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

Neutral Citation: 2017 ONFSCDRS 260

FSCO A15-005048 FSCO A15-005097

BETWEEN:

LISA KNOTT

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Marcel D. Mongeon, Arbitrator

Heard: In person at Hamilton on August 29 and 30, 2017

Appearances: Ms. Lisa Knott participated Mr. Robert N. Kostyniuk, Lawyer, participated for Ms. Knott Mr. Mohamed Hashim, Lawyer, participated for State Farm Mutual Automobile Insurance Company.

Issues:

The Applicant, Ms. Lisa Knott, was injured in motor vehicle accidents on November 23, 2012 and December 5, 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 Ms. Knott, 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 for both Motor Vehicle Accidents (“MVAs”). The two files (A15-005048 for the November 23, 2012 MVA; and A15-005097 for the December 5, 2012 MVA) have been related for this Hearing.

The issues in this Hearing are: In the first file (A15-005048):

Are the Applicant’s injuries as a result of the November 23, 2012 accident predominantly a ‘minor injury’ within the meaning of the Schedule?
Is the Applicant entitled to receive a non-earner benefit from either December 21, 2012 or May 21, 2013 to November 23, 2014?

In the second file (A15-005097):

Are the Applicant’s injuries as a result of the December 5, 2012 accident predominantly a ‘minor injury’ within the meaning of the Schedule?

In both files:²

Is the Applicant entitled to payment of any of the following treatment plans on Form OCF-19 all dated April 3, 2014:

a) A chronic pain assessment for $1,950.00;

b) A neurological assessment for $1,980.00; and

c) An attendant care needs (Form 1) assessment for $1,554.28.

Is either party entitled to its expenses of the Hearing?

Result:

The Applicant’s injuries as a result of both accidents are predominantly a ‘minor injury’.
The Applicant is not entitled to receive a non-earner benefit.
The Applicant is not entitled to receive payment for any of the listed treatment plans.
The parties have agreed that, if they 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:

Preliminary Matter

At the outset of the Hearing, the Applicant’s representative requested an Adjournment. The basis of the Adjournment was that the previous day, the Applicant had filed appropriate documents to Appeal a decision of a Pre-Hearing Arbitrator in this matter. I was provided the appeal documents which appeared to be in good order. In addition, I had the Pre-Hearing Arbitrator’s letter of June 29, 2017 adjourning the matter to current dates and the Pre-Hearing Arbitrator’s letter of August 25, 2017 and accompanying formal order denying the Applicant’s motion for a declaration that a settlement had been entered into and assistance with the enforcement of that settlement.

The Insurer’s representative brought my attention to section 50 of the Dispute Resolution Practice Code (“DRPC”). Section 50.3 thereof is clear:

50.3 An appeal does not stop an arbitration order from taking effect, unless the Director orders otherwise.

On the basis of this section, I noted that I did not have any information that the Director had ordered a stay based on the Appeal. Accordingly, 50.2 made it clear that the formal order continued to be operative. I made the decision that the Appeal did not, on its own, require me to adjourn the Hearing and, accordingly, I proceeded.

Testimony

Only the Applicant testified. All other evidence was presented in the documents briefs filed. Exhibit 1 is a document brief relating to the first MVA; exhibit 2 is a document brief relating to the second MVA.

Facts

The Applicant was involved in a MVA on November 23, 2012. She was a seat-belted passenger and had a dog on her lap. The car was driven by her boyfriend, Loren. As the car approached another car stopped in front of it, the Applicant’s dog jumped from her lap towards the driver of the car she was in. The driver became confused with the dog jumping on him and pressed the gas instead of brake pedal. The car ran into the car in front of it.

The air bags of the Applicant’s car did not deploy. Information from a forensic engineering report suggests that the speed of the car at impact was between 10 and 15 km/h.³ At different times, the Applicant has stated that she may have hit her head at the time of collision. Because of the inconsistency and the lack of any other evidence of a hit to the head, I have given little weight to this recollection.

Immediate medical attention was not provided. It took the Applicant a few days to see a doctor. The Applicant’s OHIP record⁴ records a visit with Dr. Seth-Sharma on November 26, 2012 for a diagnostic code of “Lumbar strain, Lumbago, Coccydnia, Sciatica”. The next entry on the OHIP record is February 14, 2013.

The Applicant testified to having depression and anxiety after the MVA. She also said she had post-traumatic stress disorder (“PTSD”), back pain and sciatica pain. In relation to her anxiety, she specifically noted flashbacks and dreams of dying in a MVA. The Applicant was insistent that her pain was a direct result of the November 23, 2012 MVA.

The Applicant signed an Application for Accident Benefits (“OCF-1”) form on December 1, 2012.⁵ The Applicant also signed an Election of Income Replacement, Non-Earner and Caregiver Benefit (“OCF-10”) form on November 24, 2012.⁶

A Disability Certificate (“OCF-3”) form for the Applicant was completed on November 29, 2012 by Samar Arabnezhad, Chiropractor of Activa Clinic Mississauga.⁷ This document notes an examination of the Applicant on November 29. In addition, under Part 7, three further evaluations or assessments are suggested. These are: In Home Assessment, Functional Ability Evaluation and Psychological Assessment. The Injury and Sequela Information reported 14 different conditions arising as a direct result of the MVA including headache, WAD3, sprain and strain of lumbar spine, sprain and strain of right knee and right wrist, contusion of right knee and right wrist and possible concussion.

On December 5, 2012, the Applicant was involved in a second MVA.⁸ She was a seat-belted passenger. The car was driven by her boyfriend, Loren. There was a third person in the back seat of the car. Another car collided with the Applicant’s car in the front left. The air bags did not deploy nor were there any emergency vehicles which attended the scene. The Applicant did not seek any immediate medical care.

An OCF-1⁹ and an OCF-10¹⁰ for the second MVA were completed.

An OCF-3 for the second MVA was completed for the Applicant on January 22, 2013 by Samar Arabnezhad, Chiropractor. It is in almost identical form to the OCF-3 filed for the first MVA: it again recommends the same three evaluations or assessments and includes 15 (not 14) different conditions the new one being “muscle strain – 2nd right digit”.

As between the two MVAs, the Applicant has testified that, in her view, the impact of the two MVAs could be allocated 99% to 1%: 99% of her complaints can be attributed to the first MVA with only a negligible 1% being attributed to the second MVA.

The Applicant has testified that at all times she has been independent as to personal care activities.

On February 27, 2013, Samar Arabnezhad, Chiropractor, completed a Minor Injury Treatment Discharge Report (“OCF-24”) form for the first MVA. That form indicates that “Ms. Knott was involved in another motor vehicle Accident on December 5, 2012. Therefore, a treatment plan will be submitted for treatment of injuries she sustained in that accident.” The form also indicated that “Ms. Knott continues to suffer from limitations in prolonged sitting/standing/walking, heavy lifting/carrying/pushing/pulling and repetitive/sustained bending/reacting/stooping. These limitations were aggravated by her recent accident of December 5, 2012.”

The Insurer advised that the payment to date for treatment arising from the first MVA is $802.50. In addition, an additional treatment plan for $1,914.80 for treatment was approved and incurred but not yet paid because of errors that the clinic made in billing the amount. These two amounts total $2,717.30 incurred on the first MVA.

The Insurer has also advised that no treatment has been sought relating to the second MVA alone and no payments have been made thereunder.

On February 14, 2013, the Applicant was assessed by a physiatrist selected by the Insurer.¹¹ The purpose of the assessment was to consider the Applicant’s application for treatment under the Minor Injury Guideline (“MIG”). As part of the assessment, the Applicant is noted as reporting headaches, neck pain and lower back pain.

The Insurer’s report concluded with a diagnosis of WAD II, lumbar strain and a subjective light touch sensory loss. The report concludes that it was appropriate that the injuries be treated under the MIG and there is no reason that the Applicant could not reach maximal recovery within the treatment limitations.

Three OCF-18s proposing treatment with a date of April 3, 2014 are in evidence proposing evaluations or assessments as follows:

A chronic pain assessment to be conducted by Dr. Igor Wilderman for $1,950.80¹² proposed relating to the second MVA by Rhuel Maano, Chiropractor. The form is not signed. In the additional comments, the basis of the recommendation to conduct such an assessment is given that the Applicant on April 3, 2014 reported ongoing and persistent pain symptoms attributable to the MVA injuries.

A neurological assessment to be conducted by Dr. Lance Maji, neurologist for $1,980.00¹³ proposed relating to the second MVA by Rhuel Maano, Chiropractor. The form is not signed. In the additional comments, the basis of the recommendation to conduct such an assessment is given that the Applicant on April 3, 2014 reported the persistence of headaches, dizziness, visual disturbances, tinnitus, and right upper limb neurological symptoms.

An Attendant Care Needs (“Form 1”) assessment to be conducted by Parisa Noori, OT, for $1,554.28¹⁴ proposed relating to the second MVA by Rhuel Maano, Chiropractor. The form is not signed. In the additional comments, the basis of the recommendation is given that the Applicant on April 3, 2014 indicated that her MVA injuries have resulted in difficulties and symptom aggravation with performing her various pre-MVA activities in daily living.

The clinical notes and records of the Applicant’s family medicine clinic are in evidence.¹⁵ As part of his submissions, the Applicant’s representative wanted to highlight the following points therein:

May 16, 2013: Anxiety; has family history; not suicidal
May 17, 2013: Saw Dr. Clement yesterday for ? anxiety; has trouble focusing; sleeping pattern is off
May 28, 2013: 2 MVAs this year
Oct. 22, 2013: Chiropractor note for neck/back spasms 1+ year from MVA
Nov. 12, 2013: Patient request for psychotherapist re PTSD and panic attacks around 2 MVAs; right arm muscular pain

The Applicant had a baby girl on February 1, 2017. The Applicant reported no problems with the pregnancy, birth or development of her child.

The Applicant was accompanied by her daughter during this Hearing with my permission. During the Hearing I noted that the Applicant was able to deal with her active 7-month old daughter easily including feeding, lifting and holding her for extended periods of time with no request to take a break from testifying.

Argument relating to start date of Non-Earner Benefit

The Applicant’s representative argued that the non-earner benefit should begin 4 weeks after the initial MVA. His rationale is based on how section 12 of the Schedule (especially subsections 12(2) and 12(3)) read after it was amended by O.Reg. 251/15.¹⁶

I reject the argument for the following reason. O.Reg. 251/15 also amended section 2 of the Schedule by adding subsection 2 (1.2). This subsection makes it clear that, with respect to section 12, contracts of insurance “entered into or renewed on or after September 1, 2010 and before June 1, 2016” will be read in accordance with the old section 12.

In this case, the MVAs were in November and December 2012. Subsection 2 (1.2), therefore makes it clear that the old section 12 – which provides for a 6 month waiting period for the non-earner benefit – is applicable.

Another means of coming to the same conclusion is to note that the change to section 12 did not come into force until June 1, 2016. Any right to a non-earner benefit in this case based on MVAs in 2012 is established based on the 6 month waiting period.

Argument relating to applicability of OCF-18s to first MVA

The Applicant’s representative argued that although the three OCF-18s proposing evaluations or assessments that are in dispute in this Hearing all refer to the date of second MVA, I can consider them as relating to the first MVA as well. Although this was opposed by the Insurer’s representative, I agreed that I can consider the treatment plans as applicable to either MVA and have done so in this decision. This is not the normal practice. Treatment plans are usually clearly labelled as pertaining to a specific MVA. However, nothing changes in the result by permitting this analysis.

Analysis on Minor Injury Guidelines for both MVAs

As noted above, the Applicant herself acknowledged that the second MVA can only be considered to be 1% of any ongoing problems from the two MVAs. As a result of this admission, it is not unreasonable for me to find that any impairments or injuries that the Applicant received in the second MVA are minor injuries within the meaning of the Schedule.

As further support for considering the injuries from the second MVA as a minor injury, I note from the evidence presented that no reference is ever made to the mechanism of action of the second MVA or how that second MVA produced anything other than minor injuries for the Applicant.

I turn to the impairments or injuries that the Applicant may have received as a result of the first MVA. The onus of proof in showing that the injuries may be other than minor is on the Applicant. It is up to the Applicant to show a preponderance of evidence to establish this.

I am of the view that the Applicant has not fulfilled her burden.

In order to have an injury recognized as other than minor under the Schedule, medical evidence, including opinions, is required. In this case, there is a lack of such evidence. For example, although the clinical notes and records of a family medicine clinic have been put into evidence and do offer a number of notes where the patient has mentioned motor vehicle accidents (usually using the abbreviation MVA), none of these notes include a clear diagnosis on the part of a health professional that those complaints are the direct and proximate cause of the Applicant’s complaints.

During the Insurer’s cross-examination of the Applicant, other possible sources of her anxiety – one of her chief complaints – were identified including emergency surgery, treatment for sexually-transmitted infections, sexual assaults on two occasions and house arrest while serious drug charges were pending against her.

Although there are medical opinions implicit in the OCF-18s and other documentation filed under the Schedule, I do not accord much weight to those opinions. I note that in the case of the three subject OCF-18s, the opinions are given by a chiropractor. These diagnoses appear to be far outside of the normal scope of practice of a chiropractor, which leads me to giving them little weight.

I have considered the Insurer’s medical report. That was prepared shortly after the two MVAs and draws a very clear medical conclusion which is not in the Applicant’s favour.

Finally, the Applicant’s own testimony does not convince me that her injuries from the first MVA were anything but minor. Her own delay in seeking initial and continued treatment and her testimony related to the other factors at work in her life after the MVAs do not convince me that the Applicant herself thought her injuries were anything more than minor.

Based on the foregoing, I find that the injuries and impairments that the Applicant suffered as a result of the first MVA are minor in nature and within the meaning of the Schedule.

Analysis on Non-Earner Benefit

The Applicant has sought the payment of a non-earner benefit.

Section 12(2) of the Schedule makes it clear that the criterion to qualify for a non-earner benefit is “a complete inability to carry on a normal life”.

Section 3(7)(a) further provides:

a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident;

Per the Ontario Court of Appeal’s decision in Heath v. Economical Mutual Insurance Company,¹⁷ an actual step-by-step analysis must be conducted, both before and after the accident.¹⁸

Little evidence was presented of the Applicant’s pre-MVA life. I know her age, that she was unemployed, and some information about her schooling. However, I do not know prior to the MVA whom she lived with, what her responsibility was for household tasks, in what type of accommodation, what her pastimes or vocations were or anything about her day-to-day life.

Similarly, after the MVAs, I have no information about any physical limitations the Applicant may have had, what type of assistance she may have received and how her day-to-day life changed. In the 12 months after the MVAs, I have evidence that the Applicant may have been subject to other factors that might be responsible for changes in her abilities: these include that the Applicant was the subject of serious drug charges which have since been withdrawn, had a serious cyst removed in emergency surgery and was sexually assaulted. No evidence other than the Applicant’s own assertion was given that the continuing source of her anxiety were the MVAs.

There is a lack of any direct medical opinion on behalf of the Applicant that at any time after the two MVAs she suffered from any significant limitations. Although I note that the OCF-23 in February, 2013 suggested some physical limitations of the Applicant, this is clearly contradicted by the contemporaneous Insurer’s medical report which suggests no limitations. I note that there are no indications in the family medical centre’s clinical notes and records of the Applicant’s limitations.

Based on the foregoing, the Applicant is not entitled to a non-earner benefit for any period of time after either of the two MVAs.

Analysis on Treatment Plans

As noted, the proposed treatment plans are for evaluations or assessments, not actual treatment.

The Applicant acknowledged that, at all times, she has been independent as to her personal care. In addition, if I adopt the consideration of the facts relating to the non-earner benefit, it is clear that there is no evidence to support obtaining a Form 1. I hold that such an assessment is neither reasonable nor necessary.

Both a neurological and a chronic pain assessment were proposed 14 months after the two MVAs. Again, I am not satisfied that there was any medical evidence presented on the Applicant’s behalf to suggest the need for such assessments. In addition, I am dubious that a chiropractor’s scope of practice could cover what appear to be assessments that require a medical opinion. Based on this analysis, I conclude that the two additional assessments are also neither reasonable nor necessary.

Another answer to the proposed treatment plans is as well to consider them together with my decision that the Applicant has only incurred a minor injury as a result of the first MVA. Accordingly, as the amounts of these treatment plans are in excess of the amounts for treatment of a minor injury in accordance with the MIG guideline and limited to $3,500, they would be disallowed on that basis as well.

The Applicant did not testify as to the necessity of any of the proposed treatment plans. Although there was testimony that she thought that she might be able to benefit from additional therapy, there was no evidence to her belief as to why she might require additional assessments as those proposed.

Based on all of the evidence available to me, the three proposed treatment plans are neither reasonable nor necessary. All three treatment plans are denied.

Conclusion

To summarize:

The Applicant’s injuries or impairments arising from the MVA are minor. The Applicant is not entitled to a non-earner benefit at any time after the MVA. The Applicant is not entitled to the three treatment plans proposed.

EXPENSES:

The parties have agreed that, if they 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 DRPC.

October 11, 2017

Marcel D. Mongeon Arbitrator

Date