Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 254

FSCO A14-004838

BETWEEN:

REEMA MARYAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Arbitrator Harvey Savage

Heard: In person at ADR Chambers from May 26-27, 2016 and by written submissions due July 25, 2016

Appearances: Mr. Francesco Blasi for Mrs. Reema Maryam

Mr. Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mrs. Reema Maryam, was injured in a motor vehicle accident on December 26, 2012 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Maryam, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is Mrs. Maryam entitled to receive medical benefits claimed for chiropractic and massage therapy provided at McKenzie Medical Rehabilitation Centre as follows:

a) $1873.44, OCF-18, dated December 9, 2013;

b) $1455.08, OCF-18, dated January 30, 2014?

Is Mrs. Maryam entitled to payments for the costs of examinations provided at Cambridge Medical Assessments as follows:

a) $2404.24, OCF-18, dated March 3, 2014;

b) $2486.00, OCF-18, dated February 24, 2014?

Is State Farm liable to pay a special award because it unreasonably withheld or delayed payments to Mrs. Maryam?
Is Mrs. Maryam entitled to interest for the overdue payment of benefits?
Is State Farm liable to pay Mrs. Maryam’s expenses in respect of the Arbitration?
Is Mrs. Maryam liable to pay State Farm’s expenses in respect of the Arbitration?

Result:

Mrs. Reema Maryam is not entitled to the claimed medical benefits.
Mrs. Reema Maryam is not entitled to the claimed costs of examinations.
Mrs. Reema Maryam is not entitled to a special award.
Mrs. Reema Maryam is not entitled to interest.
State Farm is entitled to its expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

CHRONOLOGY

The Applicant’s car was rear-ended on December 26, 2012, during the day while she was on a coffee break from her work. She described it as a ‘hard impact.’ She felt pain in her knees and chest and experienced chest pain; the chest pain as a result of her hitting the steering wheel and her knee pain as a result of her right knee hitting the dashboard. She also said that both of her shoulders hit the back of her seat as a result of the motion of the impact.

She did not call an ambulance and did not attend at a hospital. The police arrived and took statements. She returned home via a tow truck.

She remained home for three to four days, and treated her knee and chest pain with Advil and Tylenol. She did not see her family doctor during that time.

She returned to her work after several days. She described herself as someone who does not like to complain, as explanation for her rapid return to work and her continuing to work to the present.

She made several visits to see her family physician in the weeks and months following the accident. However, she did not mention the accident until August 2013, following her having retained counsel. She felt a need for chiropractic treatment since the Advil and Tylenol were not sufficient, and she therefore decided to seek legal counsel.

She obtained massage and chiropractic treatment from Mackenzie Medical Rehabilitation Center from June until December 2013. She was referred by her counsel.

She acknowledged that to date she has received $3,899.99 from State Farm in medical and rehabilitation benefits.

THE POSITIONS OF THE PARTIES

The Applicant

The Applicant submits that State Farm both treated her unfairly and ignored her evidence in denying various treatments.

She submits that shortly following the accident she spoke to a representative of State Farm and advised that she had been injured in an accident. She noted to the representative that she had chest pain and soreness in her knees. However, she alleges that she did not receive any correspondence from State Farm following that conversation.

She submits that State Farm erred in that it misconstrued her delay in complaining about her injuries to her family doctor as indication that her injuries were only minor. She said that she was not a complainer and preferred to self-treat as much as possible before resorting to professional assistance. She said that this was her pattern.

She submits that the first documented evidence of seeing her family doctor, August 1, 2013, listed complaints of low back pain, severe pain on the right side going to the pelvic area, mainly when she was at rest, and she referenced her accident of December 26, 2012.

She submits that from August 2013 forward the clinical notes and records of her family doctor outline the ongoing complaints she made relating to the accident.

She submits that State Farm failed to take Dr. Lee’s findings into consideration when determining whether her injuries fell within the Minor Injury Guideline. Dr. Lee reported that six months following the accident, the Applicant was experiencing increasing pains in her right bursa area.

She further alleges that State Farm erred in not taking Dr. Mohamed’s records into consideration when determining the nature of her injuries, especially his conclusion that her mood had been low and worsening since 2011. Her visit to him was May 19, 2015. The Applicant alleges that this should have been taken into consideration as evidence of a pre-existing condition.

The Applicant alleges that State Farm erred in its denial of Mackenzie Rehabilitation Centre treatment plans, dated December 9, 2013 and January 30, 2014, since it ignored the various disorders referred to in those plans and further ignored the recommendation made in the December 9, 2013 treatment plan that various modalities should be undertaken to overcome the barriers to recovery. Similarly, it ignored the January 30, 2014 treatment plan which outlined specific modalities designed to overcome the barriers to recovery.

The Applicant further alleges that the Insurer erred in ignoring Dr. Mills’ conclusion that she should not fall under the Minor Injury Guideline. She alleges that in coming to this conclusion, he had diagnosed adjustment disorder with mixed anxiety and depressed mood, and he noted that “given the serious and recalcitrant nature of the patient’s ongoing physical pain as a direct result of the MVA, this patent should not fall under the minor injury guideline.”

The Applicant alleges that stemming from Dr. Mills’ observations, the recommendation of 12-16 weeks of continuous rehabilitative care and 8 sessions of psychotherapy should not have been denied.

The Applicant also submits that Dr. Langer’s diagnosis of chronic pain syndrome is consistent with her evidence at the Hearing, that she had neck and back pain after hitting her knee on the dashboard.

The Applicant submits that Dr. Ginty, the independent assessor engaged by State Farm, provided an opinion in the absence of clinical notes from Dr. Khataan, Dr. Lee or Dr. Mohamed, and only conducted a paper review later when provided with Dr. Khataan’s clinical notes. Other documents were also provided for his review, but he did not change his opinion.

The Applicant submits that Dr. Mandel’s phrase “objective psychological impairment” requires clarification, and since he was not called as a witness, such clarification is missing. Further, the Applicant submits that Dr. Mandel never answered the question of whether the Applicant has reached maximum medical improvement, and that his answer appeared to suggest that she had not done so.

The Applicant submits that the Insurer’s Explanation of Benefits is defective in that it leaves open the possibility that if the Applicant had sustained a physical impairment, her injuries might have been outside the Minor Injury Guideline.

With reference to the claim for a special award, the Applicant particularises as follows:

The Insurer ignored that the Applicant advised State Farm on the day of the accident that she was involved in a collision and sustained injuries and impairments;
No claim was set up, no Application for Accident Benefits was sent to her;
There is no evidence that the Insurer fulfilled their obligation to their client to educate her on the available benefits under her policy;
As a result, the Applicant could not access medical and rehabilitation benefits to expedite her policy.

The Insurer

The Insurer submits that the claim fails principally on two grounds – firstly, that the Applicant did not discharge her onus that her injuries fall outside the Minor Injury Guideline, and secondly that her claim fails as a result of inconsistencies in her evidence.

ANALYSIS

The determinative issues in this Arbitration are whether the Applicant has satisfied, with sufficient evidence, that her injuries fall outside the Minor Injury Guideline, and whether proposed treatment as per the denied treatment plans was reasonable and necessary.

Minor Injury Guideline

I accept that the description and interpretation of the Minor Injury Guideline is accurately set out in the written submissions of the Insurer. For the sake of clarity, I adopt this characterization from the written submissions and repeat them as follows:

In Scarlett and Belair Insurance Co.², Mr. David Evans, Director's Delegate from the Office of the Director of Arbitrations, clarified the law with respect to the applicability of the Minor Injury Guideline ("MIG"):

The law, briefly, provides that:

a minor injury means 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 [SABS, s. 3(1)]

and further, that an insured who sustains an impairment that is predominantly a minor injury can receive no more than $3,500 towards medical and rehabilitation expenses (including assessments) [SABS, s. 18(1)]

an exception for pre-existing conditions may apply based on "compelling evidence" [SABS, s. 18 (2)]³

Director's Delegate Evans emphasized the appropriate legal test to apply in determining whether a claimant's impairments fall within the MIG is whether the claimant's injuries are predominantly minor, not simply whether any particular injury is a minor injury.

Furthermore, a claimant's injuries will be subject to the MIG even if some of the injuries are not clinically associated sequelae of a minor injury, as long as the claimant's impairment is predominantly a minor injury.⁴

In the event that the claimant's impairments do fall within the MIG, section 18 and section 38(3)(c)(i) of the SABS allows for exceptions in the face of "compelling evidence" showing the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery under the MIG. Director’s Delegate Evans emphasized that "compelling evidence" means more than simply credible evidence.

However, the existence of a pre-existing medical condition does not automatically exclude a person's impairment from the MIG and it is intended that the vast majority of pre-existing conditions will not do so.⁵

Director's Delegate Evans, in Scarlett also reiterated that the legal onus always remains on an insured as the claimant always has the burden of proving that he or she fits within the scope of coverage.⁶

The appeal decision by Director's Delegate Evans in Scarlett and Belair was judicially reviewed and upheld by the Divisional Court. Justice Gordon of the Divisional Court in Scarlett v Belair Insurance.⁷ [sic]

Gordon J. further supported the Director's Delegate's interpretation of the meaning of "compelling evidence", recognizing that "compelling" is directed at the sufficiency of the evidence required to meet the standard and whether the evidence is sufficiently compelling is determined on the facts and medical evidence of each individual case.⁸

It is usually a difficult task for an Arbitrator confronted with conflicting opinions, a dilemma often described as adjudication on “the battle of the experts”. In this file, there are the conflicting opinions of Drs. Mills and Langer (for the Applicant) on the one hand, and Drs. Ginty and Mandel (for the Insurer) on the other hand. Drs. Mills and Langer conclude that the Applicant’s injuries/condition fall outside the Minor Injury Guideline whereas Drs. Ginty and Mandel conclude otherwise.

Although medical reports constitute evidence which is considered by an adjudicator, in a case such as this where the medical reports conflict, it is helpful if the experts are also made available for cross-examination.

However, neither party chose to go that route, and what I am left with is the written medical reports and the testimony of the Applicant, the only witness who was called.

Arguably, the strongest medical opinion which might support the Applicant’s position that her injuries fall outside the Minor Injury Guideline is the letter of her psychologist, Dr. Mills.

His report, dated March 28, 2014,⁹ states that “Given the serious and recalcitrant nature of the patient’s ongoing physical pain and psychological impairment as a direct result of the MVA, this patient should NOT fall under the minor injury guidelines (MIG) category. The accident has materially contributed to the patient’s impairment and poses a significant barrier to her functioning” (emphasis added).

Dr. Mills administered several tests in arriving at this conclusion as well as interviewing the Applicant. An important element in the tests, as is evident from the report, is the Applicant’s own self-reporting. It would therefore be important that overall the Applicant’s responses be consistent with previous responses she may have provided, and particularly so with her testimony in this hearing.

Dr. Mills noted that as of the date of the assessment, more than one year following the accident, the Applicant reported that “she is highly restricted in her activities as she drives only to work and back and does not drive for any other reason.”¹⁰

He also noted her comment that she has stopped driving unless it’s absolutely necessary.

The Applicant’s own testimony at the Hearing was not consistent with her narrative to Dr. Mills. She testified that she continues to drive to and from work, including driving her daughter to school, every day following her accident.

This inconsistency is important since it is contrary to the narrative reported to Dr. Mills, and had her narrative to him been consistent with her testimony, it might have materially affected his conclusion. In light of this, I give no weight to Dr. Mills’ conclusion.

Dr. Langer’s report,¹¹ which also states that the Applicant falls outside the Minor Injury Guideline, is equally undermined by the Applicant’s lack of credibility. He also did not list in his report what tests were administered in arriving at his conclusions. Further, he diagnoses chronic pain in the absence of describing what clinical tests were performed to reach this conclusion.

Overall, the Applicant’s testimony lacked credibility. She provided no cogent explanation why she failed to mention the accident to her family doctor during five visits following the accident, not until August 2013, which was almost six months post-accident, despite other reports on file which describe significant pain in that period. Her explanation that she only dealt with a single issue per visit is not plausible. Were that the case, she could have scheduled in appointments to discuss her accident related problems. She also suggested that her pattern was to largely self-treat in most cases, but this is contradicted by her family doctor’s notes that she was treated for other issues during that time.

In view of the above reasons, I find that the Applicant has not met her onus in demonstrating that her injuries fall outside the Minor Injury Guideline.

I find similarly then that her proposed treatment is neither reasonable nor necessary. The Applicant has not provided any credible evidence that she is entitled to her claim for medical benefits pursuant to s. 15 of the Schedule, and I repeat the reasons provided above.

CONCLUSION

Mrs. Reema Maryam’s Application for Arbitration is dismissed.

EXPENSES:

State Farm is entitled to its expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 26, 2016

Harvey Savage Arbitrator

Date