G. D. v. The Personal Insurance Company, 2017 CanLII 39672

Date: 2017-05-15

Tribunal File Number: 16-003190/AABS

Case Name: 16-003190 v The Personal 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:

G. D.

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines APPEARANCES:

For the Applicant: Jennifer Hoffman, Counsel For the Respondent: Erin Vanderveer, Counsel

HEARD: Written Hearing: March 23, 2017

OVERVIEW:

1The applicant was injured in a motor vehicle accident on August 15, 2014 and he applied for accident benefits to Personal Insurance Company of Canada (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied claims for medical benefits on the basis that it 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 License Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on January 4, 2017, and the matter proceeded to a written hearing.

3The applicant argues his injuries are not minor because of pre-existing injuries he sustained in a prior motor vehicle accident on February 13, 2013. Further, he maintains that the insurer examinations lack credibility because the doctor did not keep proper records of the assessments and the reports were flawed because they failed to take the applicant’s pre-existing injuries into consideration.

4The respondent argues that the applicant has failed to provide compelling medical evidence from a health practitioner that he had a pre-existing condition that would prevent him from achieving maximum medical recovery under the MIG. In addition, the applicant has failed to produce an opinion from any treating practitioner that his accident related injuries are not minor.

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 center of this dispute.

6The following issues are in dispute before the Tribunal:

1. Did the applicant suffer predominantly minor injuries as a result of the August 15, 2015 motor vehicle accident?

2. If the applicant’s injuries fall outside of the MIG, is he entitled to the following medical benefits for chiropractic treatment recommended by Marvin Shedletzky Chiropractic Professional Corp in the following treatment plans:

a) $1,280.00 denied by the respondent on March 4, 2015;

b) $1,280.00 denied by the respondent on June 10, 2015;

c) $1,280.00 denied by the respondent on July 10, 2015;

d) $1,786.48 denied by the respondent on October 21, 2015; and

e) $1,553.72 denied by the respondent on January 8, 2016;

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

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. Nor did the applicant provide any evidence that his accident related injuries were not minor.

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.

BACKGROUND:

9The applicant was involved in a previous motor vehicle accident on February 9, 2013 where he sustained soft tissue injuries to the neck, back and left shoulder.

10On August 15, 2014, the applicant was involved in a motor vehicle accident, in which the treatment plans are the subject of this dispute. A disability certificate (OCF-3) dated August 28, 2014 completed by chiropractor Dr. Brandes of Marvin Shedletzky Chiropractic Professional Corp. The disability certificate listed the following accident related injuries: central spine strain, headaches, shoulder pain, sleeplessness and lower back pain. Dr. Brandes indicated that the applicant could go back to work if he was provided with continued therapy.

11The respondent conducted two insurer examinations done by Dr. Platnick, a General Practitioner to determine whether or not Dr. Brandes’ treatment plans dated February 13, 2015, and April 22, 2016 were reasonable or necessary and whether the applicant’s injuries fell within the MIG. Dr. Platnick issued two reports which diagnosed the applicant’s injuries to be “cervical myofascial strain, WAD 1, lumbosacral myofascial strain.” Dr. Platnick found that the August 2014 accident temporarily exacerbated the applicant’s injuries from the February 2013 accident, however still found that the applicant’s injuries fell within the MIG.

THE LAW, EVIDENCE AND ANALYSIS:

Did the applicant suffer predominantly minor injuries as a result of the August 15, 2014 accident?

12In order for me to make a finding with respect to whether or not the applicant’s injuries are minor, I must look to section 3 of the Schedule which provides the following definition of a minor injury:

“a “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 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG that the sum of benefits payable under medical and rehabilitation benefits is limited to $3,500. 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…”

14In his submissions the applicant refers to medical facts and injuries sustained as a result of the accident but did not submit any evidence to support those claims. The applicant’s submissions highlight that prior to the accident he suffered from Type II Diabetes and Hepatitis B. In addition, the applicant refers to six visits he made to Dr. Sohal, his family doctor, between December 23, 2013 and July 2016.

15On the other hand, the respondent submitted the applicant’s clinical notes and records as part of its document brief which confirmed some of the facts referred to in the applicant’s submissions. A review of Dr. Sohal’s records indicate that on December 23, 2013, the applicant complained that he suffered from lower neck pain, lower thoracic pain, upper lumbar pain and shoulder pain relating to the February 2013 accident. The applicant attended Dr. Sohal’s office on two more occasions with respect to the August 2014 accident, the gap between visits spanned over a year and a half.

16Dr. Sohal’s entry dated August 16, 2014 indicates that the applicant complained of lower and neck pain resulting from the August 2014 accident. Dr. Sohal does indicate that the applicant was still suffering from pain from the previous accident. The next time the applicant complained of his accident related injuries to his family doctor was on December 7, 2015 and he indicated that physiotherapy was managing his pain.

17In the applicant’s submissions he refers to three more visits to Dr. Sohal. Two visits on January 22, 2014 and January 26, 2015 related to the renewal of a parking permit as the applicant was having difficulty walking and on the last visit in July 2016 the applicant reported that he had been suffering from vertigo. There is no mention in the clinical notes and records or the applicant’s submissions that any of these three visits to Dr. Sohal related to his accident related impairments.

18The only evidence submitted by the applicant to support that he should be removed from the MIG was three insurer examinations conducted by Dr. Platnick, and Dr. Platnick’s clinical notes and records which consisted of a one page handwritten note dated October 16, 2014. The first assessment related to the February 2013, and the applicant argues it demonstrates that the applicant was still suffering from his injuries and seeking treatment with respect to the first accident.

19The applicant argues that Dr. Platnick’s reports are not reliable because he found the applicant’s injuries to be minor despite the fact that he was still suffering from pre-existing pain symptoms from the 2013 accident. Further, Dr. Platnick’s reports should not be relied upon because Dr. Platnick referred to the applicant’s pre August 2014 injuries as chronic when there was no chronic pain diagnosis made by a treating medical professional. The applicant maintains that Dr. Platnick’s lack of record keeping with respect to his insurer examinations undermine the credibility of his reports.

20A review of Dr. Platnick’s reports does not establish that Dr. Platnick diagnosed the applicant as suffering from chronic pain prior to the August 2014 accident. Instead Dr. Platnick reports indicate that the applicant self-reported that he suffers from chronic pain in various parts of his body.

21The respondent asserts that even if the applicant had a pre-existing condition he has failed to provide any evidence to demonstrate that the pre-existing condition would prevent him from achieving maximum medical recovery under the MIG. For example, the respondent contends that the parking permits were related to the applicant’s pre-existing condition of Type 2 Diabetes and Hepatitis B. Furthermore, the applicant has failed to submit even one report from a medical practitioner saying that these conditions would affect his recovery within the MIG. Finally, the applicant only complained to his family doctor on two occasions spanning over a year and a half with respect to his August 2014 accident related injuries.

22The respondent contends that even Dr. Brandes did not identify any pre-existing issues on all five treatment plans submitted that would affect the applicant’s response to treatment within the MIG. In addition, Dr. Platnick, the insurer’s examiner confirmed the MIG diagnosis which has not been contradicted by any other assessor or report provided by the applicant.

23I agree with the respondent that the applicant has not met his obligation in demonstrating that he had a pre-existing medical condition that would remove him from the MIG. The applicant’s criticism of the examination reports of Dr. Platnick and lack of documentation is not compelling medical evidence as required by section 18 of the Schedule, or as established by the court, which found that it is the applicant who has the burden of proof to justify that his injuries fall outside of the MIG. ¹

24I agree with the respondent that the applicant failed to provide a report of a medical expert noting that the applicant’s pre-existing medical issues would prevent him from achieving maximum medical recovery under the MIG. While the applicant stresses that the insurer examinations are flawed, I have nothing to compare them to. Further, the diagnosis made by the applicant’s family doctor and chiropractor at the clinic fit within the definition of a minor injury.

25After reading 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 question are reasonable or necessary.

ORDER:

1I find that the applicant has sustained predominantly minor injuries that can be treated within the MIG. Therefore, the treatment plans in dispute are not reasonable or necessary.

Released: May 15, 2017

Rebecca Hines, Adjudicator

Footnotes

1. 1Scarlett v. Belair Insurance Co. 2015 ONSC 472, [2015] OJ No. 293