OAC v. Certas Direct Insurance Company, 2019 CanLII 143436

Citation: OAC vs. Certas Direct Insurance Company, 2020 ONLAT 18-007255/AABS

Date: July 29, 2019

Tribunal File Number: 18-007255/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:

OAC

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Frank Blasi, Paralegal

For the Respondent:

Tripta Sood, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION

OVERVIEW

1The applicant, OAC, was involved in a motor vehicle accident (“the accident”) on November 24, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2OAC applied for benefits from the Certas and applied to the Licence Appeal Tribunal (“the Tribunal”) when the respondent Certas denied his claims.

3Certas denied OAC’s claims because it determined his injuries to be predominantly minor as defined by the Schedule. It indicated that it has exhausted the funding available under the Schedule for medical benefits covering minor injuries.

4I must decide whether OAC’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 limit on medical benefits, and if they are not, I must determine the applicant’s entitlement to the medical benefits he claims.

5OAC also claims an award in this matter.

ISSUES IN DISPUTE

6Did OAC sustain predominantly minor injuries as defined by s.3(1) of the Schedule?

7If OAC’s injuries are not predominantly minor, then:

1. Is OAC entitled to receive a medical benefit in the amount of $3,129.38 for psychological treatment [assessment] recommended by Pilowsky Psychology Professional Corp. (“Pilowsky”) in a treatment plan (“OCF18”) that was submitted on January 5, 2016, and denied by Certas on January 20, 2016?

2. Is OAC entitled to receive the costs of examination in the amount of $2,200.00 for a psychological assessment recommended by Pilowsky in an OCF-18 that was submitted on September 6, 2016, and denied by Certas on September 29, 2016?

8Is Certas liable to pay an award under Regulation 664, Automobile Insurance² (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

RESULT

9I find that the OAC’s injuries are “minor” and fall within the MIG.

10My finding with respect to OAC’s injuries and classification of those injuries within the MIG mean that that OAC is not entitled to the benefits he claims.

11Accordingly, there is no interest owing to him on overdue benefit payments.

12There is no basis for an award in this matter.

ANALYSIS

Minor Injury Determination

13Certas argues 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 Guideline³ (“the MIG”). OAC’s position is exactly the opposite.

14If Certas position is correct, the applicant is then subject to the $3,500.00 limit on benefits prescribed by the s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

15Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae⁴ to such an injury.”

16The onus is on the applicant to prove that his injuries or impairments fall beyond the MIG.⁵

17OAC does not claim that his physical injuries exceed the threshold for the MIG. He asserts, however, that he sustained psychological injury as a result of the accident.

Did OAC sustain psychological injuries as a result of the accident sufficient to remove him from the MIG?

18Psychological impairments, if established, may fall outside the MIG, because the MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological injuries or impairment.

19The applicant relies on a report by Dr. Judith Pilowsky, psychologist, dated January 9, 2017, in which the doctor:

i. diagnosed OAC with major depressive disorder (moderate, single episode) and post-traumatic stress disorder (PTSD) with phobic avoidance to driving and as a passenger;

ii. opined that OAC is at a risk of developing somatic symptom disorder if his intertwined physical and psychological conditions do not improve or he is unable to more fully process his emotions by way of psychotherapeutic aid”.

20To rebut OAC’s claim, Certas asserts the following:

i. In his statutory declaration dated September 7, 2016, OAC expressly denied psychological injury.

ii. In his Long-Term Disability Benefits application dated December 19, 2016, OAC made no reference to psychological issues, and referred only to his left shoulder injuries.

iii. There is no evidence from the clinical notes and records (CNRs) of Dr. Taj Nadeem or any other medical services provider that OAC was prescribed psychotropic medication or was referred by a medical professional for psychological assessment or treatment during the 3½ years since the accident. Dr. Nadeem’s CNRs do not mention psychological complaints.

iv. A psychological IE report by Dr. Randy Silverman, psychologist, dated October 26, 2017 indicated that OAC expressly denied psychological issues and indicated that he did not want psychological treatment.⁶ Dr. Silverman found “a normative non-pathological response to post-accident residual pain” with no evidence of psychological impairment.

21I find that the applicant’s evidence of psychological impairment is too weak to meet the onus on him to prove that he is exempt from the MIG on the basis of psychological injury or impairment. My reasons are:

i. OAC’s statement to Dr. Silverman are uncontested and they are unexplained. An applicant’s own words in examination interviews are powerful evidence in determining whether the psychological problems claimed are real and whether treatment is necessary. An applicant’s credibility and consistency are at the core of meeting the onus of proof that exemption from the MIG is warranted. OAC provides me with no reason to discount Certas’s account of statements he made to Dr. Silverman. Accordingly, I don’t: I take OAC at her word that he does not suffer from psychological problems and wants no treatment – and this extinguishes his claim of psychological impairment.

ii. The documentary evidence cited by Certas and noted above reinforces my findings about OAC’s statements to Dr. Silverman.

iii. OAC offers no reply at all to Dr. Silverman’s report – its methodology is unchallenged and its conclusions uncontested. In fact, OAC quotes from it uncritically in his submissions.

22As a result of my findings, I find that OAC does not have a psychological injury that would take him out of the MIG. I therefore conclude that OAC’s injuries are predominantly minor and they are governed by the MIG. Accordingly, it is unnecessary for me to assess the disputed OCF-18s.

AWARD

23Section 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.

24OAC offers no evidence to support this claim, and because I have denied his claims there is no basis for an award.

INTEREST

25Section 51 of the Schedule sets out the criteria for assessing interest on overdue payments.

26The benefits claimed by OAC are denied and therefore, no interest on overdue payments is due.

CONCLUSION

27OAC’s injuries fall within the MIG.

28Because OAC’s injuries fall within the MIG, his claims are subject to a $3,500.00 cap imposed by s.18 of the Schedule. Accordingly, there are no overdue payments and there is no interest payable to him.

29There is no basis for a cost award.

Footnotes

1. 1O. Reg. 34/10.
2. 2i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act, RSO 1990, c.I.8
4. 4“sequelae” are medical conditions that are known to be the result of a prior injury or impairment [OED].
5. 5Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.
6. 6OAC indicated, according to Dr. Silverman, mild frustration and discouragement, with some “heightened awareness when driving, but with no significant fear, anxiety or reduced confidence”.