Kewell v. TD General Insurance Company, 2025 CanLII 23458

Citation: Kewell v. TD General Insurance Company, 2025 ONLAT 22-011166/AABS

Licence Appeal Tribunal File Number: 22-011166/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:

Tonya Kewell

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Michelle Linka, Counsel

For the Respondent: Cody Moskovitz, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tonya Kewell, the applicant, was involved in an automobile accident on September 27, 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, TD General Insurance 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:

1. 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?
2. Is the applicant entitled to $1,296.75 for physiotherapy services, proposed by Fundamentals Physiotherapy & Wellness Centre in a treatment plan/OCF-18 (“plan”) dated December 21, 2020?
3. Is the applicant entitled to $1,280.00 for chiropractic services, proposed by Brock St. Family Chiropractor in a treatment plan dated January 6, 2021?
4. Is the applicant entitled to $2,486.00 for an orthopaedic assessment, proposed by Access Rehab Inc. in a treatment plan dated March 21, 2021
5. Is the applicant entitled to $1,069.14 for chiropractic services, proposed by Brock St. Family Chiropractor in a treatment plan dated October 7, 2021?
6. Is the applicant entitled to $2,072.85 for chiropractic services, proposed by Brock St. Family Chiropractor in a treatment plan dated June 6, 2022?
7. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Access Rehab Inc. in a treatment plan dated July 8, 2022?
8. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
9. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is subject to the MIG, I do not need to consider if the treatment plans in dispute are reasonable and necessary;

iii. The applicant is not entitled to an award; and

iv. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

4I find that the applicant has not demonstrated that removal from the MIG is warranted.

5Section 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 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 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.

7The applicant submits that she suffers from a pre-existing condition and chronic pain that prevent maximal recovery from her accident-related injuries within the MIG. The applicant relies on the disability certificate (OCF-3) and the treatment confirmation form (OCF-23) prepared by Dr. Doug Forster, chiropractor of Brock Street Family Chiropractic, as well as the treatment and assessment plan, prepared by Ken Fern, chiropractor, of Brock Street Family Chiropractic.

8The applicant further relies on the CNRs of Dr. Michael Gertler, physician, the CNRs of Dr. David Lispon, physiatrist, the CNRs of Brock Street Family Chiropractic, and the Pain Medicine Evaluation report of Dr, Mark Friedlander, anesthesiologist dated September 14, 2023.

9The respondent submits that the applicant has not met her onus to establish that her injuries are not predominately minor. The respondent relies on the s. 44 report of Dr. Oleg Safir, orthopedic surgeon, dated October 21, 2021, and the s. 44 report of Dr. Yong-Kyong Michael Ko, physiatrist, dated November 20, 2022.

Pre-existing condition

10I find the applicant has not established that she has a pre-existing condition which prevents maximal recovery from her accident-related injuries.

11The applicant submits that she had a previous back injury from a 2014 motor vehicle accident that was exacerbated by the soft tissue injuries sustained in her September 27, 2020 accident.

12The respondent argues that the applicant has not met her onus to demonstrate that the applicant has a pre-existing condition, because the applicant has not provided evidence of a diagnosis prior to the accident and has not submitted compelling evidence of a pre-existing condition that would require treatment outside of the MIG.

13I am persuaded that the applicant has established that she was experiencing back pain prior to the 2020 accident. The applicant submits that she received chiropractic care for back pain up to April 2020, five months prior to the September 2020 accident. This is corroborated by the CNRs of Brock Street Family Chiropractic, which reveal that the applicant complained of back pain prior to the accident. Although not documented prior to the accident, Dr. Gertler’s CNRs reveal that the applicant was sent for X-ray and MRI imaging after the 2020 accident which revealed minor degenerative changes to the applicant’s spine.

14However, I find that the applicant has not provided compelling evidence from a medical or treatment provider that her injuries from her 2014 accident preclude recovery within the MIG. In making this finding, I assign little weight to the treatment plan prepared by Dr. Fern, as it contained no detail with respect to any injury or condition sustained in the 2014 accident. Additionally, it is contradicted by the OCF-3 and OCF-23 prepared by Dr. Forster, which indicated that the applicant had no previous injury or condition which would affect her response to treatment for her accident-related soft tissue injuries, and identified no barriers to treatment.

15In his September 14, 2023 report, after a physical examination and review of the applicant’s medical records, Dr. Friedlander opines that the applicant’s accident-related injuries exacerbated symptoms from her 2014 accident and resulted in further deterioration of her discs and joints. I assign little weight to Dr. Friedlander’s report, because although I accept his credentials as a pain specialist, Dr. Friedlander is an anesthesiologist, not a physical medicine specialist, and I find his conclusions with respect to the course of the applicant’s back injuries to be speculative. Further, Dr, Friedlander’s conclusions are not supported by the evidence of the applicant’s treating physicians, and he does not indicate that he reviewed the most recent s. 44 report, prepared by Dr. Ko, dated November 20, 2022.

16I place more weight on the s.44 reports of Dr Safir and Dr. Ko who conducted thorough physical examinations and reviews of the applicant’s medical records. Dr. Safir, who is an orthopaedic surgeon, opined that although the applicant has a pre-existing condition of degenerative changes in the spine, there was no compelling evidence that the condition would prevent her from achieving maximum recovery from her accident-related injuries within the limits of the MIG. Dr. Ko, who is a physiatrist, likewise opined that there was no compelling evidence that the applicant had a pre-existing condition that would prevent the applicant from achieving maximum recovery within the MIG.

17For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she has a pre-existing condition that warrants her removal from the MIG.

Chronic Pain

18I find that the applicant has not met her onus to prove on a balance of probabilities that she suffers from chronic pain with functional impairment.

19The applicant submits that she has experienced ongoing pain in her back and neck as a result of her accident-related injuries, and that she has been diagnosed with chronic pain syndrome with significant functional impairment by Dr. Friedlander. The respondent submits that the applicant has not met her onus to establish that she suffers from chronic pain with functional impairment.

20I accept that the applicant has experienced ongoing headaches, back pain and neck pain as a result of her accident-related injuries, however I am not persuaded that the applicant has established that she suffers from chronic pain with functional impairment to warrant removal from the MIG.

21The respondent argues that the applicant’s visits to her treating physicians for her accident-related pain were “sporadic at best.” I disagree. The CNRs of Dr. Gertler reveal that the applicant reported headaches and/or back and neck pain on 12 occasions between October 15, 2020 and June 8, 2022, when she was referred to a physiatrist, Dr. Lipson, who diagnosed the applicant with chronic back and neck pain from her accident related injuries at her initial visit. Dr. Lipson opined that the applicant was self-managing her back and neck pain appropriately and recommended some additional exercises. The applicant continued to see Dr. Lipson for treatment of her headaches, until February 2023, which I find to be indicative of ongoing pain.

22Additionally, in his s. 44 report, dated October 21, 2021, Dr. Safir opined that the applicant had residual pain from her soft tissue injuries, and at her November 8, 2022 s. 44 examination with Dr. Ko, the applicant reported tenderness to her back, which I find is consistent with the evidence of her treating physicians.

23However, I find that the evidence also reveals significant improvement in the applicant’s pain symptoms by February 2023. The CNRs of Dr. Gertler reveal that the applicant has not complained of pain since September 29, 2022, when the applicant reported that her headaches were better, but she was experiencing breakthroughs. Additionally, Dr. Lipson’s CNRs reveal that, at her final visit, on February 18, 2023, the applicant told Dr. Lipson that she was “overall very happy with her outcome” and the applicant described her headaches as “minimal.” The applicant also reported that her back and neck pain continued to be “bothersome,” but was improving with chiropractic care.

24Dr. Lipson referred the applicant back to Dr. Gertler for continuing prescription of nortriptyline for headache pain. Dr. Gertler’s CNRs reveal that on May 10, 2023, he noted that the applicant was “doing very well,” that the nortriptyline had been “extremely effective,” and he prescribed a 90-day supply of the medication.

25The applicant submits that Dr. Friedlander diagnosed her with chronic pain with significant functional impairments, and that the applicant has provided evidence of her functional limitations. In his September 14, 2023 report, Dr. Friedlander opines that the applicant suffers from chronic pain syndrome, which he describes as “as pain that continues beyond the normal healing time for the patient’s diagnosis and includes significant psychosocial dysfunction” and that the applicant meets all six of the criteria of American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”)

26The respondent argues that the evidence does not support the applicant’s claim of functional impairment, and that Dr. Friedlander’s own report does not substantiate his assertion the applicant meets any the of six criteria, of which three are required by the AMA Guides to support a diagnosis of chronic pain.

27I agree with the respondent. The applicant has not directed me to any evidence of the applicant’s recent or contemporaneous functional impairment to corroborate Dr. Friedlander’s report. Notably, the applicant’s self reports of continuing difficulties with function are not reflected in the CNRs of either Dr. Gertler or Dr. Lipson. Further, I find that the evidence, including the CNRs of the applicant’s treating physicians and the self-reports of the applicant about her function to Dr. Friedlander and Dr. Ko, does not support Dr. Friedlander’s conclusion that the applicant meets all six of the criteria of the AMA Guides for a diagnosis of chronic pain.

28The AMA Guides criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

29Dr. Friedlander’s report does not refer to any evidence of dependence on prescription drugs or other substances as result of the accident, physical deconditioning or an excessive dependence on health care providers. The applicant reported to Dr. Friedlander that she was independent with her personal care. While the applicant told Dr. Friedlander that she participates in grocery shopping, cleaning and other household chores, but relies on her family for assistance, no evidence was presented that this assistance constitutes excessive dependence on her family. Further, Dr. Friedlander did not indicate that the applicant reported that she is withdrawing socially.

30With respect to whether the applicant’s physical capacity is insufficient to pursue work, family, or recreational needs, Dr. Friedlander’s report indicates that the applicant returned to work in May 2021 as a dietary aid, with modified duties, and that her earnings are the same as prior to the accident. Dr. Friedlander also notes that the applicant continues to participate in her pre-accident activities such as going to restaurants and movies with her husband and walking her dog.

31Finally, while Dr. Friedlander opines that the applicant appears to have “significant” psychological impairments. The respondent argues that Dr. Friedlander is not qualified to make a psychological diagnosis, and Dr. Friedlander allows that the applicant’s mental health is “best left to a mental health professional to describe and diagnose.” Therefore, I find that Dr. Friedlander’s assertion that the applicant meets criteria six of the AMA Guides is not consistent with his own report.

32For these reasons, I find Dr. Friedlander’s report to be internally inconsistent, and assign his report less weight. I further find that the applicant has not directed me to sufficient medical or other evidence of functional impairment to support a finding of chronic pain with functional impairment.

33Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that the applicant suffers from chronic pain with functional impairment to warrant removal from the MIG.

34The applicant remains within the MIG. It is not disputed that there is $123.20 remaining in the MIG limit.

35As I have found that the applicant is not removed from the MIG, I do not need to consider whether the treatment plans are reasonable and necessary.

Interest

36As no payments are owed, no interest is due.

Award

37The 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. The test for a s.10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

38The applicant the applicant submits that the respondent has unreasonably withheld payment of medical benefits, without giving due consideration to entire medical records before them, and failed to adjust the applicant’s file. Specifically, the applicant argues that there was sufficient objective medical evidence to warrant the applicant’s removal from the MIG.

39As I have found that the applicant remains within the MIG, I find that the applicant has not proven on a balance of probabilities that the respondent acted unreasonably. Therefore, I find that the applicant is not entitled to an award.

ORDER

40I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is subject to the MIG I do not need to consider whether the treatment plans in dispute are reasonable and necessary;

iii. The applicant is not entitled to an award;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.

Released: March 20, 2025

__________________________

Kathleen Wells

Adjudicator