B.F. v. Certas Home and Auto Insurance Company, 2019 CanLII 43890

Citation: B.F. vs. Certas Home and Auto Insurance Company, 2019 ONLAT 18-001926/AABS

Date: 2019-04-18

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:

B.F.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melody Maleki-Yazdi

APPEARANCES:

For the Applicant:

Joe Kositsky, Counsel

For the Respondent:

Brian M. Yung, Counsel

HEARD In Writing on:

October 22, 2018

OVERVIEW

1B.F. (“the applicant”) was injured in an automobile accident (“the accident”) on February 16, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.

2The 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.

3If the respondent’s position is correct, then the applicant is subject to a $3,500 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 maximum benefit for minor injuries has been exhausted.

4This decision is based upon my review of the parties’ evidence and written submissions. The applicant did not provide reply submissions. For the reasons that follow, I find that the applicant did not sustain predominantly minor injuries that fall within the MIG. The applicant is removed from the MIG for chronic pain.

ISSUES

The following are the issues to be decided:

5Did the applicant sustain predominantly minor injuries as defined under the Schedule?

6If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $190.47 for chiropractic services recommended by MediLife/MediWise submitted on May 27, 2016 and denied on June 3, 2016?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,253.57 for psychological services recommended by MediAssess Evaluation Inc. submitted on May 19, 2016 and denied on June 24, 2016?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,260.00 for other goods and services of a medical nature recommended by Auxilium Wellness Centre submitted on June 1, 2016 and denied on June 24, 2016?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,306.68 for physiotherapy services recommended by MediLife Care Inc. submitted on June 9, 2016 and denied on June 24, 2016?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,095.64 for other goods and services of a medical nature recommended by MediLife Care Inc. submitted on June 30, 2016 and denied on July 25, 2016?

vi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $508.32 for other goods and services of a medical nature recommended by MediLife Care Inc. submitted on July 28, 2016 and denied on August 10, 2016?

vii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $627.54 for other goods and services of a medical nature recommended by MediLife Care Inc. submitted on August 13, 2016 and denied on August 29, 2016?

viii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $553.59 for other assistive devices recommended by MediLife Care Inc. submitted on September 8, 2016 and denied on September 23, 2016?

ix. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,197.76 for psychological services recommended by MediAssess Evaluation Inc. submitted on September 24, 2016 and denied on October 7, 2016?

x. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,259.78 for other goods and services of a medical nature recommended by MediAssess Evaluation Inc. submitted on November 7, 2016 and denied on November 21, 2016?

xi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $200.00 for other goods and services of a medical nature recommended by MediLife Care Inc. submitted on August 29, 2016 and denied on September 12, 2016?

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

RESULT

7I find that the applicant’s injuries fall outside of the MIG due to the applicant’s chronic pain. The applicant is entitled to all the treatment plans in dispute, including the two treatment plans for chiropractic services, as well as the treatment plans for an in-home exercise program and exercise equipment, exercise equipment, chiropractic reassessment, other assistive devices, a chronic pain assessment, psychological services, a social work assessment and a psychiatric assessment. The applicant is also entitled to payment for the disability certificate. The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

The Minor Injury Guideline

8Section 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.”

9Section 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 of the MIG.

The applicant did not sustain predominantly minor physical injuries

11The applicant’s evidence and submissions indicate that he has pre-existing medical condition, and he has developed a chronic pain condition and psychological impairments as a result of the accident. It is on this basis that he argues that his impairments fall outside of the MIG.

12I find that the applicant is removed from the MIG for chronic pain.

13As I have found that he is removed from the MIG for chronic pain, I do not need to address whether or not he had any pre-existing medical condition or psychological impairments as a result of the accident that would remove him from the MIG.

The applicant has chronic pain which removes him from the MIG

14An applicant can be removed from the MIG for chronic pain. Although I am not bound by FSCO decisions, I agree with the reasoning in Ali and Ferozuddin v. Certas³, which the applicant relies on, that when chronic pain causes functional impairment or disability, it takes one out of the minor injury framework.

15I find the applicant suffers from chronic pain that would take him out of the MIG. I have come to these findings based on the medical evidence before me, including as follows:

i. I am convinced that the applicant experiences severe, persistent and constant pain. Dr. Samuel Silverberg (internal medicine physician) examined the applicant on September 19, 2016 (approximately seven months after the accident) and opined that it can take 1 year or longer for the pain from the soft tissue injuries to subside and the applicant is unlikely to improve completely over time. During his assessment with Dr. Atih Seif (psychiatrist) on December 13, 2016 (approximately 10 months after the accident), the applicant described his bilateral shoulder pain and lower back pain as constant and severe. On January 29, 2018 (approximately two years after the accident), the applicant had an appointment with Dr. But-Yau Chiu (family physician), during which he discussed how he was still sore in his neck, both knees, back and right ankle.

ii. I find that even the insurer’s examination (“IE”) assessor, Dr. Arta Bedaj (family physician), found the applicant to be suffering from prolonged pain symptoms, having opined that the applicant “is suffering from chronic pain and pain-impaired function.” Dr. Bedaj examined the applicant for a musculoskeletal assessment on January 27, 2017 (approximately 11 months after the accident). Although Dr. Bedaj ultimately concluded that the applicant sustained soft tissue injuries, which are minor injuries, she also indicated in her report that it was now over five months post-accident and her clinical assessment was remarkable for complaints of pain in both shoulders, chest, lower back, both knees, wrists and feet.

iii. The applicant’s pain causes functional impairment that affects his activities of daily living. The applicant has not returned to work as a carpenter since the accident. Dr. Silverberg opined that the applicant cannot return to his carpentry job with his present level of dysfunction and pain, and cannot perform any job which requires bending, lifting or reaching. Dr. Bedaj indicated in her report that the physical demands of working as a full-time carpenter running his own business are unlikely to be met by this applicant who is suffering from chronic pain and pain-impaired function.

iv. Furthermore, the applicant reported to a number of assessors that his sleep is disturbed as a result of his pain. He told Dr. Seif that he has difficulty falling and staying asleep, primarily due to pain, worry and difficulty getting comfortable. He told Dr. Allan Peterkin (psychiatrist) that his sleep remains poor because of physical pain. He told Dr. Bedaj that his sleep is interrupted due to pain in the shoulder when he rolls over.

v. Another indication that the applicant experiences chronic pain is that his pain has not improved with treatment. The applicant told Dr. Bedaj that he attended physiotherapy sessions weekly for six months, but did not see any improvement. He spends most of his time sitting and doing stretching exercises, and he does not find them helpful.

vi. Dr. Seif’s (psychiatrist) assessment provides further support that the applicant experiences chronic pain. Dr. Seif assessed the applicant on December 13, 2016 (approximately 10 months after the accident) and diagnosed the applicant with psychiatric impairments, including Somatic Symptom Disorder with predominant pain, persistent.

16I find that all of the challenges listed above point to the fact that the accident caused the applicant’s chronic pain. The applicant is removed from the MIG for chronic pain.

17Since the applicant is removed from the MIG for chronic pain, he is entitled to payment for the requested treatment plans if he can prove that the treatment plans are reasonable and necessary.

18As neither party had submitted the OCF-18s for the disputed treatment plans in evidence, I made a request for the parties to submit this information. The reconsideration decision of Executive Chair Linda P. Lamoureux in Aviva Canada Inc. v. R.R. noted that the Tribunal may request additional information in accordance with Rule 9.1 of the Tribunal’s Common Rules of Practice and Procedure. Rule 9.1 states that the Tribunal may request additional documentation from a party at any stage of the proceeding, as it “considers necessary for a full and satisfactory understanding of the issues in the proceeding.”

Issues (i), (iv), (v), (vi), (vii) and (viii): The two treatment plans for chiropractic services, as well as treatment plans for an in-home exercise program and exercise equipment, exercise equipment, chiropractic reassessment and other assistive devices are reasonable and necessary

19The applicant submits that the goal of the treatment plans is to reduce pain and to facilitate a return to activities of normal living.

20I find the two treatment plans for chiropractic services, as well as treatment plans for an in-home exercise program and exercise equipment, exercise equipment, chiropractic reassessment and other assistive devices are reasonable and necessary for the following reasons. The applicant is therefore entitled to the payments for these treatment plans.

21The applicant has submitted medical documentation to establish that he has pain in various parts of his body as a result of the accident. I have found that he suffers from chronic pain as a result of the accident.

22Dr. David Huang (chiropractor) assessed the applicant on August 29, 2016 and he recommended that the applicant continue with a course of comprehensive rehabilitation therapy including a supervised active exercise program and various passive modalities.

23Dr. Silverberg (internal medicine physician) examined the applicant on September 19, 2016 and concluded that he could not improve on the applicant’s present analgesic and physiotherapy treatment.

24The applicant told Dr. Seif (psychiatrist) during his clinical interview on December 13, 2016 that physiotherapy treatment provided temporary relief from his pain, but that since stopping this treatment, his physical pain has progressively increased and particularly in his right shoulder and lower back. The applicant saw IE assessor, Dr. Bedaj (family physician) on January 27, 2017 and told her that he attended physiotherapy sessions for 6 months and did not see any improvement. Although the applicant reported contradictory statements approximately one month apart, I find that it is due to the applicant’s chronic pain condition that he continues to experience pain.

Issues (i) and (iv): chiropractic services

25The treatment plan for chiropractic services is dated May 19, 2016 and recommends both chiropractic treatment and massage therapy treatment with the goals of pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to modified work duties.

26The issues section above describes the treatment plan dated June 9, 2016 as being for physiotherapy services; however, the plan is best described as a treatment plan for chiropractic treatment and massage therapy treatment as there is no indication that the plan involves physiotherapy and/or physiotherapist providers. The goals are pain reduction, increase in strength, increased range of motion, return to activities of normal living and return to modified work duties.

27These treatment plans have reasonable and necessary objectives. The means by which the treatment plans intend to achieve the objectives are also reasonable and necessary.

Issue (v): in-home exercise program and exercise equipment

28The treatment plan for other goods and services of a medical nature, specifically an in-home exercise program and exercise equipment (mat, ball and resistance exercise tubing set), is dated June 30, 2016. The in-home exercise program and equipment is indicated to be beneficial for the applicant’s overall health and can help increase the process of rehabilitation. The program will focus on self-pain management, education and physical conditioning. The goals of the treatment plan are pain reduction, increase in strength, increased range of motion and return to activities of normal living.

29The treatment plan is reasonable and necessary because it allows the applicant to work on his rehabilitation from home, with a specific focus on self-pain management. The treatment plan also has reasonable and necessary objectives.

Issue (vi): exercise equipment

30The treatment plan for other goods and services of a medical nature, specifically for exercise equipment (wobble board), is dated July 28, 2016. The wobble board is recommended to improve balance, functional strength and mental focus. The goals of the treatment plan are pain reduction, increase in strength, increased range of motion and return to activities of normal living.

31The treatment plan is reasonable and necessary because it allows the applicant to work on his rehabilitation from home, with a specific focus on improving balance and strength. The treatment plan also has reasonable and necessary objectives.

Issue (vii): chiropractic reassessment

32The treatment plan for other goods and services of a medical nature, specifically a chiropractic reassessment, is dated August 13, 2016. The treatment plan has the goals of pain reduction, increase in strength and return to activities of normal living. The report of the findings will identify barriers to recovery, provide a diagnosis, conclusions and recommendations.

33The treatment plan is reasonable and necessary because it allows Dr. Huang to reassess the applicant and identify any barriers to his recovery, and to advise on the recommended next steps in his treatment. The treatment plan also has reasonable and necessary objectives.

Issue (viii): other assistive devices

34The treatment plan for other assistive devices is dated September 8, 2016 and recommends a TENS unit and accessories. The treatment plan has the goals of pain reduction, increased range of motion, return to activities of normal living and increased function.

35The treatment plan is reasonable and necessary because it allows the applicant to work on his rehabilitation from home, with a specific focus on decreasing pain to allow increased range of motion and function. The treatment plan also has reasonable and necessary objectives.

Issue (iii): The treatment plan for a chronic pain assessment is reasonable and necessary

36The treatment plan for other goods and services of a medical nature is specifically for a chronic pain assessment. I find the treatment plan for a chronic pain assessment recommended by Dr. Khal Efala (orthopaedic surgeon) is reasonable and necessary. The applicant is entitled to payment for this treatment plan.

37The treatment plan is dated June 1, 2016. The chronic pain assessment will determine the nature of the applicant’s chronic pain, as well as any barriers to the applicant’s recovery. This is a reasonable and necessary objective given the applicant’s condition.

38I find the treatment plans for psychological services, a social work assessment and a psychiatric assessment are reasonable and necessary for the following reasons. The applicant is entitled to the payments for these treatment plans.

39The applicant was assessed by Dr. Atih Seif (psychiatrist) on December 13, 2016 and in a report dated December 28, 2016, Dr. Seif diagnosed him with Somatic Symptom Disorder with Predominant Pain, persistent; Major Depressive Episode and Specific Phobia (travelling in a vehicle).

40I found above that Dr. Seif’s report provided further support that the applicant experiences chronic pain because of Dr. Seif’s diagnosis of Somatic Symptom Disorder with predominant pain, persistent. This diagnosis acknowledges that the applicant experiences psychological difficulties with his pain.

41Dr. Allan Peterkin (psychiatrist) conducted an IE and assessed the applicant on January 13, 2017. The results of the assessment concluded that the applicant suffered from no significant psychiatric injury or impairment as a result of the accident. Dr. Peterkin’s report notes that the applicant reported that all his problems are physical, that he does not identify any particular mental health symptoms, he is not depressed or anxious, his habits have not changed and he does not feel that he requires further psychological assessment or treatment.

42The respondent submits that a review of Dr. Chiu’s (the applicant’s family physician) notes and the decoded OHIP summary do not reflect any significant, if at all, psychological symptoms following the accident.

43From the evidence before me, I find the applicant to be functionally impaired due to psychological reasons. My finding is supported by the applicant’s accounts of how the accident has affected his emotional and psychological well-being. In interviews with both Dr. Seif and Dr. Peterkin, the applicant discussed post-accident functional difficulties with his activities of daily living. The following are some of the psychological issues the applicant has experienced since the accident:

i. As discussed above, his sleep is disturbed because of his pain;

ii. The pain has led to fatigue and decreased energy levels; and

iii. He is more cautious when driving.

44I find that the applicant has a psychological condition or impairment. As explained below, the treatment plans for psychological services, a social work assessment and a psychiatric assessment are reasonable and necessary.

Issue (ii): psychological services

45The treatment plan for psychological services is dated May 19, 2016 and recommends assessments, tests and counselling.

46The treatment plan is reasonable and necessary. The goals of the treatment plan are to reduce pain, return of pre-accident level of psychological functioning and return to activities of normal living. These are reasonable and necessary objectives. The means by which the treatment plan intends to achieve the objectives are also reasonable and necessary.

47The treatment plan for psychological services is specifically for a social work assessment. The social work assessment is dated September 24, 2016 and the purpose of the assessment is to facilitate the applicant's reintegration into the family, the rest of society and the labour market. This would be done by determining which of these areas have been affected by the accident and recommending family, social rehabilitation, or employment counselling as needed.

48The treatment plan is reasonable and necessary because it intends to facilitate the applicant’s reintegration into the family, society and the labour market. The means by which the treatment plan intends to achieve the objectives are also reasonable and necessary.

Issue (x): psychiatric assessment

49The treatment plan for other goods and services of a medical nature is specifically for a psychiatric assessment and is dated November 7, 2016. The goals of Dr. Seif’s psychiatric assessment were to determine if there is an accident-related psychiatric impairment, pain reduction, return to activities of normal living and to get guidance on multidisciplinary care. These are reasonable and necessary objectives.

50Dr. Seif’s assessment establishes that the applicant experiences psychological issues as a result of the accident. The psychiatric assessment is reasonable and necessary.

Issue (xi): The disability certificate is reasonable and necessary

51The treatment plan that is listed for other goods and services of a medical nature is for a disability certificate. I find the updated disability certificate is reasonable and necessary. The applicant is entitled to the cost of the disability certificate. The respondent submits that it denied payment for the updated disability certificate on the basis that it was not requested. The applicant did not provide submissions related to the disability certificate.

52This updated disability certificate was submitted on August 29, 2016, approximately six months after the accident. Part 7 of the disability certificate indicates that further examinations are contemplated or required, specifically a psychological evaluation and a chronic pain assessment. I find that it was appropriate for the applicant to notify the respondent by way of an updated disability certificate of these further examinations that were contemplated or required as a result of the applicant’s impairments.

CONCLUSION

53For the reasons outlined above, I find that the applicant’s injuries fall outside of the MIG due to the applicant’s chronic pain. The applicant is entitled to all the treatment plans in dispute, including the two treatment plans for chiropractic services, as well as the treatment plans for an in-home exercise program and exercise equipment, exercise equipment, chiropractic reassessment, other assistive devices, a chronic pain assessment, psychological services, a social work assessment and a psychiatric assessment. The applicant is also entitled to payment for the disability certificate. The applicant is entitled to interest on any overdue payment of benefits.

Released: April 18, 2019