Tribunal File Number: 16-001285/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
H. C.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: J.H. Bass
APPEARANCES:
Counsel for the Applicant: Steven Raphael
Counsel for the Respondent: Candace Mak
HEARD: Written Hearing: December 16, 2016
REASONS FOR DECISION
This is an Application by the Applicant to the Licence Appeal Tribunal (the “Tribunal”) with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
OVERVIEW
The applicant C.H. was involved in an automobile accident on July 24, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
Certas paid Income Replacement Benefits (“IRBs”) from July 2014 to March 2015, and paid for various treatments for the applicant, but in March 2015 declined to pay for further IRBs, and has declined to pay for two treatment and assessment plans dated September 4, 2014 and April 25, 2016, on the basis that they are not reasonable and necessary.
The applicant disagreed with these decisions and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve all of the issues in dispute.
ISSUES TO BE DECIDED
The following are the issues to be decided:
Is the applicant entitled to IRBs at the rate of $350/week from March 2015 and to the date of the hearing?
Is the applicant entitled to the psychological assessment set out in the OCF-18 of September 4, 2014 in the amount of $3,320?
Is the applicant entitled to a chronic pain assessment set out in the OCF-18 of April 25, 2016 in the amount of $1,925?
Is the applicant entitled to interest on any overdue payments?
Is the applicant entitled to the costs of the proceedings?
Is the applicant entitled to a special award pursuant to Regulation 664 (10) because the Respondent unreasonably withheld or delayed the payment of benefits?
DECISION
- For the reasons set out below, I answer the first three questions in the negative and therefore find it unnecessary to consider the last three.
BACKGROUND
C.H. was born on September 26, 1968 and is single. He immigrated to Canada in his early 30’s and holds a university degree in business from his home country. At the time of the accident he had been working for a paper company for about 6 weeks, in sales and delivery driving.
The accident occurred on July 24, 2014. The applicant was a pedestrian, crossing the road at an intersection with a green light, when the driver of a car turning right failed to come to a complete stop and bumped into his left side. The driver was charged with failure to stop before entering the crosswalk. The applicant did not fall but complained of pain in his left leg and hip.
Emergency personnel arrived at the scene and the applicant was taken to hospital by ambulance. At the hospital it was noted that the applicant’s blood pressure was high and that he felt “very sad and stressed” by the accident. The applicant stayed overnight as a result of the blood pressure concerns and the following morning took a taxi back to his car and drove home.
The applicant was off work for the months of August and September 2014, after which his employer told him his services were no longer required. He took high school courses starting in October 2014, and enrolled at Seneca College in the summer of 2015, graduating with a diploma in business in August 2016.
ISSUE NUMBER 1: INCOME REPLACEMENT BENEFITS
The insurance company paid the applicant IRBs of $350 per week from July 2014 to March 2015, about 6 months.
The entitlement to IRBs is in two parts, set out in sections 4 and 5 of the Statutory Accident Benefits Schedule. Section 4 provides that the benefits 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 – that is, the job the person was doing at the time of the accident. Section 5 provides a stricter test for benefits to be payable after 104 weeks – whether the person suffers “a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience” (emphasis added).
With regard to the first 104 weeks, the issue is therefore whether the applicant continued to suffer such a substantial inability from March, 2015, when the insurer ceased paying IRB’s, to July 23, 2016, when the 104 weeks ended.
The applicant’s work for the paper company had involved driving his own car on sales calls and delivering orders of paper, including lifting, carrying and bending.
EVIDENCE
- The essence of the applicant’s case is that his psychological problems have prevented him from working. In this regard, the applicant relies on the following medical reports:
a. The disability certificate of Dr Simon Rom, Chiropractor, dated August 19, 2014, indicating that the applicant had a complete inability to carry on a normal life due to pain, sprains and adjustment disorders.
b. Report of Dr Gerald Young, Psychologist, dated December 10, 2014, based on examinations conducted on September 4th and November 1st. Dr Young found that the applicant was “unable to work due to the psychological effects of the motor vehicle accident”,
c. The chronic pain assessment performed by Dr Grigory Karmy, a pain specialist, dated June 13, 2016. Dr Karmy diagnosed the following:
i. Chronic mechanical right shoulder pain
ii. Myofascial pain syndrome
iii. Sleep disorder
iv. Mood disorder, with symptoms of driving and pedestrian anxiety, as well as post-traumatic symptoms.
Dr Karmy commented “his impairments are considered to be permanent” (emphasis in original).
d. The second Disability Certificate (OCF-3) signed by Dr Simon Rom, Chiropractor, on September 12, 2016 indicating that the applicant was “substantially unable to perform the essential tasks” of his employment at the time of the accident.
The claimant concedes that he started work as an Uber driver by August 2016 and that he was operating a paper business by October 2016.
The respondent by contrast refers to the following:
a. Report of Dr Marc Mandel, Psychologist, of October 17, 2014, in which he comments “there is lack of consistent objective information present that would suggest [the applicant] suffers clinically significant symptoms that would indicate a substantial impairment or disability as a result of the subject motor vehicle accident” and noted that on a test he administered there was “the possibility of symptom magnification in certain areas”.
b. Report of Dr David E. Mula, dated February 26, 2015, in which he comments, “the claimant suffers from residual myofascial right shoulder pain secondary to accident related strain; however, there is no evidence of accident-related impairment at the present time” and “there are no findings that would result in occupational disability at this time”.
c. Report of Dr Veronica Kekosz dated December 7, 2015, commenting that the applicant “has a WAD 2 injury [meaning a whiplash of 2 out of 4 in severity] and some residual tightness and pain”. She recommended a hot pack and some “A353” rub.
- The respondent further relies on surveillance by Xpera Investigations, undertaken on four days – October 16 and 18 and November 2 and 3, 2016. The recordings show the applicant driving his car, bending and stretching, lifting boxes in and out of the vehicle, walking normally and delivering packages. The recordings do not show the applicant as having any signs of physical impairment. The Xpera report also includes a “LinkedIn” page for the applicant indicating that he has been operating a point-of-sale paper business from September 2014 to the present.
Analysis – First 104 Weeks
- With regard to the period from March 2015 to July 2016, the applicant relies particularly on the December 2014 report of Dr Gerald Young. Among Dr Young’s comments are the following:
a. The applicant “impressed as someone who is genuinely experiencing psychological distress, and having difficulty coping at the psychological level” and
b. “it is clear that he is unable to work due to the psychological effects of the motor vehicle accident.”
However, Dr Young also notes the applicant “was administered 5 tests having scales related to symptom exaggeration and he passed 2 of the 5. This negative impression management could indicate symptom exaggeration”, and the applicant’s “personality does seem to be contributing to his experience of pain and to his reported psychological symptoms.”
This serves to corroborate the comments of Dr Marc Mandel, in October 2014 based on the Structured Inventory of Malingered Symptoms (SIMS) test he administered, including “his total score was more than twice beyond the acceptable threshold, indicating the possibly of symptom magnification in certain areas” and “care must be taken in interpreting complaints of these types by [the applicant].”
In February 2015, Dr Mula examined the claimant and reported “there are no findings that would result in occupational disability at this time”. Dr Mula reported that the claimant “denied undergoing any psychiatric or psychological treatment since the accident”. The claimant told Dr Mula that he was attending school full time and was capable of walking, driving and using public transportation.
In December 2015, Dr Kekosz examined the claimant and recommended a hot pack, a rub and some stretching exercises. She commented “he does not have any neurological signs”.
In his report of June 2016, Dr Karmy’s findings were very negative, including:
a. The claimant’s chronic pain was “highly unlikely to resolve”
b. “the claimant will continue to have difficulties with the use of his right shoulder, indefinitely”
c. “his impairments are considered to be permanent”
d. The dominant shoulder pain and symptoms of driving anxiety have become permanent.”
I find Dr Karmy’s report overly pessimistic in light of the surveillance evidence from only a few months later.
The respondent argues that the claimant was actually working during this period, as the LinkedIn page provided by Xpera indicates that his paper business was started in 2014, not 2016. The claimant’s response is that this date was used for cosmetic marketing purposes, to cover up a gap in his work record. This admission of posting inaccurate information does not add to the claimant’s credibility, especially as from July 2014 to March 2015 he was receiving IRB’s from the respondent and could explain that he was in fact recovering from an accident.
Considering all the evidence, I do not find convincing evidence that the applicant would have been unable to return to his previous line of work by March 2015. Accordingly, I find that the applicant has not shown on the balance of probabilities that he suffered “a substantial inability to perform the essential tasks” of his employment, for the period March 2015 to July 23, 2016.
Analysis – Post 104 Weeks
With regard to the benefits after the 104 week period ended, the test is whether the claimant suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience, from July 23, 2016 onwards.
The applicant bases his contention that he met this test on the Disability Certificate of Dr Rom dated September 2016. However, this Certificate addresses the test for the first 104 weeks – the “substantial inability to perform the essential tasks” of the person’s employment at the time of the accident, not the test for the post 104 week period. Dr Rom goes on to indicate that the applicant suffers a substantial inability to perform the housekeeping and home maintenance services performed before the accident, and states “Injuries are chronic and not likely to resolve within 12 weeks”.
Dr Rom’s report is undermined by the applicant’s admission he was working in two capacities – as an Uber driver and operating his own business – by the following month at the latest. This was conceded in response to the surveillance evidence.
Regarding his entitlement to benefits, the applicant places weight on his limited command of English. However,
a. The applicant used the time he was on IRBs to take high school and English courses;
b. He graduated with a business diploma from Seneca College in August 2016, with a grade point average of 2.9 (considered a B grade), and
c. The applicant concedes that he has now started work both as an Uber driver and with his own paper business.
For these reasons I do not regard the applicant’s linguistic limitations as deserving of weight.
- Accordingly, I find that the applicant has not shown on the balance of probabilities that he is unable to engage in any employment for which he is reasonably suited by education, training or experience, for the period July 23, 2016 onwards.
Proposed Treatment & Assessment Plans
After the accident, the claimant received physiotherapy, acupuncture and massage therapy, chiropractic, TENS, exercise, stretching, and heat therapy, until the respondent ceased funding the treatments in December 2014.
There are two treatment and assessment plans in issue:
a. The psychological assessment by Dr Gerald Young for $3,320 and
b. The chronic pain assessment with Dr Karmy recommended by the Assessment Rehabilitation Treatment Centre for $1,925.
- I note in passing that these assessments are referred as being set out in “OCF-18” forms dated September 4, 2014 and April 25, 2016 respectively. However, these forms were not before me. I have therefore regarded the issue as payment for the reports submitted by Dr Young on December 10, 2014 and by Dr Karmy on June 13, 2016.
The Minor Injury Guidelines (“MIG”)
Section 18 of the Schedule provides for a maximum of $3,500 to be payable for treatment of a minor injury, where 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.” If the applicant’s injuries in this case are minor, the assessments would not be payable.
There does not seem to be any dispute that the applicant’s physical injuries are minor. The issue therefore becomes whether the applicant’s psychological problems are sufficiently serious to entitle him to treatment in excess of the $3,500.00 cap.
The applicant relies on the reports of Doctors Young and Karmy and the Disability Certificate of Dr Rom. As noted above, Dr Young reported that the applicant “was administered 5 tests having scales related to symptom exaggeration and he passed 2 of the 5. This negative impression management could indicate symptom exaggeration”, and the applicant’s “personality does seem to be contributing to his experience of pain and to his reported psychological symptoms,” corroborating the comments of Dr Marc Mandel, that tests “indicated the possibility of symptom magnification in certain areas” and “care must be taken in interpreting complaints of these types by [the applicant].”
Dr Mandel concluded that “there is lack of consistent objective information present that would suggest [the applicant] suffers clinically significant symptoms that would indicate a substantial impairment or disability as a result of the subject motor vehicle accident” and further that the applicant did not have a “pre-existing psychological condition . . . that would prevent [him] from achieving maximal recovery from the minor injury if subject to the $3,500 limit.”
For the reasons noted above, I do not find the June 2016 report of Doctor Karmy and the September 2016 Disability Certificate of Dr Rom persuasive.
Taking the medical evidence as a whole, I find that the applicant’s injuries are minor and accordingly the assessment plans are not payable.
The Other Issues in Dispute
- Given the above conclusions, I find it unnecessary to consider the issues of interest, costs and entitlement to an award pursuant to Regulation 664 (10.)
Released: February 6, 2017
J. H. Bass, Adjudicator