Neutral Citation: 2016 ONFSCDRS 317 FSCO A15-000871

BETWEEN:

LESLIE DU Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Benjamin Drory Heard: In person at ADR Chambers on October 5 & 6, 2016 Appearances: Mr. Tom Yen and Ms. Faith Chan for Mr. Leslie Du Mr. Jason Kerr and Mr. Eric Levin for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mr. Leslie Du, was injured in a motor vehicle accident (“MVA”) on August 22, 2013. He sought accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his 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 Mr. Du entitled to payment for the cost of examinations in the amount of $1,270.00 for the cost of an assessment of attendant care needs (Form 1) provided by Perfect Physio, dated August 29, 2013?
Is/Are Mr. Du’s impairment(s) predominantly a minor injury and subject to the Minor Injury Guideline (“MIG”)?
Is the Applicant entitled to interest on overdue benefits? (The parties agreed at the Pre-Hearing that the cut-off date for the calculation of any interest owing would be June 1, 2016).
Is either party entitled to its expenses of the Arbitration?

Result:

Mr. Du is not entitled to payment for the cost of an assessment of attendant care needs (Form 1) provided by Perfect Physio, dated August 29, 2013.
Mr. Du’s impairment(s) are predominantly a minor injury, and subject to the MIG.
As Mr. Du has not established entitlement to any benefits, he is not entitled to interest on overdue benefits.
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:

At the commencement of the Hearing, the parties mutually advised that on the evening before the Hearing, Mr. Du withdrew the issue previously in dispute respecting Attendant Care Benefits. However, the cost of completion of the Form 1 assessment to determine the recommended amount for the Attendant Care Benefit remains an issue in dispute for this Arbitration.

The majority of the evidence in this case was presented by way of oral examination-in-chief and cross-examination of witnesses.

Mr. Du

Mr. Du testified that while driving at 9:00 p.m., headed westbound on Highway 7 in Markham, his vehicle was struck on the left side as another vehicle attempted to merge into his lane. Both vehicles were travelling at a speed of approximately 60-70 km/h. Mr. Du’s vehicle hit the curb following the initial impact from the other vehicle; Mr. Du hit his body, and particularly left knee, against the driver-side door. He stated he suffered injuries to his neck, lower back, left knee, and shoulder. Immediately following the MVA, Mr. Du reported his neck felt sore and numb. He sought medical treatment 1-2 days later at Dr. Palantzas’ clinic. Dr. Palantzas recommended and administered physiotherapy and chiropractic treatment. Mr. Du reported he still feels pain in his lower back and extremities, and had to sit in a particular pose during the Hearing. He is constantly numb, and pain goes down the left side of his body. The pain affected his activities of daily living. He lives at home with his mother. He used to make his bed on a daily basis, but now it is hard to do that. It is also now difficult for him to help with the upkeep of the bathroom, making food, laundry, and cleaning. His mother currently helps about 45-60 minutes/day. He stated his abilities at work were also affected; he stated it is difficult to lift 30-50 pounds, and he tires faster than some of his older colleagues. Mr. Du is currently 25 years old.

On cross-examination, Mr. Du testified that he had no health problems before the MVA and was a healthy individual. He was a full-time student at the time, but was not able to specify what school or what program he was taking (he switched schools and majors several times). Mr. Du’s Application for Benefits (OCF-1)² indicated that he was enrolled in Criminology at York University effective September 7, 2013. Mr. Du stated the MVA occurred sometime in the evening of August 22, but he didn’t know the exact time because it was dark. His vehicle was towed after the MVA; police attended, but an ambulance was not called. He didn’t recall if he went to the hospital that night but stated he took Tylenol and Advil. His symptoms worsened following the MVA, but he acknowledged there were no fractures and he did not sustain a head injury. There was no imaging or MRIs, CT scans, or ultrasounds completed, nor any other referrals beyond Dr. Palantzas. Mr. Du confirmed that the first professional he saw after the MVA was not a doctor, but rather his lawyer. Security National produced a direction from Mr. Du, dated August 22, 2013 (the day of the accident), authorizing Yeung & Associates to act as his legal representative respecting the matter.³ When asked for clarification, Mr. Du altered his previous statement and said that the MVA actually took place in the early hours of August 22, 2013, at 1:00 or 2:00 a.m. (i.e., in the early-morning hours following August 21, 2013).

Dr. Palantzas completed a Treatment and Assessment Plan (OCF-18) for Mr. Du, dated August 28, 2013. The Treatment Plan was in the amount of $3,106.80, and was partially approved for $2,200.00.⁴ Mr. Du never disputed the balance ($906.80). There was no further treatment received by Mr. Du and no subsequent Treatment Plans were submitted.

Security National submitted a letter it sent to Mr. Du, dated September 24, 2013, with respect to Dr. Palantzas’ Treatment Plan.⁵ It stated, in part:

We regret to inform you that we are unable to approve the goods, services and/or assessments on the basis that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline. Our determination is based on the following information:

Reported injuries are minor in nature.

Based on the above rationale, we will not forward payment of the above goods and services and/or assessments and the OCF-18 will not be subject to an insurer examination. If you have medical information that you feel would exempt you from treatment under the Minor Injury Guideline, please forward it for our review and consideration.

Please note we are willing to approve treatment for you based on the assumption that your impairment is a minor injury. We agree to waive the completion of a Treatment Confirmation Form (OCF-23) and will make payments in accordance with the Minor Injury Guideline.

Security National submitted that the $2,200.00 was pre-approved, and no further Treatment Plans were received. Mr. Du confirmed that he never saw his family doctor (“GP”) regarding the MVA; he didn’t think it was necessary as he was already seeing Dr. Palantzas. He stated he sought some further additional treatment, but never advised his counsel about it. When asked why he didn’t provide this information to his counsel, he stated he “just found out about this Arbitration yesterday.” He agreed this was a lapse in judgment and he should have advised his counsel.

Security National submitted the clinical notes and records of Mr. Du’s GP, Dr. Chu,⁶ which confirmed that Mr. Du had not attended at his office since August 1, 2013 (i.e., prior to the MVA). Mr. Du acknowledged that he had formerly been involved in a painful workplace injury, and that the old records pertained to the workplace accident.

Security National provided Mr. Du’s decoded OHIP Summary for the claim period from January 1, 2012 to February 16, 2016.⁷ The OHIP Summary revealed Mr. Du had not visited any OHIP practitioners between August 1, 2013 and May 3, 2014. Appointments in May 2014 and March 2015 were related to new issues clearly unrelated to the MVA.

Dr. Georgia Palantzas

Dr. Palantzas is a chiropractor, who has had an active practice out of three facilities since 2004. She routinely does assessments respecting accident benefits matters.

Dr. Palantzas recalled seeing Mr. Du in-person. Her notes indicated that at the time, he was in school full-time, in his first semester at Humber College regarding paralegal studies.⁸ He was young, and complained of radiating pain in his left leg. He said he hadn’t seen a GP yet, and lived with his parents. His symptoms were to his left knee, radiating pain, anxiety, and headache. She diagnosed radiculopathy—a condition when multiple nerves are affected. She determined this because of numbness and tingling down his legs. The diagnosis requires a loss of sensation, diminished reflex, and loss of motor skills. The Applicant said he had diminished sensation, and Dr. Palantzas’ testing found he had a diminished effect in his L5 hamstring tendon. Part 8 of her Treatment Plan⁹ outlined that the Applicant had weakness in his legs, decreased sensation, decreased reflex action, and difficulty controlling specific muscles in the lumbar spine radiating into the left leg.

Part 8 of Dr. Palantzas’ Treatment Plan also stated that the Applicant was “not MIG”. As a result of the Applicant’s procedural non-compliance with provisions of section 42 of the Dispute Resolution Practice Code (“Expert Witnesses”),¹⁰ Dr. Palantzas could not be defined as an Expert Witness for the purpose of this proceeding, and accordingly she was not allowed to provide opinion evidence in the way that an Expert Witness could do. Nevertheless, her conclusion as of August 28, 2013 (6 days following the MVA) that the Applicant’s injuries did not fall within the MIG was clear from the written record.

On cross-examination, Dr. Palantzas said it would be hard for an Applicant to lie respecting how their reflexes reacted to testing. She assumes patients are truthful, but also watches the way they walk in (for example, if they exhibit pain walking in). She suggested that an Applicant’s truthfulness (for example, the way an accident happened, or whether it happened at all) would have no bearing on her assessment. She said radio imaging and MRIs were not needed to make her diagnoses, although they could be helpful to show tears. She felt confident there was no need for further specialists in the Applicant’s case. Dr. Palantzas was not aware of any further treatment required, nor did she have any record of how Mr. Du responded to the treatment. She said that Mr. Du could continue school, but probably not to the full capability that he could before the accident. She acknowledged that part of her job was to complete Treatment Plans for her employer (Perfect Physio), and that her employer would benefit if those treatments were approved. But she was unaware of any relationship between her employer and Yeung & Associates.

Of note in Dr. Palantzas’ OCF-3, she stated in Part 3 (“Accident Description”) that the MVA happened “[o]n August 22, 2013, at approximately 4 am.”¹¹

Ms. Elizabeth Smolinger

Ms. Smolinger has been an accident benefits claim analyst at TD Insurance for 9½ years. She took over the file internally in January 2016 from Mika Ridell. With respect to the determination that Mr. Du’s injuries fell within the MIG, this would have been based on the OCF-1 (Application for Accident Benefits), OCF-3 (Disability Certificate), and OCF-18s (Treatment Plans), filed on the Applicant’s behalf. Based on the injuries listed by the practitioners, the injuries were soft tissue injuries including sprains, strains, and headaches.

A letter sent by TD Insurance to Mr. Du on September 12, 2013¹² advised the Insurer had received the Assessment of Attendant Care Needs (Form 1) prepared by Li Jing, dated August 28, 2013, but had made a determination that Mr. Du was not entitled to payment of expenses related to an Attendant Care Benefit on the basis that Mr. Du’s impairments were within the MIG. Following receipt of Dr. Palantzas’ Treatment Plan in the amount of $3,106.80, TD Insurance issued a letter to Mr. Du, dated September 24, 2013.¹³ The letter explained that Mr. Du’s reported injuries were minor in nature, but the Insurer approved $2,200.00 of the $3,106.80 claimed. Ms. Smolinger advised that the Insurer had paid Mr. Du $2,715.00 in Medical/Rehabilitation Benefits to date¹⁴—which represented an overpayment relative to the $2,200.00 approved.

On cross-examination, Ms. Smolinger acknowledged that the determination that Mr. Du fell within the MIG was made without the benefit of an Insurer Examination (“IE”). The Insurer did not ask for treatment records or a decoded OHIP Summary. The documents the Insurer relied upon to conclude Mr. Du fell within the MIG were Dr. Palantzas’ OCF-3 and OCF-18, as well as Li Jing’s Form 1 and the attached Attendant Care Assessment Report.¹⁵

Evidence was submitted detailing various requests¹⁶ made by the Insurer’s counsel to Yeung & Associates requesting (among 22 other items) documentation to substantiate Mr. Du’s claim that the injuries he sustained were outside of the MIG. Ms. Smolinger advised that nothing was received in 2015; when correspondence was received in 2016, an IE was set up to determine if the Applicant was indeed within the MIG.

Dr. Michael Boucher

Dr. Michael Boucher was identified by the Insurer as an expert in Chronic Pain Management for the purpose of this Hearing. The Applicant did not object to this. He conducted a paper file review on August 30, 2016, when asked by the Insurer to assess whether the Applicant’s impairments fell within the MIG. Dr. Boucher opined that Mr. Du sustained soft tissue injuries, being strains and sprains of muscles, tendons, and ligaments. The usual prognosis for recovery from such injuries is that many patients recover in days, or it may take 10-12 weeks to return to normal function. All of the physical injuries present in Mr. Du’s case met the parameters of the MIG.

Reviewing the OHIP Summary,¹⁷ Dr. Boucher noted that after the MVA, Mr. Du only attended physicians respecting burns and gastrointestinal issues; he hadn’t been seen by any physician respecting the MVA. This was significant to him for two reasons. First, his opinion was that if Mr. Du had soft tissue injuries, they would likely have resolved on their own—so he was not surprised that Mr. Du didn’t seek treatment from practitioners. Second, if the MVA was serious, he would have expected that the Applicant would have sought treatment for it. If follow-up care was needed, he would have expected him to see his family doctor, since he had visited his family doctor prior to the MVA. Sprains and strains are consistent with the MIG, and there was no evidence presented in the documentation that would warrant removing Mr. Du from the MIG, or evidence of any pre-existing condition that would prevent recovery thereunder. Dr. Boucher’s opinion was that Mr. Du fell within the confines of the MIG.

Dr. Boucher’s opinion was that there was no diagnostic testing outlining any level of radiculopathy. He stated that radiculopathy is a nerve irritation that causes pain below the calf and foot. If present, he would order imaging of the lumbar spine, and an MRI would be appropriate, especially if the pain was long-standing (i.e., longer than 12 weeks). Dr. Boucher was asked to assess Dr. Palantzas’ diagnosis of radiculopathy. With respect to reflexes, he said the result identified is difficult to elicit from most people. Respecting motor function, he noted the 0-5 scale wasn’t used as intended; there was just a check mark. He also would have expected “SLR passive, active” (under Lumbar) to be checked, but it was not listed as positive. Respecting nerve pain to the hamstrings, it was possible the Applicant had a mild sprain or irritated hamstring, but he wouldn’t have considered it radiculopathy. It was too soon to make that diagnosis based on the complaints. Even if radiculopathy was the correct diagnosis, he still would have considered the Applicant within the MIG, as radiculopathy is sequelae of a soft tissue injury.

On cross-examination, Dr. Boucher acknowledged that he only conducted a paper review, and never assessed the Applicant personally. He stated that if there is true radiculopathy, then symptoms will usually result. For example, there can be numbness, weakness (would have to be very severe), and tingling. An in-person assessment can be required in some cases, and where he is of that opinion, he advises Insurers of such. But in this case, he didn’t think that seeing the Applicant 3 years following the MVA would make a difference. The documentation said the Applicant had no ongoing complaints.

Closing Arguments

Mr. Yen reiterated that Dr. Palantzas met with the Applicant and assessed him the same day (August 28, 2013). She listed radiculopathy in the lumbosacral region as among the most significant symptoms. Dr. Palantzas said that radiculopathy is a nerve injury different from a sprain or strain. A nerve injury could take an Applicant out of the MIG. The Insurer’s denials were done in a vacuum, without the assistance of IEs. Under case law and s. 38 of the Schedule Insurers must explain why they are denying a benefit, and the Insurer never outlined why the MIG applied. The Insurer failed to assess and reassess the matter as new information became available—after Dr. Chu’s records were sent in February 2016, the Insurer held onto this information and waited until August 2016 to commission an IE Report (the August 30, 2016 paper review was completed 36 days before the Hearing). The Applicant also suggested the Insurer never advised why the cost of the Form 1 was not payable.

The Insurer argued that no benefit was actually denied here. The claim for Attendant Care Benefits had been withdrawn. Only a cost of examination remained—for which the Applicant just incurred the treatment and then requested reimbursement, failing to make claim through the mandated procedure (i.e, HCAI¹⁸). If the Applicant wanted the examination covered, it would have been appropriate to submit it to the Insurer first for consideration. The only other issue in dispute was the MIG, which is also not a benefit, rather it is a determination that can lead to accessing further benefits. The requirement in s. 38(8) of the Schedule for Insurers to provide reasons for denials only applies to treatment and assessment plans (OCF-18s).

The Insurer reiterated that Dr. Boucher said radiculopathy fit within the definition for clinically associated sequelae of a soft tissue injury. A “sequelae” (part of the definition of “minor injury” in s. 3(1) of the Schedule) is defined as stemming from, or a secondary consequence of.

The Insurer stated that the MVA was late at night, and the Applicant reported pain the next day; but no ambulance was involved, nor any trip to the hospital or doctor. In fact, the first person Mr. Du saw was a lawyer, within 24 hours of the MVA.¹⁹ The Insurer readily agreed to pay $2,200.00 of the initial OCF-18 within the MIG, and subsequently advised the Applicant of its MIG determination in its September 24, 2013 letter.²⁰ The letter asked the Applicant to submit any evidence to the Insurer that his injuries sustained from the MVA fell outside of the MIG. The Applicant never disputed the partial denial of the OCF-18, and no further documentation was received until 2½ years later in 2016.

The Insurer argued that the wording of the MIG requires that injuries be “predominantly minor”—it needn’t require all injuries to be minor, just mostly. Dr. Palantzas’ initial determination listed the following when asked in the OCF-3 to “provide a description (most significant listed first) for injuries and sequelae that are the direct result of the automobile accident”:²¹

Dislocation, sprain and strain of joints and ligaments of knee
Radiculopathy, lumbosacral region
Injury of muscle and tendon at neck level
Dislocation, sprain and strain of joints and ligaments of thorax
Dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis
Phobic anxiety disorders
Headache
Dislocation, sprain and strain of joints and ligaments of shoulder girdle

The most common listings are sprains and strains. No evidence of any psychological disorder was presented at the Hearing. No imaging was ever conducted nor any referrals made to other practitioners to suggest any ongoing issues. I accept Dr. Boucher’s statement at face value that radiculopathy could be a sequelae to soft tissue injuries. In short, all of the injuries were either soft tissue injuries or closely-related sequelae. The Applicant confirmed that when he had issues, he would go see his doctor—but he hadn’t visited his family doctor in over 3 years since the MVA. Dr. Boucher’s evidence was that Mr. Du’s approach was consistent with what one would expect from someone with mainly soft tissue injuries—i.e., he would expect them to resolve after a short period of time. There was no documented evidence of any ongoing impairments.

Respecting the cost of the Form 1 (Assessment of Attendant Care Needs), it was incurred before it was submitted to the Insurer via HCAI. Section 38(8) of the Schedule is only triggered by OCF-18s, which was not the case here. An Attendant Care Report is an expense respecting the Attendant Care Benefit, and although that was not an issue in dispute in this Hearing, the Insurer submits that under s. 14 of the Schedule, if an Applicant is deemed to be within the MIG then they are not entitled to the Attendant Care Benefit. The Insurer had advised the Applicant of its position that the Applicant was within the MIG, and had not received documentation to its satisfaction to identify that the Applicant’s injuries fell outside of the MIG. The Insurer submitted that the Form 1 and the Attendant Care Report could not be reasonable and necessary if the Applicant was not entitled to the Attendant Care Benefit. The Applicant’s own evidence didn’t suggest issues with attendant care (e.g., difficulty caring for himself, etc.). The Applicant expressed difficulty with cleaning his room, which would be applicable to the Housekeeping Benefit (an optional benefit not opted into) rather than the Attendant Care Benefit.

Mr. Yen countered in reply that providing assistance to the Applicant in making his bed is part of the Attendant Care Benefit, per a standard Form 1.

Analysis

It is trite law, but bears repeating—the Applicant bears the onus of proving his impairments are of sufficient severity not to be classified within the MIG. I am satisfied that the Applicant did not meet that onus in this case.

The Applicant’s entire case was founded on reports arising out of a visit with Dr. Palantzas 6 days after the MVA, on August 28, 2013. The Applicant never subsequently sought any further treatment for injuries arising out of the MVA, for over 3 years. I found the testimony of both Dr. Palantzas and Dr. Boucher helpful; in the end though, I simply prefer the testimony of Dr. Boucher on key points. I accept Dr. Boucher’s testimony that even if radiculopathy was correctly diagnosed (which he denied, as 6 days following the accident was too soon to make such a temporally-based diagnosis), this still would not automatically qualify the impairments as falling outside of the MIG, as radiculopathy can be a clinically-associated sequelae arising out of soft tissue injuries. This being the case, the impairments identified by Dr. Palantzas were predominantly soft tissue injuries (sprains, strains), which are exactly the kinds of impairments identified as appropriately falling within the MIG. Dr. Palantzas acknowledged that she never conducted any follow-up review of Mr. Du to see how he was responding to the initial treatment, which was provided 6 days after the MVA.

I share Dr. Boucher’s concern respecting the Applicant’s history of attending treatment. The fact Mr. Du has never visited his family doctor at all since the MVA, combined with the fact he sought no further treatment regarding the MVA following his visit with Dr. Palantzas, suggests either the symptoms resolved, or he at least felt he had healed sufficiently that no more medical appointments were necessary. There was evidence that the Applicant had seen other physicians in 2014 and 2015 for issues unrelated to the accident.

I did not find the Applicant’s testimony reliable in terms of establishing the truth of essential facts. For example, the testimony and the documentation established four different possible times for the time of the MVA—9:00 p.m., 1:00 a.m., 2:00 a.m. or 4:00 a.m. I simply find it hard to accept that anybody involved in such a notable incident would have difficulty distinguishing between whether it occurred at 9 in the evening or 4 in the morning. The evidence from the fall of 2013 was also unclear regarding what academic institution Mr. Du was attending at the time—he may have been enrolled in either Criminology at York University or Paralegal Studies at Humber College. That is a big detail in one’s life. If big details cannot be relied on, then it is difficult to put much faith in smaller details reported. I find the Applicant’s choice not to visit any doctors in the last three years respecting the MVA suggests more about how he perceives his condition than anything he or his counsel could suggest orally.

Respecting the cost of the Form 1, I am in agreement with the Insurer that it was not reasonable or necessary. Under the Schedule, an Attendant Care Benefit is not payable while an Insured is classified within the MIG. I find that the Applicant was informed early in the process (September 2013, one month following the MVA) that the Insurer believed he fell within the MIG, and the Insurer invited him to provide evidence to the contrary if he disputed that. This was not attempted in any way until at least February 2016. If an Attendant Care Benefit could not be claimed while the Applicant was within the MIG, it is difficult to see how reports attempting to establish such a claim could be reasonable without also marking stronger efforts to establish that the Applicant was not within the MIG. The Form 1 was also not submitted according to the procedure identified within the Schedule.

I also have the further benefit of knowing that the Attendant Care Benefit claim was ultimately withdrawn by the Applicant and not pursued on the basis of evidence. That does little to support the notion that the assessment of attendant care needs had ever been reasonable or necessary.

All of the Applicant’s claims are dismissed accordingly.

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.

November 28, 2016

Benjamin Drory Arbitrator

Date

Financial Services Commission of Ontario