T. T. v. Certas Direct Insurance Company, 2017 CanLII 87156

Licence Appeal Tribunal

Date: 2017-12-21

Tribunal File Number: 16-003055/AABS

Case Name: 16-003055 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:

T. T.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES

For the Applicant: Jasmine Daya, Counsel

For the Respondent: Karman Dhuga, Counsel

HEARD: In Writing, on April 13, 2017

OVERVIEW

1Mr. T¹ was injured in a motor vehicle accident on October 14, 2014. He applied to Certas for insurance benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the Schedule). Certas initially approved medical benefits and began paying him an Income Replacement Benefit (IRB). Certas then declined to approve more treatment on the basis that Mr. T reached the $3,500 treatment limit for soft-tissue injuries,² and terminated the IRB as of March 6, 2015.

2Mr. T’s appeal of those denials is now before me. The matter was heard by written submissions. Each side offered differing medical evidence, but much of the debate centered on Mr. T’s returns to work. After reviewing the materials, I find that Mr. T is not entitled to the benefits claimed.

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Is Mr. T entitled to receive a weekly Income Replacement Benefit in the amount of $400.00 per week from March 7, 2015 to date and ongoing?
2. Is Mr. T entitled to receive a medical benefit for chiropractic services from Markham Pain Solutions requested³ in the following amounts:
   1. $200.00, per a plan dated December 15, 2014;
   2. $1845.20, per a plan dated January 20, 2015;
   3. $2798.40, per a plan dated February 24, 2015; and/or
   4. $2248.80, per a plan dated November 4, 2015?
3. Is Mr. T entitled to interest on any overdue payments?
4. Is either party entitled to its costs in this matter?

RESULT

4Mr. T has not proven his entitlement to the IRB or the four plans before me.

BACKGROUND

5Prior to the accident, 24-year-old Mr. T had been employed for four months as a construction worker/labourer at a concrete company. His duties included construction work, drilling, and jack-hammering, with frequent walking, standing, lifting, pushing and pulling. Although one record placed the lifting in the 20-pound range, I find it was a heavy industrial job, with lifting at times of 60 pounds.

6On October 14, 2014, Mr. T was involved in the accident. He was taken to a hospital and discharged with a diagnosis of soft tissue injuries. His pain worsened.

7On October 15, 2014,⁴ Mr. T signed an Application for Accident Benefits (OCF-1) and began physiotherapy at Markham Pain Solutions (Markham) under the MIG treatment framework. Neither party focused on the treatment at Markham – 10 visits over the course of a year. Certas submits that Mr. T only incurred $1,490 of approved treatment.⁵ Records show five visits in the two weeks following the accident, none in November, one per month from December to February, and then two visits in November 2015. On October 17, 2014, and again on November 4, 2015, Dr. Babaloui issued Disability Certificates finding soft tissue injuries, sleep and anxiety disorders, and stating that Mr. T suffered a complete inability to carry on a normal life and a substantial inability to perform housekeeping and home maintenance duties.

8On October 16, 2014, Mr. T saw his family doctor, Dr. Asm Tarun.⁶ He continued with Dr. Tarun until April 12, 2016, with regular complaints of low back pain. He was prescribed medications, physiotherapy, and referred for psychological, pain management and other consultations, discussed below.

9From October 21, 2014 until March 6, 2015, Certas paid an IRB of $400 per week as Mr. T advised was unable to return to his pre-accident employment. Certas terminated the IRB based on independent examinations (IEs). Mr. T, however, returned to work from November 4 to November 27, 2014, but did not inform Certas. He also returned in March 2015 at a different employer and March to July 2015 at the first employer, and also did not inform Certas.

10On December 15, 2014, Markam submitted a plan for further physical rehabilitation and related services – i.e. the first plan in dispute. On December 22, 2014, Certas approved $1,100 of the $1,300 plan as available under the MIG, but denied the remaining $200. Certas subsequently denied the additional plans from January, February and November 2015, which are also in dispute.

11Beginning in January of 2015, multiple IEs opined that Mr. T could return to work, and that while he had some anxiety and depression, it was at a sub-clinical level.

12A January 13, 2017 chronic pain assessment by Dr. Stephen D. Brown opined that Mr. T’s physical restrictions, chronic pain and psychological distress are directly responsible for his lost wages and have been disruptive to Mr. T’s employment.

POSITIONS OF THE PARTIES

13Mr. T submits that two years after the accident he continues to suffer low back pain, neck pain and psychiatric injuries, including anger and depressed mood, sleep disorder, as well as chronic pain syndrome. He submits that he has been unable to work since the accident with the exception of a few minor, isolated attempts to return driven by his dire financial situation. He also submits that several Records of Employments (ROEs) that show otherwise are inaccurate, and the surveillance video is a mere snapshot in time that is misleading and should be disregarded.

14Certas submits that medical evidence establishes Mr. T sustained minor injuries, which are treatable within the MIG and do not prevent him from working. It argues that Mr. T has not been honest about his returns to work, and surveillance evidence shows he acted inconsistently with his claimed impairments. His claim for treatment is contradicted by his failure to use approved treatment and violates his good faith duty to treat pursuant to section 57 (2) of the Schedule.

REASONS

Is Mr. T entitled to Income Replacement Benefits?

15Section 5 of the Schedule provides that IRBs are payable for the first 104 weeks after the accident if the insured person suffers “a substantial inability to perform the essential tasks” of the person’s employment at the time of the accident.⁷

16Section 11 provides a person receiving an IRB may return to work at any time during the first 104 weeks without affecting his entitlement to resume receiving the IRB as a result of the accident, if he is unable to continue the employment.

17In support of his claim, Mr. T submitted his own Affidavit stating that he continues to experience low back pain and neck pain. He returned to work in November 2014, but was unable to continue. His second attempt was in March 2015, at a second employer because he was in a desperate financial situation, but he only managed “2 to 4 days”, despite heavy painkillers, including Percocet, to manage the pain. Except for those two times, he has not been employed since the accident. He “wish[es] to continue with treatment as recommended by my doctors…” He also submitted affidavits from:

• Geremiah Geldart, a shareholder at the employer, who states Mr. T’s return was on November 4, 2014, on modified duties, and he did not continue employment due to physical difficulties, not a “shortage of work/end of contract or season” as stated in the December 9, 2014 ROE;

• Dr. Stephen D. Brown, an anaesthesiologist, who provided an expert opinion in his January 13, 2017 chronic pain assessment and affidavit. He diagnosed Mr. T with chronic pain syndrome, chronic pain lumbar and cervical spine, and sleep disorder, and opines that Mr. T has experienced psychological distress, sleep disturbances, cognitive impairments, declining work performance and has adopted a sedentary lifestyle, which has caused his lost wages. He recommends interventions for chronic pain including physiotherapy, exercise and behavioural therapy. He notes a February 4, 2015 IE Functional Abilities Evaluation opined that Mr. T put forth an overall consistent and valid effort.

18Mr. T also relies on the records of Dr. Asm Tarun, his family doctor. She regularly saw him at least through April 2016, and found that Mr. T had a whiplash injury related to the accident and ongoing pain.⁸ She endorsed his non-return to work, such as on March 17, 2015, so not to reinjure his back. It is not clear he advised her that he was working in November of 2014. She prescribed medication, recommended physiotherapy, and referred him to other providers, as follows:

• Dr. David Gratzer, MD, FRCPC, a psychiatrist at the outpatient psychiatry division of the Scarborough Hospital. Dr. Gratzer saw Mr. T in February 2016. He found early PTSD and “wonders about a major depressive disorder.” Mr. T was “pleasant, cooperative, though visibly in pain. He sits awkwardly in the seat….” The doctor expressed concern with “somebody post MVA being on so much marijuana,” due to its negative effects on mood and anxiety.

• Dr. Mohammed A. Abounaja, of the Centre for Pain Management, assessed Mr. T on June 23, 2015 (eight months post-accident) and February 29, 2016 (16 months post-accident). He diagnosed myofascial/mechanical low back pain. His first exam showed mild paravertebral tenderness. On the second visit, the doctor discharged Mr. T because of his insistence on using only Percocet and his non-cooperation with the treatment plan.

19Certas relies on surveillance evidence from March of 2015, several IE reports from two physicians, and various employment records, as follows:

• A March 16, 2015 video shows Mr. T working for several hours lifting large blocks of concrete and moving a large metal track with other workers.

• Dr. Howard Platnick, family physician, assessed Mr. T on February 11, 2015, December 7, 2015 and February 8, 2017, and issued corresponding reports. He found that Mr. T’s initial soft-tissue injuries were accident related, but there were no valid indicators to support residual musculoskeletal, neurological, or orthopedic accident related injury or impairment. He opined that Mr. T could return to work full time without restriction.⁹

• Dr. Kelly McCutcheon, psychologist, assessed Mr. T on January 27, 2015 and February 3, 2017. Validity testing showed Mr. T did not exaggerate cognitive problems, test results were valid, and the exam results were consistent with his general presentation and self-report. She concluded, however, that Mr. T’s mild symptoms of anxiety and depression are subclinical, and there is no evidence to indicate the presence of a diagnosable psychological condition. She concluded that Mr. T does not suffer a substantial inability to perform the essential tasks of his pre-accident employment, and that his psychological symptoms – which she agrees are related to the accident - are considered to fall within the MIG.

Has Mr. T been forthright about his impairments and ability to work?

20While the medical evidence is conflicting, it is immediately evident that the accuracy of all the reports depends on Mr. T’s forthright reporting, and that much the discrepancy is due to weight the practitioners give to Mr. T’s self-reporting. For example, from a psychological perspective, Dr. McCutcheon relied on testing, with validity measures, to conclude Mr. T only has ‘subclinical’ issues treatable in the MIG. Dr. Gratzer, in contrast, expressed concern of more serious issues, but appears to have relied more heavily on subjective reports.¹⁰ From a physical perspective, Dr. Brown and Dr. Platnik come to different conclusions, with Dr. Brown focusing on subjective reports and Dr. Platnik on the physical findings.

21In reviewing the submissions, however, I find Mr. T’s self-reporting to be unreliable. In particular, Mr. T has failed to timely, honestly and accurately disclose his multiple actual returns to work and his ability to work. There are numerous discrepancies between what Mr. T states and submits compared to what appears to have actually happened – and at times the discrepancies are striking – leading me to doubt the extent of his impairments and discount the medical evidence which supports his claims. I come to that conclusion based on several examples.

22From the materials, it is clear Mr. T returned to work from November 4, 2014 to November 27, 2014, yet Mr. T was not honest about that, as follows:

• He failed to advise Certas of the return and collected the IRB during that period;

• Mr. T now concedes the November 2014 return, but previously actively denied to IE assessors that he returned, such as during Dr. McCutcheon’s January 27, 2015 and Dr. Platnick’s February 11, 2015 exams. In fact, Dr. Platnick’s March 8, 2017 report states that “Mr. [T] reported to me each time that I assessed him that he was not working at his full-time position in construction demolition”.¹¹ In 2017, Mr. T finally acknowledged to Dr. McCutcheon that he worked but was still not forthright.

• His affidavit says he stopped working due to his injuries, but his employer’s ROE states the reason was a “shortage of work/end of contract or season”, coinciding with the building season’s end. While the shareholder’s affidavit states that the ROE is not correct, and he agrees that Mr. T stopped due to his injuries, no formal letter from the company was provided verifying that account.

• His family doctor’s records provide a whole different reason - a referral on November 27, 2014 for an emergency room consultation to rule out a dorsum fracture due to an injury by a jackhammer. The referral date coincides with the last day of work, and use of a jackhammer is one of his job duties.

• He claims the return was on modified duties, but records do not support that fact.

23Mr. T also returned to work in March 2015. However, he did not promptly disclose that employment and his subsequent explanations are not accurate.

• In his February 2, 2017 affidavit, Mr. T states he worked only “2 to 4” days in or about March 2015 due to his dire financial situation, and except for the November 2014 return to his first employer, “I’ve not been able to return to employment following the collision.” That statement, however, is not accurate in light of the records provided.

• The limited records provided convince me that, at a minimum, he worked for more than a week at a second employer in mid-March,¹² and then, he again returned to the first employer from March 23 to July 1, 2015 for a total of 554 hours according to a July 13, 2015 ROE, earning an additional $10,730.15.

• The July 13, 2015 ROE again lists the reason for stopping work as “shortage of work/end of contractor season”, not any physical disability.

• Surveillance shows Mr. T working on March 16, 2015 at a physically demanding job, lifting concrete pieces into a bin. Other days of surveillance around that time lost sight of him during his travels.

• On February 3, 2017, Mr. T finally disclosed to Dr. McCutcheon that he had returned to work [in November 2013] for two weeks, but it was “too much pain and he hasn’t returned since then.”¹³ In fact, he returned for over three weeks at that time, and as above, worked another 5 months from March to July of 2015.

• The shareholder’s February 2017 affidavit discusses the November 2014 return to work and disputes the ROE, yet fails to mention he returned to the same company from March to July 2015 earning $10,730. That is not an omission of “a brief period of time” as Mr. T suggests; it undermines the rest of his affidavit.

24I find the information in the ROEs to be reliable, given the conflicting accounts, the ROEs are prepared for government use, and the surrounding circumstances point to the accuracy of ROEs, and no employer records contradict the ROEs.

25Other factors also support the conclusion that Mr. T’s reporting is not reliable. For example, though requested, he has not produced tax returns for 2014 and 2015, and his 2011 and 2013 returns contradict his reports about his employment history made to Dr. McCutcheon in February 2017 and in his affidavit in this matter. Similarly, Mr. T’s February 2, 2017 affidavit states he wishes to continue treatment as recommended by his medical professionals, yet he was discharged from a pain program for non-compliance and has unused treatment in the MIG.

26I do not, however, agree with a few of Certas’ criticisms of Mr. T’s submissions. For example, Dr. Brown’s expert duty form was properly served more than 30 days prior to the hearing and thus is compliant with Rule 10.3. Similarly, while the Certas refers to Mr. T’s “unsworn affidavit,” Certas attached a signed and sworn copy. Mr. T’s other affidavits are also signed.

27In conclusion, I find that Mr. T has not established that from March 2015 onward, he suffered a substantial inability to perform the essential tasks of his pre-accident employment and thus is not entitled to IRBs. Mr. T had a physically demanding job, and may have some psychological difficulties and even some ongoing pain from the accident. However, numerous records that show he in fact was working, his inconsistencies undermine his submissions that he cannot work, and finally, I accept the opinions of Drs. Platnick and McCutcheon.

Medical Benefits: Chiropractic Services

28Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of an accident. Section 18, however, provides, with certain exceptions, that minor injuries are subject to a $3,500 funding limit on treatment, which treatment shall occur within the framework of the Minor Injury Guideline (MIG). A minor injury is defined as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Mr. T bears the onus of proving entitlement on a balance of probabilities.

29Mr. T submits that his psychological injuries and chronic pain are not considered minor and thus remove him from the $3,500 cap on treatment. He relies on DJ v Aviva Insurance Canada, 2016 CanLII 93136 (ON LAT) and Arruda v. Western Assurance Company (FSCO A13-003926, July 15, 2015).

30While I generally agree with the principles of those cases, I find Mr. T has not established his entitlement to the medical benefits for the following reasons:

• In general, Mr. T’s claims are severely limited by his credibility issues.

• All agree that Mr. T has soft-tissue injuries. I accept the opinion of Dr. McCutcheon that his psychological issues are subclinical, and I do not accept the opinion of Dr. Brown that he has chronic pain syndrome. While Mr. T may have some pain that is chronic, he has not established that it is related to this accident or at the level that it removes him from the $3,500 treatment limit.

• The chiropractic treatment plans do not address the needs identified by Dr. Brown, Dr. Gratzer, and Dr. Abounaja, which are more focused on psychological and chronic pain.

• Although Mr. T claims he wants more treatment, Mr. T has not availed himself of the treatment available to him under the MIG framework, or by referral from his family doctor – and in fact he was discharged from treatment for non-compliance. He has unused funds left in the MIG.

31Thus, Mr. T has not established that the $3,500 treatment limit no longer applies to him,¹⁴ or that the treatment plans are reasonable and necessary.

Request for Interest and Costs

32Section 51 of the Schedule governs interest on overdue payments. In this case, Mr. T is not entitled to interest on denied claims, because no payment is due.

33Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) governs costs. Although Mr. T did not establish his claim, Certas has not shown that he acted “unreasonably, frivolously, vexatiously, or in bad faith” in this proceeding, and thus, Certas is not entitled to costs.

CONCLUSION

34Mr. T has not proven his entitlement, on a balance of probabilities, to the benefits he claims, or interest on overdue payments. Neither party has established entitlement to costs.

Footnotes

1. 1Mr. T’s name has been abbreviated to ensure his privacy. Also, I refer to both Certas and Mr. T as “the parties.”
2. 2The Schedule, with certain exceptions, provides that minor injuries are subject to a $3,500 limit on treatment, which treatment takes place under the Minor Injury Guideline (MIG).
3. 3The treatment was requested on “OCF 18/Treatment and Assessment Plan” forms, which I will refer to as “plans.” The parties refer to “chiropractic services”, while the plans list “physical rehabilitation”.
4. 4Mr. T’s Submissions, at paragraph 8, places this date as October 17, 2014, yet Markam’s “Soap Notes” (Exhibit 2 to the Affidavit of Clara Milde) show the initial assessment occurred on October 15, 2014.
5. 5Certas’ submission represents this fact, at para. 1, without supporting evidence, but Mr. T does not dispute it. Still, it is unclear to me if the $1,490 is out of the $2,200 initially approved under the MIG, or the full $3,500.
6. 6Mr. T refers to an October 16, 2014 visit to a walk-in clinic. It is unclear if that is actually his family doctor.
7. 7As Mr. T doesn't meet that “pre-104” test, I do not address the stricter test for benefits after 104 weeks of disability. 16-001285 v Certas Direct Ins. Co., 2017 CanLII 9814 (ON LAT)(Vice-Chair J.H. Bass).
8. 8I find her use of the term "chronic" - even within two months of the accident – to simply mean “constant” rather than a formal diagnosis of “chronic pain” or “chronic pain syndrome." Also, her notes mention spina bifida and Schmorl's nodes, but neither party gave any significance to either, nor does a February 24, 2015 X-Ray report.
9. 9His report mentions "Dr. Campbell (psychologist) noted…”, yet that appears to be Dr. McCutcheon.
10. 10Dr. Gratzer’s report doesn't not opine about an ability to return to work.
11. 11Dr. Platnick’s actual three exam reports only state that he wasn’t currently working. It’s not clear if Dr. Platnick asked him if he ever returned to work. Nevertheless, the answers are misleading, even if technically correct.
12. 12Mr. T received a March 20, 2015 paycheck for $1,045, more than other weekly checks in the employer’s records.
13. 13See Dr. McCutcheon’s February 23, 2017 Psychological Examination Report at page 8 (Certas Exhibit 17).
14. 14Although this was not listed as a formal issue, the parties addressed it and it is an inherent issue in the claim.