17-000565 v Wawanesa, 2018 CanLII 13146

17-000565 v Wawanesa

Date: 2018-01-29 Tribunal File Number: 17-000565/AABS Case Name: 17-000565 v Wawanesa

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

Wawanesa

Respondent

DECISION

ADJUDICATOR: Billeh Hamud

APPEARANCES:

For the Applicant: Heidi Njegovan, counsel For the Respondent: Tim Gillibrand, counsel

Heard in writing: July 31, 2017

BACKGROUND:

1The applicant was injured in an automobile accident on August 22, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). The applicant sought benefits from the respondent for several treatment and assessment plans and payment for examinations. The respondent denied the plans on the basis that the applicant’s injuries were predominately minor in accordance with the Schedule and the Minor Injury Guideline (MIG).

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DETERMINED:

3The following are issues to be determined:

a.) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the MIG?

b.) Is the applicant entitled to receive a medical benefit for the following:

i) $1,008.01 for massage therapy set out in a treatment plan dated July 20, 2015 from Elements Massage Therapy and Holistic Centre, denied by the Respondent on August 10, 2015.

ii) $1,008.01 for massage therapy set out in a treatment plan dated May 5, 2015 from Elements Massage Therapy and Holistic Centre, denied by the Respondent on May 21, 2015.

iii) $261.48 for prescriptions from Shoppers Drug Mart, submitted on May 6, 2015 (no response from the Respondent).

c.) Is the applicant entitled to payment for the following examinations:

i) $2,184.93 for a psychological assessment by Dr. Peter Waxer, submitted on February 3, 2015, denied by the Respondent on April 16, 2015.

ii) $2,776.40 for a neurological assessment by Recovery Rehab and Health Group submitted on April 4, 2016 and denied by the Respondent on June 22, 2016.

iii) $2,663.40 for a chronic pain assessment by Recovery Rehab and Health Group submitted on November 11, 2016 and denied by the Respondent on November 28, 2016.

d.) Is the applicant entitled to interest for the overdue payment of benefits?

RESULT:

4I find on all of the evidence that the applicant’s injuries are predominately minor as defined by the Schedule and subject to treatment within the MIG.

5Since the applicant’s injuries are within the MIG, there is no need to determine if the treatment and assessment plans are reasonable and necessary.

6Since the applicant is not entitled to any outstanding benefit, he is not entitled to interest.

ANALYSIS:

1) Are the applicant’s injuries within the Minor Injury Guideline?

7The MIG is a limit on the respondent’s liability with respect to minor injuries sustained in a car accident.

8A “minor injury” is defined in s. 3(1) of the Schedule 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”.

9Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00 minus any amounts paid in respect of an insured person under the MIG.

10The applicant bears the onus of proving on a balance of probabilities that his injuries fall outside of the MIG.

11The injuries sustained by the applicant can be categorized into two groups – physical injuries and psychological injuries. If the applicant’s evidence and submissions fail to prove on a balance of probabilities that his injuries are not predominately minor, the analysis is over. I find the applicant’s injuries are predominately minor and subject to the treatment cap of $3,500.00 under the MIG.

12The applicant submits that his injuries fall outside of the MIG. The applicant maintains that he suffers from several physical and psychological injuries as a result of the accident. The applicant relies on Dr. Karmy, the applicant’s chronic pain specialist, and his chronic pain assessment of the applicant. Specifically, Dr. Karmy diagnosed the applicant with post-concussion syndrome, chronic post-traumatic headache, and chronic pain to several parts of his body. The applicant also relies on Dr. Waxer, the applicant’s psychologist, and his psychological assessment of the applicant. Dr. Waxer diagnosed the applicant with chronic adjustment disorder, predominant pain and mild traumatic brain injury. Both specialists opined that the applicant’s injuries fall outside of the MIG.

13The respondent submits that the applicant’s injuries are predominately minor and the applicant’s evidence is not credible because surveillance of the applicant and social media evidence of the applicant directly contradict his alleged functional abilities. The respondent also relies on Dr. Castiglion, the respondent’s assessor, and his s.44 examination that the applicant’s injuries were uncomplicated soft-tissue injuries. The respondent also relies on Dr. Moddell, the respondent’s neurological assessor, his s.44 examination that the applicant’s headaches were “tension type” stemming from his soft tissue injuries. Dr. Day, the respondent’s psychological assessor, also performed a s.44 examination and found that the applicant’s scores on anxiety and depression were in the average range and the applicant admitted he had no interest in pursuing psychologist treatment. Dr. Day determined that the applicant did not have any diagnosable psychological disorder.

Credibility

14The medical reports submitted by the applicant rely heavily upon his self-report of physical and psychological difficulties to the health practitioners. The credibility of the applicant’s medical reports is strongly tied to the applicant’s credibility.

Video Surveillance and Social Media Evidence

15The respondent casts significant doubt on the applicant’s credibility. The respondent commissioned surveillance on the applicant which was conducted on May 24, 2017 and May 25, 2017. In addition, the applicant’s social media accounts on Facebook and Instagram from June 2015 to September 2016, including the social media account of his business, were also reviewed by the respondent. I have reviewed this evidence and I find the surveillance and photographs raise significant questions about the applicant’s credibility.

16Specifically, the applicant relies on Dr. Karmy, the applicant’s chronic pain specialist, to support the view that his injuries are outside of the MIG. Dr. Karmy’s report, dated March 20, 2017, states that the applicant developed chronic headaches and chronic neck, right shoulder, right elbow, right wrist, right knee, right ankle and lower back pain. In addition, Dr. Karmy’s report notes that the applicant states that prior to the accident he actively participated in caregiving for his three children and states that the applicant “frequently drove them to and from school and extracurricular activities. As a result of the subject MVA, he is no longer able to do so”. However, the video surveillance shows the applicant walking, running, carrying bags and lifting a box on both days of surveillance without any visible discomfort. Furthermore, a photograph of the applicant on vacation in Pisa, Italy, dated September 5, 2016, and posted on his business’ Instagram account, shows the applicant balancing his entire weight forward while standing on a rock using only one leg and with his right arm extended. The applicant also failed to explain this photograph in his reply. I find that the activities performed by the applicant in the video surveillance and the photograph to be inconsistent with his self-reported injuries.

17I have other concerns with the applicant’s credibility. For example, the medical evidence shows that the applicant’s head was injured post-accident in March 2015. Specifically, the medical records of the applicant’s physician, Dr. Miriam Bibi, dated March 30, 2015, state that stiches were removed from the applicant’s scalp. There is also no medical evidence stating that the applicant required stitches following the accident on August 22, 2014. As a result, the respondent requested particulars from the applicant on the nature of this post-accident head injury. The respondent submits that there was no response from the applicant on this post-accident injury. Instead, in his reply, the applicant simply states that this was a “minor injury requiring only three stitches that were removed two weeks post incident”. I find this response to be insufficient. The fact that the applicant injured his head over eight months after the accident and required stitches is significant. In fact, the applicant did not provide any details of this accident or any supporting evidence to corroborate that this post-accident injury may have been “minor”. This post-accident injury was also not reported to any of the applicant’s or respondent’s assessors. This raises further questions about the applicant’s credibility.

18In addition, Dr. Karmy’s report, dated March 20, 2017, states that “Prior to the subject accident, the claimant used to go out with his family. He enjoyed going to movies, shopping malls, and restaurants. Due to the subject accident chronic pain, which flares up frequently, as well as headaches, low mood, low energy levels and loss of pleasure, the claimant was forced to curtail all his recreational and social activities” (emphasis added). This description casts a bleak view of the applicant’s condition. In contrast, the video surveillance of the applicant shows him accompanying his family, including his wife and child, to restaurants and grocery stores. Over the two days of surveillance, the applicant is seen laughing and running with his family in public. More importantly, the applicant’s business Instagram account shows photographs of the applicant and his family travelling on a cruise vacation to Italy in September 2016. As I noted above, a photograph shows him in Pisa, Italy, balancing himself on a rock using only his right leg. These instances directly contradict the applicant’s self-reports of his medical condition.

19Although it is possible that the applicant’s symptoms were lessened over the two days of surveillance and then subsequently experienced resulting pain and its effects, the applicant has not provided any explanation for this contradictory evidence. This is despite having the opportunity to do so in his reply submissions.

20I also rely on the respondent’s investigation report which corroborates the time period of the applicant’s cruise in Europe with a photograph on the applicant’s business Instagram account posted on August 6, 2016, which states: “We will be closing: August 25 – Sept 3”, a photograph of the applicant posing in front of the cruise ship “Carnival Vista” and an itinerary of an eight night cruise on the Carnival Vista visiting Spain, France and Italy. Therefore, I am convinced that the applicant attended this vacation in August 2016 and/or September 2016. Based on my review of the evidence, I find the applicant’s physical injuries fall within the MIG.

21Lastly, the applicant relies on his psychologist, Dr. Wexer, in asserting that his psychological injuries are outside of the MIG. However, again I have concerns with the applicant’s self-reports to his own medical team. Specifically, Dr. Wexer’s report, dated April 5, 2017, states: “When asked if his accident had affected his business, [the applicant] reiterated that he estimates his current contribution to the family business to be 30% of his pre-accident efforts and now primarily restricted to some of the simpler paperwork and pickup and delivery duties for the business”. Dr. Karmy’s report, dated March 20, 2017, states “Despite persistent symptoms, the claimant did gradually return to the salon where he performed modified duties, primarily administrative in nature. He was forced to hire staff to help with the physical part of his job, which has significantly reduced his earning capacity”. In contrast, the respondent’s investigation report, dated June 2, 2017, shows a photograph of the applicant with a mask and gloves working on a client’s nails in June 2015. Recent video surveillance on May 25, 2017 also shows the applicant with a mask and gloves attending to clients. I find this evidence supports the view that the applicant was not performing “administrative duties” and/or “simpler paperwork”, but actively working as an esthetician. Once again, the applicant failed to address this evidence in his reply.

22Although there may be an explanation for the discrepancies between the applicant’s self-report to medical professionals and what is shown by the surveillance and the applicant’s photographs on social media – I cannot speculate on what that may be. The applicant’s reply submissions did not address the photographs of the applicant posted on social media. Instead, the applicant’s reply focused on the respondent’s video surveillance and claimed that it mischaracterized the applicant’s credibility. For example, the applicant submits that the respondent mischaracterized statements made by the applicant’s assessors in order to make reference to the surveillance period. In particular, the applicant denies the respondent’s suggestion that the applicant was completely unable to drive his children to school and extra-curricular activities. Instead, the applicant submits that the evidence shows that he always maintained he was able to drive, albeit infrequently. Nevertheless, even if I agreed with the applicant’s submission on this point, the totality of the evidence still raises significant credibility concerns leading me to find the applicant’s evidence unreliable. As a result, I find he has not proven on a balance of probabilities that his impairments fall outside of the MIG.

23As a result, I place minimal weight on the applicant’s self-report of his injuries.

Medical Evidence

24In addition to the concerns raised about the applicant’s credibility, the applicant’s own physicians also support the view that his injuries are predominately minor.

25On the day of the accident, the applicant’s x-ray revealed no acute injury and the emergency room physician, Dr. Lloyd Gordon, diagnosed the applicant with a contusion.

26On April 13, 2015, Dr. Bibi completed an OCF-18 and noted the applicant’s injuries were “predominately minor” and noted the applicant’s injuries as “whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, lumbar spine and shoulder joint.” On July 20, 2015 and December 14, 2015, Dr. Bibi completed additional OCF-18 forms, confirmed her original findings and stated that the applicant’s injuries were still predominately minor.

27On August 1, 2016, the applicant’s CT scan of his head was normal.

28Although the applicant has submitted medical evidence from Dr. Wexer and Dr. Karmy, the applicant’s self-reports are dependent on his credibility and based on the above reasons, the applicant’s credibility has been called into question. As a result, I have placed minimal weight on Dr. Wexer or Dr. Karmy’s findings since they rely significantly on the applicant’s credibility.

29The applicant has the onus of proving on a balance of probabilities that his injuries are not predominately minor under the Schedule. After considering all of the evidence, I am unable to conclude that he has met his onus because I afford little to no weight to his self-reports. Moreover, there is insufficient objective medical evidence to overcome the credibility issues.

30Since I have determined that the applicant’s injuries are predominately minor, there is no need to address whether the applicant’s treatment plans are reasonable and necessary.

31The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.