Citation: Rouse v. Unifund Assurance Company, 2025 ONLAT 24-002335/AABS

Licence Appeal Tribunal File Number: 24-002335/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:

Keith Rouse

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Bianca Pirrotta- Iaccino, Paralegal

For the Respondent:

Eluxmeenah Rishihesan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Keith A. Rouse, the applicant, was involved in an automobile accident on December 9, 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, 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 the services proposed by Alma Rehab Inc., as follows:

i. $3,244.58 for chiropractic services, in a treatment plan submitted July 4, 2022; and

ii. $2,912.56 for chiropractic services, in a treatment plan submitted April 3, 2023?

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

3The Case Conference Report and Order (“CCRO”), date July 16, 2024, lists issue 2(i) as “Is the applicant entitled to $1,995.33 for psychological services proposed by Alma Rehab Inc., in a treatment plan submitted June 22, 2022?” The applicant in his submissions has withdrawn this issue. Therefore, I have not included it in the issues in dispute and I will not be addressing it as part of this decision.

RESULT

4I find that the applicant is removed from the MIG.

5I find that the applicant is entitled to the treatment plans for chiropractic services, dated July 4, 2022 and April 3, 2023, plus interest.

ANALYSIS

The applicant is removed from the MIG

6I find that the applicant has met his onus and demonstrated that his accident-related impairments warrant removal from the MIG.

7Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

9In this matter, the applicant submits that he should be removed from the MIG because he had a significant pre-accident medical history, and he suffers from a chronic pain condition as a result of the accident.

a. The applicant is removed from the MIG on the basis of chronic pain

10I find that the applicant has met his onus and demonstrated he suffers from a chronic pain condition that warrants removal from the MIG.

11Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

12The applicant submits that he has chronic pain with functional limitations. He submits that his family physician, Dr. Wrensford Simmonds, diagnosed him with chronic pain on December 19, 2022, and then again on October 18, 2023. The applicant further relies upon the Clinical Note and Record (“CNR”) of Dr. Simmonds, dated August 31, 2024, where he continued to complain of left knee pain, worse with movement and Dr. Simmonds recommended exercise, avoidance of movements that exacerbate pain and use of a non-steroidal anti-inflammatory drug (“NSAIDs”) for pain relief. The applicant further submits that although he has a well-documented history of shoulder pain, a chronic pain diagnosis did not occur until post-accident. He submits that he would not have been diagnosed with chronic pain, but for the accident occurring.

13The applicant also relies upon the CNRs and assessments by Alma Rehab Clinic where he attended for treatment post-accident. Four chiropractic assessments were completed dated February 23, 2022, May 25, 2022, June 28, 2022 and March 29, 2023, all recommending ongoing treatment. The applicant submits that despite the denials of the treatment plans submitted by Alma Rehab Clinic, he continued to attend and incur the cost of treatment. He has provided a copy of the OCF-21, dated April 3, 2023, which indicates that he attended for treatment from June 20, 2022 to April 5, 2023.

14The respondent submits that the applicant does not suffer from chronic pain. With respect to Dr. Simmonds diagnosis of the applicant with chronic pain, the respondent submits that Dr. Simmonds may have incorrectly referenced his chronic issue as chronic pain. It submits that the balance of the medical documentation suggests that the applicant was not dealing with chronic pain.

15The respondent relies upon the IE report of Dr. Isa Mohammed, general practitioner, dated June 21, 2023, where Dr. Mohammed opined that from a musculoskeletal perspective, the applicant suffered from soft tissue injuries as a result of the subject accident, which would be classified as minor injuries. Dr. Mohammed also noted that there is no objective evidence of lasting impairment or ongoing pathology that would warrant additional physical rehabilitation.

16The respondent further relies upon the IE report of Dr. Stewart dated November 23, 2023, where Dr. Stewart opined that the applicant’s accident-related physical injuries have fully healed and functionally he has no impairments. He further noted that the applicant’s pre-accident shoulder tendinitis is contributing to his presentation but is unrelated to the subject accident.

17In terms of function, the respondent submits that the applicant was formally retired at the time of the subject accident but continued to work part-time, around 20 hours per week, fabricating dentures out of his home.

18I find that the applicant has provided sufficient evidence to support his claim that he suffers from a chronic pain condition with functional impairment as a result of the accident.

19I find that the applicant may be removed from the MIG based on persistent reports of pain beyond the time expected for the sequelae of minor injuries, accompanied by functional impairment. In this case, I find that the applicant has established on a balance of probabilities that he suffers functional impairments from persistent pain resulting from the accident. He has shown that removal from the MIG is warranted on this basis.

20I find that the evidence tendered by the applicant supports his ongoing complaints and limitations to various medical practitioners, including the respondent’s IE assessors. In reaching my conclusion, I have placed significant weight on the CNRs of Dr. Simmonds, family physician, and Alma Rehab, which support that the applicant’s complaints have continued, since the accident, and well beyond the three-month period for healing.

21I find that the CNRs of Dr. Simmonds, support the applicant’s ongoing pain complaints and diagnosed him with chronic pain on December 19, 2022 and October 18, 2023. Specifically, upon review of the CNR of Dr. Simmonds, dated December 19, 2022, the applicant complained of bilateral knee pain and left shoulder pain. It notes that his shoulder has improved 45-80 percent and his knees fluctuate. He was diagnosed with post-accident chronic strains and pains. Upon review of the CNR dated October 18, 2023, the applicant presented with left shoulder pain which is aggravated with work and driving and notes he took a week off last week. He was diagnosed with chronic left shoulder strain/tendinosis. The CNR dated August 31, 2024, notes left sided knee pain since his motor vehicle accident which is worse when going up the stairs. He is diagnosed with pes anserine bursitis and advised to continue with his exercise regimen, avoid activities that exacerbate his pain, and he was prescribed NSAIDs for pain relief.

22I find that the CNRs of Dr. Simmonds are consistent with the CNRs of Alma Rehab Clinic, which document and provide regular evaluations of the applicant’s ongoing complaints and functional limitations. The records support that the applicant was first seen on February 23, 2022, and that he continued to attend for treatment on a regular basis until April 5, 2023. Throughout the CNRs, the applicant reports ongoing pain to multiple body parts including his neck, shoulders, back, hips and knees. I find upon review of the treatment plans submitted by Alma Rehab, that the applicant’s functional limitations are noted. At part 8 of the treatment plan, dated June 30, 2022, it notes,

Patient has pain and discomfort with prolonged static postures, lifting and carrying heavy objects, repetitive bending and twisting. Patient has difficulty performing tasks such as general cleaning, meal preparation, washing dishes, garbage disposal and laundry duties. Patient’s ADL’s are affected as a result of the MVA.

In the treatment plan, dated March 29, 2023, under injuries “other chronic pain” is listed. At part 8 of the treatment plan, it notes,

Patient continues to have difficulty with sitting, standing, bending, lifting, carrying, turning, and other activities entailing strength and endurance.

23I give little weight to the IE report of Dr. Stewart. I find that the applicant reported constant pain in his left shoulder, neck, lower back and left knee. Dr. Stewart noted limited range of motion in the applicant’s shoulders and tenderness in his back and left knee. I find that despite these findings, Dr. Stewart opined that the applicant’s accident-related injuries had fully healed and functionally he has no impairments. He further stated that examination was objectively normal with the exception of some subjectively limited bilateral shoulder movements which are related to his documented pre-existing tendonitis rather than an accident-related injury. I find that Dr. Stewart’s opinion that the applicant’s injuries had fully healed is inconsistent with the applicant’s self-reports, the CNRs of Dr. Simmonds and from the treating facility which document continued and constant pain and his finding of limited range of motion in the applicant’s shoulders and tenderness in the back and left knee.

24I also give little weight to the IE report of Dr. Mohammed. Dr. Mohammed notes in his report that the applicant missed three months from work following the accident and then resumed on a part-time basis due to pain and psychological distress. Dr. Mohammed further notes that in terms of activities of daily living, the applicant reported experiencing pain exacerbation when doing certain activities, particularly tasks that involve carrying and holding heavy objects, such as grocery shopping. The applicant reported constant pain in his neck, lower back, and left knee, and Dr. Mohammed noted the functional limitations reported by the applicant due to these injuries in his report. Despite the subjective reports of the applicant and the description of the functional limitations he suffers as a result, Dr. Mohammed concluded that the applicant had healed from the soft-tissue injuries suffered in the accident and found no objective evidence of a lasting impairment. I find that Dr. Mohammed makes no mention in his conclusions about the applicant’s reported functional limitations and simply notes that the reported limitations are consistent with his observations. I further find that Dr. Mohammed’s conclusion that the applicant has healed from his soft-tissue injuries is inconsistent with the applicant’s self-reports and the CNRs of the family doctor and the treatment plans prepared by Alma Rehab, that were provided for his review.

25For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that he suffers from a chronic pain condition that warrants removal from the MIG.

Entitlement to the treatment plans in dispute

26I find that the applicant is entitled to the treatment plans for chiropractic services.

27To receive payment for a treatment plan under sections 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.

28The applicant claims entitlement to $3,244.58 for chiropractic services, in a treatment plan prepared by Alma Rehab Inc., dated July 4, 2022. The treatment plan recommends 18 sessions of chiropractic therapy, 18 sessions of functional exercise, 18 sessions of spine manipulation, 9 sessions of massage therapy and a personalized home exercise program.

29The applicant also claims entitlement to $2,912.56 for chiropractic services, in a treatment plan prepared by Alma Rehab Inc., dated April 3, 2023. The treatment plan recommends 16 sessions of chiropractic therapy, 16 sessions of functional exercise, 16 sessions of spine manipulation, 8 sessions of massage therapy and a personalized home exercise program.

30The applicant submits that the treatment plans in dispute are reasonable and necessary. The applicant relies on the Tribunal decision in 16-002047 v. RBC Insurance, 2017 CanLII 81606 (ON LAT), where the Tribunal found that CNRs hold more weight as there are several entries subsequent to the accident that supported ongoing pain complaints and recommendations for treatment. The applicant submits that the CNRs provided from Alma Rehab and Dr. Simmonds, should hold more weight over the IE reports, because the medical records continue to make reasonable recommendations to alleviate his ongoing pain. He further submits that there is a consensus among his treating practitioners that he developed notable physical injuries following the motor vehicle accident.

31In terms of the goals of the treatment plans, the applicant relies upon the Tribunal decision in L.W. v. The Co-operators General Insurance Company, 2016 CanLII 93133 (ON LAT), where the Tribunal held that “care which relieves pain and therefore improves function is a legitimate medical and rehabilitative goal.” The applicant submits that the treatment plans are reasonable and necessary as they provide approaches to alleviating his ongoing and documented pain. He further submits that he continued to attend for treatment at Alma Rehab despite the respondent’s denials.

32The applicant also relies upon the Tribunal decisions in Hoskins v. Co-Operators General Insurance Company, 2023 CanLII 4455 (ON LAT), where the Tribunal found that temporary pain relief resulting from chiropractic treatment is a reasonable and necessary expense under s. 15 of the Schedule. The applicant submits that the chiropractic treatment recommended is reasonable and necessary because it provides temporary pain relief that restores the applicant’s ability to function. In addition, pain management itself is a reasonable goal for addressing accident-related impairments.

33The applicant submits that the IE reports relied on by the respondent, failed to explain why the applicant’s injuries had not resolved despite the time elapsed since the accident.

34The respondent submits that the treatment plans in dispute are not reasonable and necessary. It relies upon the Tribunal decision in Blas v. Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT), where the Tribunal held that, “it is well-settled that a treatment plan without supportive medical evidence is not enough to establish that the recommended treatment is reasonable and necessary.” In addition, the Tribunal held that, “A treatment plan unsupported by objective evidence, such as a medical opinion or report, does not satisfy the applicant’s burden.”

35The respondent relies upon the IE reports of Dr. Mohammed and Dr. Stewart, in support of its denial of the treatment plans in dispute.

36I find that the applicant has provided persuasive medical evidence to show that the treatment plans for chiropractic services are reasonable and necessary. I find that the CNRs of Dr. Simmonds and Alma Rehab, support the applicant’s ongoing complaints and the recommendation for ongoing treatment. These records are contemporaneous with the treatment plans submitted. As stated above, while the IE reports indicate that the applicant’s injuries are minor, I have found that the applicant suffers from a chronic pain condition. I further find that the CNRs of a treating practitioner who regularly assesses the applicant should be given more weight than a report of an IE assessor who only sees the applicant for the purpose of an assessment.

37I further find that the fact the applicant continued to attend and receive treatment, despite the denials by the respondent, reinforces that the applicant was in need of the treatment and that the treatment plans in dispute are therefore reasonable and necessary.

38With respect to the goals of treatment, I agree that chiropractic treatment that provides short term pain relief and maintains the applicant’s level of function are reasonable medical and rehabilitative goals. In addition, pain management itself is a reasonable goal for addressing accident-related impairments. I therefore find that the treatment plans in dispute are reasonable and necessary as the treatment recommended was to help alleviate the applicant’s ongoing and documented pain.

39For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that he is entitled to the treatment plans for chiropractic services, dated July 4, 2022 and April 3, 2023.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the treatment plans for chiropractic services dated July 4, 2022 and April 3, 2023.

ORDER

41For the reasons outlined above, I find:

i. The applicant is removed from the MIG; and

ii. The applicant is entitled to the treatment plans for chiropractic services, dated July 4, 2022 and April 3, 2023, plus interest.