Kahlil Cousins v. Certas Direct Insurance Company, 2017 ONFSCDRS 303

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 303

FSCO A16-001847

BETWEEN:

KAHLIL COUSINS

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Marcel D. Mongeon, Arbitrator

Heard:

In person at ADR Chambers on September 27, 28 and 29, 2017

Appearances:

Mr. Kahlil Cousins participated

Ms. Jessie Tran, paralegal, and Mr. Ed J. Brogden, Representatives for the Applicant

Mr. Greg Abogado and Mr. Christian Farahat, Representatives for the Insurer

Issues:

The Applicant, Mr. Kahlil Cousins (the “Applicant”), was injured in a motor vehicle accident (“MVA”) on October 3, 2013 and sought accident benefits from Certas Direct Insurance Company (“Certas” or the “Insurer”), 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 as follows:

Are the Applicant’s injuries or impairments minor injuries caused by the MVA which can be treated within the Minor Injury Guideline (“MIG”)?²
Does the fact that the Insurer has already paid more than $3,500 towards treatment of the Applicant’s injuries or impairments require the Insurer to deal with the matter outside of the MIG?³
Is the Applicant entitled to receive the following rehabilitation benefits from York Medical Centre in the amounts as follows:

$1,287.00 for chiropractic therapy, dated January 24, 2014;
$3,650.00 for chiropractic therapy, dated February 12, 2014;
$3,321.00 for chiropractic therapy, dated August 26, 2014;
$8,070.00 for a chronic pain program, dated May 4, 2015;
$3,251.00 for chiropractic therapy, dated August 24, 2015?

Is the Applicant entitled to receive payments for the following costs of examinations from York Medical Centre:

$265.00 for a disability certificate assessment, dated October 16, 2013;
$265.00 for a disability certificate assessment, dated February 4, 2014;
$265.00 for a disability certificate assessment, dated May 29, 3014;
$2,270.00 for a social work assessment, dated November 10, 2014;
$265.00 for a disability certificate assessment, dated November 18, 2014;
$2,270.00 for a social work assessment, dated March 30, 2015;
$265.00 for a disability certificate assessment, dated March 31, 2015;
$1,995.32 for a psychological assessment, dated April 13, 2015;
$265.00 for a disability certificate assessment, dated August 26, 2015?

Is the Applicant entitled to receive interest on any benefits?
Is either party entitled to its expenses of the hearing?

Result:

The Applicant’s injuries are within the MIG.
Even with payments made by the Insurer in excess of $3,500, the Insurer can continue to adjust this claim within the MIG.
No other benefits are payable as a result of the answers to the previous questions.
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:

Testimony of the Applicant

The Applicant testified to the MVA as follows: he was a seat-belted driver on October 3, 2013 in the Jane and Finch area of Toronto. A car exited from a shopping centre without the Applicant seeing it and hit the Applicant’s car on its front left side. The Applicant also had his 9 year-old son in the vehicle who was seat-belted in the backseat on the passenger side.

The Applicant recalls hitting his head on the top part of the driver’s door. He also recalls that the airbags did not deploy. Although offered, the Applicant declined to be transported to the hospital by emergency personnel and left the scene on his own.

As the Applicant’s neck and back continued to hurt him, he eventually called his cousin to seek medical treatment at a hospital emergency room. He also had x-rays taken at that time. At the hospital, the Applicant was told there was nothing broken but was recommended to seek physiotherapy from York Medical Centre.⁴

The Applicant at the time of the MVA lived with his parents and continues to live with them following a move in 2016. He had some business courses at Seneca College and originally came to Canada with his parents from Jamaica about 20 years earlier.

The Applicant is employed at a retail tile store in Vaughan. At the time of the MVA he was an order picker using a forklift truck. He started working there in August 2012. He has recently (in 2017) been promoted to the position of warehouse coordinator. After the MVA, the Applicant’s employer made accommodations to cope with any limitations the Applicant faced as a result of his post-MVA pain. Although there was some missed work after the MVA, there were no other employment implications for the Applicant arising from the MVA.

As a result of his pain, the Applicant testified to limitations in his abilities to lift weights. Although as a young man, the Applicant was able to bench press 240 lbs., he is now lucky to get to 80 lbs.

After the MVA, the Applicant started treatments with Dr. San Bui (“Dr. Bui”), Doctor of Chiropractic at York Medical Centre. The Applicant recalls a TENS machine, acupuncture and other treatments that helped with managing his back pain. The Applicant continued with treatment for his pain until January 2017. The residence move has made it difficult to visit York Medical Centre.

On cross-examination, the Applicant acknowledged that he has not taken any medications for pain. He also acknowledged only seeing his family doctor four times since the MVA and that his family doctor’s notes do not suggest any continuing pain problems. There was an MRI prescribed by the family physician in June 4, 2014 which did not show anything significant.⁵

Testimony of Shayna Pilc

Ms. Shayna Pilc testified after being qualified as an expert in Social Work. Dr. Bui requested her to do a report about the Applicant regarding his pain management and mental health issues arising from that. Her report dated August 3, 2016⁶ provides the opinion that “[the Applicant] does not fall under the MIG because of apparent psychological symptoms and other social issues, including social anxiety, and isolation.” She recommends 10 to 12 sessions of counselling.

On cross-examination, Ms. Pilc acknowledged only beginning MVA assessments in March 2015 and that she has no education specific to MVA assessments. She acknowledges that no psychometric testing was conducted on the Applicant nor did she review any records of the Applicant from the family physician, nor the hospital he was taken to post-MVA. Her report was based principally on the self-reported information from the Applicant.

Testimony of Dr. San Bui

Dr. Bui testified he is the owner of York Medical Centre which is one of a number of clinics he owns and operates.

On consent, he was qualified as an expert in Chiropractic. He testified that he provided physiotherapy and chiropractic treatment to the Applicant post-MVA. He testified that the Applicant suffers from Chronic Pain Syndrome and, accordingly, should not be subject to the MIG.

In his testimony, Dr. Bui stated that the treatment that had been provided was useful in that it got the Applicant back to modified duties with his employer. However, the Applicant continued to suffer from chronic pain. Dr. Bui had proposed treatment plans to assist the Applicant in dealing with his pain. This included proposing a chronic pain treatment plan and a proposal to seek a psychological consultation.

In the professional view of Dr. Bui, the Applicant should be taken out of the MIG. In addition, all proposed treatments were reasonable and necessary.

On cross-examination, Dr. Bui was asked about notations he had made in the forms submitted to the Insurer that the Applicant suffered from a Whiplash Associative Disorder Level 3 (“WAD III”). Dr. Bui accepted that the definition of WAD III included the need to identify additional neurological signs which included decreased or absent deep tendon reflexes, weakness and sensory deficits.⁷

In the case of the Applicant, Dr. Bui testified that he believed he had established the additional neurological signs for WAD III by use of single leg raises (“SLR”). Dr. Bui was able to point to one or two times when SLR was mentioned in his clinical notes but was unable to clearly identify what the outcome of that test was.

The Applicant was referred to a general surgeon who provided a report. The general surgeon was Dr. Bui’s brother. Dr. Bui did not believe that it constituted a conflict of interest because both were separately regulated by professional colleges.

Dr. Bui acknowledged that nowhere in his clinical notes and records is there a clear diagnosis that the Applicant suffers from chronic pain; only the proposed chronic pain management plan implies such. Dr. Bui acknowledged that his chronic pain diagnosis was not well-supported in his clinical notes but stood by it on the basis of his personal knowledge of the Applicant.

Testimony of Dr. Yong-Kyong Michael Ko

Dr. Yong-Kyong Michael Ko (“Dr. Ko”) testified for the Insurer after being qualified by me as an expert in Physiatry. He presented his evaluation of the Applicant dated March 4, 2016⁸ which included his view that the Applicant suffered sprains and strains from the MVA in the cervical spine and lumbar spine regions. It was also noted that there was no evidence of a pre-existing medical condition. He opined that two of the proposed treatment plans were not considered reasonable and necessary.

On cross-examination, Dr. Ko provided his opinion that a diagnosis of “chronic pain” has little value. He based this on the fact that such a diagnosis does not provide any information on how the subject of such a diagnosis functions in the presence of pain.

Testimony of Dr. Katherine Isles

Dr. Katherine Isles (“Dr. Isles”) testified on behalf of the Insurer, after being qualified as an expert in Occupational Health Medicine. Her report of March 5, 2014⁹ was noted to contain a typographical error: at the bottom of page 11 it should read: “… there was no asymmetrical muscle wasting” (my emphasis). Her conclusion was that the Applicant suffered from soft tissue injuries. She also noted that rather than chiropractic treatment, the Applicant would have benefited more from self-directed exercise.

On cross-examination, Dr. Isles acknowledged that the Applicant was likely feeling pain. However, as there was nothing other than soft tissue injuries, she had to assume that as the soft tissue injuries had healed, the pain would resolve itself.

Other Evidence Presented

There were many other documents and reports offered into evidence in document form only. In this evidence, the most notable for my purposes was Dr. Goodman’s psychological Insurer’s Medical Examination¹⁰ that noted the Applicant does not suffer from any psychological dysfunction.

Analysis

I will first address the issue relating to the Insurer having paid more than $3,500 in treatment on this claim and as a result, if it then takes the Applicant outside of the MIG.

The simple answer is that it does not.

Section 18 of the Schedule provides the $3,500 limit on claims for minor injuries to which the MIG applies. There is no language in that section which suggests that if the $3,500 limit is exceeded, the claim is no longer a minor injury. The characterization of an injury stays as a minor injury no matter how much is spent for its treatment.

An alternate view is that by paying in excess of the MIG limit, the Insurer has somehow waived its entitlement to limit the claim to that limit. There is no question in my mind that an insurer can, in any given case, decide to waive the MIG limit. However, to actually operate as a waiver, it should be clear on the part of the insurer to constitute a waiver. The existence of a written or a clear and unequivocal communication of the insurer’s intention to waive continuing to adjust the claim within the MIG should be a part of such proof.

In this case, other than the mere overpayment itself, there is no evidence of any intention of the Insurer to waive the MIG and I hold that it has not been waived.

I now move to whether or not the injury or impairment sustained by the Applicant should be considered a minor injury.

The Applicant points to the arbitral award of Ali and Ferozuddin and Certas¹¹ and submits that a diagnosis of chronic pain is sufficient to have the Applicant removed from the MIG. I think that over-simplifies the holding in the Ali case. Rather, that case makes it clear that if chronic pain is an aberrant result (not expected in most cases), that result should be considered outside of the definition of a minor injury.

I am also mindful of Dr. Ko’s testimony, that in isolation, a diagnosis of “chronic pain” has little diagnostic value. I accept this and think that in the presence of a suggestion of chronic pain, there should also be evidence supporting how the subject copes with that pain or what limitations the subject has resulting from that pain. I also recall the Ali case where the ruling was that chronic pain is really an unexpected result which may result from pathological changes in nervous mechanisms.

In this case, I am not satisfied that a finding of chronic pain has ever been made out with respect to the Applicant. Dr. Bui has not been able to find anything in his clinical notes that suggests he actually had provided the Applicant with such a diagnosis. The OCF-18 and OCF-3s do not note a diagnosis of chronic pain.¹² This also includes the treatment plan for a chronic pain management plan, which does not include a diagnosis of chronic pain.

The sole evidence in support of the Applicant having chronic pain is the testimony of Dr. Bui. I find it difficult to accept such a diagnosis if it had not been sufficiently important at any time to have been written down in the clinical notes.

I note that the Applicant’s claim of chronic pain is also contradicted by Dr. Ko’s report and testimony. In the cases of all of this evidence, I am also concerned about the lack of any psychological assessment or opinion. Normally I would expect a Psychologist or Psychiatrist to provide an opinion as to a subject’s chronic pain status. In this case, the Applicant offers a Chiropractor, social worker and a general surgeon; the Insurer offers a Physiatrist and occupational health physician. Clearly, this is insufficient to establish a psychological illness.

Although in many OCF-18 and OCF-3 forms, Dr. Bui has suggested a WAD III, which might support removal from the MIG, I am satisfied that the Applicant has not established such a diagnosis as a fact. The information about neurological deficits in the Applicant’s favour was sketchy at best (I point to Dr. Bui’s evidence about SLR) and is contradicted by Dr. Ko’s evidence which I prefer on this point.

At times, there has been a suggestion that the Applicant may have had pre-existing injuries which were exacerbated by the MVA. Although there are some references through the testimony and the reports, there was no credible evidence presented of any pre-existing injuries suffered by the Applicant. Accordingly, I will not further concern myself with this issue.

I am satisfied that the injuries sustained by the Applicant as a result of the MVA were principally minor and that the monetary limits of the MIG should apply.

I further comment on the treatment plans and costs of examinations.

As noted in her testimony, Dr. Isles testified that self-directed exercise would likely have provided more benefit to the Applicant than the more passive therapies that were provided and proposed. Dr. Ko was also of the view that there was no physical ailment to be treated. Based on these opinions, I find that further chiropractic treatment would be neither reasonable nor necessary in the case of the Applicant’s injuries.

On the chronic pain management program, as I have made clear, there is no evidence that the Applicant was ever diagnosed with a chronic pain dysfunction. Accordingly, with no such diagnosis, it is difficult to determine that the chronic pain management program could be considered reasonable and necessary. I also note the clear conclusion in Dr. Goodman’s psychological Insurer’s Medical Examination¹³ that the Applicant does not suffer from any psychological dysfunction.

In the costs of examinations, I note claims for at least 6 disability certificates. Only the first one was necessary and that one should have been included in the MIG limit. All of the others would merely be surplus and were not required by the Insurer. Accordingly, they should be disallowed.

Two social work assessments were proposed. Even if allowable, only one could have been allowed. Given that the social work proposal was to assess how the Applicant was coping with his pain, it is difficult to understand how it could be reasonable and necessary even before there was a psychological diagnosis of chronic pain dysfunction. Accordingly, I have disallowed the social work assessment as not being reasonable or necessary in its prematurity.

Finally, the psychological assessment was proposed. Interestingly, the means which the Insurer has used to determine if such an assessment was reasonable or necessary was to do its own complete assessment by Dr. Goodman. He concludes that the Applicant is not suffering from any psychological dysfunction and, therefore, this makes the need for an assessment unnecessary; the Insurer has already obtained such an assessment.

To conclude, the Applicant’s injuries can be managed within the MIG. No additional benefits are payable to the Applicant. No interest is relevant as no payments have been found owing.

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 17, 2017

Marcel D. Mongeon Arbitrator

Date