LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017/1/12

Tribunal File Number: 16-000714/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: Applicant

and

Applicant

Co-operators General Insurance Company

Respondent

DECISION

Adjudicator: Chris Sewrattan Written submissions by:

Legal Representative for the Applicant: Philip Kai Kwong Yeung Counsel for the Respondent: David Raposo

HEARD: Written Hearing: November 2, 2016

Overview

1The Applicant was injured in a motor vehicle accident on February 20, 2015. He applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The Co-Operators General Insurance Company (“Co-Operators”) denied three claims for rehabilitation benefits and a claim for non-earner benefits. The Applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) principally on these issues.

Issues in Dispute:

2The Applicant disputes Co-Operators denial of payment for the following benefits:

(1) $200.00 for chiropractic services from Perfect Physio and Rehab Centre (“Perfect”) for a claim made on July 7, 2015;

(2) $2,569.08 for chiropractic services from Perfect for a claim made on August 26, 2015;

(3) $2,819.08 for chiropractic services from Perfect for a claim made on June 7, 2016;

(4) Non-earner benefits from August 22, 2015 to the present.

3In addition, the Tribunal must determine whether the Applicant’s injuries are minor as defined in s. 3 of the Schedule and, pursuant to s. 18 (1), subject to a cap of $3,500.00.

4The Applicant seeks interest on any payment deemed outstanding as a result of the Tribunal’s decision in this matter.

5The Applicant claimed payment of $2,000.00 for a psychological assessment and report prepared by Perfect for a claim made on March 17, 2015. Co-Operators submits that the claim was made to State Farm Insurance on March 17, 2015, not Co-Operators. As a result, the Applicant withdrew the application for this benefit in his Reply submissions and advised that he had submitted a claims form (OCF-18) to Co-Operators for this benefit on September 13, 2016. There is no evidence that this claim has been denied by Co-Operators. The claim is not properly in dispute before the Tribunal and will not be considered in this decision.

Result:

6The appeal is dismissed entirely. The Applicant is not entitled to payment for any of the three disputed rehabilitation benefits, the non-earner benefit, or interest.

Discussion:

The Three Rehabilitation Benefits

7The Applicant claims for payment for three treatment plans for chiropractic service from Perfect in the amounts of $200, $2,569.08, and, $2,819.08, respectively. Co-Operators disputes the Applicant’s entitlement to payment on the basis that his injuries are predominantly minor and his treatment falls within the Minor Injury Guideline. According to Co-Operators, the Applicant has exhausted payment for rehabilitation benefits to which he is entitled under the

Minor Injury Guideline. The disputed treatment plans are not payable as a result., Co-Operators submits in the alternative that the disputed treatment plans are not reasonable and necessary.

8The onus is on the Applicant to prove on a balance of probabilities that his treatment does not fall within the Minor Injury Guideline: see e.g. Scarlett v Belair Insurance, 2015 ONSC 3635. To do so in this case the Applicant must prove that the motor vehicle accident directly caused the impairment which he submits requires treatment beyond the Minor Injury Guideline: s. 3(1) of the Schedule. To this end, the Applicant provided documentation detailing two types of impairment: physical and psychological.

9With respect to physical impairment, the Applicant relies on the Disability Certificate (OCF-3) completed by Dr. Georgia Palantzas on March 3, 2015. Dr. Palantzas is a chiropractor at Perfect. Dr. Palantzas supplemented the Disability Certificate with an affidavit completed for the hearing. On March 3, 2015 Dr. Palantzas identified the following physical injuries:

• Headache

• Noise effects on inner ear

• Abnormalities of breathing

• Injury of muscle and tendon at neck level

• Dislocation

• Sprain and strain of thorax

• Lumbar spine

• Pelvis

• Shoulder girdle

• Radiculopathy of the lumbar region

• Nonorganic sleep disorders

• Phobic anxiety disorders

• Nightmares

• Disturbance of activity and attention

10Dr. Palantzas conducted a reassessment of the Applicant on July 7, 2015 and completed a Minor Injury Treatment Discharge Report (OCF-24) in which she indicated that the Applicant ought to receive treatment outside of the Minor Injury Guideline. She found that the Applicant continued to suffer from pain in his cervical, thoracic, and lumbar spine, as well as shoulder region. She diagnosed post-traumatic headaches. In her opinion, the Applicant experienced minimal improvement since she last saw him in March 2015. In her affidavit, which contains her most recent opinion of the Applicant, she asserted that the Applicant continues to require treatment outside of the Minor Injury Guideline.

11With respect to psychological impairment, the Applicant relies upon the Treatment and Assessment Plan (OCF-18) of Dr. Ming Che Yeh, a psychologist at Perfect, dated March 8, 2015. Dr. Yeh advises in the Plan that the Applicant reports:

• increased sensitivity to light, which the Applicant believes leads to headaches

• nightmares and difficulties sleeping, resulting in distress, fatigue, and frustration

• anxiety in and around vehicles.

Dr. Yeh diagnosed the Applicant with mixed anxiety and depressive disorder and specific phobias in the March 8, 2015 Treatment and Assessment Plan. He recommended psychological counselling for the Applicant. On September 29, 2016 Dr. Yeh issued a psychological report which essentially confirmed his earlier findings. The report additionally found that the Applicant has experienced suicidal thoughts.

12The Applicant visited his family doctor, Dr. Frederick Dong, on April 26, 2015. Dr. Dong made a note that the Applicant advised he was suffering from a lack of sleep due to frequent disruptions. The Applicant reported to Dr. Dong that he was sleeping two to three hours every night and experiencing dizziness. Dr. Dong recommended physical therapy. This corresponds with the Treatment and Assessment Plan submitted by Dr. Thomas Blau, a chiropractor for Perfect, who on September 10, 2015 advised that the Applicant reported continuing anxiety and sleeping disturbances.

13In determining whether the Applicant has proven that he requires treatment outside of the Minor Injury Guideline, I have considered physical and psychological impairments in tandem.

i. Causation

14Co-Operators raises a causation issue. The Applicant was involved in a separate motor vehicle accident on June 1, 2013, almost two years prior the accident in question. The insurer for that accident was a different provider, and the Applicant

claimed to have similar physical and psychological impairments as those he now asserts arise out of the 2015 accident.

15The Applicant received treatment from Perfect for the injuries caused by the 2013 accident. A portion of Perfect’s clinical notes and records for this treatment is before the Tribunal as evidence. A treatment plan dated June 7, 2013 from Dr. Peter Counti, a chiropractor, diagnoses the Applicant with many of the physical and psychological issues that Dr. Palantzas suggests were caused by the 2015 accident:

• Sprain and strain of the lumbar spine

• Radiculopoathy – lumbar region

• Injury of muscle and tendon at neck level

• Muscle strain – shoulder region

• Sprain and strain of the elbow

• Sprain and strain of the ribs and sternum

• Vertigo of central origin

• Nausea alone

• Noise effects on inner ear

• Visual disturbances

• Nonorganic sleep disorders

• Phobic anxiety disorder – unspecified

16The Applicant also reported to Dr. Dong prior to the 2015 accident that he had a ringing sensation in his ear and bouts of dizziness.

17Dr. Andrew Shaul, a psychologist, issued a psychological report in relation to the 2013 accident on November 15, 2014, approximately 3 months before the 2015 accident. Dr. Shaul’s report diagnoses the Applicant with essentially the same psychological impairments that the Applicant submits are caused by the 2015 accident. Dr. Shaul concluded in his report:

[The Applicant’s] overall presentation, based on the clinical interview and self-report questionnaires, indicates that he is suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (traveling as a Driver and passenger) as a consequence of his accident. These diagnoses are reflected in his reported symptoms, which include sleep difficulties with nightmares; sadness; loneliness; restlessness; fear; irritability; difficulties with focusing, concentration and decision making; changes in memory and appetite; social withdraw [sic]; lowered energy levels and interest in pleasurable activities; difficulty coping with pain and the changes that have taken place in his life; anxiety in relation to being in a vehicle; and avoidant and hyper-vigilant behaviour as driver and passenger.

18Dr. Yeh mentioned in his September 2015 report that the Applicant was involved in an accident in 2013. It is clear that he was aware of the previous accident. However, Dr. Yeh did not address the psychological effects of the 2013 accident and how they impact his diagnoses related to the 2015 accident.

19Co-Operators also submits that much of the Applicant’s case relies upon the Applicant’s self-report of his injuries. Self-reporting of medical symptoms is not in itself problematic. However, in the Applicant’s case there is little or no corroborating objective medical evidence. Also, given my finding on the Applicant’s credibility, below, I am unable to assign much weight to his self-reports.

20Co-Operators challenges the Applicant’s credibility for two primary reasons. First, the Applicant did not advise Doctors Weinberg and Ko that he had been involved in a prior motor vehicle accident. Doctors Weinberg and Ko were retained by Co-Operators to conduct an independent examination of the applicant, The Applicant told the doctors that he did not have prior injuries and was not involved in a prior motor vehicle accident. This is crucial information for the medical examinations. I agree with Co-Operators that the Applicant’s conduct in this regard renders his credibility suspect.

21Second, the Applicant has represented his employment situation differently to different parties, including this Tribunal. The Applicant initially applied for income replacement benefits but changed his election to non-earner benefits afterward with the consent of Co-Operators. The Applicant advises the Tribunal that he was teaching Chinese part-time on the day of the accident. However, he indicated on his Application for Accident Benefits form (OCF-1) and to Dr. Weinberg that he was a driver (picking up and dropping off people) on the day of the accident. Prior to the accident, in April 2014, he advised a cardiologist that his job was to make sushi. Seven months later, in November 2014 – and three months before the 2015 accident – the Applicant advised Dr. Shaul that he was unable to work as a result of the 2013 accident.

22The contradictory statements the Applicant has made about his employment situation do not cause me to conclude that he has intentionally misled, but it causes me to approach his evidence with sceptical caution. Combined with his

representations to the independent medical examiners, discussed in the paragraph above, I do not assign much weight to his self-reports.

23I return to the narrow issue of whether the 2015 accident directly caused one or more of the physical and psychological impairments upon which the Applicant relies as proof that he should be treated outside of the Minor Injury Guideline. I am not satisfied that the Applicant has met his onus.

24Dr. Shaul’s report and the clinical notes and records from Perfect predating the 2015 accident appear to show that the Applicant’s injuries existed prior to the accident. After considering all of the evidence, I am left with considerable uncertainty about whether the Applicant suffers from his alleged impairments. Moreover, even if he does suffer from the alleged impairments, there is considerable uncertainty that the 2015 accident directly caused the impairments. It is the Applicant’s onus to prove his case on a balance of probabilities. He has failed to do so. The uncertainty prevents me from concluding on a balance of probabilities that the Applicant’s impairments were directly caused by the 2015 accident. This conclusion is in part based on an inability to place much weight on the Applicant’s self-reports that the 2015 accident directly caused the alleged impairments.

25The Applicant’s claims for the three disputed rehabilitation benefits fail because he has not discharged his onus. In addition, the Co-Operators commissioned reports from Independent Medical Examiners further convince me that the rehabilitation benefits claims should be dismissed. The report of Dr. Howard Weinberg, an orthopaedic surgeon, concludes that there is no objective evidence

of musculoskeletal impairment. Dr. Weinberg suspects that non-physical factors are impeding the Applicant’s rehabilitative progress. The report of Dr. Michael Ko, a physiatrist, concludes that there is no objective evidence of an ongoing impairment or a complete inability to carry on a normal life.

26According to Dr. Ko’s report, during the formal examination section of independent medical examination the Applicant refused to move his shoulders or do active range motion of the lumbar spine. When not being formally examined he was observed to demonstrate function. This is significant considering the Applicant’s credibility concerns. In all, I accept the reports and conclusions of Doctors Weinberg and Ko. They demonstrate that the claims for the disputed rehabilitation benefits should be dismissed.

27If I am wrong in this conclusion, I arrive at the same result because the Applicant has failed to discharge his onus independent of considering the Respondent’s evidence and argument.

28Under s. 18 (2) of the Schedule, treatment will be provided outside of the Minor Injury Guideline if the Applicant provides compelling evidence from a health practitioner that the Applicant has a pre-existing medical condition that will prevent him or her from achieving maximal recovery if he or she is subject to the Minor Injury Guideline. The Applicant made no submissions on this point, and there is insufficient evidence to establish it

29Given this decision, I need not consider whether the disputed treatment plans are reasonable and necessary.

30I have yet to discuss the focus of the Applicant’s submissions in the written hearing. The Applicant’s submissions regarding entitlement to the disputed rehabilitation benefits did not squarely address the test for treatment outside of the Minor Injury Guideline as described in s. 18 of the Schedule. I will address each of the Applicant’s submissions in turn.

31The Applicant submits that Co-Operators failed to provide “medical and all of the other reasons” for the following decisions, as required by s. 38(8) of the Schedule. As a result, submits the Applicant, Co-Operators is prevented by s. 38(11)(1) from taking the position that the Minor Injury Guideline applies, and payment of the disputed treatment plans is mandatory under s. 38(11)(2). The applicant alleges that Co-Operators did not provide medical or other reasons for:

• why payment for the treatment plans was refused

• why certain medical evidence was preferred over other evidence and opinions

• why the treatment plans were not considered reasonable and necessary.

32This submission is unconvincing. Looking at the many letters Co-Operators sent

to the Applicant as it considered the various treatment plans, it is clear that for each treatment plan in dispute Co-Operators provided reasons explaining that the proposed treatment was denied because of the limits of the Minor Injury Guideline and because the treatment was not reasonable and necessary in its view. Co-Operators referred to the reports of the independent medical examiners it had hired to evaluate the Applicant’s claims.

33The Applicant submits that Co-Operators did not advise the Applicant that it “believes” the Minor Injury Guideline applied after receiving the various treatment plans in dispute, as required by s. 38(9) of the Schedule. This submission is also unconvincing. Again, looking at the many letters sent by Co-Operators to the Applicant it is clear that Co-Operators sufficiently communicated to the Applicant that treatment was limited to the Minor Injury Guideline.

Non-Earner Benefits

34The Applicant claims non-earner benefits, alleging that the 2015 accident created an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged. The Applicant relies on his affidavit and the reports of the medical practitioners who have treated him since February 2015. The Applicant’s claim for non-earner benefits fails for two reasons.

35First, the claim is based on the Applicant’s self-reported impairment in his affidavit. For the reasons provided earlier, I place little weight on the Applicant’s affidavit. In addition, much of the medical evidence he submits is based on his self-reports. While there is nothing problematic about this generally, in light of the concerns that I have identified with the Applicant’s credibility, I would like to see more objective indicia of assessment. For example, I would have liked to see a description of the methods by which the Applicant was tested, the results of those tests, and an explanation for how the test results contributed to the medical practitioner’s conclusion. The description of such analysis would better allow me

to assess the soundness and reasonableness of the report created by the applicant’s medical practitioners. That description is lacking.

36By contrast, Co-Operators provided the reports of Doctors Weinberg and Ko. These reports articulated the tests conducted, the test results, and provided a path for me to conclude how the results contributed to the reports respective conclusions. I find the two reports to be thorough, sound, and reasonable, and I accept their results. Both reports conclude that the Applicant does not meet test for non-earner benefits.

37Second, the Applicant has not provided sufficient evidence of the details of his pre-accident lifestyle. His affidavit explains that he can no longer work as a “tutor teaching the Chinese language” and his social interaction has “greatly decreased”. There are similar self-reports about his lifestyle to Doctors Weinberg and Ko. The Applicant’s written submissions echo the content of his affidavit on this issue. Much speculation would be required to determine the key activities in which the Applicant ordinarily engaged before the 2015 accident. Without this evidence, I cannot conclude that the Applicant is continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Moreover, there is a lack of evidence upon which to rest a conclusion that the 2015 accident caused an impairment that could render this effect.

38The Applicant’s claim for non-earner benefits is dismissed.

Interest

39There are no outstanding payments to which the Applicant is entitled. There is no interest owing.

Costs

40The Applicant requests in his written submissions an Order for “expenses of this hearing payable by the Insurer to the Applicant”. There is no evidence submitted in support of this request and no submissions explaining why costs should be awarded. The relevant rule (Rule 19.1 of the License Appeal Tribunal Rules) is not even cited. The claim for costs is easily dismissed.

Conclusion:

41The Applicant’s appeal on all issues in dispute before the Tribunal is dismissed.

Released: 12/01/2017

Chris Sewrattan,

Adjudicator