18-000513 v. Certas Home and Auto Insurance Company, 2018 CanLII 115665

Date: 2018-10-02

Tribunal File Number: 18-000513/AABS

Case Name: 18-000513 v Certas Home and Auto 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

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES:

For the applicant: Victoria Tchilikova, Licensed Paralegal

For the respondent: Sharla Bandoquillo, Counsel

Written Hearing on: July 23, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on June 2, 2016, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant disputes this determination.

3The significance of being categorized in the MIG is that medical and rehabilitation benefits are limited to $3500. The applicant has exhausted this limit in this case.

4If a person’s injuries are not minor, they are then able to access up to $50,000 in medical and rehabilitation limits.

5These limits for medical and rehabilitation benefits include “all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person,” with some exceptions (see Section 18(5)).

6The parties attended a case conference on May 9, 2018. The application did not resolve at that time. It proceeded to a hearing in writing before me.

ISSUES

7The issues before me are as follows:

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

(ii) Given that the applicant has exhausted the monetary limits of the MIG, I will only consider the following issues if I find that the applicant falls outside of the MIG:

(a) Is the applicant entitled to receive a medical benefit in the amount of $1,300.00 for chiropractic treatment recommended by Back to Play Chiropractic in a treatment plan (OCF-18) dated April 20, 2017 and denied on May 5, 2017?

(b) Is the applicant entitled to payment for the cost of examination in the amount of $1,302.48 for a chiropractic assessment, recommended by Alliance Diagnostic and Treatments Inc. in a treatment plan (OCF-18) dated August 29, 2017 and denied on September 16, 2017?

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

RESULT

8I find that the applicant’s injuries fall within the MIG. Therefore, I need not determine whether the chiropractic treatment plan or the cost of examination claimed are reasonable and necessary.

9I also find that the respondent is not liable to pay the applicant the cost of examination or the interest being claimed.

ANALYSIS

The Minor Injury Guideline

10Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.” The Schedule also defines what these terms for injuries mean.

11Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

12The onus is on the applicant to show that his injuries fall outside of the MIG³.

Did the applicant sustain predominantly minor physical injuries?

13I was provided with the following documentary evidence with respect to the applicant’s impairments:

(a) the OCF-3 of Dr. Yousif (chiropractor) dated June 7, 2016, a few days after the accident;

(b) the OCF-23 of Dr. Yousif dated June 7, 2016;

(c) the OCF-24 of Dr. Yousif dated September 21, 2016;

(d) the OCF-18 of Dr. Clutton (chiropractor) dated April 20, 2017;

(e) the OCF-18 of Dr. Maano (chiropractor) dated August 29, 2017;

(f) the clinical notes and records (CNRs) of Back to Play Chiropractic from June 2016 to May 2017;

(g) the Miscellaneous Assessment Report prepared by Dr. Maano dated November 20, 2017 (“Maano Report”); and

(h) the colonoscopy discharge report of the applicant dated November 20, 2015.

14The OCF forms referred to above all indicate that the applicant has the following physical injuries: sprain and strain of lumbar spine, WADII with complaint, tension-type headache, sprain and strain of thoracic spine.

15The CNRs, which were taken over the period of a year, state that the applicant experienced soreness, stiffness, and pain in his back.

16These descriptions in the documents correspond to the definition of a minor injury as provided in the Schedule.

17The colonoscopy report pre-dates the subject accident. I have therefore given it little weight.

18I find, on the basis of this evidence, that the applicant’s physical injuries are predominantly minor.

Does the applicant have any pre-existing conditions?

19Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements in order to escape the MIG:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁴

20The standard for removing an individual from the MIG on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG. The MIG requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

21The OCF-18 of Dr. Clutton and the OCF-23 of Dr. Yousif both contain a brief reference to a previous motor vehicle accident in which the applicant suffered back injuries. By contrast, the OCF-18 of Dr. Maano and the OCF-3 of Dr. Yousif both indicate that there are no previous injuries. Given these sparse and contradictory references to a previous injury, I am not satisfied that the applicant has a pre-existing condition that would prevent maximal recovery from the minor injury and thus remove him from the MIG.

Does the applicant have psychological impairments that remove him from the MIG?

22The applicant claims that he sustained psychological injuries as a result of the accident that place his claims outside of the MIG.

23Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

24The applicant relies on the Maano Report in support of this position. In preparing this report, Dr. Maano appears to have:

(a) Interviewed the applicant on August 22, 2017 at an intake appointment;

(b) Asked the applicant to complete a pain diagram and a one-page questionnaire for psychological screening;

(c) Conducted a telephone follow-up with the applicant; and

(d) Reviewed documentation consisting of diagnostic imaging and testing reports, the family physician notes and records, and the Back to Play CNRs (which documentation was also in evidence before me, with the exception of the family physician notes and records).

25Using these methods, Dr. Maano arrived at the following list of psychological impairments, which he terms “psychologically-related sequelae” as a result of the accident: of the injuries from the accident:

(a) Feelings of sadness or crying;

(b) Sleep difficulties, including trouble falling or staying asleep;

(c) Increased stress in relationships with others;

(d) Feeling tense, anxious or nervous;

(e) Low energy, including loss of interest in previous activities;

(f) Increased irritability, frustration or anger; and

(g) Difficulties coping with pain or injury symptoms.

26Dr. Maano is a chiropractor and psychology is not one of his areas of expertise. Moreover, it appears that the applicant self-reported each of the listed psychological sequelae to Dr. Maano during the interview or using the questionnaire.

27Dr. Maano did not conduct any diagnostic or validity testing of the self-reported information. His disclaimers confirm that none of this self-reported information was in the documents before him.

28Dr. Maano’s OCF-18 was also prepared on the basis of the same interview with the applicant dated August 22, 2017. In the injury and sequelae information, he lists: “malaise and fatigue, sleep disorder, unspecified, and anxiety disorder, unspecified.”

29A careful review of Dr. Maano’s methods indicates that there was no actual diagnosis or tested verification of the claimed psychological impairments, and they were all self-reported.

30On a balance of probabilities, then, I find that the applicant does not suffer from psychological impairments that would remove him from the MIG.

Does the applicant suffer from chronic pain?

31The applicant submits that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain.

32In support of this claim, the applicant relies once again on the Maano Report. Dr. Maano opines, in one paragraph of his report, that the applicant suffers from chronic pain, based on the duration of his complaints.

33Given that Dr. Maano has formed this opinion, I have read the report to see what methods he has used to arrive at that opinion. It appears that he did not conduct a manual examination or objective assessment of the applicant. His review of the applicant’s condition was limited to reading a specific set of documents, asking the applicant to fill out a brief self-reporting questionnaire, conducting one in-person intake interview, and conducting one telephone interview.

34Dr. Maano recommends that the applicant undergo a chronic pain assessment. There is no chronic pain assessment in the evidence before me.

35On a balance of probabilities, I find that the applicant does not suffer from chronic pain. He remains within the MIG.

36Given that I have found that the applicant remains within the MIG, I will not assess whether the chiropractic treatment plan of Dr. Clutton or the cost of examination by Dr. Maano are reasonable and necessary.

Improper Reply by the Applicant

37The applicant has raised in his reply for the first time issues with respect to the timing of the denials by the respondent. These issues were not raised in the applicant’s initial submissions, and the respondent did not have an opportunity to respond to them. I will therefore not determine the issues that were raised by the applicant for the first time in reply.

CONCLUSION

38I find that the applicant does not have a pre-existing condition, a psychological impairment, or a chronic pain condition that would remove him from the MIG. He is, therefore, subject to the statutory limitation on the amount of medical and rehabilitation benefits, and is not entitled to payment for the chiropractic treatment plan of Dr. Clutton or the cost of examination of Dr. Maano.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.