I. K. v. Coseco Insurance Company, 2018 CanLII 97848

I. K. vs. Coseco Insurance Company

Date: June 7, 2018

Tribunal File Number: 17-004897/AABS

Case Name: I. K. vs. Coseco 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:

I. K.

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant: Lisa Bishop

Counsel for the Respondent: David Raposo

Written Hearing: March 1, 2018

OVERVIEW

1The applicant, I.K., was injured in an automobile accident on July 8, 2015, suffering elbow, hand, shoulder, back and head injuries, as well as potential psychological impairments as a result. I.K. sought medical benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (Schedule) from the respondent insurer, Coseco.

2Coseco denied the benefits on the basis that I.K.’s injuries fall within the Minor Injury Guideline (MIG). I.K. disagreed with this determination and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.

ISSUES

3The following are the issues to be decided, as per the case conference order of Adjudicator Msosa dated November 25, 2017 and narrowed further by the motion order of Adjudicator Paluch on January 25, 2018:

i. Did the applicant sustain a minor injury as defined by the Schedule and subject to a limit of $3,500 for medical benefits?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,921.60 for physiotherapy services, recommended by Toronto Healthcare Clinic Inc. in a treatment plan dated February 8, 2016, denied by the respondent on February 19, 2016?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,251.20 for physiotherapy services, recommended by Toronto Healthcare Clinic Inc.in a treatment plan dated June 7, 2016, denied by the respondent on June 9, 2016?

iv. Is the applicant entitled to receive a medical benefit in the amount of $1,601.60 for physiotherapy services, recommended by Toronto Healthcare Clinic Inc.in a treatment plan dated March 22, 2016, denied by the respondent on April 5, 2016?

v. Is the applicant entitled to payments for the cost of examinations in the amount of $1,521.26 for attendant care needs assessment, recommended by Toronto Healthcare Clinic Inc. in a treatment plan dated March 10, 2016, denied by the respondent on April 5, 2016?

vi. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000 for psychological assessment, recommended by Toronto Healthcare Clinic Inc. in a treatment plan dated April 13, 2016, denied by the respondent on April 21, 2016?

vii. Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed the payment of benefits to the applicant?

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

RESULT

4Based on the evidence before me, I find that I.K.’s injuries fall within the MIG and it is therefore unnecessary to consider whether the medical benefits in dispute are reasonable and necessary. I.K. is not entitled to interest on overdue benefits. No award under O. Reg. 664 is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

5The 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.

6Section 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.

7In the decision of Scarlett v. Belair Insurance,² the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish entitlement to coverage beyond the $3,500 cap for minor injuries, on a balance of probabilities.

Did I.K. sustain a predominately minor injury?

8I find that the medical evidence before me indicates that I.K. sustained impairments that are predominantly minor injuries.

9I.K.’s submissions do not attempt to argue that the injuries sustained in the accident, considered alone, remove him from the MIG. Rather, he submits that his pre-existing history of migraines and left wrist/arm pain greatly impact his ability to recover from the accident and take him out of the MIG. Further, he argues that he suffers from significant physical and emotional symptoms post-accident that impact his work and daily life and that the confines of the MIG will prevent him from achieving maximal recovery.

10As evidence of his physical injuries, I.K. relies on a completed Disability Certificate (OCF-3) dated January 7, 2016, prepared by Dr. Minella as well as various treatment plans (OCF-18). In the OCF-3, I.K. is diagnosed with chronic sprain/strain to all of his shoulder, upper arm, elbow, wrist and left hand as well as a forearm injury, post-traumatic headaches and “symptoms and signs involving emotional state.” On its face, the injuries listed in the OCF-3 fall within the list of impairments set out and covered by the MIG, as they are identified as sprain and strain type injuries, despite the “chronic” modifier.

11In response, Coseco submits that I.K. has not provided compelling evidence that his alleged pre-existing conditions cannot be treated within the MIG limits or that his accident-related injuries are not predominately minor in nature.

Does I.K. have pre-existing injuries or chronic pain sufficient to escape the MIG?

12If 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:

i. There was a pre-existing medical condition;

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

iii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

13The 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 an insured’s impairment from the MIG. I find that I.K. has not satisfied his onus and has not provided compelling evidence that the three criteria apply.

14I.K.’s position is that his pre-existing injuries—specifically: migraines, left wrist/arm pain—should be considered outside of the MIG because the accident exacerbated these injuries and the MIG will prevent him from maximal recovery. I.K. argues that his pain is now chronic in nature. I disagree and assign little weight to this evidence for the following reasons.

15On the applicant’s completed Disability Certificate, the box next to the question of whether the applicant has any disease, condition or injury prior to the accident was check-marked “No”. I find this discrepancy odd considering Dr. Minella diagnosed I.K. with chronic pain across multiple areas. Despite the “chronic” modifier in the OCF-3, I.K. has not been diagnosed with chronic pain syndrome.

16While I.K.’s migraines and left wrist/arm injuries are documented in the notes and records of his family physician as far back as 2013, Dr. Ramprasad’s assessments and plans for treating I.K.’s injuries do not make for compelling evidence that I.K.’s injuries will prevent him from maximal recovery under the MIG. Rather, the diagnoses are completely unremarkable for an individual who makes his living as a server/bar back. Of note: when I.K. complained of headaches and wrist pain, Dr. Ramprasad recommends rest, ice, Advil, better sleeping habits, a brace and that he refrain from activities that cause pain. I find Dr. Ramprasad’s suggested form of treatment for I.K.’s migraines and wrist pain to be, quite frankly, par for the course in that industry. As a result, I find that I.K.’s injuries do not rise to the level of “extremely limited instances” necessary to escape the MIG, as contemplated by the Superintendent’s Guideline.³

17Coseco secured Dr. Hossein to conduct a Physiatry Report and Addendum Report on I.K. After a physical examination and review of I.K.’s medical records, Dr. Hossein provided the medical opinion that I.K.’s injuries would not prevent him from achieving maximal medical recovery from a musculoskeletal perspective if subject to the $3,500 MIG limit. Dr. Hossein indicates that I.K.’s injuries were predominately minor in nature. Further, Dr. Hossein concludes that, at more than nine months post-accident, I.K. would have reached maximal therapeutic benefit from facility-based treatment and recommends self-directed, home-based exercise instead. Dr. Hossein’s opinion remained unchanged in his Addendum Report. I find Dr. Hossein’s Report convincing because it is the only report that offers an explanation as to why I.K.’s pre-existing injuries can be treated within the MIG limits. Aside from the Dr. Ilios/Shaul psychological report—which I consider in detail below—none of the medical documentation provides compelling evidence or medical explanation as to why the MIG limits will prevent maximal recovery for I.K.’s migraines and wrist pain.

Does I.K. have psychological impairments that take him out of the MIG?

18Psychological impairments, if established, fall outside the MIG, because the MIG only covers “minor injuries” and the definition does not include psychological impairments. I find I.K. is precluded from relying on this exception to escape the confines of the MIG due to his non-attendance at the scheduled s. 44 Insurer’s Examinations.

19I.K. underwent a Psychological Pre-Screen and a Psychological Assessment.⁴ Dr. Ilios/Shaul’s Report diagnosed I.K. with Adjustment Disorder and features of Specific Phobia, indicating that his level of impairment would prevent him from achieving maximal recovery under the MIG. The Report recommended eight sessions of cognitive behavioral therapy and education as well as driver/passenger rehabilitation/evaluation. I.K. submits that these diagnoses are independent conditions and, based on the Guides,⁵ should not be considered sequelae of his accident-related injuries. In response, Coseco argues that a psychological diagnosis alone does not remove an insured from the MIG⁶ and that I.K.’s own s. 25 assessor, Dr. Shaul, indicated in his report that I.K. is “currently experiencing minimal levels of emotional distress.”⁷

20Generally, I agree with I.K.’s position that psychological injuries or conditions, such as adjustment disorder and specific phobia, arise independently from physical injuries and are not necessarily clinically-associated sequelae to such injuries. However, noticeably absent from the record is a competing psychological report from Coseco. As a result, the sole professional opinion available from a psychologist is the one from Dr. Ilios/Shaul, which is rebutted only by Dr. Hossein’s Physiatry Addendum Report.⁸ This is problematic for I.K.’s argument because the lack of a competing psychological report is, evidently, the fault of I.K because he did not attend the scheduled s. 44 Insurer’s Examinations.

21Coseco relies on s. 55(1)2 of the Schedule, which states that an insured person shall not apply to the Tribunal if the insurer has provided notice that it requires a s. 44 examination and the insured has not complied. Coseco submitted compelling evidence—four separate correspondence letters—indicating that it attempted to schedule and, at I.K.’s request, reschedule, multiple s.44 Insurer’s Examinations in order to obtain a second opinion after I.K. submitted the Dr. Ilios/Shaul OCF-18 and Report.⁹ Upon review of this correspondence, it is clear that I.K. did not attend either of the scheduled assessments despite proper notice from Coseco meeting the requirements of s. 44(5), including convenient dates and times, the names of the assessor(s) and the medical and other reasons for the examination.¹⁰ I.K. provided no documented explanation for his non-attendance and did not make direct submissions on the issue as to why he did not attend. As a result of his non-attendance, I.K. is precluded from arguing that his alleged psychological and emotional impairments take him out of the MIG and from relying on the Dr. Ilios/Shaul Report until such time that he complies with his statutory obligation to attend. Accordingly, he is also not entitled to the cost of the psychological assessment until he complies with Coseco’s s. 44 request.

22As I have determined that I.K. has not complied with his statutory obligations, I find he has also not met his burden to show that his psychological impairments take him out of the MIG. Therefore, he cannot rely on this exception to escape the MIG limits.

Are the treatment plans and assessments in dispute reasonable and necessary?

23According to Scarlett, the onus is on the applicant to prove entitlement. It is my finding that that I.K. has not met his onus to show that his pre-existing injuries take him outside of the MIG. Therefore, there is no need for me to conduct an analysis of whether the remaining medical benefits in dispute are reasonable and necessary.

Is I.K. entitled to an award under O. Reg. 664 because Coseco unreasonably withheld or delayed payment?

24Pursuant to s. 10 of O. Reg. 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, award a lump sum of up to 50 per cent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing. As I have determined that I.K.’s injuries fall within the MIG, no award is payable.

Is I.K. entitled to interest on the overdue payment of benefits?

25If payment of a benefit is overdue, the insurer shall pay interest on the overdue amount, pursuant to s. 51 of the Schedule. I.K. submits that he is entitled to interest. I disagree. Although Coseco maintained its position that I.K. was subject to the MIG limits throughout, I.K. failed to submit the OCF-23 necessary to trigger entitlement. Without triggering entitlement, a benefit cannot be overdue and attract interest.

CONCLUSION

26For the reasons outlined above, I find that:

a. I.K.’s injuries are predominately minor injuries that fall within the MIG and he is therefore entitled to the $3500 MIG limit for medical benefits upon submission of an OCF-23 to Coseco; and

b. I.K. has not established that he has a pre-existing medical condition that prevents maximal recovery under the MIG and is precluded from relying on the psychological assessment due to non-compliance. Therefore, he is not entitled to the treatment plans in dispute, overdue interest or an award under O. Reg. 664.

Footnotes

1. 1O. Reg. 34/10.
2. 22015 ONSC 3635.
3. 3Financial Services Commission of Ontario: Superintendent’s Guideline No. 01/14, Minor Injury Guideline, February 2014, at page 5.
4. 4Conducted March 10, 2016 and June 8, 2016, respectively, by Dr.’s Ilios/Shaul.
5. 5Ontario Psychological Association Guidelines for Assessment and Treatment in Auto Insurance Claims: Ontario Regulation 34/10.
6. 6Applicant v. Aviva (LAT 16-001990).
7. 7Psychological Report of Dr.’s Ilios/Shaul, June 8, 2016, at page 9.
8. 8Respondent’s Book of Authorities, Tab 14.
9. 9Id., at Tabs 8, 9, 10 and 11.
10. 10O. Reg. 34/10, s. 44(5).