17-008584 v Certas Direct Insurance Company, 2018 CanLII 83532

Licence Appeal Tribunal

Date: 2018-08-13

Tribunal File Number: 17-008584/AABS

Case Name: 17-008584 v Certas Direct 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 Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Francesco Blasi, Paralegal

For the Respondent: Roger Sawh, Counsel

Held In-Writing: July 09, 2018

REASONS FOR DECISION

OVERVIEW

1[The applicant] was involved in an automobile accident on January 10, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when Certas denied his claims.

2Certas denied the applicant’s claims for medical benefits and costs of assessment because it determined 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 Guideline² (“the MIG”). [The applicant]’s position is the opposite.

3If [the applicant]’s position is correct, then I must address the issue of whether the medical treatment and assessments claimed are reasonable and necessary.

4If Certas’s position is correct, then [the applicant] is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

5The issues to be decided by the Tribunal are:

1. Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

2. If the applicant’s injuries are not within the MIG, then I must determine: a. Is the applicant entitled to a medical benefit for $400.00 for physiotherapy recommended by Royal West Wellness and Rehab submitted May 3, 2017 and denied July 5, 2017? b. Is the applicant entitled to the cost of an assessment for psychological services in the amount of $2,200.00 recommended by Dr. Judith Pilowsky, Pilowsky Psychological Professional Corporation submitted March 29, 2017 and denied April 7, 2017?

3. Is [the applicant] entitled to a weekly income replacement benefit (IRB) from November 30, 2016 to July 9, 2017 submitted May 17, 2017 and denied May 19, 2017? If so, what is the weekly amount of the IRB to which he is entitled?

4. Is Certas liable to pay an award under Regulation 664, Automobile Insurance³ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

5. Is [the applicant] entitled to interest on any overdue payment of benefits?

RESULT

6[The applicant]’s injuries are not “minor” as defined by the Schedule and hence not within the MIG.

[7] I have made the following decisions on each substantive issue: i. Issue 2a: physiotherapy -- appeal allowed. ii. Issue 2b: cost of psychological assessment -- appeal allowed. iii. Issue 3: IRBs -- appeal allowed, but at the rate calculated by Certas iv. Issue 4: Award request denied

8Certas is liable to pay [the applicant] interest on overdue payments at the prescribed rate.

REASONS

9Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.⁴

Issue 1: Are [the applicant]’s claims for medical benefits and CoE subject to the MIG?

10Section 3(1) of the Schedule defines a “minor injury” as “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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

11The onus is on the applicant to show that his/her injuries fall outside of the MIG⁵

12[The applicant] does not claim that his physical injuries fall outside of the s.3(1) definition of minor injury. His claims exemption from the MIG based on psychological injuries.

Does the applicant have psychological impairments that remove him from the MIG?

13[The applicant] claims that he sustained a psychological injury (injuries) as a result of the accident that place his claims outside of the MIG.

14Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

15I find that [the applicant] does have a psychological injury that would take him out of the MIG.

[16] To support his claim, [the applicant] relies on: i. A psychological assessment report by Dr. Simrat Padda, psychologist, dated September 12, 2017, in which [the applicant] is diagnosed with major depressive disorder and post-traumatic stress disorder (PTSD) and which notes significant impacts reported by [the applicant] on his psychological functioning. ii. The psychological treatment plan dated March 29, 2017 in which the author Dr. Judith Pilowsky provides a preliminary opinion that [the applicant] has sustained significant psychological injury that place him beyond the MIG. iii. Clinical notes and records (CNRs) from [the applicant]’s family physician, Dr. I. Girgis, noting a range of troubling psychological issues arising from the accident, prescribing Cipralex – an anti-depressant medication, and referring [the applicant] to a psychiatrist.

17To rebut [the applicant]’s claim, Certas relies on a psychological IE report by Dr. Stanley Debow, psychiatrist dated June 22, 2016, in which the doctor found no evidence of psychological impairment and no bases for the diagnoses reached in the [the applicant]’s psychological reports and consequently no need for psychological treatment.

[18] I find [the applicant]’s evidence more persuasive than Certas’s evidence because: i. Dr. Padda’s diagnoses were supported by a combination of interview results and objective test scores, which I find convincing. ii. Dr Debow’s report does not explain how he reached his conclusions. Clearly he interviewed [the applicant], but he conducted no tests, offered no explanation for rejecting Dr. Padda’s findings and focused on his observation that [the applicant] gave or had “no evidence” of various psychological disturbances. iii. I find the evidence that [the applicant]’s family doctor noted ongoing difficulties, prescribed an anti-depressant and referred him to a psychiatrist to be persuasive evidence of psychological impairment.

Issue 2a: Physiotherapy

19Certas’s only reason for denying this claim is their position that [the applicant]’s injuries are all within the MIG. Certas in fact approved and funded the plan up to the MIG limit.

20Having found that [the applicant] should be removed from the MIG, I find that the claim should be paid.

Issue 2b: Psychological Assessment

21I have found that [the applicant] sustained psychological injuries as the result of the accident and used the disputed psychological assessment as persuasive evidence. Accordingly there is no basis for me to suggest that the assessment wasn’t reasonable and necessary.

22Certas must pay for the claimed psychological assessment.

Issue 3: IRBs

Did Certa’s denial of IRBs comply with prescribed notice timelines?

23Section 36 of the Schedule governs the process for claiming income replacement benefits, and requires the applicant to submit a completed disability certificate (“OCF-1”) with his or her application under s.32.

24Section 36(4) requires the insurer to either pay the benefit or notify the applicant of its denial, with reasons, within ten business days of receiving the application and OCF-1. This section also permits the insurer to request more information from the applicant or to require the applicant to attend an insurer’s medical examination before determining the application.

25Section 36(6) prescribes the a consequence to an insurer for failing to comply with s.36(4) response or notice requirements. It requires the insurer to pay the specified benefit claimed – in this case income replacement – from the date it received the application and completed OCF-1 until the day it gives the required notice.

26[The applicant] submits that Certas received all of the documents required by s.32 of the Schedule to complete his claim by March 2, 2017. He says that Certas issued its denial in a letter dated March 20, 2017, twelve business days later. He notes that it proceeded to schedule insurer’s examinations (IEs) but did not calculate IRBs, pay them or request further information from him.

27Certas’s submission includes a copy of its explanation of benefits (“OCF-9”) dated March 9, 2017, in which it informs [the applicant] that it cannot consider his IRB claim until it has conducted an IE. It tells him that more information will be forthcoming – that further information was sent on March 20, 2017. The ultimate denial of [the applicant]’s claim came on July 9, 2017.

28I find that Certa’s OCF-9 complied with s.36(4) of the Schedule. The denial was clear, it notified [the applicant] that IEs would be scheduled – and why, and I agree with Certas that a calculation of IRBs was unnecessary before a determination of [the applicant]’s IRB eligibility was made. The March 20 letter was a notice of examination (“OCF-25”) and was, in my opinion, issued in a timely manner.

29As a result of my finding, [the applicant] is not entitled to payment of IRBs based on any non-compliance by Certas.

Is [the applicant] eligible for IRBs?

30The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.

[31] The Schedule, at s.5 and s.6, defines the level of impairment which must be suffered by the applicant to be eligible for IRBs. These change over time after the accident. For this case, the relevant requirements are: i. Within 104 weeks after the accident, the insured person suffers a “substantial inability to perform the essential tasks of his or her pre-accident employment […] or self-employment”.

32At the time of the accident, [the applicant] was a university student, working 25 hours per week as a packer (filling, lifting and wrapping boxes and loading them onto trucks).

[33] To support his claim, [the applicant] submits: i. The Disability Certificate (OCF-3) dated January 9, 2017. It consists of checked boxes and a bald statement that [the applicant] “cannot go back to work now”. However, the physician who signed it – Dr. I. Gurgis -- is [the applicant]’s family doctor, whose CNRs indicate an ongoing relationship with [the applicant] and consistent concerns about his psychological state. ii. The above-noted psychological assessment report by Dr. Simrat Padda, in which the assessor that [the applicant]’s psychological impairments would prevent him from working at his pre-accident job and in any job for which his education suits him, due to cognitive impairments.

34Certas submits that [the applicant] does not meet the prescribed test for IRB eligibility, and relies on its psychological IE report by Dr. Debow to support its position.

35I note that [the applicant] makes no submissions on his level of impairment, but does mention the psychological assessment in his submissions on medical benefits and include the OCF-3 in evidence.

36I give [the applicant]’s evidence more weight than Dr. Debow’s report, for the same reasons as I gave in determining the MIG.

37I find that [the applicant] is entitled to the IRBs he claims.

What is the weekly amount that [the applicant] is entitled to receive in IRBs?

38Section 4 of the Schedule sets out how to determine an insured person’s pre-accident gross employment income for the purpose of calculating IRBs. It sets out options, from which the insured can choose, for determining pre-accident gross annual income.

39Section 4(2)1. of the Schedule permits the insured person to designate as his or her gross employment income the amount he earned for the 52 weeks before the accident.

40Section 7 of the Schedule prescribes how to calculate the amount of weekly IRB. In effect, an eligible person is paid 70% of his/her pre-accident income, minus 70% of any gross employment income earned after the accident.

41[the applicant] claims $192.50 per week. He does not discuss the basis for his calculation in his submissions.

42Certas argues that [the applicant] is entitled to $134.62 per week, based on his annual gross employment income of $10,000.00 in the 52 weeks before the accident.

43Certas’s calculation is correct.

44I find that Certas must pay [the applicant] $132.62 per week for the period November 30, 2016 to July 9, 2017.

Interest

45Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

46Certas is liable to pay interest on overdue payments to [the applicant], at the prescribed rate.

Award

47Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has unreasonably” withheld or delayed payments.

48[The applicant]’s submission appears to equate Certas’s denial of his claim and its view of his medical evidence with “unreasonable” conduct. I don’t.

49Entitlement to a special award faces a "stringent test". It is only awarded where the delay or withholding of benefits is unreasonable. Unreasonable is “behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate".⁶ Nothing in Certa’s responses to [the applicant]’s claims meets this threshold of conduct.

50[The applicant]’s award request is dismissed.

CONCLUSION

51[The applicant]’s injuries are not governed by the MIG.

52[The applicant]’s appeal with respect to medical benefits is allowed.

53[The applicant]’s IRB appeal is allowed, at the weekly rate of $134.62.

54Certas is liable to pay interest on overdue payments to [the applicant], at the prescribed rate.

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.
3. 3R.R.O. 1990, Reg. 664
4. 4Scarlett v. Belair, 2015 ONSC 3635
5. 5Scarlett v. Belair, 2015 ONSC 3635 para.24
6. 6E.K and Unifund Assurance Company, 2017 CanLII 69237 at para. 39