Citation: [W.J.L.] vs. Security National Insurance Company, 2019 ONLAT 18-009896/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:
[W. J. L.]
Appellant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Monica Chakravarti
Appearances:
For the Appellant:
[W. J. L.], Applicant
Sareena Samra, Counsel
Philip Kai Kwong Yeung, Paralegal
For the Respondent:
Ilya Kirtsman, Counsel
Interpreter:
Cheng Zhang, Mandarin Interpreter
Court Reporter:
Bruce Porter
Heard: In writing and In Person
July 4, 2019
OVERVIEW
1The applicant was involved in a motor vehicle accident on June 23, 2016 (the “Accident”). Following the Accident, the applicant applied for various benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied a non-earner benefit because the respondent took the position that he was not entitled pursuant to the Schedule. The applicant was also denied the cost of an examination and a medical rehabilitation benefit because the respondent took the position that the applicant’s injuries and impairments fell within the definition of “minor injury” as prescribed by section 3(1) of the Schedule.
3The applicant disagreed with the denial of benefits and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).
PRELIMINARY MATTER: MIG ISSUE ADDED
4The Tribunal’s Order of February 25, 2019 confirmed the issues in dispute. The Order made no mention of the issue of whether the applicant’s injuries and impairments fall within the definition of “minor injury” as prescribed by section 3(1) of the Schedule.
5The parties in their written submissions addressed the issue of whether the applicant’s injuries and impairments fall within the Minor Injury Guideline (MIG) and the parties agreed that the issue of the MIG is part of the underlying disputes regarding the medical rehabilitation benefit and the cost of examination and must be decided. The parties were afforded a further opportunity to address the issue of MIG determination in their closing arguments. Therefore, on consent, the issue of whether the MIG applies to the applicant is an issue that will be decided.
ISSUES TO BE DECIDED
6The issues to be decided are:
i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (the “MIG”)?
ii. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from December 22, 2016 to date and ongoing?
iii. Is the applicant entitled to a medical benefit in the amount of $3,588.84 for chiropractic treatment recommended by Woodbine Perfect Rehab Centre in a treatment plan (OCF-18) submitted on June 29, 2016, and denied on October 18, 2016?
iv. Is the applicant entitled to payment for the cost of examination in the amount of $1,620.00 for an attendant care assessment and Form 1 recommended by Woodbine Perfect Rehab Centre in a treatment plan (OCF-18) submitted on June 30, 2016, and denied on October 18, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7Based on the submissions and the totality of the evidence before me, I find as follows:
The applicant’s injuries are predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG.
i. The applicant is not entitled to a non-earner benefit.
ii. The applicant is not entitled to a medical and rehabilitation benefit for chiropractic treatment as it is not reasonable and necessary.
iii. The applicant is also not entitled to the cost of assessment for attendant care benefits.
iv. Since no benefits are payable, the applicant is not entitled to interest.
ANALYSIS
8I will first address the issue of the MIG (issue i) and the treatment plans (issues iii and iv) as these issues are associated.
MINOR INJURY GUIDELINE
9Section 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.” It also defines what these terms for injuries mean. Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
10The onus is on the applicant to show that his injuries fall outside MIG and the applicant has not fulfilled this onus.
a. Physical Injuries
11The applicant in providing direct evidence had a difficult time articulating his physical injuries which he submitted bother him to this day. The applicant stated during his examination in chief and on cross examination that his physical injuries that are directly related to the accident are pain in his shoulders, neck and back and numbness in his hands and feet. As well, he endures headaches that he relates to the accident.
12The applicant submits that the immediate injuries included the above along with a right eye contusion that was bleeding at the scene of the accident along with blood in his urine that a doctor stated was possibly as a result of a ruptured cyst caused by the accident.
13The respondent submits that the applicant has never once mentioned the injuries to his shoulder, neck, and back to his family doctor, nor are there any mention of headaches. As well the respondent also submits that not only did the family doctor not mention any complaints of headaches but that the family doctor specifically confirmed on four separate occasions that the applicant did not have headaches.
14The respondent further submits that the numbness in the applicant’s hands and feet is due to pre-existing diabetic neuropathy. The respondent relies on the report of Dr. Oshidari, who conducted an insurer’s examination (“IE”) at the request of the respondent.
15I find for the following reasons that the applicant has failed to show that his physical injuries and impairments fall outside of the MIG.
16The medical documents fail to even demonstrate let alone corroborate any accident-related physical injuries or impairments other than the immediate right eye contusion.
17On the day of the accident, June 23, 2016, the applicant was taken via ambulance to the hospital with notations of no back or neck pain, and only notations of an eye contusion and cut.
18The applicant saw his family doctor, Dr. Chen, approximately 18 times following the accident. The initial post-accident visit of June 29, 2016 notes only a right eye contusion and notes that ice was provided at the hospital. It also notes that the “hematuria” (blood in the urine) ceased as of June 25, 2016.
19The applicant returned to the family doctor on July 18, 2016 and now complained of bilateral hand and foot numbness, and again the family doctor notes that there is no blood in the urine.
20Following those two visits, there is not one mention of any physical complaints to any part of the applicant’s body as a result of the accident, nor any mention of any difficulties to the applicant’s neck, back, shoulders, hands, or feet. The first mention of headaches is in February of 2019 and prior to that not only is there no mention of headaches in the family doctor’s records, but the family doctor specifically notes on several occasions that the applicant was not experiencing any headaches.
21With respect to the issue of blood in the urine, Dr. Chen confirms that this issue arose on June 23, 2016 (pink coloured urine) and resolved on June 25, 2016 and by the time of the visit of June 29, 2016 that this was not an issue. There is mention of blood in the rectum related to hemorrhoids and the only notation regarding anything to do with cysts arises in 2018 with no mention made as to if and how it is an accident related injury or impairment.
22With respect to the reported numbness in the hands and feet, again it is seen in one clinical note of the family doctor on July 18, 2016 with no further notations thereafter. There is no evidence that the numbness reported on July 18, 2016 is related to the accident or that there is any causal link to the accident.
23I also find that the applicant, in providing direct evidence, was conveniently forgetful, provided contradictory answers, and was not forthright in his testimony. For example, the applicant provided the following which was contradicted by the evidence:
i. The applicant testified that he attended physiotherapy, (i.e. had regular treatment) and felt better after treatment. The physiotherapy records confirm that the applicant attended only twice: June 27, 2016 and July 12, 2016.
ii. The applicant testified that he saw his family doctor following the accident and the family doctor then referred him to physiotherapy. The clinical notes confirm that he attended at the physiotherapy clinic prior to attending at the family doctor and at the assessment with Dr. Oshidari, the applicant stated he was referred to physiotherapy by a friend.
iii. The applicant testified that he experienced blood in his urine for over a month following the accident, however the records of the family doctor confirm that the blood in the urine subsided by the visit of June 29, 2016.
24Based on the above, which is not an exhaustive list of the contradictory evidence, I am not persuaded by the testimony of the applicant nor am I persuaded by any of the records that conclude that on a balance of probabilities the claimant sustained any physical injuries or impairments that would place him outside the MIG.
25I find that the applicant’s physical injuries are predominantly minor injuries as defined in the Schedule.
b. Psychological Injuries
26The applicant submits that because of the accident, he sustained psychological injuries and therefore the MIG does not apply. The applicant relies on the psychological consultation report, his own testimony, the family doctor’s clinical notes and records and a treatment plan that is not in dispute.
27The respondent submits that the applicant’s psychological consultation report is a pre-screening interview report that is unreliable because there is no diagnosis and, no discussion about whether the undiagnosed psychological impairment is the predominant injury from the accident.
28On a balance of probabilities, I find that the applicant has not sustained any psychological injuries or impairments because of the accident.
29The applicant testified that because of the accident he is a completely different person that he is down, has trouble sleeping and suffers from nightmares. The clinical notes and records of the family doctor confirm that the applicant never reported any psychological or emotional issues related to the accident. The family physician’s records indicate the first mention of sleep difficulties was in October of 2018 wherein it was noted that the applicant was suffering from insomnia for the past week. Neither the family doctor nor the applicant relates this bout of insomnia to the accident. In the year following this note of October 2018, there is no further mention of any sleep difficulties.
30I place little weight on the psychological consultation/ pre-screen report as it is based solely on the applicant’s self-reporting, which as described above is problematic. The applicant was only assessed on one occasion and the clinical notes and records of the family doctor make absolutely no mention of any emotional or psychological issues or any complaints by the applicant of same.
31On a balance of probabilities, I find that that the applicant has not sustained any psychological or emotional issues or impairments resulting from the accident.
c. Cost of Assessment for Attendant Care Benefit
32Having found that the applicant’s injuries fall within the MIG, pursuant to section 14 of the Schedule, attendant care benefits are not payable to an applicant who sustained a Minor Injury. Therefore, the cost of the assessment for attendant care (and completion of the Form 1) is not reasonable and necessary.
d. Chiropractic Treatment Plan dated June 29, 2016
33The applicant submits that the treatment plan of June 29, 2016 (the “Treatment Plan”) for chiropractic services is reasonable and necessary and relies on the information in the Treatment Plan.
34The respondent submits that there is no medical evidence nor verification from another source that the applicant had any of the symptoms, diagnoses or limitations noted in the Treatment Plan. Further the findings in the Treatment Plan are inconsistent with the family physician’s records.
35The applicant has not met his burden of showing on a balance of probabilities that the treatment plan is reasonable or necessary. The family doctor’s clinical notes and records do not support or even mention any of the symptoms, diagnoses or limitations listed in the Treatment Plan. Further the family doctor’s clinical notes and records do not even mention that chiropractic treatment is recommended.
36Therefore, I find that the Treatment Plan is not reasonable nor necessary.
NON-EARNER BENEFIT
37The test for entitlement to a non-earner benefit (“NEB”) is set out in section 12(1) of the Schedule. The applicant must prove that he suffers from a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
38The applicant submits that he is entitled to a NEB on the basis that pre-accident he was doing activities such as taking care of his grandson, cleaning the house, gardening, sweeping the floor, mopping the floor, going to the gym, going for a morning walk and making three meals a day. Following the accident, he is only able to wash a few cups or dishes, and only drives to drop off and pick up his grandson from daycare.
39The respondent submits that the applicant has failed to prove that he sustained accident related impairments that prevent him from doing his pre-accident activities. Further the respondent submits that the surveillance evidence is an accurate depiction of the applicant’s capabilities and that the surveillance shows that the applicant has no impairments and is able to lift two 20 kg bags of flour at once from the trunk of his car, drive, attend at more than one bank and complete his banking, attend at social functions for a period of three hours, and is generally independent in his activities.
40Both the respondent and the applicant agree that the Court of Appeal decision in Heath v. Economical Mutual Insurance Company1 provide the six guiding principles for the determination of NEB. However, the respondent submits that the applicant’s evidence regarding his pre-accident activities are broad, lack details and have no corroborating evidence. Further the applicant has failed to provide any evidence as to which activities are important activities.
41The first step in the analysis for the entitlement to non-earner benefit is that the applicant must have sustained an impairment. As discussed above, there is a complete lack of medical evidence to show that the applicant has sustained any impairments from the accident let alone impairments that are ongoing past July of 2016.
42Secondly, the test requires that the applicant must show that he is prevented from engaging in substantially all of the activities in which the person ordinarily engaged in before the accident.2 While the applicant provided evidence about his activities prior to the accident and his activities currently, there was no evidence or testimony to connect the changes in his daily activities to any injuries or impairments relating to the accident.
43I am not persuaded by the testimony of the applicant. There is no corroborating evidence that the accident has had any impact on the applicant’s activities and no evidence to show any ongoing injuries and impairments resulting from the accident. As a result, I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life. The applicant is not entitled to NEB.
INTEREST
44As no benefits are payable, no interest is payable.
CONCLUSION
45Based on the above, I find that the applicant is not entitled to any of the benefits in dispute and his application is dismissed.
Released: August 26, 2019
Monica Chakravarti
Adjudicator