Tribunal File Number: 16-001438/AABS
Case Name: 16-001438 v Certas Direct 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:
N. M.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines APPEARANCES:
For the Applicant: Vikram Bhandari, Counsel For the Respondent: Sylvia Robin, Counsel
HEARD: Written Hearing: February 7, 2017
OVERVIEW:
1The applicant was injured in a motor vehicle accident on October 7, 2014 and he applied for accident benefits to RBC General Insurance Company (“RBC”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). RBC denied claims for medical benefits and examination expenses on the basis that they found the applicant’s injuries to be minor and subject to the policy limit of the Minor Injury Guideline (“MIG”).
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on October 18, 2016, and the matter proceeded to a written hearing.
3The applicant argues his injuries are not minor because he suffers from the pre- existing condition of spondylolysis and spina bifada oculta. He maintains that these conditions predisposed him to degenerative changes in his spine which were aggravated by the accident. Therefore, he is unable to achieve maximum medical recovery under the MIG. In addition, he contends that he suffers from chronic pain and psychological impairments as a result of the accident which would remove him from being treated under the minor injury guideline.
4RBC argues that the applicant’s injuries fall within the MIG based on the applicant’s own medical documentation and their insurer examinations. Further, that the applicant has failed to provide compelling evidence of a pre-existing condition that would remove him from the MIG or to support the diagnosis of a psychological impairment or chronic pain.
ISSUES IN DISPUTE:
5The MIG was not included as an issue in dispute in the application filed with the Tribunal. However, both parties consented to it being added to this proceeding as it is at the core of the dispute.
6The following issues are in dispute before the Tribunal:
Did the Applicant suffer predominantly minor injuries as a result of the October 7, 2014 motor vehicle accident?
If the Applicant’s injuries fall outside of the MIG, is he entitled to the following medical benefits and examination expenses:
a) $2,152.00 for a functional abilities evaluation recommended by Dr. Justin Guy denied on July 31, 2015;
b) $2,000.00 for a social emotional assessment recommended by Dr. Lotfalizadeh denied on December 10, 2015;
c) $1,131.44 for an attendant care assessment recommended by Dr. Luela Louis and denied on October 24, 2014;
d) $1,330.34 for other assistive devices recommended by Dr. Jordana Rachel Levine denied on February 19, 2015;
e) $1,817.51 for chiropractic services recommended by Dr. Jordana Rachel Levine and denied on October 24, 2014;
f) $1,006.81 for chiropractic services recommended by Dr. Jordana Rachel Levine denied on February 19, 2015;
g) $1,995.33 for psychological services recommended by Dr. Kenneth Keeling denied on February 19, 2015?
- Is the Applicant entitled to interest on overdue payments?
RESULT:
7After reviewing the parties’ submissions and documentary evidence I find that the applicant suffered predominantly minor injuries. I find that the applicant did not provide compelling evidence of a pre-existing medical condition that would remove him from the MIG.
8In light of my findings on the MIG, I do not need to determine whether the remaining treatment plans for medical benefits and examination expenses are reasonable or necessary.
FACTS:
9On October 7, 2014, the applicant, a 43 year old man, was involved in a motor vehicle accident. A disability certificate dated October 14, 2014, completed by Dr. Louis, Chiropractor, noted the accident related injuries as mainly WAD 2 soft tissue injuries, non-organic sleep disorder; generalized anxiety disorder and post- traumatic stress disorder. Although the disability certificate stated that the applicant suffered both a substantial and complete inability to perform his employment duties, the applicant returned to work as a Restaurant Assistant on light/modified duties and is now employed as a Window and Door Installer.
10On October 18, 2014, an x-ray of the applicant’s lumbar spine revealed that he had the condition of bilateral spondylolysis of the pars (the part between two joints) at the L5 level and spina bifida oculta. This diagnosis was communicated to the applicant for the first time by his family doctor on October 28, 2014.
11The applicant received physiotherapy, chiropractic treatment, acupuncture and massage therapy at the Toronto Medical Centre until March 30, 2015, when RBC terminated his medical benefits following insurer examinations which found that his injuries fell within the MIG. The applicant maintains that the treatment received managed his pain symptoms.
THE LAW AND ANALYSIS:
12In accordance with section 3 of the Schedule, “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
13Section 18 (1) of the Schedule states that the sum of benefits payable under medical and rehabilitation benefits are limited to $3,500 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 18 (2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence … the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery…”
Condition of Spondylolysis and Spina Bifida Oculta
14I note the condition of spondylolysis and spina bifida oculta was not identified until two weeks after the accident. This fact is critical to a finding that the applicant had a pre-existing condition. Section 18(2) of the Schedule requires that the diagnosis of a pre-existing condition be “documented by a healthcare practitioner before the accident.” I also find that, even if the condition pre-dated the accident, there is insufficient evidence to establish that it limits the applicant’s recovery within the MIG.
15In support of the applicant’s position that the condition of spondylolysis and spina bifada oculta would prevent him from achieving maximum medical recovery under the MIG, the applicant submitted an x-ray dated October 18, 2014, a clinical entry of Dr. Bondarev, family doctor, dated October 28, 2014, and four secondary sources: two articles on spondylolysis and two on spina bifida oculta.
16The applicant also relies on the following cases as legal authority: Cook re State Farm Mutual Automobile Insurance Company (March 20, 1998), OIC A96- 001284; Szilwoski re Zurich Insurance Company (May 12, 1994), A-001960; and Razmjou re Wawanesa Mutual Insurance Company (December 13, 2005),FSCO A01-000670.
17I am not convinced that the condition of spondylolysis and spina bifida oculta would prevent the applicant from achieving maximum medical recovery under the MIG. The articles the appellant submitted provide background information on these conditions, their potential impact and how they are treated. The articles also mention that the condition of spondylolysis and spina bifida oculta “may” be accelerated by injury to the spine and can cause greater health implications.
However, no evidence was submitted to support this in the present case.
18What I found missing in the applicant’s evidence was a report from a medical professional supporting that “his” condition exacerbated his injuries and that he could not achieve maximum medical recovery under the MIG. None of the reports submitted by the applicant, including reports and treatment plans of chiropractors Dr. Levine and Dr. Guy, even mention these conditions.
19The case law submitted by the applicant is distinguishable. In all three cases the appellants submitted reports of either physiatrists or orthopaedic surgeons to support their position that their condition of spondylolysis impeded their ability to heal from their injuries within normal time limits. This type of evidence was lacking in the present case.
20RBC relied on four reports of physiatrists conducted between December 12, 2014 and October 31, 2016. These reports concluded that the condition of spondyloysis and spina bifida oculta did not exacerbate the applicant’s condition or prevent him from achieving maximum medical recovery under the minor injury guideline.
21The applicant argued that I should place zero weight on these reports as the doctors either ignored evidence or their reports lacked a sound medical analysis or reasoning in coming to their conclusions. However, I prefer the evidence of RBC as these reports were completed by medical experts, physiatrists who physically examined the applicant. Further, both doctors completed addendums with gave specific attention to the results of the x-ray dated October 18, 2014 listing the condition of spondyloysis and spina bifida oculta. Their review of this x-ray did not change their opinion.
22The onus of proof to provide compelling medical evidence is not on RBC, it is on the applicant. The applicant has failed to submit the report of a medical professional supporting his position that his condition of spondyloysis and spina bifada oculta should remove him from the MIG. Therefore, I accept the evidence of RBC as the opinions of medical experts outweigh the hypothetical scenarios outlined in the secondary sources.
Chronic Pain
23The applicant contends that he suffers from chronic pain which would remove him from being treated under the MIG. Unfortunately, no medical evidence was submitted to support a diagnosis of chronic pain.
24The applicant relies on a functional abilities evaluation dated December 15, 2015 conducted by chiropractor, Dr. Guy, to support his contention that he suffers from chronic pain. Dr. Guy states “the applicant continues to report symptoms well beyond the history of most soft tissue injuries” and recommends a consultation with a chronic pain specialist. Further, the report comes to the conclusion that the applicant suffers a complete inability to carry on a normal life, without doing
any objective medical analysis. I do not find that Dr. Guy’s referral for the applicant to see a chronic pain specialist evidence of a diagnosis of chronic pain.
25The records of Dr. Bondarev, the family doctor, show that the applicant attended on six separate occasions complaining of back pain. The last two visits demonstrate a significant gap in time. RBC highlighted that a few of the clinical entries demonstrate that the applicant was feeling better as time passed. There is no evidence of chronic pain noted in the family doctor’s clinical notes and records.
26I did not find the evidence presented by the applicant supported a diagnosis of chronic pain. Therefore, chronic pain is not a factor which would remove the applicant from the MIG.
Psychological Impairments
27In support of his position that he suffers from a psychological impairment as a result of the accident, the applicant submitted a treatment plan dated February 17, 2015, prepared by Dr. Keeling, a psychologist, which attaches a note stating that the applicant was provisionally diagnosed with “Adjustment Disorder with Anxiety and Depression and Specific Phobia.” This diagnosis resulted from pre- screen testing done by Galina Chachshina, (OACCPP member). I did not find the questionnaires completed by the applicant objective enough to make such a diagnosis.
28The applicant also submitted a socio emotional assessment report prepared by Joshua Pugen, a social worker, dated October 28, 2016, in which no psychological diagnosis is rendered. In Mr. Pugen’s opinion the applicant “exhibits precursors to psychological impairment which relates to clinically associated sequelae to his physical pain.” I do not find this evidence convincing of a psychological diagnosis.
29RBC points out that there is inconsistent evidence with respect to a psychological diagnosis in the applicant’s own medical records. A medical questionnaire completed by Dr. Bondarev, the applicant’s family doctor, two weeks prior to this pre-screening evaluation done by Galina Chachshina notes the applicant has no psychological impairments.
30I prefer the evidence of RBC with respect to the psychological diagnosis due to the credentials of the assessors, their objective methods of testing and the credibility issues with respect to the applicant’s own assessments and medical records. The insurer submitted two reports of psychologists who found no psychological impairment.
31In addition, the findings noted in the insurer examinations contradict the evidence provided by the applicant. For example, in the insurer examination report
prepared by Dr. Schwartz, the applicant denies feeling depressed, is fully functional with self-care and indicates he does not need psychiatric treatment. These contradictions were not disputed in the applicant’s reply submissions or challenged at all.
32I do not find any evidence of a psychological impairment which would remove the applicant from the MIG.
ORDER:
33Having read the submissions of the parties and reviewing the evidence, I do not find that the applicant has provided compelling evidence of a pre-existing medical condition or evidence of injury resulting from the accident that would prevent him from achieving maximum medical recovery under the MIG. Therefore, I do not need to determine whether the treatment plans in questions are reasonable or necessary.
Released: March 23, 2017
Rebecca Hines Adjudicator