A.S.H. v. Certas Home and Auto Insurance Company, 2018 CanLII 141020

Citation: A.S.H. vs. Certas Home and Auto Insurance Company, 2018 ONLAT 17- 009217/AABS

Date: December 10, 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:

A.S.H.

Applicant

and

Certas Direct

Respondent

DECISION AND ORDER

PANEL: Susan Mather, Adjudicator

APPEARANCES:

For the Appellant: Ioulia Logoutova, paralegal

For the Respondent: Melinda J. Baxter, counsel

HEARD in writing on: 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 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 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 in dispute 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 he suffered more than predominantly minor injuries as a result of 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. The three treatment plans for physiotherapy are denied.

ISSUES

6The issues I must decide are as follows:

1. Are the appellant’s injuries predominantly minor injuries as defined in 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. $1,611.60 for a physiotherapy treatment plan dated June 29, 2015; and

b. $1,611.60 for a physiotherapy treatment plan dated September 25, 2015; and

c. $1,611.60 for a physiotherapy treatment plan dated January 11, 2016.

3. Is the appellant entitled to interest on any overdue payment of benefits?

BACKGROUND

7The appellant was the driver of a vehicle 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 consult his family doctor until two weeks after the accident. He was self- employed at the time of the accident and continued working¹ following the accident.

MINOR INJURY GUIDLINE

8The Minor Injury Guideline (“Guideline”) establihes 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.”

9The appellant claims that he as a result of the accident he suffered impairments which include an injury to his left foot/ankle², cognitive dysfunction³ and post- traumatic stress syndrome⁴ which are not minor injuries and do not fall within the Guideline. .

10Section 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.

11Section 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.

12The 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 Lenworth Scarlett v. Belair Insurance Company Inc.⁵ The appellant is required to provide evidence to show on the balance of probabilities that he sustained more than predominantly minor evidence in the accident or that he has a pre-existing medical condition documented prior accident that will prevent his from achieving maximal recovery if his benefits are limited to the Guideline Cap.

13The appellant relies on the Clinical Notes and Records (CNRs) of his family physician⁶, the CNRs of Victoria Park Chiropractic Centre (“Victoria Park Chiro”)⁷ and the assessment⁸ of neurologist, Dr. Roussev⁹ to support his claim that he sustained more than minor injuries in the accident. He has also provided the assessment reports from two insurer’s examinations (IEs)¹⁰.

14If I understand the argument of the appellant correctly, the appellant asks me to draw an adverse inference from the fact that Certas, despite having his authorization, did not obtain certain medical documents and provide them to their IE assessors for their consideration in arriving at their opinion on the appellant’s injuries.

15While the appellant does not specify the medical documents he is referring to, I infer that he is referring to the CNRs of his family physician and Victoria Park Chiro.

16I am not persuaded that the CNRs of the family physician or Victoria Park Chiro would have altered the opinions of the IE assessors. For the reasons provided below I find that neither the CNRs of the family physician or Victoria Park Chiro support a finding that the appellant suffered more than minor injuries in the accident.

17The appellant has not met his burden of proof. His evidence does not satisfy me on the balance of probabilities that he sustained more than predominantly minor injuries in the accident or that he has a pre-existing medical condition documented before the accident that will prevent him from achieving maximal recovery if his benefits are limited to the Cap.

18My reasons for this decision are below.

Nature of Injuries

19The appellant claims that he as a result of the accident he suffered impairments which include injury to his left foot/ankle¹¹, cognitive dysfunction¹² and post-traumatic stress syndrome¹³ which are not covered by the Guideline and entitle him to benefits beyond the CAP.

20He does not argue that that he has a pre-existing condition that prevents him from achieving maximal recovery within the Guideline and. for that reason I need only determine if the appellant sustained more than predominantly minor injuries in the accident.

Physical Injuries

Left Foot/Ankle

21In September 2014 almost six months after the accident the appellant attended at the emergency department of Toronto East General Hospital¹⁴(TEGH) with a swollen left foot/ankle. The applicant argues that this foot/ankle problem is an impairment from the accident which takes him out of the Guideline.

22Dr. Boyton the orthopaedic surgeon who conducted an Insurer’s Examination (IE) to assess this problem found the appellant’s symptoms to be consistent with a tibialis posterior tendonitis. While Dr. Boyton was of the opinion that the ankle/foot issue was not related to the accident given the “lack of temporal relationship” with the accident. According to Dr. Boyton the applicant’s tendonitis was not an acute injury and was attributable to overuse.

23I agree with Dr. Boyton that the medical history of the appellant between the day of the accident and the day of Dr. Boyton’s assessment does not support a conclusion that this foot/ankle impairment was a result of the accident. My reasons for this conclusion are as follows:

• The only evidence that connects the September 2014 foot/ankle injury to the March 12, 2014 car accidents are self-reports of the applicant.

• Aside from a mention of bi-lateral ankle pain in the CNR from his first visit to his family physician on March 27, 2014 there is no mention of a left foot/ankle issue in the family physician’s CNRs again until October 7, 2014, over six months after the accident.

• I am unable to find any reference to a left ankle/foot issue in the CNRs of Victoria Park Chiro who saw the appellant on a regular basis until June 2016.

• There is no mention of a foot/ankle issue In the Disability Certificate (OCF3) dated July 11, 2014¹⁵ or in any of the three treatment plan that are in dispute.¹⁶

• The September 10, 2014 x-ray of the appellant’s left ankle indicates there was no evidence of a fracture or dislocation and that the alignment was normal.¹⁷

• Dr. J. Abouali¹⁸ diagnosed the appellant with a chronically sprained anterior tibial fibial ligament (ATFL). While the appellant told Dr. Aboulai’s that the injury was related to the March 12, 2014 accident there is no objective evidence to corroborate this.

Cognitive Impairment

24If I understand the appellant’s submissions correctly he is alleging that he sustained a head injury in the accident which resulted in cognitive impairment.

25On his first visit to his family doctor the appellant reported headaches and dizziness¹⁹. There is no further mention in the CNRs of the family physician of headaches or a head injury until January 2016 almost two years after the accident.

26The CNRs of Victoria Park Chiro mention headaches from time to time. It was not until January 2016 that the appellant’s family physician received a request from Victoria Park Chiro for a medical follow-up for” severe brain dysfunction”. At the request of the chiropractor the family physician referred the applicant to a neurologist. Dr. Roussev, a neurologist saw the applicant on May 25, 2016 over two years after the accident. He found the applicant’s neurological examination to be normal.

27According to his report, Dr. Roussev was going to follow up by reviewing the appellant’s hospital records from after the accident, reviewing the ambulance report and ordering an MRI examination to rule out incidental pathology. I was not provided with any follow-up report of Dr. Roussev or other medical evidence to support a finding that the appellant is cognitively impaired as a result of the accident. I am not satisfied on the balance of probabilities that the appellant suffered a head injury in the accident that resulted in a cognitive impairment there is no objective evidence to support that conclusion.

Psychological Damage

28The only entry in the CNR’s of the family physician that refers to psychological damage was made on the appellant’s first visit to his family physician after the accident. The CNRs from that visit record that that the appellant was emotional regarding the accident and had guilt. On that visit the family physician also recorded “PTSD – on leave from work immigration consultant”.

29I do not find one entry in the CNRs that the appellant was suffering from psychological issues to be sufficient evidence to persuade me that his psychological issues take him out of the Guideline. The definition of minor injury allows that a person may fall within the Guideline if he sustains some psychological damage providing that overall his injuries are predominantly minor.

30There is a request for a psychological assessment in the July 7, 2014 OCF 3²⁰, however, psychological issues are not listed as an injury or sequelae of the accident on the OCF 3.

31The applicant’s self-reports of anxiety, stress, depression and sleeplessness are found intermittently in the CNRs of Victoria Park Chiro. The appellant started treatment at Victoria Park Chiro in on May 14, 2014. The CNR dated May 26, 2014 indicates that he was stressed, depressed and had anxiety. During the first year after the accident the CNRs the appellant reported stress, depression and anxiety on average of once per month. The most common notation being “stressed, depressed, anxiety.”

32There is no evidence, however, that the appellant has ever sought help for his purported psychological issues. While Victoria Park Chiro asked the family physician for a referral for cognitive assessment it did not ask the family physician for a referral for a psychological assessment I have no evidence that the appellant has ever submitted a treatment plan for a psychological assessment or psychological treatment.

33The appellant did report to IE assessor Dr. Harmantas having psychological dysfunction since the subject accident however there is no objective evidence to support his self-reports.

34Without any objective evidence, other than the one note in the CNRs of the family physician, that the appellant sustained psychological damage in the accident I am not satisfied that the appellant sustained more than predominantly minor injuries in the accident.

Treatment Plans

$1,611.60 for a physiotherapy treatment plan dated June 29, 2015

$1,611.60 for a physiotherapy treatment plan dated September 25, 2015

$1,611.60 for a physiotherapy treatment plan dated January 11, 2016.

35The Schedule requires an insurer to pay for all reasonable and necessary medical expenses incurred by an insured for various services including physiotherapy and chiropractic services subject to the $3,500 limitation for an impairment that is predominantly a minor injury.²¹

36An expense in respect of goods or services is not incurred under the Schedule unless certain conditions²² are met which include:

i. that the insured person has received the goods and services to which the expense relate and;

ii. that the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense.

37The appellant has provided a copy of his statement of account²³ from Victoria Park Chiro as of November, 13, 2017 which indicates that the three treatment plans in dispute have been incurred. According to this statement Victoria Park Chiro had received payments totalling $2,324.00 on the appellant’s account. I have considered if any of the three treatment plans in dispute are reasonable and necessary as it appears that the appellant may have not reached the Cap for reasonable and necessary medical expenses.

38I find that the appellant has, however, not met his burden of proof to show that the three treatment plans in dispute are reasonable and necessary. I find that no benefits are payable. My reasons for this decision are below.

39The three treatment plans, all dated over 15 months after the accident, are essentially identical. All propose 12 weeks of “manipulation, multi-body sites” by Dr. Cirone, the chiropractor who proposes the treatment.

40The goals of all three treatment plans are the same, pain reduction, increase in strength, and increase in range of motion. The functional goals are “improve functional level” in the first two plans and to “return to modified work activities” in the last plan. The first two plans indicate that the appellant is working only 40 to 50 percent of the time.

41According to the IE report of Dr. Boyton²⁴, who assessed the applicant in October 2014 in connection with an earlier treatment plan the applicant had returned to work full-time within 2-3 months of the accident. For this reason I am not satisfied that the appellant has shown on the balance of probabilities that subsequent treatment plans with the functional goals of returning to work are reasonable and necessary.

42It is generally expected that treatment under the Guideline will be completed within 12 weeks. The IE report of Dr. Boyton supports the conclusion that the appellant met this expectation. Dr. Boyton saw no need for ongoing chiropractic treatment almost one year the treatment plans in issue were proposed.

43I also find nothing in the notes of the family physician to support ongoing chiropractic treatment for the applicant’s soft tissue injuries over 15 months after the accident.

44The IE report of Dr. Harmantas²⁵ specifically considers the three treatment plans in dispute. Dr. Harmantas states that the appellant did not report any symptomology in relation to his soft tissue injuries and that the applicant had recovered from his soft tissue injuries. For that reason Dr. Hamantas found that the three treatment plans in dispute were not reasonable and necessary for the musculoskeletal injuries that the appellant suffered in the accident.

45I agree with Dr. Hamantas and I am not satisfied on the balance of probabilities that any of the treatment plans are reasonable and necessary. For that reason I find no parts of the plans to be payable.

INTEREST

46Having determined no benefits are payable I need not consider if interest is payable.

47For the reasons provided I Order:

1. The application is dismissed.

Released: December 12, 2018

__________________

Susan Mather

Adjudicator

Footnotes

1. 1Paragraph 4, Appellant’s Submissions
2. 2Paragraph 7, Appellant’s Submissions
3. 3Paragraphs 8, 9, Appellant’s Submissions
4. 4Paragraph 5, Appellant’s Submissions
5. 52015 ONSC 3635
6. 6Tab 1, Appellant’s Submissions
7. 7Tab 2, Appellant’s Submissions
8. 8Tab 9 Appellant’s Submissions
9. 9Tab 8, Appellant’s Submissions
10. 10Tabs 3 and7, Appellant’s Submissions
11. 11Paragraph 7, Appellant’s Submissions
12. 12Paragraphs 8, 9, Appellant’s Submissions
13. 13Paragraph 5, Appellant’s Submissions
14. 14Tab 1, Page 50, Appellant’s Submissions
15. 15Tab 2, Page 39, Appellant’s Submissions
16. 16Tabs 4,5, and 6, Appellant’s Submissions
17. 17Tab 1, Page 47 Appellant’s Submissions
18. 18Page 51, tab 1, Appellant’s Submissions
19. 19Tab 1, Appellant’s Submissions
20. 20Tab 2, Appellant’s Submissions
21. 21s. 15(1) O. Reg. 34/10
22. 22s 7(e) O. Reg. 34/10
23. 23Tab 2 Appellant’s Submissions
24. 24Tab 3 Appellant’s Submission
25. 25Tab 7, Appellant’s Submissions