K. B. v. Echelon General Insurance Company, 2018 CanLII 132557

DECISION

Date: 2018-11-27 Tribunal File Number: 18-000655/AABS Case Name: 18-000655 v. Echelon 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:

K. B. Appellant

and

Echelon General Insurance Company Respondent

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

For the Appellant: K. B., the applicant Robert Littlejohn, counsel

For the Respondent: Echelon General Insurance Company, respondent Stan Savvateikine, counsel

HEARD: Written Hearing: August 20, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant was injured in a motor vehicle accident on June 3, 2014. He sought payment for benefits under the Schedule¹. Echelon General Insurance Company (“Echelon”) denied payment for a number of benefits. The denials primarily stem from Echelon’s belief that the injuries sustained are predominantly minor and, therefore, subject to a $3,500 treatment limit. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

ISSUES

2The following issues are in dispute:

(1) Did the applicant sustain a predominantly minor injury as a result of the accident and, as a result, is subject to a $3,500 treatment limit?

(2) Is the applicant entitled to payment for a $1,179.50 a driving rehabilitation assessment, recommended by Skills Builders Physiotherapy and Rehab Centre in a treatment plan dated January 21, 2016?

(3) Is the applicant entitled to payment for a $1,717.76 occupational therapy assessment, recommended by Rehab First Inc. in a treatment plan dated January 25, 2016?

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

(5) Is the applicant entitled to an award under Ontario Regulation 664 because Echelon unreasonably denied the payment of benefits?

RESULT

3The applicant suffers from a concussion with post-concussive symptoms as a result of the accident. This is an injury that is not predominantly minor. The $3,500 treatment limit under the Minor Injury Guideline does not apply.

4The applicant is entitled to payment for a $1,179.50 driving rehabilitation assessment and a $1,717.76 occupational therapy assessment. Each expense is reasonable and necessary given the assessments’ respective goals and the applicant’s medical condition.

5Interest is owing on the outstanding payments in accordance with s. 51 of the Schedule.

6The applicant is not entitled to an award under Ontario Regulation 664 because Echelon reasonably believed that the applicant’s injuries were not caused by the accident.

DISCUSSION

7The case largely turns on two questions: What impairment, if any, does the applicant suffer from? Was the impairment caused by the June 3, 2014 accident?

8The questions arise because a little over 3 months after the June 3, 2014 accident, the applicant was injured in a second motor vehicle accident. Echelon is the applicant’s insurer for both accidents. Echelon submits that the applicant does not suffer from a predominantly minor injury; and if he does, the injury was caused by the second accident. Echelon removed the applicant from the Minor Injury Guideline for the second accident. In Echelon’s view, the applicant does not lack for treatment if he is confined to a $3,500 treatment limit for the first accident.

9For the following reasons, I find on a balance of probabilities that the applicant suffers from a concussion with post-concussive symptoms. This is an impairment that is not predominantly minor and was caused by the first accident. The applicant’s treatment is not subject to a $3,500 treatment limit.

10My analysis is structured around the two questions that I posed at the outset. Does the applicant suffer from an injury that is not predominantly minor? Was that injury caused by the first accident?

The applicant suffers from an injury that is not predominantly minor

11The applicant suffers from a concussion with post-concussive symptoms. There is no disagreement amongst the parties that a concussion with post-concussive symptoms is not a predominantly minor injury. Indeed, in 17-001473 v Unica Insurance Inc., Adjudicator Christopher A. Ferguson held that a concussion with post-concussive symptoms is a non-predominantly minor injury.² I find Adjudicator Ferguson’s reasoning persuasive and adopt it.

12The most powerful evidence linking the applicant to this impairment is a report from Dr. Berbrayer dated March 22, 2018. Dr. Berbrayer is a physiatrist who was retained by the applicant. Dr. Berbrayer’s report declares the nature of the applicant’s impairment to be “a concussion with post-concussive symptoms and this affects his ability to concentrate and attend to tasks and affects his mood, ability and as well he has generalized fatigue."

13Echelon provides three classes of challenge to Dr. Berbrayer’s conclusion. Echelon takes aim at Dr. Berbrayer’s report itself. The report was issued nearly 4 years after the first accident, and it is the first and only interaction between Dr. Berbrayer and the applicant. Moreover, Echelon submits that Dr. Berbrayer is not qualified as a physiatrist to diagnose a concussion or head injury.

14Echelon points to reports from Dr. Mehdiratta, a neurologist who Echelon retained to examine the applicant. Dr. Mehdiratta concluded that there were no clear signs of ongoing post-concussion syndrome. Dr. Mehdiratta did not recommend further facility-based treatments; and he recommended that the applicant remain subject to the Minor Injury Guideline.

15Echelon points to activities in which the applicant has engaged that suggest he does not suffer from a concussion with post-concussive symptoms. Days after the first accident, the applicant told a doctor, Dr. Holland, that he had returned to his full-time employment. He later told another doctor, Dr. Lubbers, that he had attended concerts, casinos, stores, entertained family and friends every month, and took work clients out every other weekend. Surveillance from June 2016 shows the applicant performing a range of activities, including driving, shopping, filing up gas, shopping, and attending work.

16I am not persuaded by Echelon’s submissions. I appreciate that Dr. Berbrayer’s report was issued nearly 4 years after the first accident. However, aside from the second accident – an issue I will address in the next section of this decision – there is no suggestion of another factor causing the applicant’s injury. I consider Dr. Berbrayer’s report less credible because he only met the applicant once. But I still find the report credible because of its methodology and direct focus. Moreover, I find Dr. Berbrayer to be qualified to diagnose a concussion and head injury. As noted in the applicant’s Reply submissions, part of Dr. Berbrayer’s duties include “treating neurological rehabilitation conditions such as brain injury, diagnosing and treating pain syndromes”.

17I do not find the conclusion in Dr. Mehdiratta’s reports to be inconsistent with Dr. Berbrayer’s conclusion. Dr. Mehdiratta did not find any clear signs of ongoing post-concussion syndrome. He did find that the applicant suffers from possible concussion and cervicogenic headaches. It appears to me that Dr. Berbrayer and Dr. Mehdiratta’s found the same symptoms in the applicant, but Dr. Mehdiratta set a higher bar to make a diagnosis. He was looking for a “clear sign” of post-concussion syndrome. I do not require such a high bar. Coupled with Dr. Berbrayer’s report, Dr. Mehdiratta’s finding that the applicant suffers from possible concussion and cervicogenic headaches is compelling evidence that the applicant suffers from a concussion with post-concussive symptoms.

18I put no weight on activities that, on their face, suggest that the applicant does not suffer a concussion with post-concussive symptoms. On the evidentiary record before me, I do not know whether a person with a concussion with post-concussive symptoms can attend a concert, entertain family and friends, go to work, etc. I do not know what behaviour I should expect of the applicant if he suffers from a concussion with post-concussive symptoms. The submission may have been cogent if there was more evidence on this point, namely expert evidence.

19The applicant submitted that also he suffers from chronic pain syndrome as a result of the first accident. I do not need to address this submission because I have already concluded that he suffers from another injury that is not predominantly minor.

The applicant’s impairment was caused by the first accident

20The parties did not provide submissions on the test for causation. The case law reveals two tests. The ‘but for’ test requires the applicant to prove that but for the first accident he would not suffer from a concussion with post-concussive symptoms. The material contribution test requires the applicant to prove that the first accident materially contributed to the impairment. The ‘but for’ test is more stringent than the material contribution test.

21The applicant has proven with either test that the first accident caused his impairment. Dr. Berbrayer specifically examined the first and second accidents and concluded that the applicant’s concussive condition was caused by the first accident. Dr. Berbrayer did not explain precisely how he distinguished the first accident from the accident. And his report comes nearly 4 years after the accidents. Still, it remains that Dr. Berbrayer, an expert, considered both accidents and specifically concluded that the first accident caused the applicant’s impairment.

22On its own, Dr. Berbrayer’s report, with all of its flaws, would be insufficient to prove causation. But Dr. Berbrayer’s conclusion does not rest on its own. Corroborating evidence exists from the time period between the first and second accidents. Days after the first accident, on June 5, 2014, the applicant sought medical treatment at the Urgent Care Clinic. The treating doctor noted, "initially he was in a daze … he has noticed some intermittent confusion at times".

23The next day, Echelon’s adjuster documented the applicant’s injuries: "knee, neck, head, shoulder pain and head injury?: unsure".

24On September 3, 2014, prior to the second accident, the applicant’s family doctor, Dr. Roseberry, noted the following:

(a) "concussion symptoms"

(b) "gait imbalance"

(c) “having difficulty remembering appointments, forgets where he is going while driving"

(d) "he doesn't recall all the events of the accident"

(e) "forgets where he is going while driving"

The above evidence provides a foundation on which I am comfortable concluding on a balance of probabilities that the applicant’s impairment was caused by the first accident.

25One caveat in the evidentiary record is that on November 6, 2014, the applicant told a doctor retained by Echelon that he hit his head after the second accident, after which he had some issues with driving, “where he would forget where he was". Although this suggests that the applicant’s impairment was not caused ‘but for’ the first accident, it is insufficient both alone and with the rest of the evidence to prevent the applicant from proving his case.

26My conclusion is reinforced when I consider the circumstances of the second accident. The applicant was rear ended in the second accident. An ambulance did not attend, and his airbags did not deploy. The applicant did not sustain any loss of consciousness. His principal injuries were right shoulder and back pain. In my view, the applicant would suffer from a concussion with post-concussive symptoms even if the second accident never happened.

The applicant is entitled to payment for a $1,179.50 a driving rehabilitation assessment

27The applicant is entitled to payment for the driving rehabilitation assessment. It is a reasonable and necessary expense. The treatment plan in support of the assessment notes that the applicant has experienced anxiety while driving and pain in his neck. The assessment’s goal is to determine use clinical testing to determine how to return the applicant to his pre-accident driving abilities and comfort.

28Echelon denied the treatment plan based on a report Dr. Lubbers, a psychologist retained by Echelon to examine the applicant. Dr. Lubbers’ testing results found the following:

(a) Psychometric testing “revealed most prominently a degree of anxiety"

(b) The Beck Anxiety Inventory suggested "moderate level anxiety-related symptomology"

(c) The Brief Battery for Health Improvement, an anxiety scale, suggested a "moderately high elevation".

29Dr. Lubbers concluded that the applicant did not have a significant Situational Specific Phobia with respect to driving or motor vehicle travel. His conclusion was based on the applicant not having an unusual level of anxiety compared to other rehabilitation patients. The driving rehabilitation assessment was deemed to not be a reasonable and necessary expense because the applicant did not suffer from a significant Situational Specific Phobia with respect to driving or motor vehicle travel.

30With respect, Dr. Lubbers set the bar too high. The test is not whether the applicant suffers from a significant Situational Specific Phobia. The test is whether the requested driving rehabilitation assessment is reasonable and necessary given the applicant’s circumstance. In my view, the driving rehabilitation assessment is reasonable and necessary for the applicant, who Dr. Lubbers documents having a moderately high elevation on an anxiety scale and moderate level anxiety-related symptomology on the Beck Anxiety Inventory.

The applicant is entitled to payment for a $1,717.76 occupational therapy assessment

31The applicant is entitled to payment for the occupational therapy assessment. The applicant has already incurred the assessment, and an assessment report was already authored.

32The treatment plan in support of the assessment notes that the applicant suffers from low back pain, pain in joint lower leg, headache, limitation of activities due to disability, paresthesia, pain in joint shoulder region, memory disturbance, and a concussion. These symptoms restrict the applicant’s ability to complete activities of daily living, including cooking and social activities. The assessment’s goal is to identify occupational performance issues and the applicant’s need for occupational therapy services. This is reasonable and necessary given the applicant’s medical condition.

33Echelon denied the treatment plan primarily based on a report from Dr. Maser, a general practitioner retained by Echelon to examine the applicant. Dr. Maser’s report, dated May 26, 2016, concluded that there is no longer any objective evidence of anatomical musculoskeletal or neurological abnormality. Dr. Maser’s opinion was that the applicant does not require specific equipment of facility-based treatment. Dr. Maser agreed that the applicant continues to suffer from pain. In Dr. Maser’s view, though, the pain could be treated through stretching and the provision of Extra Strength Tylenol.

34The occupational therapy assessment is, at its core, an inquiry into the extent to which the applicant’s function is impaired by his physical injury. The treatment plan indicates that the applicant may suffer from functional limitations. Dr. Maser documented ongoing pain from the applicant’s injuries. Given this cocktail of factors, there is a reasonable possibility that the applicant’s function is limited by his physical injury. Although the applicant’s injury may not be severe enough to require facility-based treatment, there is a reasonable possibility that it is severe enough to limit the applicant’s function. When considering entitlement to payment for an assessment, the question is whether it is reasonable and necessary for the applicant to explore the reasonable possibility of impairment. The goals of the occupational therapy assessment in this case make the assessment reasonable and necessary.

Interest

35The applicant is entitled to interest on payment for both treatment plans in accordance with s. 51 of the Schedule.

The applicant is not entitled to an award under Ontario Regulation 664

36Section 10 of Ontario Regulation 664 allows me to order an award for the applicant if Echelon unreasonably withheld payment. Echelon’s denial of payment for each of the two disputed treatment plans in this case was due to its belief that the applicant was subject to the Minor Injury Guideline’s $3,500 payment limit. It was not unreasonable for Echelon to believe that the applicant was subject to the Minor Injury Guideline. Echelon had a reasonable belief that the applicant’s impairments were caused by the second accident.

37The applicant is not entitled to an award under Ontario Regulation 664.

CONCLUSION

38The applicant suffers from an injury that is not predominantly minor. The $3,500 treatment limit under the Minor Injury Guideline does not apply.

39The applicant is entitled to payment for a $1,179.50 a driving rehabilitation assessment and a $1,717.76 occupational therapy assessment because each expense is reasonable and necessary. The applicant is also entitled to interest.

40The applicant is not entitled to an award under Ontario Regulation 664 because Echelon reasonably denied payment.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010
2. 22017 CanLII 69462 (ON LAT) at para. 14.