GP v. The Co-operators General Insurance Company, 2019 CanLII 72209

Citation: GP vs. The Co-operators General Insurance Company, 2019 ONLAT 18-005511/AABS

Date: June 11, 2019

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:

GP

Appellant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

Appearances:

For the Appellant: Philip Kai Kwong Yeung, Counsel

For the Respondent: David Raposo, Counsel

HEARD in Writing: January 21, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, GP, was involved in an automobile accident on January 20, 2016. His car was struck on the driver’s side by an intersecting vehicle in a broadside collision.

2GP sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, “Co-op”, denied his claim.

3Co-op denied GP’s claims because it determined that his 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”). GP’s position is the opposite.

4If Co-op’s determination is correct, then GP 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.

5If GP’s position is correct, then I must address the issue of whether each of the medical benefits disputed is reasonable and necessary.

ISSUES

6Did GP sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

7If GP’s injuries are not within the MIG, then:

i. Is GP entitled to a medical benefit in the amount of $2,819.08 for chiropractic services recommended by Perfect Physio & Rehab Centre (“Perfect Physio”) in a treatment plan (“OCF-18” dated July 7, 2016 and denied July 21, 2016?

ii. Is GP entitled to a cost of examination benefit in the amount of $2,000.00 for a psychological assessment recommended by Perfect Choice Psychological Services Inc. (“Perfect Choice”) in an OCF-18 dated April 19, 2016 and denied July 6, 2016?

8Is GP entitled to an income replacement benefit (IRB) of $225.68 per week from July 13, 2016 to November 1, 2016?³ I will refer to this as “issue 3”.

RESULT

9GP’s appeal is denied. There are no overdue payments and therefore no interest owing.

ANALYSIS

The Minor Injury Guideline

10Section 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.” The MIG defines in detail what these terms for injuries mean.

11The onus is on the applicant to show that his injuries fall outside of the MIG.⁴

12GP submits that he should be removed from the MIG because:

i. He has a pre-existing condition.

ii. He suffers chronic pain.

iii. He sustained psychological injuries as a result of the accident.

13It is uncontested that any of the medical criteria asserted by GP and listed in the above paragraph would, if proven, remove him from the MIG.

Pre-existing Condition

14Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit on treatment costs under the MIG.⁵

15The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

16GP submits that he has been diagnosed with HLA-B27 antigen, which is associated with ankylosing spondylitis and “other inflammatory diseases”. GP has also been diagnosed with plantar fasciitis, especially in the right foot/heel. GP does not point me to any medical opinion or analysis that explains how or why these conditions impede his ability to recover from his injuries with treatment within the cap on benefits set by the MIG.

17GP’s submissions simply fail to meet the standard of proof for establishing a pre-existing condition for the purposes of exempting him from the MIG.

Did GP suffer a psychological injury that would remove him from the MIG?

18Psychological injuries, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition does not include psychological injuries.

19GP relies on the OCF-18 dated April 19, 2016 by Dr. Sharleen McDowell, psychologist, of Perfect Choice. Dr. McDowell conducted a pre-screening interview and reported clinical impressions of adjustment disorder, depressive disorder, and mixed anxiety. Dr. McDowell recommends that GP be removed from the MIG and provided a psychological assessment.

20Co-op rebuts GP’s claim of psychological injury by relying on an insurer’s examination (IE) report dated June 27, 2016 by Dr. Curt West, Psychologist/Neuropsychologist, who states that:

i. GP does not suffer from any diagnosable (DSM-V) psychological injury, impairment or condition as a result of the accident, and expressed no desire for psychotherapy or psychotropic medication;

ii. GP falls within the MIG from a purely mental health perspective;

iii. GP’s Pain Patient Profile (P3) indicates objective evidence of symptom exaggeration, which means that “his reported levels of depression, anxiety and pain/somatic complaints must be interpreted with caution/scepticism.”

iv. GP’s results on the Specific Instrument for the Evaluation/Detection of Malingering were significantly above the cut-off score for suspected malingering, raising the possibility of symptom amplification.

21I find that GP has failed to meet the onus on him to prove that he sustained psychological injuries that would remove him from the MIG. I prefer the evidence of Dr. West to that of Dr. McDowell because he ran diagnostic and validity tests on GP. This, in my view, is more persuasive than clinical impressions from a pre-screening interview.

Does GP suffer chronic pain that would remove him from the MIG?

22Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

23To support his claim of chronic pain, GP relies on the OCF-18 dated July 7, 2016 from Dr. Georgia Palantzas, chiropractor, of Perfect Physio, which identifies chronic injuries and pain, plus unspecified radiculopathy as barriers to GP’s recovery.

24I find that GP’s submissions offer insufficient analysis for me to determine that he suffers chronic pain, because:

i. GP relies on an OCF-18 that provides no explanation of how or why GP meets any diagnostic criteria for chronic pain.

ii. GP’s submissions include no diagnosis or objective evidence to support his claim to suffer chronic pain as the result of the accident. His evidence is based on self-reporting to the OCF-18 proponent, and as such, I give it relatively light weight.

iii. GP does not supply me with any criteria against which to assess the claim of chronic pain. GP simply asserts it, and links it to an assertion that pre-existing conditions were aggravated by the accident. This is insufficient as proof of chronic pain.

25GP has not met the onus on him to establish that his accident-related injuries include a chronic pain condition.

26GP’s injuries are minor and his entitlement to medical benefits is governed by the MIG. Accordingly it is not necessary for me to determine the merits of disputed OCF-18s.

Income Replacement Benefits

27The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule.

28The parties have not raised any issue of the amount of IRBs that may be payable to the applicant. Their submissions focus solely on whether or not the applicant meets the eligibility criteria for IRBs.

29The Schedule, at s.5 and s.6, defines the level of impairment which must be suffered by the applicant to be eligible for IRBs. These change over time after the accident. For this case, the relevant requirements are:

i. Within 104 weeks after the accident, the insured person suffers a “substantial inability to perform the essential tasks of his or her pre-accident employment […] or self-employment”.

30Before the accident, GP worked full-time as a sushi chef. He describes the essential tasks of this employment as including “prolonged standing for hours at a time, upper-body and limb coordination as well as concentration and focus.”

31GP submits that his injuries and impairments prevented him from performing the tasks of his pre-accident employment during the disputed period.

32GP’s OCF-18 from Perfect Physio notes in Part 8 (Activity Limitations) notes “Unable to perform full work duties due to injuries – modified”.

33GP points to no objective evidence that he meets the criteria for IRB eligibility noted above.

34Co-op’s medical evidence includes:

i. The opinion of Dr. West that GP does not suffer from a substantial inability to perform the essential tasks of his employment. The psychological IE report included denials by GP that he was functionally impaired, psychologically, at work.

ii. An IE report by Dr. Michael Ko, physiatrist, dated June 27, 2016, which states that GP did not meet the IRB criteria and which noted his return to work part-time.

35I find that GP has failed to meet the onus on him to prove that he is entitled to IRBs for the disputed period. My reasons are:

i. I prefer the medical evidence of IE assessors, who conducted objective examinations and tests, to GP’s OCF-18 evidence. For example:

a. Dr. West conducted validity testing to support his conclusions about GP’s mental health and his substantial ability to work – and noted that GP did not expressly claim to be unable to work.

b. Dr. Ko conducted physical examinations that demonstrated normal ranges of motion, balance and manual strength.

ii. GP stated to Dr. West that he was working 24 hours/week, but to Dr. Ko that he was working 12 hours/week. This unexplained inconsistency makes it impossible for me to determine how modified working hours speak to the extent of any inability on GP’s part to work as his pre-accident job.

iii. The parties’ debate over income information is frankly irrelevant in the absence of convincing evidence that GP meets the IRB medical eligibility test. Because there are possible alternative explanations for decreases in work hours, I cannot rely on pay stubs and tax information to establish GP’s entitlement.

iv. There is no evidence from GP that his employer modified his work hours on the basis of medical information from him (a doctor’s note, for example).

CONCLUSIONS

36GP’s medical entitlements are governed by the MIG: his claims for treatment and assessment are dismissed.

37GP’s claim for IRBs are 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. 3NB: GP set the end date in the IRB issue in submissions.
4. 4Scarlett v. Belair, 2015 ONSC 3635 para.24
5. 5Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.