S.H. v. Certas Direct, 2018 CanLII 132562

DECISION AND ORDER

Date: 2018-11-09 Case Name: 17-008750 v. Certas Direct

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:

S.H. (Applicant)

and

Certas Direct (Respondent)

PANEL: Susan Mather, Adjudicator

APPEARANCES: For the Applicant: Iouna Logoutova, paralegal For the Respondent: Melinda J. Baxter, counsel

HEARD: Written Hearing: September 24, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on March 12, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').The applicant was denied the medical benefits recommended in three physiotherapy treatment plans and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent (“Certas”) refuses to pay for the treatment recommended in the disputed treatment plans on the basis that the applicant’s injuries are predominantly minor injuries as defined in the Schedule subject to treatment within the Minor Injury Guideline (the “Guideline”). Treatment within the Guideline is subject to a $3,500.00 limit (“the Cap”) and payment of the benefits would result in treatment costs beyond the Cap limit. Certas also argues that the treatment plans are not reasonable and necessary.

3The applicant disagrees with Certas and accuses Certas of not properly adjusting her claim.

4Following a case conference on May 2, 2018 the Tribunal ordered a written hearing to decide the issues set out below.

5For the reasons provided below the application is dismissed.

ISSUES

6The issues I must decide are as follows:

(1) Are the applicant’s injuries predominantly minor injuries as defined in s. 3(1) of the Schedule and thus subject to a monetary limit of $3,500 pursuant to s. 18 of the Schedule?

(2) Is the applicant entitled to receive the following medical benefits recommended by Victoria Park Chiro:

(a) $1,388.00 for a physiotherapy treatment plan dated October 22, 2014;

(b) $1,611.60 for a physiotherapy treatment plan dated February 4, 2015; and

(c) $1,611.60 for a physiotherapy treatment plan dated June 5, 2015?

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

BACKGROUND

7The applicant was a passenger in a van driven by her father that was involved in an accident on Highway 401 during a snow storm on March 12, 2014. She was 14 years old at the time of the accident. She did not require treatment at the scene of the accident or at the Hospital following the accident and did not miss any school as a result of the accident.

MINOR INJURY GUIDELINE

8The Minor Injury Guideline (“Guideline”) 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 strain, sprain, 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.

9Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the Guideline.

10Section 18(2) of the Schedule makes provision for some 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 injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the Guideline Cap.

11The burden of proof of establishing entitlement to medical benefits beyond the $3,500 Cap for minor injuries rests with the applicant. This burden of proof was confirmed by the Ontario Superior Court of Justice (Divisional Court) in the 2015 case of Lenworth Scarlett v. Belair Insurance Company Inc.¹

12The applicant is required to provide evidence to show on the balance of probabilities that she sustained more than predominantly minor evidence in the accident or that she has a pre-existing medical condition documented prior to the accident that will prevent her from achieving maximal recovery if her benefits are limited to the Guideline Cap. She has not provided the evidence required to meet her burden of proof.

13The applicant’s medical evidence consists of assessment reports from three Insurer’s Examinations² (IEs) arranged by Certas.

14The October 2014 psychological IE³ report of Dr. J. Crewes states that although the applicant reported experiencing anxiety while traveling as a passenger in a vehicle her symptoms were not significant enough to warrant a clinical diagnosis. Dr. Crewes concludes that the applicant did not suffer any psychological impairment in the accident. Her report also clearly states that the applicant did not suffer from any psychological condition prior to the accident that was exacerbated by the accident.

15The October 2014 orthopaedic IE⁴ report of Dr. E. Boyton diagnoses the applicant with a soft tissue injury to her cervical spine and finds that the applicant’s muscular discomfort was a minor injury. Dr. Boyton also states that the applicant did not suffer from any pre-existing medical condition that would prevent her from achieving maximal recovery if her benefits are limited to the Guideline Cap.

16The November 2015 orthopaedic IE⁵ report of Dr. G. Yee finds that the applicant had “residual symptomology related to myofascial strains of the cervicothoracic spine” and provides the opinion that applicant’s injuries were minor in nature. Dr. Yee states that no pre-existing medical conditions were identified.

17Dr. Yee’s report states that that the applicant told him she had an x-ray and ultrasound done and he indicates that he would welcome the opportunity to review the applicant’s complete clinical records. He reserved his right to amend his opinion based on “available documentation”.

18The Explanation of Benefits⁶ (EOB) completed by Certas following Dr. Yee’s IE denies all of the treatment plans in issue. It states that the assessor (Dr. Yee) wanted to review the applicant’s complete clinical records.

19Certas offered to assist the applicant in obtaining her clinical records and enclosed an authorization for the applicant to sign to allow Certas to obtain the records directly from her doctor. The EOB suggests that Dr. Yee would complete an addendum to his IE report once he reviewed her clinical records.

20The applicant completed a Permissions To Disclose Health Information Form (OCF-5) provided by Certas and returned it to Certas in December 2015. The covering letter asks Certas to provide a copy of the applicant’s general practitioner’s (GP) clinical notes and records (CNRs) to the applicant’s upon receipt.

21Certas’s evidence includes a copy of the letter sent to the applicant’s GP enclosing the OCF 5 and requesting a copy of the applicant’s CNRs. According to Certas submissions the GP did not respond to the request.

22The applicant has not included any x-ray reports, ultrasound reports or copies of her GP’s CNRs in the documentary evidence she filed for this hearing.

23I do not find any evidence in the documents provided by the applicant to show that she sustained more than minor injury in the accident. I have no evidence that the applicant sought any medical attention after the day of the accident.

24The applicant does not argue and has not provided any evidence that she suffers from a prior existing medical condition that will prevent her from achieving maximal recovery if her benefits are limited to the Guideline Cap.

25Certas has included a copy the Initial Assessment of the CBI Health Group in its documentary evidence for the hearing. This assessment also places the applicant in the Guideline.

26The applicant’s argument that she was misled by Certas’s offer to obtain CNRs of her general practitioner has no merit. While Certas offered to assist in obtaining the CNRs for the purpose of adjusting the claim Certas has no obligation to obtain or provide copies of the CNRs for the purpose of this hearing. The applicant has the responsibility to obtain and submit the evidence required to meet her burden of proof.

27As Certas points out in its submissions, the Tribunal Order made at the May 2, 2018 case conference contemplated the applicant providing further medical information for the hearing and allowed time for Certas to obtain an IE or an addendum to an IE if further medical information was provided.

28Despite being allowed time after the case conference to submit further medical evidence the applicant has provided no evidence to persuade me that she sustained more than minor injuries in the accident or that she has a pre-existing medical condition that will prevent her from achieving maximal recovery if she is treated within the Guideline.

29For that reason I find that the Guideline applies and the applicant is not entitled to more than $3,500.00 in medical and rehabilitation benefits.

30Subject to the $3,500 limitation for an impairment that is predominantly a minor injury the Schedule⁷ provides that medical benefits shall pay for all reasonable and necessary expenses incurred by an insured for various services including physiotherapy services.

31The applicant has not provided any evidence to show:

i. whether she has exhausted the full $3,500 in medical and rehabilitation benefits she is entitled to;

ii. whether she has incurred any of the medical benefits that are in dispute; or

32Without this evidence I am unable to find that any of the benefits claimed are payable.

INTEREST

33Having determined no benefits are payable I need not consider if interest is payable.

ORDER

34For the reasons provided I Order:

(1) The application is dismissed.

Footnotes

1. 12015 ONSC 3635
2. 2Tabs 1,2,3 – applicant’s submissions
3. 3Tab 1, Applicant’s Submissions, Psychology Assessment Report of Dr. J. Clewes. October 25, 2015
4. 4Tab 2, Applicant’s Submission, Orthopaedic Assessment Report of Dr. E. Boyton, October 7, 2014
5. 5Tab 3, Applicant’s Submissions, Orthopaedic Assessment Report of Dr. G. Yee, November 10, 2015
6. 6Tab 4, Applicants Submissions, Explanation of Benefits
7. 7S. 15(1) O. reg. 34/10