Tribunal File Number: 17-004982/AABS
Case Name: 17-004982/AABS 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:
Y.M.Y.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
Adjudicator: Ian Maedel
APPEARANCES:
Counsel for the Applicant: Eli Smolarcik
Representative for the Respondent: Christina Vittorio
Counsel for the Respondent: Richard Campbell
Language Interpreter: Shirley Cai (Mandarin)
Court Reporter: Susan Noblett
Heard in writing and by teleconference on: January 16, 2018
OVERVIEW
1The applicant was injured in an automobile accident on June 28, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for income replacement benefits (“IRB”) and received IRB until February 22, 2016 when they were terminated by the respondent when she could not demonstrate a substantial inability to perform the essential tasks of her employment. The applicant also applied for medical benefits and an Attendant Care Assessment that were denied by the respondent because she was placed within the Minor Injury Guideline (“MIG”). The applicant disagreed with these decisions and on August 2, 2017, submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of these disputed issues.
ISSUES TO BE DECIDED
3The following are the issues to be decided as per the Order of Adjudicator J. Bass dated October 26, 2017:
i. Is the applicant entitled to receive IRB of $246.47 per week from February 24, 2016 to June 24, 2017, denied by the insurer on June 22, 2016?
ii. Are the applicant’s injuries predominantly minor as that term is defined in s. 3(1) of the Schedule and thus, subject to a $3,500.00 treatment limit pursuant to section 18?
iii. Is the applicant entitled to receive a medical benefit in the amount of $319.40 for chiropractic services recommended by Toronto Healthcare Clinic Inc., in a treatment plan submitted on October 29, 2015 and denied November 6, 2015?
iv. Is the applicant entitled to receive a medical benefit of $1,060.80 for chiropractic services recommended by Toronto Healthcare Clinic Inc. in a treatment plan submitted October 13, 2015 and denied on October 27, 2015?
v. Is the applicant entitled to receive a medical benefit of $1,126.00 for chiropractic services recommended by Toronto Healthcare Clinic Inc. in a treatment plan submitted November 19, 2015 and denied on November 27, 2015?
vi. Is the applicant entitled to receive a medical benefit of $628.52 for assistive devices recommended by Toronto Healthcare Clinic Inc. in a treatment plan submitted September 18, 2015 and denied on September 30, 2015?
vii. Is the applicant entitled to receive a benefit of $1,521.26 for an Attendant Care Assessment recommended by Toronto Healthcare Clinic Inc. in a treatment plan submitted on July 22, 2015 and denied August 5, 2015?
viii. Is the applicant entitled to receive a benefit of $2,000.00 for a Chronic Pain Assessment recommended by Toronto Healthcare Clinic Inc. in a treatment plan submitted on December 14, 2015 and denied on December 21, 2015?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
x. Is the respondent entitled to costs due to the applicant’s behaviour being unreasonable, frivolous, vexatious or in bad faith?
RESULT
4Based on the totality of the evidence before me, I find:
i. The applicant is not entitled to IRB, as she has not established that she suffered a “substantial inability” to perform the essential tasks of her employment pursuant to section 5(1) of the Schedule.
ii. The applicant has predominantly minor injuries as defined in the Schedule and has already exceeded the $3,500 MIG limit. It is therefore unnecessary to consider the reasonableness of the treatment plans.
iii. As there are no benefits owed, there is no overdue payment of benefits and no interest is payable.
iv. The respondent is entitled to $250.00 in costs, as the applicant acted in bad faith.
ANALYSIS
Pre-Hearing Motions
5The respondent filed and served two Notices of Motion dated January 11, 2018. The first was seeking a production order from the Tribunal for income documents that the applicant had agreed to provide the respondent by November 30, 2017. The applicant agreed to provide the following documents on consent:
a) The applicant’s tax returns for 2016;
b) Any employment insurance claims;
c) Employment files to date;
d) Extended healthcare entitlement, if any.
6The respondent’s second Motion sought to ensure a court reporter was present or could make a recording of the applicant’s evidence-in-chief and cross examination.
7Given the extremely late nature of the respondent’s Motions and the impending hearing date, the Motions were both adjourned to be addressed by the hearing adjudicator.
8The respondent’s Motion for a production order is dismissed. These issues should have been examined well in advance of the hearing date, when it was clear the applicant had not met the November 30, 2017 deadline. Had the applicant sought to rely on these documents with regard to the benefits claimed, that evidence would have likely been excluded pursuant to Rule 9.4 of the Licence Appeal Tribunal Rules of Practice and Procedure (“Rules”) for failing to comply with the disclosure rules. However, the applicant did not rely on or refer to these documents in her submissions and they bore no effect on the outcome of this application.
9The court reporter issue is moot and the respondent’s associated Motion is dismissed. The applicant failed to attend for direct and cross examination via teleconference on January 16, 2018, as per the Order of Adjudicator J. Bass. In an apparent last-minute decision, the applicant elected not to attend and now relies solely on the written submissions filed.
Income Replacement Benefits
10The applicant has the burden of proof on a balance of probabilities that she meets the test laid out at section 5(1) of the Schedule. The insurer shall pay IRB if the insured person:
i. Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or
ii. Was not employed at the time of the accident but,
A. Was employed for at least 26 of the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident.2
11The applicant has not established that she suffered a substantial inability to perform the essential tasks of her employment. The applicant has provided no submissions or medical reports with regard to IRB. Neither has she demonstrated that she made any attempts to return to work, seek modified work or otherwise provided any independent evidence that she met the disability test.
12The Attendant Care Needs Assessment Report dated August 13, 2015 by Pravin Kedar, Occupational Therapist, does not address the IRB issue or the relevant test as laid out in s. 5(1) of the Schedule.3 This report is based almost solely on the applicant’s self-reporting and the Occupational Therapist did not examine her family physician’s clinical notes and records. There is no clear nexus between the subjective views of the applicant, the observations of the Occupational Therapist and the application of the test for IRB. Given this key deficiency, I place little weight upon this report regarding entitlement or calculation of IRB.
13In stark contrast, the respondent has provided two separate medical reports following the completion of s. 44 Insurer’s Examinations on the IRB issue: a psychiatry report from Dr. V. Sivasubramanian, Psychiatrist, and a physiatry report from Dr. A. Oshidari, Physiatrist. After reviewing the clinical notes and records and observing the applicant, both doctors were of the opinion that she demonstrated no substantial inability to perform the essential tasks of her pre-accident employment.4 Given the lack of medical reports filed by the applicant on the IRB issue, I place considerable weight upon the two reports filed by the respondent’s assessors and conclude that the applicant does not meet the disability test laid out in s. 5(1) of the Schedule.
Applicability of the Minor Injury Guideline
14The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
15Section 18(2) of the Schedule provides for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the insured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident that will prevent the insured person from achieving maximal recovery if benefits are limited to the MIG cap.
16In the decision of Scarlett v. Belair Insurance, the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant.5 Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
Did the applicant sustain a predominantly minor injury?
17The medical evidence before me indicates the applicant sustained an impairment that is predominantly a minor injury.
18The applicant was the passenger in a motor vehicle which collided with another vehicle when the third party made an illegal left turn in front of them. She suffered sprain/strain of the thorax and chest, shoulder girdle sprain/strain, cervical spine sprain/strain, thoracic spine strain/sprain, lumbar spine sprain/strain, headache, post-traumatic dizziness and symptoms and signs involving emotional issues.6
19Following the accident she attended physiotherapy twice weekly until December 2015 and sought massage therapy, laser therapy and the application of TENS machinery.7 The respondent approved various treatment plans up to the MIG monetary limit of $3500.00.
20The clinical notes and records provided by the applicant do not assist in establishing that the applicant’s injuries fall outside of the MIG. The clinical notes and records of the applicant’s family physician, Dr. Alan Yin are largely unreadable. There are also notes from the following treatment providers, none of whom provided details an injury or condition that would fall beyond the definition of a “minor injury”:
i. November 2, 2015, Dr. Brenda Kov, Head and Neck Specialist, stated that the applicant suffered from gingivitis and reflux laryngitis, was prescribed medication and told to modify her diet;
ii. November 10, 2015, Kennedy Sheppard Diagnostic Clinic, knee sonogram found no underlying soft tissue abnormalities, unremarkable;
iii. March 16, 2016, Dr. Gerald Chan, Internal Medicine, examinations of abdomen was listed as “ok” and was advised to take simple analgesics for pain, referred to a weight loss clinic and told to manage her gastroesophageal reflux disease (“GERD”);
iv. April 13, 2016, Lighthouse Medical Imaging, abdominal ultrasound revealed mild fatty infiltration on the liver, other organs normal.8
21The only report filed by the applicant in support of this Application was the Attendant Care Needs Report dated August 13, 2015 by Pravin Kedar, Occupational Therapist. This report also did not speak to a “minor injury” nor how the applicant’s injuries fell outside this definition as per s. 3 of the Schedule.
22The applicant admits that many of her injuries fall within the definition of “minor injury”, but states that these injuries have become chronic, as they have not resolved more than two years post-accident. However, the applicant provides no further medical evidence or diagnosis of chronic pain. The only reference to a chronic condition is from the IE report of Dr. Sivasubramanian, Psychiatrist, who opined that “psychiatric recovery likely prolonged by ongoing perception of physical pain and impairment”.9 This one-sentence reference cannot be relied upon as a diagnosis of chronic pain. Without a medical report or further medical evidence, I cannot conclude that the applicant suffers from chronic pain, nor does this remove her from the MIG.
23The applicant submits that the applicant’s psychological injuries have taken the applicant outside of the confines of the MIG. However, she provided no medical evidence to support this claim. The treatment plans submitted are all of a physical nature.
24The only medical evidence of a psychological injury cited by the applicant is from the Respondent’s Psychiatrist, Dr. Sivasubramanian, who assessed the applicant for the purposes of IRB and not the MIG. He diagnosed her with passenger anxiety, a mild adjustment disorder with depressed and anxious mood. The doctor noted that the passenger anxiety phobia only affected the applicant while in traffic and the adjustment symptoms were mild and not likely to interfere with her ability to function. He concluded that she suffered from no psychiatric barriers to prevent her from returning to work.10
25The applicant has not provided any submissions or evidence to illustrate that her injuries – whether chronic pain or psychological impairment as alleged – fall outside of the MIG. She has provided some subjective evidence of pain and discomfort as demonstrated in the Attendant Care Needs Assessment Report, but there is no medical diagnosis in the applicant’s submissions that demonstrate her injuries are anything but minor in nature. Complaints of pain or discomfort alone are not enough to take the applicant outside of the MIG. Once the injuries are established to be outside of the MIG, only then can an analysis of whether the treatment plans in dispute are reasonable and necessary take place. Thus, I do not need to determine whether the treatment plans are reasonable and necessary.
Requirements to be removed from the MIG
26If the applicant’s injuries fall within the definition of the MIG, the applicant can still be considered to be out of the MIG in accordance with section 18(2) of the Schedule. In order to do so, the applicant must meet all three of the following requirements in order to leave the MIG under this section:
a) There was a pre-existing medical condition;
b) The pre-existing medical condition was documented by a health practitioner before the accident; and
c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.
27I find that the applicant has not satisfied her onus and has not provided any submissions or evidence that any of the three criteria above apply. The applicant’s position that her injuries should be considered outside of the MIG appears to be based wholly on her alleged psychological injuries and potential chronic pain, neither of which are properly diagnosed or documented. There are no medical opinions provided on whether the alleged conditions exist, whether any future treatment is necessary or whether the treatment plans are reasonable.
28As the applicant has provided no evidence that her injuries fall outside the MIG, the reasonableness or necessity of the treatment plans cannot be considered.
29As I have found that the applicant has not met her onus to demonstrate her injuries fall outside of the MIG, there is no need to conduct an analysis of whether the treatment plans are reasonable and necessary. Accordingly, no interest is payable as there are no benefits owed.
Costs
30The respondent is entitled to $250.00 in costs. According to Rule 19.1 of the Rules, costs may be payable where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
31The Order of Adjudicator Bass specified that the applicant was to appear on January 16, 2018 at 9 am via teleconference for the purposes of direct examination and cross-examination.
32In anticipation of this, the respondent brought a motion in order to preserve their right to have a court reporter present and/or tape the proceedings. This motion was served on the applicant on January 11, 2017, and proof of service provided to the Tribunal.
33The parties all logged onto the teleconference on January 16, 2018 at 9 am as specified in the Order. Everyone, including the court reporter and a mandarin interpreter was present, except the applicant and applicant’s counsel. The applicant never attended and the applicant’s counsel did not join the call for forty-one minutes while the other parties waited. When Mr. Smolarcik did attend, he informed the parties that his client had provided last-minute instructions that she did not wish to appear before the Tribunal. He indicated notice had been provided to the Tribunal and respondent counsel via email the previous afternoon. When asked to provide proof of advanced notice of the non-attendance, counsel was evasive and eventually indicated the correspondence would be provided to both parties. As of today, no correspondence has been provided to illustrate counsel made any effort to inform the parties that he and his client would not be in attendance. I can only conclude that counsel intended to provide no notice and simply not attend the hearing despite the Tribunal’s Order.
34This demonstrates a clear lack of respect to the parties, the hearing process, and to the Tribunal. The hearing process is meant to be open and promote fairness to all the parties and that process was contravened by the actions of the applicant’s counsel. This amounts to more than mere inadvertence, as Mr. Smolarcik had a duty to inform the parties within a reasonable time that he and his client would not be in attendance. He failed in that duty. The respondent incurred the costs of preparing the motion, paying for the court reporter and time spent preparing for cross-examination. This type of behaviour is strongly discouraged by the Tribunal and amounts to bad faith.
35After carefully considering the oral submissions of both parties regarding the issue of costs, I award $250.00 to be paid to the respondent. Costs shall be payable forthwith.
CONCLUSION
36For the reasons outlined above, I find that:
i. The applicant is not entitled to income replacement benefits, as she has not established that she suffered a “substantial inability” to perform the essential tasks of her employment pursuant to section 5(1) of the Schedule.
ii. The applicant has predominately minor injuries as defined in the Schedule and has already exceeded the $3,500 MIG limit. It is therefore unnecessary to consider the reasonableness of the treatment plans.
iii. As there are no benefits owed, there is no overdue payment of benefits and no interest is payable.
iv. The respondent is entitled to $250.00 in costs, as the applicant acted in bad faith towards the respondent.
Released: March 2, 2018
_____________________
Ian Maedel, Adjudicator
Footnotes
- O. Reg. 34/10.
- Section 5, O. Reg. 34/10.
- Applicant’s Written Submissions. Tab 4.
- Respondent’s Written Submissions Tab 5, page 8 and Tab 4, page 9.
- Scarlett v. Belair Insurance, 2015 ONSC 3635.
- Applicant’s Written Submissions. Tab 4, page 4. Disability Certificate (OCF-3) dated July 4, 2015 by Dr. Saranjit Khaira.
- Respondent’s Written Submissions. Tab 5, page 5.
- Applicant’s Written Submissions. Tab 5.
- Respondent’s Submissions. Tab 5, page 7.
- Respondent’s Submissions. Tab 5, page 8.