Y.Z. v. Certas Home and Auto Insurance Company, 2019 CanLII 101537

Licence Appeal Tribunal

Citation: Y.Z. v. Certas Home and Auto Insurance Company, 2019 CanLII 101537 File No.: 18-003664/AABS

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:

Y. Z. Appellant

and

Certas Home and Auto Insurance Company Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

Appearances: For the Appellant: Elena Pelz, Counsel For the Respondent: Adam Fox, Counsel

Heard: In Writing May 10, 2019

OVERVIEW

1The applicant was involved in an automobile accident on January 4, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The applicant claims an income replacement benefit (“IRB”) for the injuries sustained from the accident from September 26, 2016 to date and ongoing. The applicant was paid the amount of $14,980 of IRBs from one week after the date of the accident to September 26, 2016. The IRB was then denied on the basis that the applicant had either returned to work and/or received employment insurance benefits (“EI”), both of which the respondent argues disqualify him from receiving an IRB.

3The applicant asserts that his injuries, which include chronic pain and an exacerbation of pre-existing medical conditions, are not predominantly minor injuries as defined in the Schedule. He also claims entitlement to a medical benefit for acupuncture, which the respondent denied on the basis that the applicant’s injuries fall within the MIG.

ISSUES IN DISPUTE

4The issues in dispute¹ are as follows:

i. Is the applicant entitled to receive a weekly IRB in the amount of $400.00 per week for the period September 15, 2016 to date and ongoing?

ii. Are the applicant’s impairments predominantly minor injuries as defined in the Schedule?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,530.00 for acupuncture services, recommended by Jintao Chinese Medicine and Acupuncture in a treatment plan submitted November 3, 2016, and denied on November 23, 2016?

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

RESULT

5I find the applicant is not entitled to the IRB. I find that the applicant’s injuries are not predominantly minor injuries. The applicant is entitled to payment of the balance of the disputed treatment plan and interest on that amount.

ANALYSIS AND DISCUSSION - INCOME REPLACEMENT BENEFITS

The IRB Claim post-104 weeks

6To succeed with a claim for an IRB post-104 weeks from January 4, 2018 to January 4, 2020, the applicant must establish under section 6(2)(b) that as a result of his disability, he is suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

7The applicant’s submissions and evidence on the post-104 weeks IRB claim are limited. In his submissions, the applicant states his entitlement to an IRB ends on January 20, 2020 and presents a calculation of the IRB quantum for 4 years.² No explanation is provided of that calculation. No evidence or argument was advanced by the applicant to support his claim that he has and will continue to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience from January 4, 2018 to January 4, 2020. As such, the claim for an IRB post-104 weeks is dismissed.

The IRB Claim for the first 104 weeks

8For the applicant to succeed with his claim for the IRB from September 26, 2016 to January 4, 2018, he has to establish on a balance of probabilities that he suffered a substantial inability to perform the essential tasks of his employment as per sections 4 and 5 of the Schedule.

9I find that the applicant has not presented evidence on a balance of probabilities that from September 26, 2016 to January 4, 2018, his disability is such that he was substantially unable to perform the essential tasks of his pre-accident employment. Accordingly, the IRB claim pre-104 weeks is dismissed.

10The applicant was paid an IRB from the first week after the date of the accident to September 26, 2016. The claim after that date was denied by the respondent for several reasons:³

a. The first is based on the assessment report by its insurer’s examination (“IE”) assessor, Dr. Ismail⁴, physiatrist, completed on September 6, 2016. Dr. Ismail found no ongoing accident-related musculoskeletal neurological impairment. His examination found soft tissue injury of the lumbar and cervical spine. He concluded that the applicant had reached maximum medical recovery. From a physiatry perspective, he found the applicant was not entitled to an IRB.

b. The respondent also denied the IRB claim on the basis that the applicant had returned to work for periods of time in 2016⁵ (and did not advise the respondent of this) and from April 3, 2017 to October 11, 2017.

c. In 2016 and 2017, the applicant also received unemployment insurance (“EI”) which the respondent argues makes the applicant ineligible to receive an IRB as he is required in making a claim to receive EI to indicate he is willing, ready and able to work.

11To support his claim for the IRB, the applicant relies on a Disability Certificate (an OCF-3)⁶ dated February 25, 2016 and completed by Dr. Minella, chiropractor. The OCF-3 states the applicant is no longer able to perform his employment for a period of 12 weeks. Dr. Minella lists the applicant’s injuries as sprains and strains of the lower back, neck and shoulders.

12The applicant submits that at the time of the accident, he was employed at Alpha Marathon as a lathe machine operator and had been working in this capacity since 2014. The applicant reported his salary for the 52 weeks prior to the accident from January 1, 2015 to January 4, 2016 as $36,888. This would be the amount used to calculate employment income for the purposes of calculating a loss of employment income. A letter from the employer dated October 19, 2018 states the applicant’s employment was terminated on January 5, 2016 and he received severance in the amount of $5,000.

13The applicant stated his duties as a machine operator involved prolonged sitting, reaching overhead, bending, twisting, lifting, crouching and rotating his neck. He provided no evidence of his job duties, and no medical evidence to prove that he had a substantial inability to perform those job duties.

14Despite the medical evidence from the physiatrist, Dr. Prutis, his family doctor, Dr. Chan, and a pain specialist, Dr. Shenderey, which detail back, shoulder and neck pain and limitations in sitting, standing and reaching, the applicant returned to work in April 30, 2016 until to October 2017. Dr. Prutis and Dr. Shenderey did not provide an opinion that the limitations meant the applicant was unable to perform the essential tasks of his employment duties.

15The applicant also collected EI. In the Declaration of Post Accident Income (the OCF-13), the applicant declared that he received $21,968 in EI from January 6, 2016 to December 31, 2016. For the period between January 1, 2017 to December 31, 2017, the applicant received EI benefits in the amount of $3,496. In order to collect EI, the applicant would have had to report that he was ready, willing and able to work. The fact that he did so, as well as worked, is evidence that he did not suffer a substantial inability to perform the essential tasks of his employment in the pre-104 weeks period.

16The employer’s letter of October 18, 2018 refers to vacation pay made on January 5, 2016 and the applicant submitted into evidence a pay stub from the employer which states the applicant received $1,555 in vacation pay for the weeks of August 6, 2016 to August 19, 2016.

17I find the applicant did not present evidence to establish on a balance of probabilities that his injuries as a result of the accident are such that he suffered a substantial inability to perform the essential tasks of his employment as of September 15, 2016 until January 4, 2018. The medical evidence confirms injuries suffered as a result of the accident and he has limitations in standing, bending etc. but there is no evidence that the injuries are such that he is substantially unable to perform the essential tasks of his employment. This is further evident from the evidence that the returned to work in April 2016 and between April 2017 and October 11, 2017.

18I also find that the OHIP⁷ records (13 pages documenting medical appointments) and related medical records from the family doctor and various specialists indicate that the applicant suffered a multitude of other medical conditions unrelated to the injuries and may explain his absences and inability to work. This includes but is not limited to asthma, repeated bouts of chronic bronchitis, leg swelling, tonsillitis, pulmonary and unitary track infections, severe restrictive lung disease, shingles, and prostatitis issues. The chronic bronchitis occurs repeatedly over the course of 2016 and 2017. The applicant immediately after the accident in January 2016 travelled to China and became sick with bronchitis.

19Based on the totality of the evidence, the applicant has not proven that he is substantially unable to perform the tasks of his employment as a result of the injuries from the accident. The evidence indicates for 2016 and 2017, he was either working or on EI confirming that he was ready to work and thus ineligible to receive an IRB.

THE MINOR INJURY GUIDELINE and TREATMENT PLAN

20The applicant submits that his injuries are not minor, since, as a result of the accident, he has been diagnosed with chronic pain syndrome which takes him out of the Minor Injury Guideline (“MIG”). He claims he is therefore entitled to a medical benefit for acupuncture, in the amount of $302.58, which is the amount of the treatment plan ($1,530) less the amount of $1,227.42 that was partially approved by the respondent to the MIG limits on the basis that it was reasonable and necessary.

21Based on the totality of the evidence before me, and for the reasons that follow, I find the applicant has proven on a balance of probabilities that he sustained injuries that are other than predominantly minor injuries, as defined under the Schedule.

22The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 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 s. 3.

23Section 18(1) limits recovery when the MIG applies to $3,500. Section 18(2) of the Schedule makes a provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the amount in MIG.

24To be removed from the MIG, and entitled to the disputed treatment plan, the applicant must prove his injuries do not fall within the definition of a minor injury, such as by showing that he suffers from chronic pain, or that he has a pre-existing medical condition which, if treated within the MIG, would prevent him from achieving maximal recovery.

25The applicant argues Dr. Shenderey diagnosed him with chronic neck and back pain and performed cortisone epidural injections.⁸ Based on a review of Dr. Shenderey’s reports of February 21, and 28, 2017, I do not agree that he diagnosed the applicant with chronic pain. There is no reference to chronic pain in the report from Dr. Shenderey. Further, although Dr. Shenderey may have noted on February 27, 2017 that the applicant was fired due to his inability to perform his duties at work, there is no indication of the reason the employment was terminated or that it was due to injuries sustained in the accident.

26The applicant in his submissions refers to the medical records from his family doctors and Dr. Prutis to support his position that he sustained injury to his neck, low back and shoulders. The applicant asserts that Dr. Prutis diagnosed him with chronic pain.⁹ The respondent acknowledges Dr. Prutis noted the applicant’s injuries resulted in chronic neck and low back pain but Dr. Prutis, it points out, did not complete a chronic pain assessment. It therefore disputes the applicant’s position that Dr. Prutis diagnosed the applicant with chronic pain syndrome.

27A diagnosis of chronic pain syndrome is not required to establish that an applicant is suffering from chronic pain to take him out of the MIG.¹⁰

28Although a diagnosis of chronic pain is not required, there must be compelling evidence of symptoms that are continuous, and of a severity that causes suffering and distress, accompanied by functional impairment or disability.

29I find that the notes from the family doctor, Dr. Chan, as well as the notes from Dr. Prutis and Dr. Shenderey, document ongoing complaints of neck and back pain in 2016. As an example, in his medical notes of July 25, 2016 and October 24, 2016, Dr. Chan mentions the applicant’s complaints of neck pain, low back pain, headaches, dizziness. Dr. Chan recommended physiotherapy, acupuncture and massage.¹¹ The symptoms are continuous and severe such that the family doctor refers the applicant to a pain specialist and recommends he receive physiotherapy, massage, osteopathic and acupuncture treatment.

30Dr. Ismail concluded in his September 2016 report that the applicant’s injuries were minor and the applicant had reached maximum medical recovery. However, Dr. Prutis in May 2017 suggested otherwise. Based on the evidence from Dr. Prutis, the family doctors and Dr. Shenderey, there is sufficient evidence of symptoms that are continuous, and of a severity that they cause suffering and distress accompanied by functional impairment or disability to remove the applicant from the MIG.

31I acknowledge the statement made by the respondent that the June 2017 notes of Dr. Chan state the applicant does not suffer from low back and neck pain. However, on January 24, 2017, the family doctor referred the applicant to a pain specialist who referred in February 2017 notes to ongoing pain complaints by the applicant and who recommended injection treatments to treat his pain.

32I also note the applicant’s reference to Dr. Prutis’s report¹² which states the applicant’s pre-existing disc degenerative condition revealed in an MRI¹³ dated January 19, 2016 was aggravated by the injuries sustained from the accident. The applicant did not advance any further evidence or submissions on the issue of removal of the applicant from the MIG on the basis of pre-existing injury.

Is the Treatment Plan Reasonable and Necessary?

33Based on the totality of the medical evidence, I find the treatment plan for acupuncture, which is shown to have provided the applicant some temporary pain relief, is reasonable and necessary. The respondent found the treatment plan to be reasonable and necessary to the limits of MIG. Moreover, Dr. Prutis indicated in her May 31, 2017 report that the acupuncture treatment had some benefit to the applicant in that it gave him temporary relief. I find the applicant is entitled to the outstanding amount of the acupuncture treatment plan for $302.58 being the balance of the amount of the treatment plan ($1,530) less the amount of $1,227.42 already paid.

CONCLUSION

34For the reasons outlined above, I find that the applicant is not entitled to an IRB. The applicant’s injuries are not predominately minor injuries. The applicant is entitled to the balance of the treatment plan in dispute as it is reasonable and necessary. The applicant is entitled to interest on the outstanding balance of the treatment plan.

Released: September 30, 2019

Thérèse Reilly Adjudicator

Footnotes

1. 1The issue of whether the respondent is liable to pay an award under Regulation 664 for unreasonably withheld or delayed payments is listed as an issue in the case conference Order but as the applicant made no submissions on the issue, it is not listed for consideration in this decision.
2. 2Written submissions of the applicant, paragraph 10.
3. 3Explanation of Benefits, September 26, 2016, tab 11, written submissions of the respondent.
4. 4Report of Dr. Ismail, dated September 15, 2016, tab 8, written submissions of the respondent.
5. 5Application for Accident benefits (OCF 1) dated March 3, 2016 states the applicant returned to work on April 30, 2016.
6. 6Disability Certificate, Tab B7 of the written submissions of the applicant and paragraph 13.
7. 7OHIP records, for the years 2013 to April 18, 2018, tab B10, written submissions of the applicant.
8. 8Written submissions of the applicant, paragraph 19.
9. 9Written submissions of the applicant, paragraph 6.
10. 10Neither party referred me to the Supreme Court of Canada decision in Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543, in which it was held an actual diagnosis is not required
11. 11Notes of Dr Chan, Tab B8, page 38, written submissions of the applicant.
12. 12Written submissions of the applicant, paragraph 17.
13. 13MRI dated January 19, 2016, Tab B4, written submissions of the applicant.