Tribunal File Number: 17-003735/AABS
Case Name: 17-003735 v Certas Direct Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
F.H.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
For the Applicant: Sahereh Baghbani, Representative
For the Respondent: Ali Z. Khan, Counsel
HEARD: Written Hearing: February 6, 2018
Overview:
1The applicant was injured in a motor vehicle accident on August 11, 2015. She sought payment for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Certas Direct Insurance Company denied payment for a number of the benefits because it believes that the applicant should be treated within the Minor Injury Guideline. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.
Issues in Dispute:
2The following issues are in dispute:
Are the applicant’s injuries subject to treatment within the Minor Injury Guideline?
Is the applicant entitled to receive a medical benefit in the amount of $194.03 ($1,294.03 less partial approval of $1,100.00) for physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Healthmax Physio Inc., submitted on December 2, 2015?
Is the applicant entitled to receive a medical benefit in the amount of $2,075.48 for physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Healthmax Physio Inc., submitted on February 11, 2016?
Is the applicant entitled to the cost of examination in the amount of $2,200.00 for psychological assessment pursuant to a Treatment and Assessment Plan (OCF18) completed by Healthmax Physio Inc., submitted on April 26, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $2,075.48 for physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Healthmax Physio Inc., submitted on June 10, 2016?
Is the applicant entitled to the cost of examination in the amount of $2,200.00 for chronic pain assessment pursuant to a Treatment and Assessment Plan (OCF18) completed by Healthmax Physio Inc., submitted on June 24, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $1,762.90 for physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Healthmax Physio Inc., submitted on November 8, 2016?
Is the applicant entitled to an award for unreasonably withheld or delayed payments under Regulation 664?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant entitled to costs under Rule 19?
Result:
3The applicant suffers from Chronic Post Traumatic Pain Syndrome, an injury that is not predominantly minor. As a result, the applicant is not subject to the Minor Injury Guideline.
4The applicant entitled to each of the Treatment Plans in dispute. The applicant has proven that they are reasonable and necessary. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
5The applicant is not entitled to an award under s. 10 of Regulation 664 because Certas’ decision to confine his treatment to the Minor Injury Guideline was not unreasonable.
6The applicant is not entitled to costs under Rule 19 because the conduct about which she complains occurred outside of the Tribunal’s proceeding.
Discussion:
The applicant is not subject to the Minor Injury Guideline
7The applicant has proven on a balance of probabilities that as a result of the accident she suffers from Chronic Post Traumatic Pain Syndrome, and that this impairment is the product on an injury that is not predominantly minor. As a result, the applicant is not subject to the Minor Injury Guideline.
8The Minor Injury Guideline is significant because it has a payment limit of $3,500. That applicant has already reached that limit. If the applicant is subject to the Minor Injury Guideline, she will not be entitled to payment for any of the disputed benefits.
9One ground for removal from the Minor Injury Guideline arises if the accident causes the applicant to suffer from an injury that is not predominantly minor. The term “minor injury” is a legal concept within the Schedule. It refers to “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”: see s. 3.
10The applicant has proven that she suffers from Chronic Post Traumatic Pain Syndrome, and that this impairment is the product on an injury that is not predominantly minor, through a chronic pain assessment report from Dr. Virat Joshi dated November 23, 2016. Dr. Joshi describes himself as a pain consultant. According to Dr. Joshi, the applicant suffers from Chronic Post Traumatic Pain Syndrome associated with neck pain, bilateral shoulder pain, upper back pain, lower back pain, left ankle pain, chronic sleep disturbances, and mood abnormalities; and Chronic Cervical Zyapophyseal Joints Pain of the neck, chronic partial tear of the left peroneus brevis, left peroneal tenosynovitis, left retrocalcaneal bursitis. Dr. Joshi’s diagnoses are based on a number of physical and psychological testing methods, including range of motions tests and an interview. Dr. Joshi did not review the clinical notes and records of the applicant’s family doctor prior to authoring his report.
11I accept Dr. Joshi’s diagnosis of Chronic Post Traumatic Pain Syndrome because it is supported by the results of the applicant’s range of motion tests and the answers in her interview. I do not accept Dr. Joshi’s diagnosis of Chronic Cervical Zyapophyseal Joints Pain. I am unaware of what Chronic Cervical Zyapophyseal Joints Pain is, and Dr. Joshi did not explain it, so I am unable to determine how the diagnosis is related to the test results. I am also unaware of how the alleged impairment is the product of an injury, caused by the accident, that is not predominantly minor.
12Certas submits that the applicant does not suffer from any chronic injury; rather, she suffers from soft-tissue injuries that are classified as ‘minor’ under the Schedule. Certas’ submission is based in the analysis of Dr. Nikolaos Hermantas, a general physician. Dr. Hermantas conducted an assessment and three separate paper reviews of the applicant, the latest occurring around August 4, 2017. Dr. Hermantas did not indicate that the applicant was suffering from a chronic injury or, more broadly, an injury that is not predominantly minor.
13I prefer Dr. Joshi’s analysis over Dr. Hermantas’ for two reasons. First, Dr. Hermantas’ report and addenda have a significant oversight in them. The material does not recognize that the applicant suffers from a pre-existing medical condition, despite recognition that the applicant suffered from carpel tunnel syndrome. Prior to the accident the applicant suffered from carpel tunnel syndrome, underwent surgery for this condition, and has complained to some medical practitioners that she continues to suffer from wrist pain. In fairness to Dr. Hermantas, it is possible that the applicant did not share her carpel tunnel syndrome history with Dr. Hermantas. Regardless, the applicant claims to continue to suffer from pain from this pre-existing injury, and Dr. Harmantas’ failure to fully recognize the applicant’s experience with carpel tunnel syndrome colours his analysis. I place less weight on Dr. Harmantas’ analysis as a result.
14Second, unlike Dr. Hermantas, Dr. Joshi specifically considered whether the applicant suffers from a syndrome related to chronic pain. I appreciate that Dr. Hermantas may have been alive to the issue of chronic pain during his assessment and paper review, and his failure to address chronic pain may be an indication that he did not believe the applicant to suffer from a chronic condition. Notwithstanding this possibility, when I assess whether the applicant suffers Chronic Post Traumatic Pain Syndrome, I have two reports. One report thoroughly addresses the issue. The other report does not address the issue at all. I give more weight to the report that addresses the issue.
15Certas further submits that Dr. Joshi’s analysis should be rejected because the applicant did not make prior consistent statements about her pain before seeing Dr. Joshi, and the applicant’s family doctor did not refer her to a chronic pain specialist. Certas’ submissions implicitly ask me to speculate about the applicant’s motive for submitting that she suffers from a syndrome related to chronic pain. I do not find the inquiry persuasive and I decline to travel down this path.
16Given my decision, I do not need to determine whether the applicant is removed from the Minor Injury Guideline because of a psychological impairment or pre-existing injury.
Issues 1, 2, 4, and 6: The applicant is entitled to payment for physiotherapy
17The applicant is entitled to payment for the Treatment Plans listed under issues 1, 2, 4, and 6. The Treatment Plans all relate to physiotherapy and they are reasonable and necessary. Each Treatment Plan identifies as its goal pain reduction, increase in strength, and increased range in motion. Pain reduction which increases strength is a reasonable treatment goal. Given that the applicant suffers from Chronic Post Traumatic Pain Syndrome, it is reasonable and necessary that she receive physiotherapy to lessen her pain and facilitate her rehabilitation.
Issue 3: The applicant is entitled to payment for a psychological assessment
18The psychological assessment conducted by Dr. Medhi Lotaflizadeh on June 2, 2016 is a reasonable and necessary expense. In a report dated June 16, 2016, Dr. Lotaflizadeh diagnosed the applicant with Adjustment Disorder with Anxiety as a result of the accident. It was reasonable and necessary in June 2016 for the applicant to explore her psychological condition and discover that she has a psychological impairment.
19Dr. Lotaflizadeh’s report was created because the applicant funded the assessment despite Certas’ non-payment. Obviously, Dr. Lotaflizadeh’s report was not available for Certas’ consideration at the time of the Treatment Plan’s submission. Dr. Lotaflizadeh’s report is available at this hearing though, and the report tips the scales to persuade me to conclude on a balance of probabilities that the disputed psychological assessment is a reasonable and necessary expense.
20Certas retained Dr. Shulamit Mor, a psychologist, to conduct an assessment and paper review of the applicant in relation to the disputed Treatment Plan. In a report dated June 29, 2016,1 Dr. Mor concluded that the applicant does not suffer as a result of the accident from any clinically significant psychological impairment. Moreover, Dr. Mor commented that the applicant expressed that she does not want or need psychological treatment.
21Dr. Mor’s report and addendum do not prevent me from concluding that the disputed psychological assessment is a reasonable and necessary expense. It is important to bear in mind that the applicant only needs prove on a balance of probabilities that it is reasonable and necessary that she explore the possibility that she suffers from a psychological impairment. The applicant does not need to prove that she in fact suffers from a psychological impairment: see e.g. 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 69464 (ON LAT). Otherwise, the applicant would be put in the unenviable position of proving that she suffers from a psychological impairment so that can receive payment to assess whether she, in fact, suffers from a psychological impairment.
22The applicant forcefully denies in her Reply submissions that she expressed to Dr. Mor that she did not want or need psychological treatment. Whatever communications occurred during the assessment, I accept that the applicant now wants and believes she needs psychological treatment. After all, the applicant would not have attended two psychological assessments within four days of each other – Dr. Lotaflizadeh on June 16 and Dr. Mor on June 20 – unless she wanted to explore her psychological condition with an assessment.
Issue 5: The applicant is entitled to payment for a chronic pain assessment
23Given my reasons above for accepting that the applicant suffers from Chronic Post Traumatic Pain Syndrome, I find that the chronic pain assessment is reasonable and necessary.
The applicant is not entitled to an award
24The applicant is not entitled to an award under s. 10 of Regulation 664 because Certas did not unreasonably withhold payment. Section 10 provides:
If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
25The applicant submits that Certas unreasonably confined the applicant’s treatment to the Minor Injury Guideline, denying her payment for benefits that would have slowed down or prevented her chronic injury.
26I find that although Certas was incorrect to confine the applicant’s treatment to the Minor Injury Guideline, it was not unreasonable to do so. My decision to remove the applicant from the Minor Injury Guideline was a close call. Certas cannot be faulted for not coming to the same conclusions as me.
The applicant is not entitled to costs under Rule 19
27The applicant is not entitled to costs under Rule 19 of the Tribunal’s Common Rules of Practice & Procedure (“Rules”). Under Rule 19.1, costs can issue where a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. The applicant seeks costs because of Certas’ decision to confine her treatment to Minor Injury Guideline.
28The decision to confine an insured person’s treatment is not typically conduct that occurs “in a proceeding” within the meaning of Rule 19.1. As a result, the Tribunal has no power to order costs under Rule 19. Certas’ decision to confine the applicant’s treatment to Minor Injury Guideline occurred outside of the Tribunal’s proceeding. The applicant is not entitled to costs.
Certas’ Motion Relating to the applicant’s Reply Submissions
29Certas brought a motion requesting that I exclude from consideration: (1) the final three pages of the applicant’s Reply submissions; (2) 39 pages of Reply evidence; and, (3) 39 pages of Reply case law.
30I partially allow Certas’ motion. I have only considered the first 7 pages of the applicant’s 10-page Reply submissions. As a corollary to my decision, I have declined to consider evidence relating to submissions made after page 7. The Tribunal’s Order for a written hearing, dated September 14, 2017, set a 7-page limit for the applicant’s Reply submissions. The applicant did not bring a motion requesting a larger page limit for Reply submissions.
31I have considered all of the applicant’s Reply evidence and case law, with one exception. Generally speaking, the applicant’s Reply properly included evidence and case law; that is, the material directly addressed issues raised in Certas’ Response submissions. The one exception is Dr. Harmantas’ online rating from a website. The applicant knew that Certas was relying on Dr. Harmantas’ analysis in this hearing. The applicant discussed Dr. Harmantas’ analysis at length in her initial submissions. It would be unfair to allow the applicant to split her case by re-impugning Dr. Harmantas’ credibility in Reply. Her chance to impugn Dr. Harmantas’ analysis passed after initial submissions.
5. Interest
32The applicant is entitled to interest on each of the Treatment Plans in dispute in accordance with s. 51 of the Schedule.
Conclusion:
33The applicant is not subject to the Minor Injury Guideline and is entitled to each of the Treatment Plans in dispute. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
34The applicant is not entitled to an award under s. 10 of Regulation 664 or costs under Rule 19.
Released: March 8, 2018
Chris Sewrattan, Adjudicator