Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-013043/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.
Parties
Nirmala Weraduwage Applicant
and
SGI Canada Insurance Services Ltd. Respondent
Decision
Vice-Chair: Geneviève Painchaud
Appearances: For the Applicant: Godfrey Bakeerathan, Counsel For the Respondent: Mitchell J. Barber, Counsel
Heard: By way of written submissions
OVERVIEW
1Nirmala Weraduwage, the applicant, was involved in an automobile accident on July 14, 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, SGI Canada Insurance Services Ltd., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUE
2I must express my disappointment in counsel for both parties for failing to comply with the Tribunal’s Order regarding their submissions. In an Order dated July 18, 2023, the Tribunal ordered those submissions be double-spaced and 12-point Arial or Times New Roman font, with page limits. Both the applicant and the respondent chose to submit “single-spaced” submissions and in what appears to largely be in a smaller font, up to the page limits. I expect in the future that counsel will comply with Tribunal’s Orders.
3While I am prepared to admit the full submissions in this instance as both parties breached the Order and rejecting them would be highly prejudicial to the parties, this should not be viewed as tacit acceptance of a blatant breach of the Tribunal’s Order.
ISSUES
4The 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 $2,200.00 for an orthopaedic assessment proposed by Dr. Michael West in an OCF-18/treatment plan (“plan”) submitted August 19, 2022?
iii. Is the applicant entitled to $1,816.11 for physiotherapy and chiropractic services proposed by Activa Clinics in a plan dated April 10, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5The applicant withdrew issues 2 and 4 as listed in the case conference report and order released July 18, 2023.
RESULT
6I find that the applicant is removed from the MIG, and she is entitled to the two treatment plans in dispute plus interest. The applicant is not entitled to an award.
ANALYSIS
The applicant is removed from the minor injury guideline (“MIG”) on the basis of a chronic pain condition
7I find that the applicant has established that she suffers from chronic pain as a result of the accident. Thus, she is removed from the MIG.
8Section 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 minor injuries. 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.”
9An insured person may be removed from the “MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal. In all cases, the burden lies with the applicant.
10The applicant claims that treatment of her injuries fall outside of the MIG limits due to a chronic pain diagnosis.
11The respondent disagrees. It contends that the s.44 report of Dr. Sukhinder Bhangu, physiatrist, dated March 20, 2023, is more reliable than the applicant’s evidence, and that she has only suffered from sprain and strain type of injuries. It is the respondent’s position that the applicant does not have “chronic pain” that needs to be treated outside of the MIG limit and that the pain is more likely to be related to the applicant’s occupation prior to the accident.
12Much of the MIG dispute comes down to the parties’ views on when the applicant’s neck pain began. The applicant submits that she was diagnosed with neck strain at the hospital on the date of the accident and has made over 20 complaints of neck pain to medical practitioners in the 2021 to 2023 period, including visits to the emergency room due to neck pain. The respondent submits that diagnostic imaging is inconsistent with subjective reports from the applicant and that many of the reports and clinical notes submitted by the applicant fail to mention the accident.
13I agree with the applicant and find that the evidence before me supports her claim that she suffers from chronic pain as a result of the accident for the following reasons.
14First, the applicant has directed me to numerous reports of neck pain she made to her medical team, especially to her family doctor, Dr. Shanthini Sundareswaran. While the respondent argues that the applicant’s neck pain began a few months after the accident, this submission is counter to evidence that the applicant reported pain immediately after the accident. In his report dated March 20, 2023, Dr. Bhangu opined that due to fact the pain started a few months after the accident, it may not be directly related, and from a musculoskeletal perspective, there was no evidence to support a removal from the MIG. Further, he also states that almost two years post-accident, the applicant continues to experience neck and lower back pain. I find that since Dr. Bhangu assumed that the pain started several months after the accident, and notes and records show that the pain started immediately after the accident, I am not convinced of his argument that it may not be related to the accident, as it was based on wrong assumptions.
15The applicant’s evidence demonstrates repeated visits to medical practitioners, primarily led by her family doctor, Dr. Shanthini Sundareswaran, who referred her to a pain clinic in August 2021. At the pain clinic she received the diagnosis of chronic neck, back and arm pain post-accident by Dr. Wasswa-Kintu, chronic pain specialist on October 12, 2021. A diagnosis of a severe recurrent myofascial pain and spasm in her neck and limited movement of neck with pain was made by Dr. Bahrami, rheumatologist, on September 26, 2022. A further orthopaedic assessment of Dr. Michael West, orthopaedic surgeon, dated October 11, 2022, diagnosed the applicant with chronic pain due to permanent deep scar tissue as a result of the accident. Dr. Sundareswaran then made a myofascial pain syndrome diagnosis on October 25, 2022.
16While I do agree with the respondent regarding some inconsistencies in the evidence in regard to the applicant’s ability to work, pre-accident health conditions and exact details of the accident, I find these are less impactful than the applicant’s medical evidence because there is consistency among the medical experts concluding that she suffers from chronic pain as a result of the accident. On the other hand, the s. 44 physiatry assessor, Dr. Bhangu, has failed to convince me that I should disregard the numerous diagnostics of chronic pain conditions, mostly because he did not address all of them in detail and concluded that the pain may not be related to the accident because according to him it was not reported until a few months later.
17The respondent submits that the applicant suffered from many conditions prior to the accident including left shoulder pain, plantar fasciitis, bilateral carpal tunnel syndrome, chest pain, right elbow pain, right leg pain and from lower back pain after falling on ice. I am not convinced that these had any significant impact on the pain stemming from the accident based on the evidence before me in the multitude of notes and reports.
18In fact, I find that the applicant made numerous complaints about her neck pain to her family doctor immediately after the accident and in the following months. Her complaints of neck and back pain continued for months, and while I agree that her pain was not consistent and there were periods where she had less pain, I find that the evidence demonstrate that it has not subsided hence the different diagnoses of her living with chronic pain.
19Also, I find that Dr. West’s report explaining that the accident impacted the applicant’s ability to function consistent with his diagnosis. He opined that the applicant was substantially unable to perform the essential tasks of her pre-accident employment as a chef and that her limitations would impact future employment opportunities negatively. The respondent submits that the applicant still works as a chef to demonstrate a lack of impact on her function, although the evidence highlights not only limitations on her work such as lifting pots and pans but also on her other activities of daily living which I find to be consistent with her chronic pain diagnosis.
20For the reasons detailed above, the applicant is removed from the “MIG on the basis that she suffers from chronic pain as a result of the accident.
The applicant is entitled to $2,200.00 for an orthopaedic assessment
21I find that the applicant is entitled to $2,200.00 for an orthopaedic assessment in a treatment plan submitted August 19, 2022, as she has demonstrated it to be reasonable and necessary on a balance of probabilities.
22To 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.
23The plan seeks to achieve a return to activities of normal living after injuries to the neck, thoracic spine, lumbar spine, shoulder joint, wrist, headaches and sequelae that are the direct result of the accident.
24The applicant submits that the orthopaedic assessment recommended by Dr. West was necessary to determine why her physical issues spanned over two years and had not subsided, even after multiple diagnostic imaging, attending a pain clinic, receiving nerve injections and consulting with a rheumatologist. She submits that Dr. West was able to conclude that her chronic pain was due to the formation of deep scar tissue resulting from her accident-related injuries.
25The respondent submits that the plan was not approved as it did not indicate which assessment was sought and the rationale. Further, it argues that the applicant failed to provide requested documentation in a timely manner as per s. 33 of the Schedule.
26I find that the respondent has an ongoing duty to adjust the file and while there may have been some documentation not available at the time of the decision regarding this treatment plan, I am not persuaded that there was a lack of medical evidence provided to approve this treatment plan at a later time, except if it was purely refused based on the MIG limits. While the respondent may not have had the information needed when it received the plan, they were provided information about the type of plan afterwards.
27I find that it was reasonable that the applicant seek more answers about her condition because of her ongoing pain and the lack of answers about how to minimize it to reduce the impact on her activities of daily living. In fact, this assessment constituted a significant piece of evidence at this hearing as it explained why she was continuing to be in pain.
28On the evidence, I find that the applicant has met her burden of proving on a balance of probabilities that the orthopaedic assessment is reasonable and necessary.
The applicant is entitled to $1,816.11 for physiotherapy and chiropractic services
29I find that the applicant is entitled to $1,816.11 for physiotherapy and chiropractic services in a plan dated April 10, 2023, as she has demonstrated it to be reasonable and necessary.
30In her submissions, the applicant outlines that the treatment plan proposed physiotherapy treatment, biofreeze, exercise equipment, hot/cold gel pack and acupuncture in order to achieve pain reduction, increase in strength, range in motion, strengthening of related area and increase endurance.
31The treatment plan was denied based on Dr. Bhangu’s opinion, and especially because he opined that the applicant remained within the MIG and that there was a lack of evidence regarding her neck pain. He recommended self-directed exercises and instructions on a comprehensive stretching and strengthening exercise program.
32The applicant relies on the notes and reports of Dr. Sundareswaran, Dr. West, Dr. Bahrami and Dr. Wasswa-Kintu who all recommended physiotherapy on several occasions and argue that she was unable to continue treatment when the respondent stopped funding it. She states that her condition has impacted her ability to work and activities of daily living.
33The respondent argues that there are numerous clinical notes of Dr. Sundareswaran that state that physiotherapy was not helpful to the applicant, that is unclear if physiotherapy provided pain relief and that there are other reasons for her neck pain such as her occupation as a chef.
34I agree with the applicant’s position that this treatment plan is warranted. As I have described in my consideration of the MIG determination, the applicant has demonstrated significant evidence demonstrating that she suffers from chronic pain, especially of her neck. In my view, and as recommended by several doctors, I find that it is reasonable that this physiotherapy and acupuncture treatment be provided to the applicant. I also find that this treatment plan is necessary, even if physiotherapy has only provided temporary pain relief in the past because this is enough to meet the test.
35As a result, I find that the applicant has proven on a balance of probabilities that the recommended physiotherapy and chiropractic treatment plan is reasonable and necessary.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule and therefore interest applies to the treatment plans in dispute.
Award
37I find that the applicant is not entitled to an award.
38The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
39It is well established that for conduct to attract a special award it must be “excessive imprudent, stubborn, inflexible, unyielding or immoderate”: Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT).
40The applicant submits the proposed treatment plans were denied by the respondent as it took a blanket approach to denying the plans as reasonable and necessary once it decided the applicant was in the MIG. Also, the respondent failed to re-consider or revisit their initial position based on new medical evidence provided.
41The respondent submits that the applicant has not produced any compelling evidence that would meet the high bar for entitlement to a special award, and on the contrary, it has not taken a blanket approach to adjusting this file.
42I find that the respondent has not been excessively imprudent, stubborn, inflexible, unyielding or immoderate in its approach. An allegation of a blanket approach needs to be substantiated with convincing evidence to meet the stringent test for a s.10 special award, and in this case, the applicant has not persuaded me that the respondent unreasonably withheld or delayed the payment of benefits in such a manner. Accordingly, I find no award is payable.
ORDER
43For the reasons set out above, I find:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to the disputed treatment plans plus interest; and
iii. The applicant is not entitled to an award.
Released: February 20, 2025
Geneviève Painchaud Vice-Chair