17-006816 v The Co-operators General Insurance Company, 2018 CanLII 110950

Date: 2018-08-22

Tribunal File Number: 17-006816/AABS

Case Name: 17-006816 v The Co-operators General 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:

Applicant

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES: Nick Hamilton, counsel for the applicant David Raposo, counsel for the respondent

Heard in writing on: July 9, 2018

OVERVIEW

1The applicant was injured in an automobile accident on February 20, 2015. He sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied his request for benefits, and the applicant filed an application with the Licence Appeal Tribunal (“Tribunal”).

PROCEDURAL HISTORY AND LIMITATIONS ON THE SCOPE OF EVIDENCE

2The applicant had first asked this Tribunal to determine whether his injuries fell within the Minor Injury Guideline (“MIG”) as part of application No. 16-00714/AABS. The Tribunal (Adjudicator Sewrattan) found that the applicant’s injuries were minor. The Divisional Court dismissed the applicant’s appeal of this decision.

3Now, the applicant has filed the instant application asking, once again, whether his injuries fall within the MIG. The respondent brought a motion to dismiss this application on the basis that it was res judicata.

4The Tribunal dismissed the respondent’s motion on the basis that it was premature, and made the following observations:

It may be that once this matter gets to a case conference stage, and if compelling medical evidence is received, MIG may not be an issue any longer.

The related issue is also whether there is new medical evidence that may take the applicant out of the MIG.

5The motions adjudicator was referring to the possibility of new evidence that was not before Adjudicator Sewrattan, and that would change the position or the determination of the MIG issue. Indeed, the Supreme Court of Canada has stated that matters should not be re-litigated unless there is “fresh, new evidence, previously unavailable, [that would] conclusively impeach the original results”: Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63, [2003] 3 SCR 77 (S.C.C.).

6I will therefore confine myself in this analysis to the evidence that has become available since the release of Adjudicator Sewrattan’s decision.

ISSUES

7This application proceeded to a hearing before me on the following issues:

(i) Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

(ii) If the applicant’s injuries are not within the MIG, then I must determine the following issues:

(iii) Is the applicant entitled to receive a medical benefit in the amount of $4,678.40 for psychological services, recommended by Somatic Assessment & Treatment Clinic in a treatment plan that was submitted on September 22, 2017, and denied on October 3, 2017?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8I have made the following decision with respect to the issues in dispute:

a. The applicant’s injuries are “minor” as defined by s.3 of the Schedule, and therefore his claims are subject to the cap on benefits set by the MIG;

b. The proposed treatment plan is beyond the limit of the MIG, and it therefore not payable.

c. Since the claimed benefits are not payable, no interest is due.

REASONS

9The applicant is now 34 years old. As part of the application before me, he claims that he has psychological impairments, including a sleep disorder, arising out of the accident, which take him out of the MIG.

10The applicant relies, in part, on the evidence of Dr. Palantzas. This evidence was available in advance of the hearing before Adjudicator Sewrattan, and was also referred to in his reasons.

11As indicated above, I will only be considering evidence that was not previously before Adjudicator Sewrattan on the issue of whether the applicant’s injuries fall within the MIG.

12The “new evidence” from the applicant consists of:

a. An OCF-19 (Declaration of Catastrophic Impairment) for the applicant, prepared by Dr. Hung-Tat Lo, dated February 24, 2017;

b. An OCF-18 for the applicant, prepared by Dr. McDowall, dated September 22, 2017 (being the treatment plan at issue);

c. A CAT rebuttal report, prepared by Dr. Hung-Tat Lo, dated December 9, 2017; and

d. Updated clinical notes and records of Dr. Hung-Tat Lo (psychiatrist), and of Dr. Dong (family physician).

13The applicant has clarified in his submissions that he is not seeking a determination that he is catastrophically impaired; only a determination that he is now out of the MIG.

14In response to the applicant’s OCF-19, the respondent has conducted and submitted reports of the following CAT (catastrophic impairment) assessments:

a. Psychiatry Assessment of Dr. Rosenblat, dated August 17, 2017;

b. ADL Functional Assessment of Ms. Youm, OT, dated May 23, 2017; and

c. Community Functional Assessment of Ms. Youm, OT, dated May 24, 2017.

15The respondent has also presented surveillance evidence of the applicant from the following dates:

a. Four days between October 27, 2017, and December 8, 2017; and

b. Seven days between February 8, 2018, and March 14, 2018.

16The clinical notes and records filed indicate that the applicant started seeing Dr. Lo on October 7, 2016, more than one year after the accident in issue. He appears to be seeing Dr. Lo on an approximate once or twice a month basis from October, 2016 to October, 2017. The notes are fairly brief and indicate some psychological concerns on the part of the applicant, such as nightmares, and increased temper.

17These notes appear to be based solely on the applicant’s self-reporting to Dr. Lo and no additional testing. There is also no discussion in these notes and records as to whether the psychological and sleep concerns were caused by the accident at issue.

18In addition, Dr. Lo’s CAT rebuttal report of December 9, 2017, concludes that the applicant suffers from a 73% overall impairment based on the AMA4 Guidelines. In more specific areas, Dr. Lo has made the following conclusions:

a. That the applicant suffers an 80% (extreme) impairment in his activities of daily living – complete dependence on mother;

b. That the applicant suffers a 70% (marked) impairment in his social functioning – requiring regular support, violating social norms, unable to be socially responsible;

c. That the applicant suffers a 70% (marked) impairment in his concentration, persistence, and pace – 70% (marked) – requiring regular support, needing supervision, impaired concentration and memory when significantly depressed; and

d. That the applicant suffers a 70% (marked) impairment in his adaptation/decompensation – unable to meet commitments of home and work, 3 or more episodes requiring support, lasting two or more weeks.

19I am troubled by Dr. Lo’s CAT rebuttal report for the following reasons:

a. Dr. Lo’s conclusion that the applicant suffers from a 70% (marked) impairment in concentration, persistence, and pain, based on “impaired concentration and memory when significantly depressed,” contrasts with his own notes of the applicant’s self-reports. There is no mention of these concerns in his notes and records. Rather, the notes say, for example:

i. On July 26, 2017: “thought: normal, in form”, and “cognition: grossly intact”;

ii. On August 16, 2017: “affect: less depression,” and “Generally better, sleeps better, but still nightmares – no screaming”; and “status: intact”;

iii. On September 11, 2017: “better in day despite lots of dreams”; “thought: normal, in form”; “cognition: grossly intact”; “insight: fair”; and

iv. On October 6, 2017: “feeling more normal now”.

These are only a few examples of the various contrasts between the CNR’s of Dr. Lo, and his impairment ratings and descriptions of the applicant in his CAT rebuttal report.

b. There is surveillance taken of the applicant around the same time as the CAT rebuttal report (i.e., December, 2017). This surveillance shows the applicant appearing to socialize with other individuals, holding an item in his hand, and without the support of his mother. There are also various shots of him moving around the community independently. Surveillance photos a few months later from February 2018 show him as independently bending, carrying boxes between a car and a house, up a short flight of stairs, and carrying shopping bags. Once again, he appears to be doing these activities without the aid of his mother or another individual. As such, there is a marked difference between what these photographs show and what Dr. Lo states about the applicant’s abilities and need for support.

20Given the inconsistencies between Dr. Lo’s notes and his subsequent determination of the applicant’s impairment levels, I assign very little weight to his CAT rebuttal report.

21I recognize that surveillance evidence provides a relative snapshot of the applicant’s day-to-day activities. However, the applicant was observed for a number of consecutive days from October, 2017, to March 2018. The surveillance records simply do not correspond to the limitations identified in Dr. Lo’s CAT rebuttal report. The applicant has not explained or replied to this apparent contradiction between the surveillance evidence and Dr. Lo’s report.

22I add to this concern the fact that the respondent’s CAT assessors, Dr. Rosenblat and Ms. Youm, were unable to arrive at a conclusion with respect to the applicant’s impairment levels. This was largely due to the challenges presented to them by the applicant. Notably, the applicant did not appear to co-operate with their examinations or assessments. Both assessors refer to these challenges in detail in their reports.

23The resulting opinions about the applicant by the respondent’s assessors include statements of the following nature:

a. “As the claimant presents in a fashion which is not credible, no psychiatric diagnoses or impairment levels can be assessed.” (Dr. Rosenblat);

b. “I was unable to identify his true physical, emotional, and cognitive behavioral barriers to his function in the domain of Activities of Daily Living due to inconsistencies noted and reduced participation in the assessment.” (Ms. Youm).

24The applicant has asked me to invalidate Dr. Rosenblat’s report on the basis of Dr. Lo’s CAT rebuttal report. However, for reasons previously given, I have assigned very little weight to Dr. Lo’s report, and I do not find it persuasive.

25On this basis, the applicant has not met his burden of establishing, on a balance of probabilities, that his injuries fall outside of the MIG.

26The applicant’s injuries are therefore minor in nature as defined by the Schedule. Payment of benefits for treatment above the $3,500.00 limit is not available to him.

27Accordingly, the treatment plan being claimed for the applicant falls beyond the treatment limits and is therefore not payable to the applicant.

28As no benefits are payable to the applicant, no interest is due.