Valerio v. Security National, 2018 ONSC 2395

CITATION: Valerio v. Security National, 2018 ONSC 2395

DIVISIONAL COURT FILE NO.: 26-17

DATE: 20180413

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Joseph Valerio Plaintiff/Appellant

-and-

Security National Insurance Company Defendant/Respondent

BEFORE: Harper, Myers, and Newton JJ.

COUNSEL: William Brennan, Lawyer for the Appellant Eric Levin and Jason Kerr, Lawyers for the Respondent

HEARD at London: April 12, 2018

ENDORSEMENT

Nature of the Appeal

[1] Mr. Valerio appeals to this court from the decision of adjudicator Belanger-Hardy of the Licence Appeals Tribunal, dated August 11, 2017. Mr. Valerio asks that the adjudicator’s decision be set aside and seeks declarations that:

a. Valerio suffered an injury that falls outside the minor injury guideline (“MIG”);

b. a treatment plan purportedly dated November 27, 2015 in the amount of $2486.00 for assessment, mental health, is reasonable and necessary; and

c. a treatment plan purportedly dated February 9, 2016 in the amount of $1356.00 for assessment, mental health, is reasonable and necessary.

[2] Mr. Valerio argues that:

a. the adjudicator failed to correctly apply the statutory test for the MIG; and

b. the adjudicator incorrectly held that a DSM diagnosis was required in order for a psychological condition to be recognized and sufficient to remove a claimant from the MIG.

[3] Pursuant to s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, an appeal from the tribunal relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 may be made on a question of law only.

[4] The standard of review to be applied is reasonableness: see Melo v. Northbridge Personal Insurance Corp., 2017 ONSC 5885 (Div. Ct.).

[5] The insurer argues that the adjudicator made no error of law and that the adjudicator’s decision was within the range of possible acceptable outcomes available and, therefore, reasonable.

The Facts

[6] Both treatment plans were completed by the same occupational therapist.

[7] Mr. Valerio was injured in an accident on August 7, 2013 when his van collided with an obstruction on a roadway. Mr. Valerio was struck in the face when the airbag deployed. The injuries reported initially consisted of soft tissue injuries to his hands, right knee, chest, neck and face with jaw pain and bruising under his eyes.

[8] Mr. Valerio is a teacher and was able to return to work when school started in September.

[9] Mr. Valerio required some physiotherapy and dental treatment but did not make any prior claim for reimbursement for medical or rehabilitation expenses because he submitted these to his medical plan provided by his employer. That coverage is primary and the auto insurance is excess.

[10] Some of Mr. Valerio’s injuries improved. Others, particularly his injury to his jaw, did not.

[11] Mr. Valerio did not submit an application for accident benefits until two years later. The disability certificate completed by his family physician on December 12, 2015, noted Mr. Valerio’s injury and sequelae as: neck strain, jaw strain, bilateral wrist strain, and bilateral shoulder strain. The physician noted that Mr. Valerio was not, at any point since the 104 weeks post-accident, substantially unable to perform the essential tasks of his employment. Similarly, the physician noted that Mr. Valerio did not suffer a complete inability to carry on a normal life. Therefore, Mr. Valerio would not be entitled to an income replacement benefit or a non-earner benefit.

[12] The first claim for a medical/rehabilitation expense is the November 27, 2015 treatment plan submitted by the occupational therapist for an “assessment, mental health.” The health practitioner completing the treatment plan is required to indicate whether the claim is within the MIG. Here, the occupational therapist noted that the injury was not within the MIG. No explanation for that statement was given. The goal of the treatment plan was stated to be “to assess the nature, severity, and duration of occupational performance issues related to the mvc.” In additional comments, the occupational therapist notes that “the persistent nature of his pain long-term has led to increased frustration and concerns to achieve optimal performance at work.”

[13] The insurer responded by correspondence dated December 15, 2015 and denied the treatment plan noting that “no medical evidence has been received from any health practitioner that suggests your injuries fall outside the definition of a minor injury.” The insurer indicated that it would review any additional information provided. To this point, nothing had been provided to the insurer to demonstrate that the injuries were anything other than “strains”, as set out in the physician’s disability certificate. The only psychological issue that had been identified was “increased frustration”.

[14] At some point after February 13, 2017, Mr. Valerio’s counsel provided the records of Dr. Awde to the insurer. Dr. Awde examined Mr. Valerio for his jaw problems on January 12, 2016. Although the programs are described in a handwritten report, and in a consultation note to another doctor or dentist, no opinion is provided that addresses whether this injury falls within or beyond the MIG.

[15] Notwithstanding the denial of the first treatment plan, counsel for Mr. Valerio instructed the occupational therapist to proceed with an assessment and prepare the report. The assessment was an in-home assessment on February 9, 2016. The report was dated March 9, 2016. The assessment was conducted primarily on the basis of self-report, with some objective testing of upper extremity function. Jaw pain was identified as one of the most significant problems. Some cognitive difficulties, that is, minor memory challenges were noted, likely on the basis of impaired sleep due to pain. A referral to a psychologist and physiotherapy was recommended. A workplace assessment was recommended for possible ergonomic changes.

[16] The same occupational therapist submitted another treatment plan on March 9, 2016 (likely, erroneously referred to as submitted on February 9, 2016) for essentially the same type of assessment but at Mr. Valerio’s worksite and at a lesser cost. The adjuster deposed that this treatment plan was not submitted through HCAI until March 9, 2016.

[17] The insurer responded by correspondence dated March 16, 2016 and denied the treatment plan for what they perceived to be a workplace assessment on the grounds that Mr. Valerio did not qualify for an income placement benefit and that, therefore, this assessment was not reasonable or necessary. The insurer noted: “From a medical perspective, there is no objective evidence that would indicate this request to be reasonable due to the injuries he sustained in the accident.”

[18] As part of the dispute resolution process Mr. Valerio submitted to two insurer examinations: Dr. Taylor, family medicine, and Dr. Corbin, psychology.

[19] Initially, Dr. Taylor did not have the clinical notes and records of the dentists. Without those records he concluded that Mr. Valerio sustained a facial contusion, bilateral arm strain, and TMJ dysfunction as a result of the accident. As such, it was his opinion that the injuries met the criteria of minor injury for the MIG.

[20] When provided with the dental records, Dr. Taylor provided an addendum in which he stated:

I have reviewed the initial information available and my opinion is unchanged. It is my opinion that Mr. Valerio has suffered a facial contusion, bilateral arm strain and TMJ strain/dysfunction as result of the accident in question. I believe his injuries meet the definition of minor injuries. Therefore, the claimant should be treated under the minor injury guidelines.

[21] Dr. Corbin conducted a psychological assessment and examination of Mr. Valerio. He reported that Mr. Valerio stated that from a “psychological, emotional or mental perspective” he is the “same as he has been for the last 20 years” other than experiencing frustration. Mr. Valerio repeated “that he would not consider these to be psychological problems, per se, that he is just feeling normal frustrations about these things.” Dr. Corbin also administered a standardized symptom checklist. He concluded:

Mr. Valerio reported to be experiencing subclinical symptoms related to an adjustment disorder, that is, some feelings of frustration, as a result of the index accident. However the symptoms do not appear to be sufficiently severe to warrant making a psychological diagnosis.

[22] Dr. Corbin concluded that psychological counselling was not warranted.

The Decision of the Adjudicator

[23] The hearing proceeded by way of written submission with exhibits, which included the documents, records, and reports referred to. An affidavit from a representative of the insurer was also filed.

[24] The adjudicator correctly determined that the insurer responded as required, within 10 days, to the treatment plans. The adjudicator correctly determined that the explanation provided for the denial of both treatment plans was sufficient in the circumstances. Any confusion with respect to the purpose of the second treatment plan arises from the language used by the occupational therapist and her addition of worksite assessment to the second treatment plan.

[25] The adjudicator correctly identified that the burden of proving that he was entitled to medical benefits beyond the MIG cap ($3500) rests with Mr. Valerio.

[26] The adjudicator reviewed all medical reports and records, including the records of Dr. Awde. She correctly identified that Dr. Awde noted certain conditions or diagnoses but, as she stated candidly, she was not provided with any other information about these conditions or diagnoses.

[27] With respect to the psychological issues, the adjudicator noted that no medical information was submitted addressing the need for treatment or counselling other than the occupational therapist’s report. We note that the disability certificate submitted by the family physician on December 12, 2015 does not identify any psychological issues. By Mr. Valerio’s own self-report the issue is frustration. The occupational therapist suggests that some memory issues may be related to lack of rest due to pain.

[28] The adjudicator determined that Mr. Valerio had not met his onus of proving entitlement to benefits beyond the MIG. She noted that the occupational therapist did not provide any explanation for stating that the MIG did not apply.

[29] The adjudicator concluded that the first treatment plan for the in-home assessment was not payable as the injuries were not proven to be beyond the MIG and, therefore, the insurer is not required to pay: see s. 25(2), Statutory Accident Benefit Schedule, O. Reg. 34/10.

[30] The adjudicator concluded that there was insufficient evidence to conclude that the work site assessment was reasonable and necessary.

Disposition

[31] There is evidence to support each of the findings made by the adjudicator. We see no error in the application of the statutory test for the MIG. We did not read the adjudicator’s decision as saying that a DSM diagnosis was required.

[32] The standard of review is reasonableness.

[33] We conclude that the adjudicator’s decision was within the range of possible acceptable outcomes available and, therefore, reasonable.

[34] There is no error of law and this appeal is dismissed with costs to the respondent fixed in the amount of $5000, as agreed, including HST and disbursements.

“Justice R. J. Harper” Harper J.

I agree “Justice F. Myers” Myers J.

I agree “Justice W. D. Newton” Newton J.

Date: April 13, 2018