal that once she stopped, her condition deteriorated. I find that the applicant has established that the two OCF-18s for additional sessions of physiotherapy are reasonable and necessary to assist the applicant in fully recovering from her accident-related injuries.

22I further find that the applicant has established entitlement to the assistive devices listed in the OCF-18s. The cervical pillow, back support seat, analgesic cream and heating pad were recommended by Dr. Robertus in the chronic pain assessment report, to help with back and neck pain. I am persuaded that the recommended items are reasonable and necessary to assist the applicant in her recovery.

OCF-18 dated September 1, 2022 for a chronic pain assessment

23I find that the applicant has established that the proposed chronic pain assessment is reasonable and necessary.

24In determining whether an assessment is reasonable and necessary, I note that assessments are, by their nature, speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

25At the time the OCF-18 for a chronic pain assessment was submitted, almost a year post-accident, the applicant was reporting to her family doctor that her condition was deteriorating after stopping physiotherapy treatment. The applicant had also been reporting radiating pain in her previous physiotherapy treatment sessions, and I note that the applicant had previously been assessed at a chronic pain clinic in the year before the accident due to her sciatic pain. While I have found in the section below that the applicant has not established that she in fact did develop chronic pain as a result of the accident, given the complex nature of the applicant’s pain reports and her pre-existing impairments, I find that further investigation by way of a post-accident chronic pain assessment was still reasonable and necessary.

OCF-18 dated December 9, 2022 for chronic pain treatment in the amount of $11,599.56

26The applicant has not established entitlement to the proposed chronic pain treatment program.

27The OCF-18 refers back to Dr. Robertus’ chronic pain report dated November 29, 2022, which had recommended a multi-disciplinary treatment program including psychological counselling, massage therapy, chiropractic care, physiotherapy and intervention with a social worker. However, I note that above I have already found that the applicant is entitled to two treatment plans dated January 22, 2022 and March 12, 2022 for a variety of physical treatments and assistive devices. The first OCF-18 was for a block of six sessions and the second OCF-18 was for an additional eighteen session block. In my view, it is reasonable for the applicant to complete the above-mentioned physiotherapy programs, to assess whether treatment goals were being met, and whether additional treatment would still be required.

28Further, while I have found that the applicant has established ongoing pain post-accident and that her pre-existing impairments prevented her from recovering within the MIG, I agree with the respondent that the applicant has not met her onus to prove that she suffers from accident-related chronic pain. While the applicant reported ongoing pain to Dr. Leung post-accident, she also reported an 80% improvement with physiotherapy by December 2021. Although she subsequently reported to her family doctor in November 2022 that her pain symptoms had deteriorated after stopping physiotherapy, she still reported 60% improvement. The CNRs of Dr. Leung do not reveal a chronic pain diagnosis, prescriptions for pain medication after the initial period post-accident, or referrals to chronic pain specialists.

29The applicant relies on Dr. Robertus’ report dated November 29, 2022 to establish chronic pain. Dr. Robertus found that the applicant met 5 out of the 6 criteria of the American Medical Association Guides (“AMA Guides”), for a diagnosis of chronic pain. However, when applying these criteria, I find that with respect to the criteria of dependence/use of prescription drugs beyond the recommended duration, the applicant appears to have been prescribed prescription medication for only a short period post-accident and reported to multiple assessors that she stopped using the medication. The medical record does not establish an excessive dependence on healthcare providers, and in terms of withdrawal from work and social milieu, I note that the applicant returned to work post-accident, and was promoted to manager.

30Although the applicant reported to Dr. Robertus that post-accident she was limited in her ability to complete housekeeping and home maintenance tasks, she reported to other assessors that she continued to be independent with her activities of daily living and household chores. Finally, as discussed in the section below, I have not found that the applicant sustained accident-related psychological impairments. Accordingly, the applicant has not established that she meets 3 out of the 6 AMA Guides criteria for establishing chronic pain.

OCF-18s dated April 20, 2022, February 22, 2023 and June 1, 2023 for psychological assessments and psychological services

31I find that the applicant has not established that the proposed psychological assessments and psychological treatment are reasonable and necessary.

32The applicant has provided limited submissions with respect to accident-related psychological impairments or symptoms. While she has provided detailed submissions with reference to CNR entries from her family doctor summarizing her pre and post-accident back pain and sciatica, the applicant does not similarly direct me to any CNR entry where psychological symptoms or impairments are raised with her family doctor.

33The applicant relies on the OCF-18 forms, with accompanying pre-screening assessments, in support of her claim. Further, in the s. 25 chronic pain assessment report, Dr. Robertus diagnosed the applicant with depression and anxiety.

34The respondent’s s. 44 psychological assessor Dr. Rubenstein found that the applicant had not sustained any diagnosable psychological impairment as a result of the accident.

35When comparing the parties’ evidence, I find Dr. Rubenstein’s s. 44 reports to be of greater persuasive value, as they are consistent with the objective medical record. The applicant has not directed me to any CNR entry where she reported psychological symptoms as a result of the accident, was diagnosed with a psychological impairment or was referred for psychological treatment.

36Accordingly, I find that the applicant has not established entitlement to the OCF-18s for psychological assessments and treatment.

OCF-18 dated March 1, 2023 for a neurological assessment

37I find that the applicant has established that the proposed neurological assessment is reasonable and necessary.

38The applicant obtained the neurological assessment and relies on the report of Dr. Basile, neurologist, dated April 26, 2023. Dr. Basile diagnosed the applicant with a number of accident-related impairments, including post concussive syndrome, headaches, L3 lumbosacral radiculopathy, meralgia paresthetica and a likely bilateral carpal tunnel syndrome.

39Given the applicant’s pre-accident history of sciatica, her post-accident reports of radiating pain and Dr. Basile’s findings with respect to radiculopathy, I find that a neurological assessment to further investigate the applicant’s symptoms was reasonable and necessary.

40In the respondent’s submissions for this hearing, it argues that the applicant should be barred from proceeding with this treatment plan pursuant to s. 55(1)2 of the Schedule. It submits that the applicant failed to attend scheduled and rescheduled s. 44 assessments which had been requested to assess the applicant’s entitlement to the neurological assessment. The respondent further submits that the applicant did not provide an explanation for the non-attendance. Since the applicant failed to attend these IEs, the respondent argues that the applicant should be barred pursuant to s. 55 from pursuing the treatment plan.

41I do not find that the applicant is barred from proceeding with this treatment plan pursuant to s. 55(1)2 of the Schedule. The respondent did not raise this preliminary issue at the case conference held on July 10, 2024, nor was this preliminary issue added as an issue in dispute for this hearing. The respondent also did not bring a motion at any point prior to this hearing to request to add the preliminary issue to this hearing. Rather, it appears to have raised it for the first time in its responding submissions. I find that it would be procedurally unfair to the applicant to consider this preliminary issue at this late stage, particularly as the respondent has not provided any explanation as to why the issue had not been raised at any point prior to this hearing.

OCF-18s dated December 9, 2022 in the amounts of $950.58 and $750 for medical devices

42I find that the applicant has not established entitlement to the OCF-18s for medical devices.

43The OCF-18 in the amount of $950.58 includes items such as a cervical pillow, analgesic cream, heating pad, Obus form lumbar support and a TENs machine. However, I note that with the exception of the TENs machine, these are the same items that had been requested as part of the March 12, 2022 physiotherapy treatment plan discussed above. As I had already found that the applicant established entitlement to that treatment plan, I find that the additional OCF-18 dated December 9, 2022 in the amount of $950.58 would be duplicative.

44The second OCF-18 in the amount of $750 was for custom foot orthotics, and referred to Dr. Robertus’ chronic pain report in support of the item. However, I note that in the November 29, 2022 report, Dr. Robertus stated that the applicant “may benefit” from a TENS machine and foot orthotics. The applicant has not directed me to any other medical evidence in support of the reasonableness and necessity of the proposed items, nor has she provided submissions on the OCF-18. I do not find that the statement in the report that the applicant “may” derive a benefit from the items, is sufficient evidence to meet the applicant’s onus to prove that the items are reasonable and necessary. It is ambivalent, at best.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the treatment plans for physiotherapy services, the chronic pain assessment and a neurological assessment.

ORDER

46I find that: