Date: 2018-03-26

Tribunal File Number: 17-004519/AABS

Case Name: 17-004519 v Certas Home and Auto 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:

Applicant

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

Adjudicator

Christopher A. Ferguson

APPEARANCES:

Applicant:

[The applicant]

For the Applicant:

Devika Maharaj, Counsel

For the Respondent:

Adam Fox, Counsel

Heard In-Writing on:

December 19, 2017

OVERVIEW

1[The applicant] (“the applicant”) was involved in a motor vehicle accident (“the accident”) on November 24, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.

3The respondent denied the applicant’s claims because it determined his injuries to be predominantly minor as defined by the Schedule. It indicated that it has exhausted the funding available under Minor Injury Guideline² (“the MIG”), for medical benefits.

4I must decide whether the applicant’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine the applicant’s entitlement to various medical benefits.

ISSUES IN DISPUTE

5Did the applicant sustain predominantly minor injuries as defined under the Schedule?

6The other substantive issues to be decided are:

i. Is the applicant entitled to receive a medical benefit in the amount of $200.00 for medical services recommended by Integral Health Group in a treatment plan that was submitted on February 18, 2016, denied by the respondent on February 29, 2016?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,310.70 for medical services recommended by Integral Health Group in a treatment plan that was submitted on March 24, 2016, denied by the respondent on April 7, 2016?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,046.18 for psychological services recommended by Integral Health Group, in treatment plan that was submitted on August 31, 2016, denied by the respondent on October 17, 2016?

iv. Is the applicant entitled to receive a medical benefit in the amount of $3,059.77 for medical services recommended by Integral Health Group in a treatment plan that was submitted on May 29, 2017, denied by the respondent on May 22, 2017?

v. Is the applicant entitled to receive a payment for the cost of examinations in the amount of $1,645.17 for an in-home assessment for attendant care benefits Anastasiya Kotelenets, submitted to the respondent on July 14, 2016, denied by the respondent on July 20, 2016?

vi. Is the applicant entitled to receive a payment for expenses in the amount of $26.42 for prescriptions services, submitted on June 30, 2016, denied by the respondent on July 7, 2016?

vii. Is the applicant entitled to receive a payment for expenses in the amount of $45.00 for ambulance bill, submitted on November 7, 2016, denied by the respondent on November 29, 2016?

7In the applicant’s initial submission for this hearing he withdrew his claim for item v. above.

RESULT

8I find that the applicant’s injuries are classified under the Schedule as predominantly minor in nature and fall within the MIG because:

(i) The applicant has failed to prove he sustained a psychological injury from the accident.

(ii) The chronic pain symptoms claimed by the applicant in this case are covered by the definition of “minor injury” prescribed by the Schedule.

9My finding with respect to the applicant’s injuries and classification of those injuries within the MIG mean that that the applicant is not entitled to the benefits he claims.

10As I have denied the applicant’s claims, there is no interest payable by the respondent.

REASONS & ANALYSIS

Minor Injury Determination

11The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”). The applicant’s position is exactly the opposite.

12If the respondent’s position is correct, the applicant is then subject to the $3,500.00 limit on benefits prescribed by the s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

13Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae³ to such an injury.”

Burden of Proof

14The onus is on the applicant to prove that his injuries or impairments fall beyond the MIG⁴

15The applicant’s submissions include arguments that the respondent’s denials of his claims are inadequate because they are not based on medical expertise. He argues that “enough compelling evidence was served upon the Respondent in order to trigger a proper adjudication of the claim”.

16The applicant contends that it was improper of the respondent to refuse to pay claimed benefits “without seeking medical opinions of their own”. He argues that the respondent’s denials are invalid because they were based on documents he provided and without setting up Insurer’s Examinations (IEs).

17The applicant argues that the respondent has never given him a valid medical reason for refusing his claims. This appears to be based on his reasoning that medical expertise is required to support the medical reasons given by the respondent for denying his claim.

18I reject this line of argument by the applicant as it is based on nothing but flat assertions unsupported by analysis or case law, and because:

i. The Schedule imposes no obligation on the insurer to conduct IEs or seek medical expert opinion to probe an applicant’s claims or substantiate its medical reasons for denial. The insurer need only provide medical and other reasons for its denial to be valid.

ii. I find that the respondent’s Explanations of Benefits (EOBs) in this case provided clear medical reasons for refusing to pay the disputed claims. The respondent stated its determination that the medical documentation submitted by the applicant with his claims was inadequate to establish that his injuries were beyond the definition of “minor injuries”.

iii. In my view, accepting the respondent’s position would lead me to, in effect, shift the burden of proof onto the respondent, which is contrary to the law in this matter. The respondent does not have to disprove the applicant’s claims – the applicant must prove them.

Compliance with Timelines

19Under s. 38(8) of the Schedule, the insurer must provide the insured person a notice of what goods, services, assessments and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations—or the cost of them—not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan.

20Under s. 38(11) of the Schedule, if the insurer fails to give a notice in accordance with s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the application, and ending on the day the insurer gives the notice required by s. 38(8).

21The applicant claims that the respondent provided it with late notices on a number of the claims. His point is moot as he does not claim to have incurred the costs of any disputed benefits within the time period prescribed by s.38(11).

22I note that the respondent provided conclusive evidence that all of its denials were issued within the ten days prescribed by s.38(8).

The Applicant’s Physical Injuries

23The applicant asserts that it is “clear that his injuries are not within the MIG” and that his impairments are “now chronic and possibly permanent”.

24The respondent argues that the applicant’s medical documentation provides no evidence of any accident-related physical injuries that are not minor injuries as defined by the Schedule. He cites the applicant’s own evidence including the clinical notes and records (“CNRs”) of Dr. Sherif Nessim from June 5, 2015 to August 2, 2016 and disability certificates dated December 14, 2015 and February 18, 2016.

25My reading of the various documents submitted by the applicant confirm the respondent’s account. I saw no report or diagnosis of any accident-related physical injury beyond soft-tissue injuries covered by the MIG. The applicant claims a diagnosis of lumbar radiculopathy but fails to provide any documentary evidence of it.

26The applicant fails to meet the onus on him to prove that his physical injuries fall beyond the prescribed definition of “minor injury”.

MIG and Psychological Impairments

27The applicant argues that he has psychological impairments which remove him from the MIG. Psychological impairments, if established, fall outside the MIG, because the MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological impairments.

28As a result of the foregoing, I must determine whether or not the applicant sustained psychological injuries as the result of the accident.

29The applicant relies on a “provisional diagnosis” of psychological conditions dated August 31, 2016 by Mila Popova, which includes adjustment disorder with anxiety and driving related phobia. I am unable to assign any significant weight to his evidence because:

(i) The applicant fails to set out Mila Popova’s qualifications to make a provisional diagnosis. He does not indicate her medical specialty, if any.

(ii) Ms. Popovich’s report or notes were not included in the submissions; reference is made to them in treatment plans but with insufficient detail to assess their probative value.

30I find that the applicant’s evidence of psychological impairment is too weak to meet the onus on him to prove that he is exempt from the MIG on the basis of psychological injury or impairment.

MIG and Chronic Pain Syndrome

31There is no evidence in his submissions that the applicant’s physical injuries themselves exceed the definition of “minor injury” in s. 3(1) of the Schedule. The applicant, however, argues that he has chronic pain, and that this removes him from the MIG.

32The respondent contends that the applicant does not suffer from chronic pain syndrome as a result of the accident, indicating that there is simply no evidence in the applicant’s submissions that his pain complaints are chronic pain syndrome or that they are not clinically associated sequelae to his minor injuries. In support of its contention that chronic pain must be shown not to be a clinically associated sequela to minor injuries, the respondent cites a Tribunal decision, TS v. Aviva⁵

33I conclude that the applicant has not met the onus on him to show that he suffers from chronic pain syndrome as a result of the accident. I reached this conclusion for the following reasons:

i. The applicant’s report by Dr. Uttam Kalicharran dated February 28, 2017, does not diagnose chronic pain syndrome. The report commentary and test scores are not clearly indicative of chronic, debilitating pain and no evidence is provided about the clinical association of the applicant’s pain with the minor injuries sustained in the accident.

ii. None of the other medical evidence in the applicant’s submissions provides any proof of chronic pain syndrome.

iii. The applicant relied on a Tribunal case, VC v. RBC⁶ to back his assertion that chronic pain falls outside the MIG; however, in that case, the evidence to support chronic pain syndrome was much more extensive and detailed than in this case.

iv. The applicant does not argue the issue of whether the chronic pain symptoms he reports are or are not clinically associated sequelae to his minor injuries, nor do his medical reports provide me with evidence on this question.

34I find that the applicant’s pain symptoms in this case fall within the MIG, based on:

i. My own reading of the plain meaning of s. 3(1) of the Schedule and its definition of “minor injury” to include sequelae, reinforced by the persuasive weight of the above-noted finding in TS v. Aviva.

ii. The lack of medical evidence or argument to address whether or not the applicant’s ongoing pain is a sequela to injuries defined as “minor” by the Schedule.

INTEREST

35Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

36The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due.

CONCLUSION

37The applicant’s injuries fall within the MIG.

38Because the applicant’s injuries fall within the MIG, his claims are subject to a $3,500.00 cap imposed by s.18 of the Schedule, and the claimed benefits cannot be paid.

39There are no overdue payments and therefore no interest due on overdue payments.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act, RSO 1990, c.I.8
3. 3“sequelae” are medical conditions that are known to be the result of a prior injury or impairment [OED].
4. 4Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.
5. 5TS v Aviva Insurance Company, 2017 CanLII 59495 (ON LAT)
6. 6VC v. RBC General Insurance Company, 2017 CanLII 59504 (ON LAT)