J.E. v. Certas Direct Insurance Company, 2016 CanLII 153060

Licence Appeal Tribunal

Tribunal File Number: 18-000051/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

J.E.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Ilan Liebner

Counsel for the Respondent: Shelby Chung

Heard in writing on: October 8, 2018

OVERVIEW

1The applicant was injured in an automobile accident on May 25, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2As a result of the accident, the applicant was admitted to the hospital with complaints of neck pain, headaches and nausea. She was diagnosed with whiplash injuries.

3The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. If the answer to issue one is no, then:

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,027.00 for chiropractic services, recommended in a treatment plan by Mackenzie Medical Rehabilitation, dated September 27, 2016; and denied on April 30, 2017?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,384.70 for chiropractic services, recommended in a treatment plan by Mackenzie Medical Rehabilitation, dated November 9, 2016; and denied on March 30, 2017?

v. Is the applicant entitled to receive a medical benefit in the amount of $2,055.32 for psychological services, recommended in a treatment plan by Princeton Hills Medical Assessments Inc., dated November 3, 2016; and denied on November 5, 2016?

vi. Is the applicant entitled to the cost of examination in the amount of $200.00 for completion of a treatment plan – orthopaedic assessment provided by Princeton Hill Medical Assessment Centre, submitted on October 17, 2016 and denied on March 30, 2017?

vii. Is the applicant entitled to the cost of examination in the amount of $200.00 for completion of a treatment plan – psychological assessment provided by Princeton Hill Medical Assessment Centre, submitted on October 29, 2016 and denied on November 5, 2016?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant sustained predominately minor injuries as defined in the Schedule and she is entitled to payments up to the MIG limit of $3,500.

ii. as the applicant’s injuries are within the MIG, it is therefore unnecessary to consider the reasonableness of the treatment plans, the cost of examinations or the issue of interest.

ANALYSIS

Applicability of the Minor Injury Guideline

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7Section 18(2) of the Schedule makes provision for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8In Scarlett v. Belair Insurance,² the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.

Did the applicant sustain a predominately minor injury?

9I find that the applicant sustained impairments that are predominantly minor injuries for the following reasons.

10The applicant completed a Statutory Declaration dated November 22, 2016, in which she stated her injuries were to her neck, shoulders and entire back.³ She goes on to state that her family doctor diagnosed her with having whiplash and that the treatment recommended for her was physiotherapy.

11The applicant attended at the Queensway Hospital on May 26, 2016, the day after the accident, and the assessment of the applicant was that she had back pain, pain in the neck area, headache and nausea.⁴

12The applicant’s family doctor, in a note dated June 9, 2016, noted the applicant to have been involved in a motor vehicle accident on May 25, 2016 and that the applicant had upper back pain.⁵

13The applicant’s medical practitioner who completed the treatment plan seeking chiropractic treatment in the amount of $2,027 notes the applicant’s injuries and sequela information as: headaches, insomnia, sprain and strain of joints and ligaments in the neck, the thoracic spine, the lumbar spine, pelvis and shoulder joint. Also, muscle strain, low back pain and pain in the thoracic spine.

14The applicant attended an insurer examination (“IE”) assessment at the request of the respondent. That assessment took place on February 16, 2017 before Dr. Weisleder an Orthopaedic Surgeon. Dr. Weisleder’s report is dated February 22, 2017 and, in that report, he opines that the applicant sustained cervical strain and thoracic strain injuries as a result of the motor vehicle accident.⁶ Those injuries are similar to what the applicant’s medical practitioners have noted and also similar to the assessment done by the Queensway Hospital, where she attended the day after her accident.

15As a result of the above, I find that the applicant’s injuries fall within the definition of the MIG. Providing submissions and clinical notes and records to show the applicant continues to suffer from pain is not sufficient to take a person outside of the MIG.

Does the applicant suffer from a psychological injury that may take her out of the MIG Guidelines?

16I find that the applicant does not have a psychological injury that would remove her from the MIG for the following reasons.

17In her Statutory Declaration of November 22, 2016, the applicant states she was referred to a psychological specialist however I was not provided with any submissions or directed to any evidence of who made the referral and what necessitated the need for psychological treatment. Furthermore, the applicant states that no treatment recommendations were made by the psychologist and the applicant self-reported that she has been feeling better since the accident.⁷

18The applicant relies on the OCF-18 treatment plan submitted by psychologist, Dr. Nina Belyakova in support of her position of having suffered a psychological injury that would remove her from the MIG.⁸ Mr. Miguel Rivera who was working under the direct supervision of Dr. Belyakova, completed the psychological interview and based on the applicant’s self-reporting a provisional diagnosis was made that the applicant has an adjustment disorder with mixed anxiety and depressed mood. However, an OCF-18 treatment plan on its own is not compelling evidence to show that the applicant may have a psychological injury. I was not provided with any submissions or directed to any other evidence to corroborate the psychological injuries from the OCF-18. There are no clinical notes and records from the applicant’s family doctor or from any other practitioner who has seen the applicant on a regular basis of any psychological injury the applicant may be suffering from.

19The applicant did attend a psychological IE assessment at the request of the respondent and that assessment took place on April 28, 2017 before Dr. Salerno.

20The psychological report is dated May 1, 2017 and, in his report, Dr. Salerno notes that the applicant answered “no” to the questions of whether she has been experiencing any emotional problems, whether she was in a depressed mood or to feeling worthless. She further answered “no” to whether she was anxious as a driver or fearful as a passenger After conducting several tests of the applicant, Dr. Salerno’s clinical findings were that the applicant’s scores were within the normal, non-significant range for depression, anxiety and stress scales and that she does not have depressive symptoms, anxiety and health related concerns that are significant psychological factors complicating her recovery.

21The onus is on the applicant to prove on a balance of probabilities that she suffers from a psychological injury and I find that the applicant has not done so.

22In my opinion, the applicant has not provided compelling evidence to show that her injuries fall outside of the MIG.

Requirements to be removed from the MIG

23If the applicant’s injuries fall within the definition of the MIG, the applicant can still be considered to be out of the MIG in accordance with section 18(2) of the Schedule. In order to do so, the applicant must meet all three of the following requirements in order to escape the MIG under this section:

(a) There was a pre-existing medical condition;

(b) The pre-existing medical condition was documented by a health practitioner before the accident; and

(c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

24I find that the applicant has not satisfied her onus and has not provided any submissions or evidence of pre-existing conditions that satisfy the criteria in section 18(2) of the Schedule in order to be considered outside of the MIG.

25The clinical notes and records provided by the applicant note that the applicant was involved in a motor vehicle accident in 2007, however I am not provided with any submissions or directed to any evidence that the applicant may have had pre-existing injuries that were documented by the applicant’s health practitioner that would prevent the applicant’s recovery if she was subjected to treatment under the MIG limits.

26As I have found that the applicant has not met her onus to show her injuries to be outside of the MIG, there is no need for me to conduct an analysis of whether the treatment plans or the cost of examinations are reasonable and necessary and accordingly, no interest is payable.

CONCLUSION

27For the reasons outlined above, I find that:

(a) the applicant sustained predominately minor injuries as defined in the Schedule and she is entitled to payments up to the MIG limit of $3,500.

(b) as the applicant’s injuries are within the MIG, it is therefore unnecessary to consider the reasonableness of the treatment plans, the cost of examinations or the issue of interest.

Footnotes

1. 1O. Reg. 34/10.
2. 22015 ONSC 3635.
3. 3Applicant Book of Documents, Tab 1, p. 5.
4. 4Applicant Book of Documents, Tab 12, Trillium Health Partners Triage Assessment Form.
5. 5Applicant Book of Documents, Tab 13.
6. 6Respondent’s Document Brief, Tab 8, p. 4.
7. 7Applicant Book of Authorities Tab 1, p. 8.
8. 8Applicant Book of Authorities Tab 9.