M.K. v. Certas Direct, 2018 CanLII 140346

Citation: M.K. vs. Certas Direct, 2018 ONLAT 17-008752/AABS

Date: November 1, 2018

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:

M.K.

Applicant

and

Certas Direct

Respondent

DECISION AND ORDER

PANEL:

Susan Mather, Adjudicator

APPEARANCES:

For the Applicant:

Loulia Logoutova, paralegal

For the Respondent:

Melinda J. Baxter, counsel

HEARD:

Written Hearing September 24, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant 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 appellant was denied medical benefits recommended in two 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 appellant’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. Certas also argues that the treatment plans are not reasonable and necessary.

3The appellant argues that the Guideline does not apply because she suffered more than predominantly minor injuries in the accident, including psychological damage.

4Following a case conference on May 2, 2018, the application was scheduled for this written hearing.

5For the reasons provided below, I find that the appellant did not sustain more than predominantly minor injuries in the accident and is subject to the $3,500 Cap on medical and rehabilitation benefits. I deny the two treatment plans for physiotherapy.

ISSUES

6The issues I must decide are as follows:

(1) Are the appellant’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 appellant entitled to receive the following medical benefits recommended by Victoria Park Chiro.

(a) $2,953.60 for a physiotherapy treatment plan dated November 25, 2015; and

(b) $2,953.20 for a physiotherapy treatment plan dated November 23, 2016?

(c) Is the appellant entitled to interest on any overdue payment of benefits?

7The Tribunal Order¹ made at the case conference identifies two treatment plans as being in dispute. There is an obvious typographical error in the date of the second treatment plan listed in the Order, as it is dated November 26, 2018.

8There are also discrepancies in the dates and amounts of this treatment plan in the written submissions of the parties. The Insurance Examination (IE) report² of Dr. N. Harmantas, however, confirms that November 25, 2015 is the correct date of the second treatment plan in the Order.

PRELIMINARY MATTER

9In her covering letter to Certas enclosing the Clinical Notes and Records (CNRs) of her family physician, the appellant made a without prejudice offer for a final settlement of her accident benefit claim against Certas. The appellant included this cover letter with the records she filed for this hearing.

10Certas objects to the covering letter being considered as evidence arguing that it contravenes the Tribunals Rules of Practice and Procedure³. Certas does not point to the specific rule or rules it is relying on and the appellant did not file reply submissions.

11The guiding principal for the admissibility of evidence is relevance⁴. The amount of money which the appellant was willing to accept in final settlement of her accident benefit claim is not relevant to the issues that I must decide in this hearing. For that reason, I will not consider the cover letter in my deliberations.

BACKGROUND

12The appellant was a front seat passenger in a car driven by her husband that was involved in a collision with a truck that was stopped on Highway 401 during a snow storm. The sliding door of the van was torn off and one of the appellant’s daughters suffered a fractured femur. The appellant did not require treatment at the scene of the accident. She accompanied her seven-year-old daughter first to Trenton Memorial Hospital and then to Sick Kids Hospital in Toronto for surgery to repair her broken femur.⁵

13The appellant did not consult her family doctor until over two weeks after the accident. She was not employed at the time of the accident.

MINOR INJURY GUIDLINE

14The Minor Injury Guideline (“Guideline”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 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 s. 3.

15Section 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.

16Section 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.

17The burden of proof of establishing entitlement to medical benefits beyond the $3,500 Cap for minor injuries rests with the appellant. This burden of proof was confirmed by the Ontario Superior Court of Justice (Divisional Court) in the 2015 case of Scarlett v. Belair Insurance Company Inc.⁶

18The appellant is required to provide evidence to show on the balance of probabilities that she sustained more than predominantly minor injuries 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.

19The appellant relies on her OHIP records,⁷ the Clinical Notes and Records (CNRs) of her family physician,⁸ the CNRs of Victoria Park Chiropractic Centre (“Victoria Park Chiro”)⁹ and emergency room records from and Toronto East General Hospital¹⁰ to support her claim that she sustained more than minor injuries in the accident. She has also provided the assessment reports from three Insurer’s examinations (“IEs”).¹¹ Certas filed an additional IE report¹² that reviews the two treatment plans that are in dispute.

20The appellant has not met her burden of proof. Her evidence does not satisfy me on the balance of probabilities that she sustained more than predominantly minor injuries in the accident. It also does not satisfy me on the balance of probabilities that she has a pre-existing medical condition documented before the accident that will prevent her from achieving maximal recovery if her benefits are limited to the Guideline Cap.

21My reasons for this decision are below.

Nature of Injuries

22The appellant claims that a combination of physical injuries and psychological trauma have significantly prolonged her recovery and caused the necessity for extensive treatment.¹³

23She does not argue that that she has a pre-existing condition that prevents her from achieving maximal recovery within the Guideline. She offers no evidence that her health care provider has determined and provided compelling evidence that she has a pre-existing condition that was documented by a health care practitioner before this accident will prevent her from recovering within the Guideline.

24For that reason, I need only determine if the appellant sustained more than predominantly minor injuries in the accident.

Physical Injuries

25I have no evidence that the appellant suffered more than predominantly minor physical injuries in the accident.

26The appellant has not directed me to any specific entries in the 25 pages of OHIP records that support a finding that she sustained more than predominantly minor injuries in the accident.

27While the OHIP records show that the appellant had diagnostic tests, including medical imaging, around the time of the accident, and in the years following the accident she has not provided copies of any test results or imaging reports.

28The CNRs of the appellant’s family physician and the CNR’s of the Victoria Park Chiropractic Centre tell two different stories. I give more weight on the CNRs of the family physician. The reason for this is that, in my view, they provide evidence of an objective nature while the CNRs of Victoria Park Chiro document the treatment provided and depend on the appellant’s subjective description of her own condition.

29In the case of Owusu v. TD Home & Auto Insurance Company et al.,¹⁴ the Ontario Superior Court (Divisional Court) found that medical evidence that is objective should be given more weight. There is little evidence of an objective nature to corroborate the symptoms reported by the appellant to Victoria Park Chiro. Despite seeing her family doctor on a regular basis during the year following the accident she did not report any ongoing issues with pain from the accident.

30The appellant suggests that her injuries were not fully investigated by her family doctor and became chronic. I do not find that the evidence supports this claim.

31She has not provided CNRs of her family doctor beyond August 2015. The last CNRs¹⁵ indicate that the appellant told her endocrinologist in August 2015 that she had been well since her visit in January 2015.

32The Tribunal Order¹⁶ made at the case conference allowed the appellant the opportunity to file further medical records if she chose do so. No further medical records were provided.

33The CNRs of her family physician document dizziness and body aches in the six weeks immediately following the accident and before the appellant began treatment at Victoria Park Chiro. There is no diagnosis in these CNRs of anything but soft tissues injuries. The appellant saw her family physician four times between April 24, 2014 and April 29, 2015, and the records from these visits do not make any further mention of physical complaints from the accident.

34During this time period, she was investigated for cardiac issues, her long-standing diabetes and sleep apnea. There is no evidence that these conditions are accident-related. She was referred to an endocrinologist in January 2015 and did not report any ongoing pain issues to the endocrinologist who conducted a physical exam and discussed physical activity with the appellant.

35During the same period (April 2014 to April 2015), the CNRs of Victoria Park Chiro document that the appellant continued to complain of pain, headaches, dizziness, sleeplessness, depression and anxiety. While the CNRs of Victoria Chiro mention the appellant complaining of concussion, there is no diagnosis of a concussion in any of the medical records. The CNRs of the family doctor make no reference to a concussion or head injury.

36The only diagnosis of physical injury in the Victoria Park Chiro records is “severe acute cervico thoracic lumbo sacral sprain”. The definition of minor injury in the Schedule allows that a person might have one or more strains or sprains. The appellant has not provided any medical opinion that the injuries she sustained in the accident were more than predominantly minor injuries.

37I would expect that, if the appellant was experiencing the amount of pain suggested in the CNRs of Victoria Park Chiro during the first year after the accident, she would have complained to her family doctor.

38I have reviewed the CNRs from Toronto East General Hospital documenting the appellant’s visits on September 14, 2014 and April 25, 2015, and they do not support a finding that the appellant sustained more the predominantly minor injuries in the accident.

39The September 14, 2014 note is difficult to read. The appellant reported shoulder pain and bilateral knee pain. The CNR indicates that the appellant had a previous bi-lateral knee injury and that an x-ray was ordered. No x-ray report is included in the evidence, and I find nothing in this CNR to support a finding that on the balance of probabilities the appellant suffered more than predominantly minor injuries in the accident.

40The April 25, 2015 CNR records that the appellant complained of right shoulder and back pain. It states that the problem the appellant had the problem for one week. The appellant attended at her family doctor’s office for the same complaint on April 29, 2015. The family doctor’s CNRs indicate that she reported having the pain for the past two weeks. While the CNRs of the family doctor mention the 2014 accident, they do not link her complaint directly to the accident that occurred one year previously. The family doctor ordered x-rays and an ultrasound. The CNRs¹⁷ indicate that the ultrasound was negative and the x-ray showed degenerative changes.

41The April 27, 2017 Musculoskeletal IE Assessment¹⁸ of Dr. N. Harmantas also finds that there is no evidence from a musculoskeletal point of view that the appellant suffered more than soft tissue injuries in the accident.

42The appellant’s evidence does not support a finding that, on the balance of probabilities, the appellant sustained more than predominantly minor physical injuries in the accident.

Chronic Pain

43The appellant appears to argue that her multiple site injuries have resulted in her suffering chronic pain. Dr. Cirone, her chiropractor, describes her injuries as “sever constant ongoing multiple site injuries.”¹⁹

44The question I must decide is whether the appellant’s purported ongoing pain is sequelae of the minor injuries sustained in the accident or whether the ongoing pain leads to the conclusion that the injuries are no longer minor.

45This issue was discussed in the case of Charparina and State Farm (“Chaparina”)²⁰ relied upon by Certas. In this case the Financial Services Commission of Ontario (“FSCO) arbitrator found that there has to be a diagnosis of chronic pain before ongoing pain will take an insured person out of the Guideline. While I am not bound by the decision of a FSCO arbitrator, I agree with this finding of the arbitrator in Charparina.

46There is no mention of chronic pain in the clinical notes and records of the family physician. While a chiropractor may treat chronic pain, I do not believe they are permitted to diagnose chronic pain and Dr. Cirone has not done so.

47The appellant has not provided sufficient evidence to persuade me on the balance of probabilities she is entitled to medical and rehabilitation benefits beyond the Cap because she suffers from chronic pain.

Psychological Damage

48The appellant argues that she suffered psychological damage in the accident which takes her injuries out of the Guideline. She argues that both her daughter’s broken femur and riding in a vehicle after the accident caused her great anxiety.

49There is only one reference to psychological issues in the family doctor’s CNRs which is found in the note made to record the appellant’s first visit to the family doctor following the accident.²¹ The notes states “disturbed sleep – PTSD”. The CNRs give no indication that the family doctor saw any need to follow up on the appellant’s psychological state after this visit. I have no evidence that the applicant has ever sought treatment for psychological issues.

50On January 8, 2015, as part of a referral note to an endocrinologist, the family doctor completed a questionnaire. The response to the question of whether the appellant was feeling down or depressed was ‘No” as was the response to the question of whether she showed little interest or pleasure in doing things.

51The appellant saw the endocrinologist on January 21, 2015 who reviewed her medical history and activity levels with her. The note from the endocrinologist makes no mention of the appellant’s psychological issues arising from the accident.

52The requirement in the Guideline is that the injuries be predominantly minor. In my view, one comment about psychological issues in the CNR of the family doctor is not enough to satisfy me on the balance or probabilities that the appellant’s did not suffer predominantly minor injuries in the accident.

53My conclusion that on the balance of probabilities the applicant did not suffer any psychological damage in the accident is supported by the IE of psychologist Dr. G. Challis.

54Dr. G. Challis assessed the appellant on October 14, 2014 and prepared an IE report for Certas. Dr. Challis considered whether the appellant qualified for Non-Earner Benefits and whether the appellant suffered injuries that would take her out of the Guideline.

55According to Dr. Challis the appellant demonstrated minimal psychological symptoms as a direct result of the accident. She reported concerns over her daughter’s leg injury and anxiety about travelling in a vehicle. He concludes that she did not suffer a psychological impairment in the accident. He states that although the appellant reported anxiety with respect to travelling in a vehicle and worry daughter’s injury she had no identifiable functional limitations as a result of these concerns.

56The appellant’s reporting on anxiety²² and depression symptoms²³ in the tests conducted by Dr. Challis were both in the severe range. Dr. Challis found, however, that the appellant’s scores on the clinical measures should be interpreted with caution because her responses were not in accord with her presentation and reporting during the clinical interview. She produced an invalid profile on the test²⁴ designed to determine if a person is experiencing emotional distress that affecting their symptoms or response to treatment.

57The findings of Dr. Challis are not refuted by other evidence provided by the appellant and support my conclusion that the appellant did not sustain psychological damage in the accident that takes her out of the Guideline.

58Subject to the $3,500 limitation for an impairment that is predominantly a minor injury the Schedule²⁵ provides that medical benefits shall pay for all reasonable and necessary expenses incurred by an insured for various services including physiotherapy services.

59The appellant 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.

60Without this evidence I am unable to find that any of the benefits claimed are payable.

61Having determined no benefits are payable I need not consider if interest is payable.

62For the reasons provided I Order:

(1) The application is dismissed.

Released: December 10, 2018

__________________________

Susan Mather

Adjudicator

Footnotes

1. 1Order dated June 7, 2018
2. 2Musculoskeletal Assessment Report dated May 11, 2017, Certas’s Submissions.
3. 3Common Rules of Practice & Procedure, October 2, 2017
4. 4S. 15, Statutory Powers Procedure Act, R.S.O. 1990, CH.22
5. 5Tab 2, appellant’s submissions, IE report of Dr. M. Harmantas, August 27, 2014
6. 62015 ONSC 3635
7. 7Tab 6 Appellant’s Submissions
8. 8Tab 5, Appellant’s Submissions
9. 9Tab 7, Appellant’s Submissions
10. 10Tab 4, Appellant’s Submissions
11. 11Tabs 1,2, and 3, Appellant’s Submissions
12. 12Certas’s Submissions
13. 13Paragraph 17, Appellant’s Submissions
14. 14Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627, (Divisional Court)
15. 15August 26, 2015, CNR of Dr. Lysy, Tab 5 Appellant’s Submissions
16. 16Order of Adjudicator B. Norris, dated June 7, 2018
17. 17May 6, 2015 CNR of Dr. Aziz, Tab 5, Appellant’s Submissions
18. 18Musculoskeletal April 27, 2017, Dr. N. Harmanas, Certas’s Sumbissions
19. 19Letters dated May 4, 2015 and October 24, 2016 , Tab 7 Appellant’s Submissions
20. 20FSCO, A14-007595
21. 21March 27, 2014
22. 22Beck Anxiety Inventory
23. 23Beck Depression Inventory
24. 24Pain Patient Profile
25. 25S. 15(1) O. reg. 34/10