Date: 2017-10-02

Tribunal File Number: 16-002823/AABS

Case Name: 16-002823 v Wawanesa Mutual Insurance Company

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:

The Applicant

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Khizer Anwar

APPEARANCES: Andrej Rondas, representative for the Applicant

Tim Gillibrand, counsel for the Respondent

HEARD IN WRITING ON: March 6, 2017

OVERVIEW

1[The applicant] was injured in an automobile accident on January 8, 2015, and sought benefits from his auto insurer (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).

2The applicant submitted four treatment and assessment plans (OCF-18) to the respondent, requesting funding for physiotherapy/chiropractic services, psychological assessment and a chronic pain assessment, all of which were denied by the respondent. The respondent held that the applicant had suffered predominantly minor injuries and their treatment fell within the Minor Injury Guideline (“the MIG”), as defined in s. 3 of the Schedule.

3The applicant disagreed with the respondent’s decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The issues in dispute identified by the parties in their submissions and to be decided are:

1. Do the applicant’s injuries fall under the Minor Injury Guideline?

2. Is the applicant entitled to a medical benefit in the amount of $2,999.80, for physical services, as outlined in the Treatment and Assessment plan (OCF-18) dated June 22, 2015, completed by Midland Wellness Centre (“Midland Wellness”)?

3. Is the applicant entitled to a medical benefit in the amount of $2,513.60, for physical services, as outlined in the Treatment and Assessment plan (OCF-18) dated August 28, 2015, completed by Midland Wellness?

4. Is the applicant entitled to receive a payment for a cost of examination in the amount of $2,200.00, for a psychological assessment, as outlined in the Treatment and Assessment plan (OCF-18) dated April 13, 2016, completed by Midland Wellness?

5. Is the applicant entitled to receive a payment for a cost of examination in the amount of $2,034.00, for a chronic pain assessment, as outlined in the Treatment and Assessment plan (OCF-18) dated April 5, 2016, completed by Midland Wellness?

RESULT

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

1. The applicant suffered predominantly minor injuries as defined under the Schedule.

2. Based on my findings, I do not need to assess the disputed treatment plans for reasonableness and necessity.

ANALYSIS

6As this is a written hearing, the only evidence before me is in the form of documentary evidence and I have considered all of the documents submitted.

1. The Minor Injury Guideline (the “MIG”)

7Since determining whether the applicant’s injuries are predominantly minor as defined under the Schedule, I will first set out what the MIG entails.

8The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 of the Statutory Accident Benefits Schedule (“the Schedule”) as “one or more of a strain, sprain, 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 all defined in s. 3.

9S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 (“the Cap”) minus any amounts paid in respect of an insured person under the MIG.

10Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the 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, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

11The respondent relies upon a recent Divisional Court decision of Scarlett v Belair Insurance, 2015 ONSC 3635, to support its position that the applicant bears the onus of proving entitlement to the benefit beyond the Cap. I agree with the respondent. Accordingly, in this matter, the applicant carries the onus of establishing his entitlement beyond the Cap.

2. Injuries and Post-accident health status

12I will now analyze the evidence, including medical records and other documentation, submitted by the parties to determine whether the applicant’s injuries fall outside the MIG and if he is entitled to treatment beyond the Cap.

13The applicant submitted the following as evidence of his accident-related injuries and current health status:

1. Phone interview/intake with Dr. Pilowsky, psychologist

2. Prescription Summary

14The applicant lists his accident related injuries as: a) whiplash associated disorder (WAD I) with complaints of neck pain, stiffness or tenderness only; b) sprain and strain of shoulder joint; c) low back pain; d) headaches; and e) non-organic sleep disorders. The applicant submitted that the disability certificate, dated January 13, 2015, outlined these injuries and also noted that the applicant was substantially unable to perform the essential tasks of his employment and completely unable to carry on a normal life. However, the applicant did not submit the disability certificate as evidence.

15The applicant contends that he currently suffers from chronic pain throughout his body, as he continues to experience pain and stiffness in his neck, shoulders and lower back, along with headaches, anxiety, irritability and sleeping disorders. The applicant also claims that as a result of the accident, he also suffers from psychological problems.

16To assess the applicant’s psychological problems, Dr. Pilowsky conducted a phone interview/intake with the applicant. In her preliminary report, she concludes that the applicant was suffering from depression as well as anxiety in the form of PTSD, with phobic symptoms in a motor vehicle. She opines that the applicant’s psychological condition is restricting him from re-integrating into his pre-accident routine, and has suffered significant psychological problems due to the accident. Hence, his injuries cannot be treated under the MIG.

17The preliminary report also mentions that the applicant has a pre-existing condition, which precludes his injuries from fitting under the MIG. The report further states that supporting documentation will be provided once an assessment is conducted.

18The only other document submitted by the applicant as evidence, in addition to Dr. Pilowsky’s preliminary report, is a prescription summary, which I have reviewed.

3. Finding

19Based on my review of the submissions and evidence submitted by both parties, I find that the applicant has failed to meet his onus to prove entitlement to benefits beyond the Cap.

20The applicant has failed to provide medical evidence, which would support his claim for chronic pain and provide a diagnosis of chronic pain syndrome.

21The preliminary evaluation by Dr. Pilowsky is based on a phone interview of the applicant conducted by her, following which she made her conclusions in the form of diagnostic impression of the applicant. Dr. Pilowsky’s diagnostic impression was that the applicant was suffering from depression and anxiety in the form of PTSD with phobic symptoms in a motor vehicle. Dr. Pilowsky did not comment on the issue of chronic pain and whether the applicant’s injuries fall outside the MIG. She only made a diagnostic impression and based on that, requested authorization to conduct an assessment, which is beyond my jurisdiction to consider.

22My reservation with Dr. Pilowsky’s preliminary evaluation is that it is based solely on the applicant’s self-reporting on the telephone. It did not include objective psychometric testing. It also did not allow Dr. Pilowsky to make direct observations. As a result, I have given little to no weight to Dr. Pilowsky’s preliminary evaluation.

23The respondent has submitted a report by Dr. E. Silver, a family physician, which unequivocally concludes that the applicant’s injuries fall within the MIG.

23The respondent also relies on a report from Dr. K. Spivak, a psychologist, who conducted an in-person examination, including objective psychometric testing. Based on his examination, Dr. Spivak concluded that the applicant did not suffer from psychological impairment or serious emotional difficulties as a result of the accident. He stipulated that the applicant did not meet the full criteria for a DSM-5 psychological diagnosis as a direct result of the accident Based on the evidence before me, I find that the applicant has failed to prove that he suffers from psychological impairments that require treatment outside of the MIG.

24The applicant failed to provide evidence for any physical and/or psychological pre-existing conditions he may suffer from, documented by a medical practitioner prior to the accident, which would prevent maximal recovery for the applicant under the MIG. In the absence of such evidence, I find that the applicant does not suffer from any pre-existing conditions and is not entitled to treatment beyond the Cap.

25In light of the foregoing, I hold that the applicant suffers from predominantly minor injuries, as defined under the Schedule, and can achieve maximal recovery within the Cap.

4. Disputed Treatment Plans

26Since I’ve found that the applicant suffered predominantly minor injuries, as defined under the Schedule, I do not need to assess the treatment and assessment plans in dispute for reasonableness and necessity.

CONCLUSION

27For the reasons noted above, I find that:

1. The applicant suffers from predominantly minor injuries, as defined under the Schedule.

2. Based on my findings above, I do not need to assess the treatment and assessment plans in dispute for reasonableness and necessity.

COSTS

28Pursuant to Rule 19 of the LAT Rules, the respondent is seeking costs on two separate bases in this hearing. First, the respondent has requested costs against the applicant in its submissions, as the applicant included a detailed settlement proposal in his submissions. The respondent asserts that the act of including the settlement proposal warrants an award of costs against the applicant because it is unreasonable and goes contrary to Rule 14.4 of the LAT Rules of Practice and Procedure (“LAT Rules”) .

29After deliberation, I have decided not to award costs against the applicant. However, I will caution the applicant to avoid such oversights in the future, as it is generally understood by the parties that all settlement discussions and any settlement offers exchanged are confidential and are made on a without prejudice basis.

30Second, the respondent has also requested costs for the overall hearing. However, it did not set out the reasons for the request and failed to set out the particulars of the other party’s conduct that is allegedly unreasonable, frivolous, vexatious, or in bad faith, as required under Rule 19.4 of the Licence Appeal Tribunal Rules of Practice and Procedure (“the LAT Rules”).

31Hence, no costs are awarded against the applicant for the overall hearing.

ORDER

32As a result of my finding above, the applicant’s appeal is dismissed.

Released: October 2, 2017

Khizer Anwar

Adjudicator