B. A. v. Certas Direct Insurance Company, 2018 CanLII 97830

Date: 2018-04-23

Tribunal File Numbers: 17-004796/AABS and 17-004801/AABS

Case Name: 17-004796 and 17-004801 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:

B. A.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Jessica Cavdar

APPEARANCES:

For the Applicant: Reynold Kim, Counsel

For the Respondent: Odette Fraser, Counsel

HEARD: In writing on January 22, 2018

INTRODUCTION

1The applicant was injured in two automobile accidents. The first accident occurred on February 12, 2015, and the second occurred on April 23, 2016. The applicant had insurance coverage with the respondent for both accidents.

2For each individual accident, the applicant sought benefits from the respondent insurer pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). In both instances, the respondent characterized the applicant's injuries as falling within the Minor Injury Guideline (MIG) for each individual accident. The respondent refused to pay for certain medical benefits because the applicant had reached the MIG funding limit of $3,500.00 for each accident.

3The applicant subsequently made two separate applications to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") – one for each of her accidents – for resolution of the aforementioned disputes.

4Because both accidents were covered by the same insurer, Adjudicator Aggrey Msosoa ordered that both Tribunal files be heard together.

5For the sake of expediency and proportionality, I will consider the disputes surrounding both accidents in the same decision. However, it is important to bear in mind that the applicant was involved in two distinct accidents, each of which must be analyzed separately, in order to conclude whether the applicant is entitled to particular benefits in either or both of the accidents

6The applicant's first accident occurred on February 12, 2015. The applicant's husband was driving and the applicant was a passenger when their vehicle was rear-ended ["the February 2015 Accident"].

7The applicant's second accident took place on April 23, 2016. Again, the applicant's husband was driving and the applicant was a passenger. This time their vehicle was traveling below the speed limit and rear-ended another car ["the April 2016 accident"].

ISSUES

8The disputed issues in this hearing are:

1. Regarding the February 2015 Accident:

i. Did the applicant sustain a minor injury as defined by the Schedule in the February 2015 accident and is therefore subject to a limit of $3,500.00 for medical benefits? If not, then:

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,546.30 for physiotherapy services recommended by Focus Physiotherapy in a treatment plan dated June 4, 2015, denied by the respondent on August 7, 2015?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

2. Regarding the April 2016 Accident:

i. Did the applicant sustain a minor injury as defined by the Schedule in the April 2016 Accident and is therefore subject to a limit of $3,500.00 for medical benefits?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,790.00 for chiropractic services, recommended by CK Chiropractic Rehabilitation in a treatment plan dated June 26, 2017, denied by the respondent on July 13, 2017?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9Based on the totality of the evidence before me, I find:

1. The applicant's injuries regarding the February 2015 Accident fall within the MIG and it is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest; and

2. The applicant's injuries regarding the April 2016 Accident fall within the MIG and it is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.

10Therefore, the injuries are subject to the $3,500.00 limit on treatment per accident.

Applicability of the Minor Injury Guideline

11The 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 sprain, strain, 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 $3,500.00.

12Section 18(2) of the Schedule provides for insured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. 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 that will prevent the insured person from achieving maximal recovery if benefits are limited to the MIG cap.

13In the decision of Scarlett v. Belair Insurance,¹ the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the applicant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500.00 cap for minor injuries on a balance of probabilities.

February 2015 Accident

Did the applicant sustain a predominately minor injury in the February 2015 Accident?

14Regarding the February 2015 Accident, I find that the medical evidence before me indicates the applicant sustained an impairment that is predominantly a minor injury.

15The applicant submits that her injuries from the February 2015 Accident are not minor injuries and cannot be collectively treated within the limits of the MIG. She further submits that she suffered from psychological injuries as a result of the February 2015 Accident and is therefore outside the MIG. The applicant also submits that her psychological impairment would complicate treatment of her accident-related physical complaints if she continued to be subjected to the MIG.

16The respondent submits that the applicant sustained only minor, soft tissue injuries from the February 2015 Accident and has no ongoing impairments from it. The respondent further submits that the applicant has not provided compelling evidence of a pre-existing medical condition documented by a health practitioner prior to the February 2015 Accident that would prevent her from achieving maximal recovery from her minor injuries if subject to the $3,500.00 limit. The respondent also submits that the applicant has not sustained psychological injury from the February 2015 Accident and is not eligible to be removed from the MIG on that account.

17The Application for Accident Benefits (OCF-1) dated February 23, 2015 stated that the applicant indicated the following areas were involved: "headache, shoulder, lower back, right hand, right wrist, right leg, sleep disturbance, and stress."

18The February 17, 2015 Treatment Confirmation Form (OCF-23) by physiotherapist Masoud Nada indicated that the Minor Injury Guideline ["MIG"] applied to the applicant's injuries, which were described as "headache; other sprain and strain of cervical spine; radiculopathy, cervical region; sprain and strain of lumbar spine; sprain and strain of sacroiliac joint; tension-type headache."

19No musculoskeletal complaints are recorded in the applicant's Decoded OHIP summary from February 1, 2015 to October 24, 2017, with the exception of the date of the February 2015 accident and an entry for leg cramps on April 4, 2017.

20Although the applicant's family physician Dr. Park referred the applicant for physiotherapy on February 13, 2015, his referral mentions only cervical, trapezial, and lumbar strain stemming from the February 2015 Accident.

21On June 3, 2015, on a subsequent visit to Dr. Park, the clinical notes and records state that the applicant had returned to playing golf two to three times per week following the February 2015 Accident. The applicant's left hand was X-rayed on June 29, 2015 at Dr. Park's request. The X-ray showed no sign of injury. Further, there was no mention of any psychological complaints in the clinical notes and records following the February 2015 Accident.

22Dr. Park's clinical notes and records since the February 2015 Accident indicate that only soft tissue injury resulted from that accident. He has not referred the applicant to any further testing or specialists for the applicant's physical complaints resulting from the February 2015 Accident, aside from the physiotherapy referral discussed above.

23The applicant submits that she requires additional physiotherapy. I am not persuaded by the evidence submitted that the applicant was outside of the MIG and requires additional physiotherapy. Once the $3,500.00 is exhausted from the MIG monetary limit, the only way to have access to the additional treatment limits is to provide evidence that the injuries are outside of the MIG, and it is my finding that the applicant's injuries are within the definition of the MIG.

Did the applicant sustain psychological injuries from the February 2015 Accident?

24Psychological impairments may, if established, fall outside the MIG, because the MIG only covers "minor injuries" and the definition does not include psychological impairments. I find the applicant does not have a psychological diagnosis stemming from the February 2015 Accident that would take her outside of the definition of the MIG for the following reasons.

25First, I afford little weight to a physiotherapist to provide psychological diagnoses. The applicant relies on the June 4, 2015 OCT-18 of physiotherapist Pearl D'Souza, who wrote that the applicant showed "signs of emotional disturbance." As a physiotherapist, Ms. D'Souza does not have the expertise to diagnose psychological conditions, and this is therefore not a diagnosis.

26Second, I was not provided with any submissions or evidence of any testing that was done to confirm whether the applicant does in fact have any psychological issues. The applicant did not seek any psychological treatment, nor was any psychological report provided. No OCF-18 treatment plan for any psychological assessment or treatment was submitted.

27Third, I am unable to assign any weight to evidence of a psychological injury based on the applicant's self-reporting in her affidavit or to physiatrist Dr. John Heitzner who conducted an IE Assessment July 21, 2015. Dr. Heitzner wrote: "She initially had fear with driving…she continues to look behind her a lot for fear of another accident. She avoids the highway. She prefers her husband to drive." This does not amount to a diagnosis of psychological injury. If there had been such a diagnosis, it would have taken the applicant out of the MIG.

Did the applicant have any pre-existing injuries before the February 2015 Accident?

28If the applicant's injuries fall within the definition of the MIG, the applicant can still be considered to be out of the MIG in accordance with section 18(2) of the Schedule. In order to do so, the applicant must provide compelling evidence meeting all three of the following requirements in order to escape the MIG:

1. There was a pre-existing medical condition;

2. The pre-existing medical condition was documented by a health practitioner before the accident; and

3. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.

29The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG. The Schedule requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

30Dr. Park's records prior to the February 2015 Accident do not indicate any pre-existing condition that would prevent maximal recovery from the February 2015 Accident injuries. Physiatrist Dr. Heitzner examined the applicant on July 10, 2015, and indicated that her pre-February 2015 Accident health history included only one event of note – a 2008 motor vehicle accident in which she sustained soft tissue injury and from which she had fully recovered. The OCF-18 of physiotherapist Pearl D'souza from June 4, 2015 states that it is "unknown" whether the applicant had any pre-existing disease, condition, or injury.

31I find that the applicant has not satisfied her onus and has not provided compelling evidence that the three criteria apply with regard to the February 2015 Accident.

32According to Scarlett, the onus is on the applicant to prove entitlement. As it is my finding that the applicant has not met her onus to show that her injuries are outside of the MIG, there is no need for me to conduct an analysis on whether the treatment and assessment plans in dispute are reasonable and necessary.

APRIL 2016 Accident

Did the applicant sustain a predominately minor injury in the April 2016 Accident?

33Regarding the April 2016 Accident, I find that the medical evidence before me indicates the applicant sustained an impairment that is predominantly a minor injury.

34The applicant submits that her injuries from the April 2016 Accident are not minor injuries which can be collectively treated within the limits of the MIG. She further submits that she suffered from psychological injuries as a result of the April 2016 Accident and is therefore outside the MIG. She also submits that the psychological injury from her February 2015 Accident (discussed above) constitutes a pre-existing injury that would remove her from the MIG as a result of the April 2016 Accident. The applicant also submits that her psychological impairment would complicate treatment of her accident-related physical complaints if she continued to be subjected to the MIG.

35The respondent submits that the applicant sustained only minor, soft tissue injuries from the April 2016 Accident and has no ongoing impairments from it. The respondent further submits that the applicant has not provided compelling evidence of a pre-existing medical condition documented by a health practitioner prior to the April 2016 Accident that would prevent her from achieving maximal recovery from her minor injuries if subject to the $3,500.00 limit. The respondent also submits that the applicant has not sustained a psychological injury from the April 2016 Accident and is not eligible to be removed from the MIG on that account.

36The applicant's Treatment Confirmation Form (OCF-23) by chiropractor Calvin Kim from June 7, 2016 indicated that the Minor Injury Guideline ["MIG"] applied to the applicant's injuries, which were described as "whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs; dislocation, sprain and strain of joints and ligaments of thorax; dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis."

37No musculoskeletal complaints are recorded in the applicant's Decoded OHIP summary from February 1, 2015 to October 24, 2017, with the exception of the date of the February 2015 accident and an entry for leg cramps on April 4, 2017.

38Dr. Park's clinical notes and records indicate that only soft tissue injury resulted from the April 2016 Accident. He has not referred the applicant to any further testing or specialists for the applicant's physical complaints resulting from the April 2016 Accident.

Did the applicant sustain psychological injuries from the April 2016 Accident?

39Psychological impairments may, if established, fall outside the MIG. I find the applicant does not have a psychological diagnosis stemming from the February 2015 Accident that would take her outside of the definition of the MIG for the following reasons.

40My findings are limited to the evidence brought forward by the parties. In this case, no evidence was submitted to support that the applicant was diagnosed with anxiety, either by Dr. Park or another mental health professional. The applicant did not seek any psychological treatment, nor was any psychological report provided following the April 2016 Accident. No OCF-18 treatment plan for any psychological assessment or treatment was submitted.

41The references to anxiety in Dr. Park's clinical notes and records after the April 2016 Accident include a note from January 11, 2017, in the "Objective" section, that "patient appears well. NAD. Anxious." The other reference comes from a visit on October 7, 2016, in the "Subjective" section of Dr. Park's notes: "Patient has been in several MVCs. Anxious re: driving…To consider getting counselling re: anxiety."

42Neither of these notes in Dr. Park's clinical notes and records amount to a diagnosis of anxiety or psychological impairment. Further, on the October 7, 2016 visit, Dr. Park noted that the applicant would "consider getting counselling re: anxiety." Importantly, Dr. Park does not make a referral to a mental health professional. He makes no diagnosis, and he writes no prescription.

43In her affidavit, the applicant discusses exhibiting symptoms of anxiety and having to look behind her while driving because she fears another accident. However, no evidence was submitted to support the claim that either of these has resulted in psychological injury or impairment. I am unable to assign any weight to evidence of a psychological injury based only on the applicant's self-reporting.

44I find that the applicant's self-report of anxiety in this case coupled with the absence of a diagnosis does not remove the applicant from the MIG. The Tribunal has found that an applicant was unable to meet the burden of proof of a psychological injury because of a failure to submit medical documentation to support the psychological diagnosis and a lack of further investigative tests.²

45I have determined that the applicant has not met her burden of proof to show that she has psychological or other injuries that would take her outside of the MIG.

Did the applicant have any pre-existing injuries before the April 2016 Accident?

46The applicant submits that the injuries she sustained in the February 2015 Accident will prevent her from achieving maximal recovery if subjected to MIG limits, and should therefore be considered a pre-existing condition under s. 18(2). The applicant relies on chiropractor Calvin Kim's June 26, 2017 OCF-18, in which he indicates that she "was involved in a motor vehicle accident prior to this one where she sustained injuries to neck and back."

47However, pre-existing injuries alone do not constitute the "compelling evidence" needed to qualify for the s.18(2) exemption from MIG. The burden, again, is on the applicant to demonstrate – with medical evidence – how her pre-existing injuries from the February 2015 Accident would prevent her maximal recovery from her injuries in the April 2016 Accident. I find that the applicant has not met her onus of proving, with sufficient medical evidence, that she had pre-existing injuries from the February 2015 Accident that would prevent her maximal recovery from her injuries in the April 2016 Accident.

48The mere documentation of a previous injury has been found to be insufficient evidence that the applicant would be prevented from achieving maximal medical recovery if subjected to the MIG, especially if the evidence provided sheds no light on how or why maximal recovery could not be achieved.³

49Here, the applicant has not submitted compelling medical evidence to detail how a pre-existing condition would remove her from the MIG in the April 2016 Accident.

50The applicant did not visit Dr. Park regarding any musculoskeletal complaints between December 17, 2015 and the April 2016 Accident. Dr. Park's last notes prior to the April 2016 Accident, from December 17, 2015, indicate right upper trapezial pain with tenderness, and confirmed normal ROM through internal and external rotation and normal rotator cuff.

51The applicant's medical records demonstrate that she had made significant improvement following the February 2015 Accident to the extent that she had resumed playing golf regularly by June 2016. Evidence of a pre-existing physical condition to justify a removal from MIG is, accordingly, lacking.

52The applicant submits that her anxiety as well as neck and back pain from the February 2015 Accident prevent her from achieving maximal recovery if subjected to MIG limits. However, the applicant has not submitted medical evidence to support her submissions. Dr. Park has not commented on the effect that the applicant's pre-2016 injuries – or her anxiety – would have on her ability to achieve maximal recovery from the April 2016 Accident.

53It is for the applicant to adduce compelling medical evidence showing how her reported anxiety, neck pain, and back pain will prevent her from maximal recovery if subjected to the MIG to successfully meet her burden of proof. The lack of medical evidence on this point means that the burden has not been met.

54According to Scarlett, the onus is on the applicant to prove entitlement. As it is my finding that the applicant has not met her onus to show that her injuries are outside of the MIG, there is no need for me to conduct an analysis on whether the treatment and assessment plans in dispute are reasonable and necessary.

CONCLUSION

55For the reasons outlined above, I find that:

1. Regarding the February 2015 Accident:

i. The applicant sustained predominately minor injuries that fall within the MIG; and

ii. The applicant has not established that she has a pre-existing medical condition that prevents recovery under the MIG and therefore the applicant is not entitled to the treatment plans or the interest that is in dispute for this application.

2. Regarding the April 2016 Accident:

i. The applicant sustained predominately minor injuries that fall within the MIG; and

ii. The applicant has not established that she has a pre-existing medical condition that prevents recovery under the MIG and therefore the applicant is not entitled to the treatment plans or the interest that is in dispute for this application.

Footnotes

1. 12015 ONSC 3635.
2. 216-000677 v. Dominion of Canada General Insurance Company, 2017 CanLII 9807 (ONLAT), paras. 17, 19.
3. 316-001320 v. Aviva Insurance Canada, 2017 CanLII 59516 (ONLAT).