E.T. v. Certas Home and Auto Insurance Company, 2019 CanLII 40289

Tribunal File Number: 18-003758/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:

E.T.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

PANEL:

Sancia Pinto, Adjudicator

APPEARANCES:

For the Applicant:

Todd A. Reybroek and Christina Campoli, Counsel

For the Respondent:

Einav Shlomovitz, Counsel

HEARD:

In Writing on: February 22, 2019

OVERVIEW

1E.T. (“the applicant”) was injured in an automobile accident (“the accident”) on June 25, 2011 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The parties participated in a case conference on June 19, 2018 and were unable to resolve the issues in dispute.

3The respondent denied the applicant’s claims because it determined 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 Guideline² (“the MIG”). The applicant’s position is the opposite.

4If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.

5If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by 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.

ISSUES

6Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?

7If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to the cost of a psychological assessment in the amount of $1,950.00.00 recommended by Milsopulos & Associates in an OCF-18 submitted to the respondent on February 8, 2018 and denied on February 10, 2018?

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

RESULTS

8I find that the applicant’s injuries fall within the MIG as defined under the Schedule.

9Based on my findings above, it is unnecessary to consider the reasonableness and necessity of the treatment plan in dispute.

10The applicants request for interest is denied.

The Law

11The MIG establishes a framework for the treatment of minor injuries. Section 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.” The Schedule also defines what these terms for injuries mean in s. 3(1).³

12The onus for establishing entitlement to medical benefits in excess of the $3,500 limit for minor injuries is on the applicant, who must show on a balance of probabilities that her injuries fall outside of the MIG.⁴

Issue 1: The Minor Injury Guideline

13The applicant submits that the Minor Injury Guideline does not apply because she suffers from an injury that is not predominantly minor. She submits that she suffers from (1) a pre-existing condition, (2) chronic pain syndrome, and (3) a psychological impairment, all of which are in her opinion considered more than a predominantly minor injury.

Pre-existing Injury

14The onus of establishing compelling medical evidence related to a pre-existing condition falls to the applicant. The test as outlined in s. 18(2) of the Schedule has not been met as I find that the applicant has not submitted compelling evidence to establish that her injuries or any pre-existing condition would take her out of the MIG.

15The applicant submitted a disability certificate (OCF-3) completed by her family doctor, Dr. Hagob Boyrazian (“Dr. Boyrazian”), on August 24, 2011, which suggests that the applicant has had anxiety, stress and chronic pain since 2008 and that her prior health history would prevent her from reaching maximum recovery under the MIG.⁵ In addition, the clinical notes and records of Dr. Boyrazian notes some minor history of headaches and fatigue prior to the accident.

16The respondent submits that the chronic pain assessment with Dr. Yen-Fu (Tom) Chen (“Dr. Chen”), Physiatrist, on May 1, 2012, notes that the applicant denied a history of significant pre-existing injury and pain. She reported to Dr. Chen that, prior to the accident, she was very active and able to perform all daily routine activities.⁶

17The respondent presented a medical opinion of Dr. Lyndon Mascarenhas (“Dr. Mascarenhas”), General Practitioner, who interviewed and assessed the applicant on September 6, 2011 and prepared an addendum report dated August 14, 2013.⁷ Dr. Mascarenhas found no compelling medical evidence of a pre-existing medical condition that would preclude the applicant from achieving full recovery within the MIG.

18The applicant was referred by her family doctor for a psychiatric assessment with Dr. Christos Soulios (“Dr. Soulios”), on January 9, 2018, to whom she reported no past psychiatric history. In addition, at her psychological assessment with Mr. Vladimir Kulikov (“Mr. Kulikov”) and Dr. Ilya Gladshteyn (“Gladshteyn”) on December 16, 2015, she further denied any psychological or psychiatric difficulties prior to the accident.⁸

19After reviewing the submissions and evidence, I find that given the applicants own admissions to her health practitioners and medical experts about her pre-accident health, I am not persuaded that the applicant had pre-existing impairments before the accident that would preclude her recovery within the MIG limits.

Chronic Pain Syndrome

20The applicant submits that she suffers from chronic pain, which removes her from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

21While Dr. Boyrazian indicated that the applicant experienced anxiety, stress, and chronic pain before the accident, his clinical notes and records show a minor history of some headaches and fatigue in June 2009 and early-mid 2010. Dr. Boyrazian records dating as far back as April 14, 2008 offer insufficient compelling medical evidence of a pre-existing psychological or physical medical condition that would prevent the applicant from achieving maximal recovery, if limited to the $3,500 MIG cap. Additionally, the applicant has not provided persuasive evidence or submissions on how these impairments could impede the applicant’s recovery within the MIG. The medical records before me do not show that the applicant had significant accident-related physical problems or chronic pain issues causing functional impairment or disability.

22In assessing the applicant’s claim of chronic pain, I have applied the following criteria:

i. The applicant suffers severe and constant pain -- more than simple ongoing or recurrent, sporadic pain.

ii. The applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The pain is not a clinically associated sequela to minor injuries.

iv. The applicant’s pain cause functional impairment or disability. It significantly disrupts or disables pre-accident activities of daily living. ⁹

23The applicant presented a medical opinion from Dr. Chen who diagnosed the applicant with the following: post-traumatic headache with dizziness; post-traumatic insomnia, as reported by examinee; post-traumatic anxiety and mood disturbances; and chronic pain disorder following myofascial injuries to the spine and limbs. Dr. Chen also noted in his report that the prognosis for a full recovery for the applicant to a pre-accident functional and physical level was below average.

24The applicant further submits that a CT scan of the lumbar spine dated January 16, 2012 showed L4-5 facet degenerative changes.

25The respondent submits that the last time the applicant made any mention to her family doctor, Dr. Boyrazian regarding any neck, back, shoulder, chest or sternum pain resulting from the accident was in February 13, 2012 despite having seen him on over 30 visits thereafter until July 2017.¹⁰ The OHIP decoded summary from July 2011 to July 2017 supports no attendances with healthcare practitioners regarding any neck, back, shoulder, chest or sternum pain, let alone chronic pain issues, beyond 2012 to July 2017.¹¹

26The respondent further submits that the applicant has not demonstrated that her physical injuries as a result of the accident even rise to the level of chronic pain, much less that she is experiencing a functional impairment.

27I agree with the respondent’s position. After the accident, Dr. Boyrazian’s clinical notes and records do not show a patient regularly complaining of physical pain or symptoms. My review of all the medical records do not support the position that the applicant suffers from persistent pain.

28The applicant’s records from the family doctor, indicate that the applicant did not complain of any significant accident-related physical problems or chronic pain issues causing functional impairment or disability over the course of several appointments from February 13, 2012 to July 2017 that would convince me that her injuries fall outside of the MIG.

29The respondent presented a medical opinion from Dr. Mascarenhas who did not diagnose the applicant with chronic pain syndrome and concluded that:

i. The applicant sustained minor injuries (cervical strain – WAD I-II and lumbar strain) and that treatment within the MIG limit would not prevent her from achieving maximal medical recovery.

ii. The applicant from a musculoskeletal perspective was unremarkable and that she continued to experience residual myofascial-type discomfort.¹²

30I prefer the medical opinion of Dr. Mascarenhas over the applicant’s assessor Dr. Chen. Dr. Mascarenhas was provided with and reviewed the medical records relating to the applicant’s medical history. As a result, I find he was better situated and better informed when he conducted his assessment of the applicant, and therefore find his opinion to be more reliable and more persuasive.

31I place little weight on Dr. Chen’s diagnosis that the applicant suffers from chronic pain syndrome as a result of the accident for the following reasons:

i. Although Dr. Chen diagnosed the applicant with chronic pain disorder in 2012, in his report he confirmed that at the time of the assessment, he did not have any of the applicant’s investigation, treatment and assessment reports available for review.

ii. Dr. Chen in his report confirmed that his analysis of the case was “based on the reported history and cannot be verified directly.”¹³

iii. On page three of his report, under listing and summary of pertinent documents, Dr. Chen specifically noted that the history was collected from the examinee’s own recall.

iv. Dr. Chen did not have the benefit of reviewing the applicant’s medical history from her treating practitioners including the family doctor or any other medical documentation prior to his assessment.

32My review of the documents support the respondent’s position on the issue of chronic pain. I find that the applicant has provided insufficient evidence to meet the onus on her on a balance of probabilities to show why she should be removed from the MIG on the basis of chronic pain.

33Dr. Mascarenhas’s report reinforces my conclusion that the applicant suffers from a predominantly minor physical injury.

34I conclude that the applicant has provided insufficient evidence to meet the onus on her on a balance of probabilities to show why she should be removed from the MIG on the basis of chronic pain.

Psychological Impairment & Causation

35Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

36The applicant claims that she sustained psychological injuries as a result of the accident that place her claims outside of the MIG.

37Based on the medical evidence before me, I accept that the applicant has psychological impairments that developed approximately over two years after the subject accident, which prevented her from working in November 2014. The essential difference between the applicant’s and the respondent’s position is one of causation. The applicant submits that the applicant’s psychological impairment is as a result of the subject accident. The respondent’s position is that the applicant’s psychological impairment is unrelated to the subject accident.

38Having considered the evidence and submissions of the parties, I find that the applicant has failed to prove that she suffers a psychological impairment attributable to the subject accident.

39A central issue in this case is the legal test for determining whether the applicant’s psychological conditions are a result of the accident.

40The respondent in its submissions has pointed me to the FSCO appeal decision of State Farm and Sabadash,¹⁴ where it was confirmed that the correct test to be applied for causation in accident benefits cases is the “but for” test. The Tribunal is not bound by FSCO decision but these decisions are persuasive and have been adopted by the Tribunal in other decisions. The “but for” test was adopted by the Ontario Court of Appeal in Blake v. Dominion of Canada General Insurance Company.¹⁵

41The respondent has raised the “but for” test, which requires the applicant to prove that but for the motor vehicle accident she would not suffer an impairment, which causes the complaints she puts forward as the basis for her claims. The applicant did not make any submissions on the appropriate test to be applied.

42I find that on applying either the “but for” test, or the “material contribution” test, on a balance of probabilities, the psychological issues and related challenges experienced by the applicant are not connected to the accident that is the subject of this hearing. As further discussed below, I find that given the totality of medical evidence before me, the applicant’s current psychological conditions are related to social, work, family and life circumstances. It is evident through the medical records submitted by both parties that the psychological complaints that are the subject of this hearing only started two years post-accident with no pre-existing psychological history noted. In addition, I find that the psychological issues reported shortly after the accident were minor and fall within the MIG.

43The applicant submits that she regularly followed up with her family doctor regarding her ongoing accident related pain and psychological impairment. She has complained of neck, back, shoulder, pain, severe anxiety, stress, panic attacks, depression, and insomnia. In addition, she began taking medication in August of 2013 and had been prescribed Cipralex, Lorazepam and Ativan.

44The applicant further submits that she has been found unable to work due to her psychological complaints and that she had been referred to psychiatrist, Dr. Soulios and Dr. Wahid Abouelnasr, who have recommended psychological treatment. Dr. Soulios diagnosed the applicant with major depression and fear of driving.¹⁶

45In support of her position, the applicant’s submissions note that on March 23, 2014, she attended at [a hospital] due to a panic attack where she was diagnosed with anxiety and prescribed Ativan.¹⁷

46The applicant’s claim of a psychological impairment is further based on a psychological assessment conducted on December 16, 2015, over two years after the accident. The interview and assessment was conducted with Mr. Kulikov, psychometrics under the supervision of psychologist Dr. Gladshteyn, who diagnosed her with adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational (driver/passenger anxiety).¹⁸

47The respondent submits that the assessment report of Mr. Kulikov and Dr. Gladshteyn is “inconsistent” because, despite the evidence attesting to the contrary, in his report it is noted that the applicant claimed she stopped engaging in social and recreational activities due to pain and anxiety, including in-vehicle anxiety associated with avoidance behaviour. However, it is clear from previous history as noted in the medical records, the applicant would still go out with friends and her boyfriend to clubs and drive at night. The respondent further submits that the report notes that due to pain and physical restrictions the applicant was unable to perform the bulk of her housekeeping chores and relies on her family for assistance. This is inconsistent with the family doctor’s records or any other records that make no mention of any physical injuries from the accident past 2012.

48I do not find that the applicant sustained psychological injuries as a result of the accident because the applicant only complained to her family doctor of psychological difficulties on two occasions on August 24, 2011 and September 8, 2011. The family doctor did not prescribe the applicant any medication or refer her to any treatment to address her psychological complaints at that time. Following these two occasions, there is no mention of any psychological issues for over two years until October 26, 2013, despite attending the family doctor’s office on at least six occasions in between.

49From my review of the medical records there is insufficient compelling evidence that the psychological problems experienced by the applicant including her panic attacks that began in March of 2014 are attributable to the accident. I have difficulty in finding a causal relationship between the applicant’s current psychological issues and the accident.

50The respondent submits that the psychological problems experienced by the applicant are attributed to family, work stresses and other life issues as indicated throughout the family doctors records and the records of Dr. Adam Stein, psychiatrist.¹⁹ The respondent’s submissions further detail that in Dr. Soulis’s report, the applicant inaccurately reported that she began experiencing panic attacks one year post-accident when the medical evidence clearly indicates that the first time she reported a panic attack was at her attendance at [a hospital] in March of 2014.

51I agree with the respondent’s position that the applicant’s psychological problems that began in March of 2014 are not related to the accident and I put minimal weight on Dr. Soulis’s assessment in 2018. From my review of his report, there is no indication that the applicant advised Dr. Soulis of the other issues and stressors that have affected her life as she has reported to other medical practitioners. Dr. Soulis did not have the benefit of reviewing the applicant’s relevant medical history for his assessment and it is unclear what psychological tests if any were conducted to support his diagnoses. I find that Dr. Soulis report does not clearly address whether the applicants psychological impairments are related to the accident. In addition, I find that he was not in a good position to provide an accurate opinion with respect to the applicant’s psychological state being attributed to the accident.

52The respondent submitted a psychological paper review by psychologist, Dr. Kelly McCutcheon (“Dr. McCutcheon”), on October 20, 2015 who noted that the motor vehicle accident occurred over four years ago and given the time that has elapsed, insufficient clinical rationale has been provided connecting the applicant’s reported emotional concerns with the accident. Dr. McCutcheon determined that the Treatment and Assessment Plan (OCF-18) for a mental health assessment with Dr. Kenneth Keeling, dated September 17, 2015, was not reasonable and necessary.

53I place little weight on the diagnosis of the applicant’s medical assessors, Mr. Kulikov and Dr. Gladshteyn of a psychological impairment as being attributable to the subject accident because:

i. In their assessment report, they did not have any of the applicant’s medical records available for review at the time the applicant was assessed;

ii. Multiple notations in the report have been proven incorrect and inaccurate in the medical evidence submitted by both parties for the hearing.

iii. The report does not make a direct connection between the accident and the applicant’s psychological issues and there is no evidence to show that they have considered the family physician and Dr. Stein’s clinical notes and records in their diagnoses.

54My review of Dr. Stein’s records confirm that there are multiple notations of social and family issues including work stresses that have been attributed to the applicants psychological symptoms and I find that these issues are the reason that her psychological problems started two years after the accident. In Dr. Stein’s records, the accident is not listed as a contributing factor to her psychological condition. He noted that her symptoms started and/or worsened in June 2013, which is approximately two years post-accident and that she has never had the same or similar condition prior. There is insufficient compelling medical evidence to support that the applicant suffered a psychological impairment related to the accident.

55I prefer and place more weight on the report of the respondent’s IE assessor, Dr. McCutcheon, who concluded that the applicant’s psychological impairment is not accident-related. Dr. McCutcheon was provided with and did review medical records relating to the applicant’s medical history. As a result, I find he was better situated and better informed, and therefore find his opinion as to causation to be more reliable and more persuasive.

56The applicant further relied on Dr. Chen’s assessment on May 1, 2012 where he diagnosed the applicant with post-traumatic anxiety and mood disturbances. As a physiatrist these diagnoses are outside the scope of his expertise and should be given little weight.

57Through the medical history submitted the applicant did receive psychological treatment, which began in 2018 through her psychotherapist Dr. Jo-Anne van Draanen. In reviewing the psychotherapist’s records there is insufficient compelling medical evidence to indicate that her psychological impairments are related to the accident.²⁰ The applicant’s submissions note that the applicant sought additional psychological treatment through the employee assistance program through her employer and with Dr. Joan Mitsopoulos. I do not have the benefit of these records from either health care practitioners and it is unclear when treatment began including the duration or frequency of treatment and the connection to the accident, if any.

58After reviewing the submissions and evidence, I find that there is insufficient compelling medical evidence before me to remove the applicant from the MIG. I am not satisfied that the applicant can be removed from the Minor Injury Guideline if I consider her psychological and physical condition together.

59In conclusion, I am not satisfied the applicant suffers from a psychological impairment or a physical injury that is not predominantly minor.

Issue 2 – Disputed Treatment Plan

60Based on the totality of evidence before me, I have found that the applicant sustained predominantly minor injuries that fall within the MIG. Having made these findings, I do not need to address if the treatment and assessment plan claimed for a psychological assessment is reasonable and necessary.

Issue 3 – Interest

61Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

62In this case, the applicant is not entitled to interest because no payment is due from the insurer.

CONCLUSION

63For the reasons set out above, I find that:

i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, the applicant is not entitled to the cost of examination benefit for the psychological assessment claimed in this application.

ii. The applicant is not entitled to interest.

iii. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Ibid. s. 3(1).
4. 4Scarlett v. Belair, 2015 ONSC 3635 para.24.
5. 5Disability Certificate (OCF 3) of Dr. Hagob Boyrazian, dated August 24, 2011.
6. 6Chronic Pain Assessment Report of Dr. Yen-Fu (Tom) Chen, dated May 1, 2012.
7. 7MIG Physician Assessment Report of Dr. Lyndon Mascarenhas, dated September 20, 2011 and Addendum Report dated August 14, 2013.
8. 8Psychological Report of with Mr. Kulikov and Dr. Gladshteyn, dated December 17, 2015.
9. 9Criteria and following checklist were derived in from YXY v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT).
10. 10Clinical Notes and Records of Dr. Boyrazian.
11. 11OHIP decoded summary, dated July 15, 2011 to July 9, 2018.
12. 12Supra note 7.
13. 13Supra note 6.
14. 14State Farm and Sabadash, Appeal P16-00029 (FSCO).
15. 15Blake v. Dominion of Canada General Insurance Co., 2015 ONCA 165, [2015] O.J. No. 1218 (C.A.)
16. 16Psychiatric Report of Dr. Soulis, dated January 9, 2018.
17. 17Clinical Notes and Records of [a hospital].
18. 18Psychological Report of Dr. Ilya Gladshteyn and Vladimir Kulikov dated December 16, 2015.
19. 19Clinical Notes and Records of Dr. Adam Stein.
20. 20Clinical note of Dr. Jo-Anne Van Draanen, dated May 30, 2018.```