17-005290 v Certas Insurance Company, 2018 CanLII 112136

17-005290 v Certas Insurance Company

Date: 2018-03-29

Tribunal File Number: 17-005290/AABS

Case Name: 17-005290 v Certas 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

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Counsel For the applicant: Virginia Essipova

Counsel for the respondent: Stephanie Charikar

HEARD: In Writing: February 27, 2018

OVERVIEW

1The applicant was injured in an automobile accident on May 22, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

2. Is the applicant entitled to receive medical benefits recommended by Toronto Healthcare Clinic as follows:

i) $1491.20 for a physiotherapy treatment plan submitted September 15, 2015, denied by the respondent September 25, 2015;

ii) $1855.39 for a psychological treatment plan submitted August 5, 2015, denied by the respondent on August 14, 2015, and

iii) $1276.00 for a physiotherapy treatment plan submitted December 7, 2015 and denied on December 9, 2015?

3. Is the applicant entitled to interest on overdue benefits?

RESULT

3I find that the applicant sustained a minor injury as defined under the Schedule. The applicant has not provided compelling medical evidence to establish that maximum medical recovery cannot be reached within the Minor Injury Guideline (MIG) treatment funding limit of $3,500.00, as prescribed by section18(1) of the Schedule. Therefore the applicant is not entitled to the medical benefits claimed because they have exhausted the funding provided for under the MIG.

BACKGROUND

4The applicant was a front passenger in a vehicle which was hit from behind by a car that was pushed into their car by a third car. The applicant visited his family physician, Dr. Natalie Pang on June 26, 2015 and was diagnosed with whiplash, mild tenderness in the lower back and trapezius with normal range of motion.

5Following the accident, the applicant sought and received chiropractic and physiotherapy treatment from Toronto Healthcare Clinic which the respondent funded in the amount of $3,491.20. Following the case conference held on October 31, 2017, the respondent submitted it paid the balance remaining within the MIG to Toronto Healthcare Clinic.

6On August 5, 2015 the applicant submitted a treatment plan which requested a psychological assessment in the amount of $1855.39. This psychological assessment was denied by the respondent on August 14, 2015 and an Insurer’s Examination took place with Dr. Seon, Psychologist on December 3, 2015. Dr. Seon opined in her report dated December 23, 2105 that the treatment plan was not reasonable and necessary and the injuries sustained by the applicant in the motor vehicle accident are “minor and would not fall outside of the minor injury guideline.”

7On September 15, 2015 the applicant submitted a treatment plan for physiotherapy treatment in the amount of $1,491.20 which was dated September 3, 2015. The respondent denied funding for this treatment plan in its entirety on September 26, 2015 on the basis that there was a lack of compelling evidence to remove the applicant from the MIG.

8On December 7, 2015 the applicant submitted a treatment plan for physiotherapy in the amount of $1276.00. This treatment plan was denied by the respondent on December 9, 2015, pending the completion of an insurer’s examination. The respondent maintained its denial and concluded the treatment plan was not reasonable and necessary as the injuries sustained by the applicant from the motor vehicle accident were minor.

9The applicant disputes the respondent’s denials of the treatment plans and the respondent’s determination that characterizes the applicant’s injuries as coming within the MIG.

THE MINOR INJURY GUIDELINE

10The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined within section 3(1) of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

11The applicant submits that the MIG does not apply as he suffers from both driving phobia and chronic pain as a result of the subject motor vehicle accident.

THE APPLICANT’S PSYCHOLOGICAL INJURIES

The Applicant’s Submissions

12On July 11, 2015 the applicant underwent a psychological pre-screen with Helen Illios and Dr. Shaul, psychologist and their report recommended the applicant undergo a psychological assessment.

10The applicant’s claim for psychological impairment is based on a psychological assessment conducted by Dr. Shaul, psychologist on December 5, 2015. Dr. Shaul noted in his report dated January 2, 2016 that the assessment was comprised of a clinical interview and three psychometric tests in which the applicant completed self-reporting questionnaires. The objective testing results yielded scores in the minimal range in the areas of depression and anxiety for the applicant. Dr. Shaul noted in his report that the test scores revealed the applicant was “experiencing considerable minimal emotional stress since the accident which is in line with his report during the clinical interview.” It is noted within the report that the applicant “denied feeling more anxious or overwhelmed since the accident.” The report further noted that during the clinical interview, the applicant reported he continues to experience fear and anxiety towards traveling in a vehicle. Dr. Shaul diagnosed the applicant with Specific Phobia (travelling in a vehicle) and six counselling sessions were recommended.

11The applicant submitted a treatment plan for a psychological assessment in the amount of $1855.39 on August 5, 2015 which was denied by the respondent on August 14, 2015. The applicant submitted there was no formal Explanation of Benefits.

The Respondent’s Submissions

12The respondent relies on the psychological assessment arranged through an insurer’s examination conducted by Dr. Seon, psychologist on December 3, 2015. Dr. Seon issued a report dated December 23, 2015. Dr. Seon conducted a clinical interview with the applicant and administered five psychometric tests in which results were obtained through the applicant’s self-reporting.

13Dr. Seon noted the applicant denied any significant psychological impairment which adversely interfered with his occupational and social functioning and reported that he engaged in all pre-accident activities. The report noted the applicant denied experiencing significant symptoms relating to anxiety, stress, post-traumatic stress disorder but the applicant declined the need to participate in individual psychological treatment. The applicant reported symptoms of vehicular nervousness to Dr. Seon but Dr. Seon concluded the applicant’s presentation did not warrant a psychological diagnosis.

14Dr. Seon concluded that the Applicant’s subjective reports aligned with the objective test findings which noted minimal depressive and anxious symptomatology. Dr. Seon opined that the treatment plan proposed by Dr. Shaul was not reasonable and necessary and the injuries sustained in the motor vehicle accident are viewed as “minor and would not fall outside of the minor injury guideline.”

15Dr. Seon issued a further psychological report dated April 4, 2016 following a paper review of Dr. Shaul’s January 2, 2016 psychological assessment report. Dr. Seon’s opinion did not change as noted within her insurer’s examination report dated December 23, 2015.

16Dr. Seon performed a further psychological assessment on April 5, 2017 which was requested through an insurer’s examination. This was to assess if the applicant sustained a “minor injury” as defined within the Schedule. Dr. Seon issued a psychological report dated April 17, 2017. Dr. Seon utilized results from the applicant’s subjective reporting combined with objective test findings. Dr. Seon noted the applicant denied any marked fear or anxiety relating to operating or travelling within a vehicle and the subjective and objective test results did not identify a significant psychological impairment. Dr. Seon concluded the applicant’s psychological injuries were minor as defined within the Schedule and the MIG applies.

15The respondent submitted the treatment plan requesting a psychological assessment on behalf of the applicant was denied as there was insufficient information to confirm whether the treatment plan related to injuries sustained in the subject motor vehicle accident. The respondent sent the applicant a letter dated August 15, 2015 advising of this, and sent a further letter dated December 30, 2015 which maintained the denial of the psychological treatment plan as not reasonable and necessary as determined by the insurer’s examination. This was also noted within the respondent’s Explanation of Benefits dated December 30, 2015.

ANALYSIS

Did the Applicant Sustain a Psychological Impairment Warranting Removal From the MIG?

16The psychological assessments conducted by both Dr. Shaul and Dr. Seon incorporated the results obtained through clinical interviews with the applicant and objective test results. I prefer Dr. Seon’s findings for the following reasons:

i) Dr. Seon noted a correlation between the objective findings and the applicant’s subjective reporting in both of her reports. Dr. Shaul diagnosed Specific Phobia (travelling in a vehicle) even though the score for anxiety was in the minimal range on testing. Dr. Shaul’s diagnosis appears to rely on the information obtained only through the clinical interview.

ii) Dr. Seon’s report dated December 23, 2015 noted the applicant engaged in all of his pre-accident activities and denied experiencing symptoms related to anxiety, stress, and post-traumatic stress disorder. The report further noted the applicant declined needing individual psychological treatment. Dr. Seon’s subsequent report, dated April 17, 2017 noted that the applicant denied any marked fear or anxiety relating to driving or travelling in a vehicle and there was no significant psychological impairment identified which would warrant removing the applicant from the MIG.

iii) Dr. Seon’s reports provide conclusive results which are consistent with both the applicant’s self-report obtained during the clinical interview and findings yielded by the objective testing.

17For the reasons I noted above, I do not find on a balance of probabilities that the applicant suffers from a psychological impairment as a result of the accident.

DO THE APPLICANT’S PHYSICAL IMPAIRMENTS AND CHRONIC PAIN SYNDROME REMOVE THE APPLICANT FROM THE MIG?

Late Submissions Filed by the Applicant

27The respondent submitted that the letter from Dr. Kachooie, the updated clinical notes and records of Dr. Arulchelvam, and an updated OHIP summary were served on the respondent on January 22, 2018. The respondent noted the order issued by Adjudicator Watson dated December 1, 2017 stipulated that documents for the hearing shall be exchanged with the opposing party on or before December 15, 2017 and any documents disclosed after this date will not be permitted as evidence at the hearing. The respondent submitted that these documents should not be admitted as evidence for this hearing.

28I have allowed the letter from Dr. Kachooie and the updated clinical notes and records of Dr. Arulchelvam which were served on the respondent on January 22, 2018 to be admitted in this hearing. I note, there was no updated OHIP summary contained within either of the parties’ submissions. I have allowed the admission of Dr. Kachooie’s letter and the updated clinical notes and records of Dr. Arulchelvam to ensure procedural fairness to the applicant. However, I did not provide the respondent with an opportunity to further respond to these documents. I have reviewed these documents and it does not change my findings regarding the applicant’s physical impairments and whether the applicant suffers from chronic pain syndrome. My reasons are outlined below following the respondent’s submissions.

The Applicant’s Submissions

18The applicant relies on the clinical note and record of June 25, 2015 of his family doctor, Dr. Pang, which noted back pain with a rating of 8/10.

19The applicant relies on a disability certificate completed by Dr. Minella, chiropractor on September 3, 2015 which diagnosed the applicant with chronic cervical, lumbar and thoracic strain/sprain, post-traumatic headaches and nervousness.

20The applicant also relies on the clinical note of another family doctor, Dr. Bilbily, dated December 8, 2015. The clinical note referenced pain in the upper and lower back for a few months, and noted the applicant’s back pain is worse since he changed his car tire the week prior.

21The applicant submitted a treatment plan for physiotherapy in the amount of $1491.20 dated September 3, 2015 which was denied by correspondence letter from the respondent on September 26, 2015 which noted the “Diagnosis indicates that the Minor Injury Guideline is appropriate.” The applicant noted there was no formal explanation of benefits.

22On December 7, 2015 a second treatment plan in the amount of $1276.00 was denied by the respondent on December 9, 2015 pending the completion of an insurer’s examination. The applicant submitted there was no formal explanation of benefits.

23The applicant relies on Dr. Arulchelvam’s medical note dated March 29, 2017 that noted the applicant’s injury happened two years ago and the applicant had an MRI on April 30, 2017 that showed degenerative disc disease in the mid to lower thoracic spine.

24Dr. Arulchelvam prescribed massage therapy and physical therapy on October 30, 2017 for the applicant’s reported back pain. Further, Dr. Arulchelvam’s November 7, 2017 letter noted the applicant suffers from chronic pain. The letter noted: “…given the timeframe since the onset, following the MVA his symptoms are chronic” and further that “…his symptoms of back pain on top of spinal DDD might have got worse.” It also noted the applicant had become hypervigilant during driving. Dr. Arulchelvam prescribed behaviour therapy and referred the applicant to Dr. Kachooie, M.D. who specializes in pain management.

25Dr. Kachooie conducted an examination on the applicant and issued a letter dated December 20, 2017 which noted: “This gentleman’s pain seems to be mostly consistent with post whiplash and chronic facet joint syndrome.” Dr. Kachooie diagnosed the applicant with Axial Joint Degenerative Disease.

26The Applicant relies on the FSCO decision of Arruda v. Western Assurance Company¹ to support that chronic pain syndrome is excluded from the MIG when not sequelae of a soft tissue injury.

The Respondent’s Submissions

29The respondent submitted that it denied the treatment plan of $1491.20, dated September 3, 2015 in a letter dated September 26, 2016 [sic] (the respondent’s letter was dated September 26, 2015) as there was no compelling evidence to remove the applicant from the MIG. The letter noted the applicant would be required to attend an insurer’s examination to further assess this treatment plan.

30Dr. Millard, a physiatrist, conducted an insurer’s examination on December 9, 2015 and a report was issued December 23, 2015. Dr. Millard conducted a clinical interview with the applicant and performed physical and neurological examinations. Dr. Millard noted that the applicant sustained uncomplicated soft tissue injuries to the cervical and lumbar spine. Dr. Millard concluded that the applicant did not suffer a physical impairment and the injuries sustained by the applicant as a result of the subject motor vehicle accident were predominantly minor, as defined within section 3 of the Schedule.

31The respondent maintained the denial of the treatment plan in the amount of $1491.20 following the completion of the physiatry assessment, concluding that the treatment plan was not reasonable and necessary, as set out in its Explanation of Benefits dated December 30, 2015.

32The respondent received a treatment plan in the amount of $1276.00 on December 7, 2015 and denied it on December 9, 2015. The respondent issued a letter dated December 11, 2015 denying the treatment plan pending the outcome of the insurer’s examination with Dr. Millard.

33Dr. Millard issued an addendum report dated April 4, 2016 based on a paper review of additional medical documents provided by the applicant, and concluded her opinion remained unchanged from the prior report dated December 23, 2015.

34The respondent noted that the applicant was referred by another family doctor, Dr. Arulchelvam to undergo a dietician consultation. The respondent referenced the dietitian’s consultation report found in Dr. Arulchelvam’s January 7, 2016 clinical note that noted the applicant lifts weights at home for 15 minutes per day, 4 times per week.

35The respondent noted through its submissions that the applicant saw Dr. Arulchelvam on July 19, 2016 as the applicant had sprained his back the day before when moving a mattress. The respondent further noted that the clinical note from Dr. Arulchelvam dated August 9, 2016 noted the applicant’s back pain had resolved.

36The applicant attended a further insurer’s examination with Dr. Millard on August 24, 2017 to assess whether the applicant’s alleged injuries warranted removing him from the MIG in light of new medical information from the applicant. The applicant self-reported to Dr. Millard that his pain had 75% improved but he still experienced intermittent pain in his neck and back. Dr. Millard conducted a physical examination and concluded in her report that the applicant did not demonstrate any ongoing accident-related musculoskeletal or neurological impairment, and further noted the applicant had reached maximum medical recover (“MMR”.)

37The respondent submitted the applicant visited Dr. Arulchelvam on March 29, 2017 who noted that the applicant referred to a “back of chest issue for which he had been with the insurance and it had been suggested that he should have an MRI before the file is closed.” The respondent submitted it is unclear who suggested the applicant undergo an MRI and the MRI results did not provide concrete evidence that the applicant sustained an injury. The results of the MRI noted very minor degenerative disc changes with no disc herniation, spinal stenosis, or foraminal narrowing.

38The respondent relies on the 2015 Ontario Superior Court decision, Scarlett v. Belair² which noted that the onus is on the applicant to prove on a balance of probabilities that they sustained injuries that were predominantly not minor in nature. Further, the respondent relies on the LAT decision, 16-000438 and The Personal Insurance Company³ where the adjudicator found that for chronic pain to be more than sequelae from soft tissue injuries, it must “be of a severity that it causes suffering and distress accompanied by functional impairment or disability.”

ANALYSIS

39I do not find the applicant suffers from chronic pain syndrome. The clinical notes and records from three family doctors which the applicant saw following the accident note back pain on four occasions from June 26, 2015 to October 25, 2016. On December 8, 2015, it is noted within Dr. Bilbily’s clinical notes that the applicant reported his back pain worsened after changing a car tire the week prior. In a consultation report with a dietitian dated January 7, 2016, it noted that the applicant lifts weights for 15 minutes per day, 4 times per week. Dr. Arulchelvam noted in his clinical note of July 19, 2016 that the applicant sprained his back carrying a mattress which aggravated his prior back pain but on August 9, 2016 noted the applicant’s back pain had resolved. All of these events may be intervening acts contributing to the applicant’s back pain.

40Dr. Minella, chiropractor, diagnosed the applicant with chronic cervical, lumbar and thoracic strain/sprain, post-traumatic headaches and nervousness in the disability certificate he completed on September 3, 2015. This disability certificate was completed less than four months following the subject motor vehicle accident and I do not afford much weight to it. Subsequent entries contained in the applicant’s clinical notes and records noted other factors unrelated to the subject motor vehicle accident which contributed to the applicant’s back pain.

41The applicant did visit Dr. Arulchelvam on March 29, 2017 and was referred for an MRI which was completed on April 30, 2017. The results of the MRI noted very minor degenerative disc changes with no disc herniation, spinal stenosis, or foraminal narrowing. Therefore, I do not find the MRI results provide conclusive findings that the subject motor vehicle accident contributed to the chronic back pain reported by the applicant.

42On September 21, 2017, the applicant saw Dr. Arulchelvam and it was noted that the applicant should start physiotherapy and massage therapy to address mechanical back pain for one year. The applicant reported back pain to his family doctors on very few occasions in 2015 and 2016.

43Dr. Kachooie examined the applicant and in his letter of December 20, 2017, provided a diagnosis of Axial Joint Degenerative Disease and also Sleep Apnea. Dr. Kachooie noted: “This gentleman’s pain seems to be mostly consistent with post whiplash and chronic facet joint syndrome. Sleep apena [sic] can be an aggravating factor for his pain.” Dr. Kachooie further noted: “The pain is very mild unless he does some heavy exercises and lifting or carrying which aggravates his pain.”

44Dr. Kachooie’s letter has noted the applicant’s pain to be “very mild” and that factors including sleep apnea, heavy exercises, lifting, and carrying aggravate his pain. I find these are activities unrelated to the accident. I find this supports that the applicant has not sustained a functional impairment as a result of the motor vehicle accident. While Dr. Kachooie noted the applicant’s pain to be “mostly consistent” with post whiplash and chronic facet joint syndrome, the diagnosis reached by Dr. Kachooie of Axial Joint Degenerative Disease was not linked by Dr. Kachooie to the motor vehicle accident. I therefore afford little weight to Dr. Kachooie’s letter of December 20, 2017 to support that the applicant suffers from chronic pain syndrome as a result of the motor vehicle accident.

45The applicant relies on Arruda which I find distinguishable from this case. In Arruda, there was a diagnosis of chronic pain syndrome and a psychological injury. I do not find the applicant in this case sustained a psychological injury, nor chronic pain syndrome as a result of the subject motor vehicle accident.

46I rely on the LAT decision provided by the respondent, 16-000438. I do not find that the applicant’s chronic pain is of a severity that it causes suffering and distress accompanied by functional impairment or disability, nor do I find the applicant’s chronic pain to be more than sequelae from soft tissue injuries.

CONCLUSION

47As noted in Scarlett, the onus is on the applicant to prove on a balance of probabilities that the injuries they sustained were predominantly not minor in nature. I do not find on a balance of probabilities that the applicant suffers from chronic pain syndrome as a result of the subject motor vehicle accident which would preclude his recovery under the MIG. Both parties provided other FSCO and LAT decisions which are not binding on me, and while I am bound by Superior Court decisions, I did not find those provided by the parties to be relevant to my analysis.

48As the $3,500 limit under the MIG has been utilized, and I find the applicant to have sustained injuries subject to treatment available within the MIG, I therefore do not need to decide on the three medical treatment plans in dispute.

49The applicant has raised the issue of a special award in their application, which was not noted within Adjudicator Watson’s December 1, 2017 Order. As I find there is no benefits payable, the claim for a special award is moot.

50The applicant’s appeal on all issues in dispute is therefore dismissed.

Footnotes

1. 1Arruda v. Western Assurance Company, FSCO A13-003926
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 316-000438 and The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)