Licence Appeal Tribunal - Automobile Accident Benefits Service
Tribunal File Number: 17-002605/AABS
Case Name: 17-002605 v Certas Home and Auto Insurance
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:
N.M.
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
Adjudicator: Anita Goela
APPEARANCES:
Counsel for applicant: Meleni David
Counsel for respondent: Justin C. Ho
Heard in writing on: September 21, 2017
BACKGROUND
1The applicant was injured in a motor vehicle accident on November 12, 2011. He applied for benefits under the Statutory Accident Benefits Schedule-Effective after September 1, 2010 (the “Schedule”).
2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3The parties were unable to resolve their dispute at a case conference held on July 5, 2017, and the matter proceeded to a written hearing.
ISSUES TO BE DECIDED
4The following issues are to be decided:
a. Are the applicant’s injuries arising out of the motor vehicle accident (MVA) predominantly minor to be treated within the Minor Injury Guideline (MIG)?
b. Is the applicant entitled to a cost of examination in the amount of $1,670.25 for a functional capacity evaluation pursuant to a treatment and assessment plan completed by Health Care Specialists Assessments Inc submitted on December 1, 2014?
c. Is the applicant entitled to a cost of examination in the amount of $2,288.25 for a chronic pain assessment pursuant to a treatment and assessment plan completed by Health Care Specialists Assessments Inc submitted on February 2, 2015?
d. Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
5The applicant’s injuries are predominantly minor as defined under the Schedule. The applicant does not have a pre-existing condition that would prevent maximal recovery under the MIG.
6Because I find that the MIG applies to the applicant, she is not entitled to the cost of examinations in dispute.
7Given that I did not find the cost of examinations payable, no interest is owing.
ANALYSIS
Allegations of intentional bias and bad faith
8The respondent wrote to the Tribunal on September 13, 2017 after the applicant had filed reply submissions. In that letter, the respondent raised issues with the content of the applicant’s reply submissions. The respondent asks that the Tribunal not consider the allegations of intentional bias and bad faith by Dr. Khaled, a s.44 insurance examination assessor, as alleged by the applicant.
9The respondent did not file a motion asking for specific relief, such as an order striking the reply in full or in part. The applicant did not file a response to the respondent’s letter.
10I do not find that the applicant provided evidence in support of the allegations in either initial or reply submissions. Therefore, I find the applicant’s allegations of bias and bad faith to be without merit. Additionally, I agree with the respondent that the applicant improperly raised the issues of bias and bad faith for the first time in reply submissions
Compliance with Rules
11The respondent submits that the applicant cannot rely on the expert reports of Dr. Khaled, Dr. Wilderman and Dr. Babaloui because the applicant did not submit an Acknowledgement of Expert Witness pursuant to Rule 10.2.
12Rule 3 provides me with the authority to interpret the Rules liberally to facilitate a fair, open and accessible process and to allow effective participation by all parties and to ensure the efficient, proportional, and timely resolution of the merits of the proceedings before it.
13The respondent submitted an Acknowledgement of Expert Witness for Dr. Khaled. The first two pages of Dr. Wilderman’s report summarize Dr. Wilderman’s training and qualifications, as does the first page of Dr. Babaloui’s. In these circumstances, I do not find that the respondent is prejudiced by the applicant’s technical non-compliance with the Rules. Furthermore, the evidence in the reports is relevant to the determination of the issues.
Applicability of the Minor Injury Guideline
14The MIG 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. Section 18(1) 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 MIG.
15Section 18(2) of the Schedule makes provision for injured persons, who have a preexisting medical condition to receive treatment in excess of the $3,500 limit. To access the increased benefits, the insured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, and that will prevent the insured person from achieving maximal recovery if benefits are limited to the MIG cap.
16In the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”), the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 limit for minor injuries on a balance of probabilities.
Injuries Sustained
17To date, the applicant has received $3,146.50 in medical and rehabilitation benefits. The remaining balance in the MIG is $353.50.
18The applicant’s position is that her injuries are not minor and have affected her ability to carry on a normal life after the accident. The applicant submits that she suffers from upper to lower back pain, neck pain, shoulder pain, headaches, left elbow, knee pain and numbness in her upper body. The applicant submits that the injuries sustained from the MVA have resulted in a chronic pain disorder, fibromyalgia, depression and post-traumatic stress disorder (PTSD).
19I reviewed the diagnostic imaging reports provided. With the exception of an old injury to the right foot, there was no objective data that could point to a physical cause for the pain experienced by the applicant. I note that the clinical notes and records of Dr. Wong were illegible.
20Dr. Babaloui, chiropractor, completed the applicant’s second disability certificate dated March 29, 2014, more than two years after the accident. In Dr. Babaloui’s chiropractic assessment dated March 30, 2014, the applicant self-reported that she experiences pain that is sharp and constant. I found the self-reporting difficult to reconcile with other data in that report that consistently noted the applicant as having restricted but otherwise normal range of motion.
21I reviewed the data collected in the report of Dr. Wilderman, chronic pain specialist, dated February 2, 2015. In the section “objective examination”, Dr. Wilderman found the applicant to be normal within a range of tenderness. Dr. Wilderman diagnoses the applicant with fibromyalgia. I have difficulty understanding how he reached that conclusion. I did not find sufficient evidence for this diagnosis.
22Dr. Wilderman opined that the applicant suffers from depression and severe PTSD. I agree with the respondent that Dr. Wilderman is a physician and not a clinical psychologist. His opinion with respect to psychological impairments is outside his scope of expertise. Additionally, Dr. Wilderman’s report does not specify the details of the testing conducted on the applicant that led him to conclude that the applicant suffered from a psychological impairment.
23I reviewed the report of Dr. Huang, chiropractor, dated February 22, 2015. In that report, Dr. Huang notes that the applicant has demonstrated the ability to function at a sedentary to light level and that she can continue her work duties and hours to her tolerance. Essentially, Dr. Huang indicated that the applicant can continue her current employment with tasks adapted at her own discretion. I consider this, in conjuction with all the other evidence, persuasive that the applicant’s injuries can be considered “minor”.
24The applicant did not submit an affidavit. In the absence of evidence demonstrating the impact and extent of her pain, I was unable to appreciate whether her pain is of a chronic nature.
25For the reasons above, I do not find that the applicant has provided compelling evidence on a balance of probabilities that her injuries are not minor.
Pre-Existing Medical Condition
26The only medical evidence of a pre-existing condition relates to an old fracture of the right ankle. No evidence was provided that demonstrated how the healed fracture prevented the applicant’s maximal recovery from injuries sustained in the accident.
Cost of the Examinations
27Overall, even if I found that the applicant’s injuries and impairments took her outside of the MIG, I do not find that the applicant has demonstrated on a balance of probabilities why the examinations are reasonable and necessary. The applicant did not indicate why the examinations were requested over three years after the MVA. I agree with the respondent that the applicant’s history of attendance with medical practitioners and at physiotherapy treatment after the accident is minimal. On balance, I do not find that the injuries sustained by the applicant warrant the assessments in dispute.
CONCLUSION
28For the reasons outlined above, I find that
a. The applicant sustained predominantly minor injuries as defined under the Schedule.
b. The applicant has not established that she has a pre-existing condition that prevents recovery under the MIG.
c. The applicant is subject to the $3,500 limit under the MIG.
d. The applicant is not entitled to the cost of examinations for a functional capacity evaluation or a chronic pain assessment.
e. No interest is payable.
Released: March 6, 2018
Anita Goela, Adjudicator