L.H. v. Certas Direct Insurance Company, 2019 CanLII 76976

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:

L.H.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

Appearances:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Tushar Tangri, Counsel

Heard IN WRITING:

February 11, 2019

OVERVIEW

1The applicant, (L.H.”), was injured in a rear-end automobile accident on November 28, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Certas Direct Insurance Company (“Certas”), the respondent.

2Certas denied L.H.’s claims because it had determined that all of L.H.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (the “MIG”).¹ Certas also denied L.H.’s claim for monthly attendant care benefits. As a result, S.A. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on October 4, 2018 and the matter proceeded to a written hearing on February 11, 2019.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Did L.H. sustain predominately minor injuries as defined under the Schedule?

(ii) If the answer to issue (i) above is “no,” then I must determine the following issues:

(a) Is L.H. entitled to attendant care benefits in the amount of $378.06 per month for the period of February 13, 2017 to date and ongoing?

(b) Is L.H. entitled to a medical benefit in the amount of $564.36, representing an unpaid balance remaining of the initial claim for $1,100.00, for physiotherapy services recommended by Health-Pro Wellness in a treatment plan submitted on March 29, 2017, and denied by Certas on March 30, 2017?

(c) Is L.H. entitled to payment for the cost of an examination in the amount of $2,197.29 for a psychological assessment, recommended by Health-Pro Wellness in a treatment plan submitted on April 20, 2017, and denied by Certas on May 3, 2017?

(iii) Is L.H. entitled to an award under Ontario Regulation 664 because Certas unreasonably withheld or delayed payments to L.H.?

(iv) Is L.H. entitled to interest on any overdue payment of benefits?

RESULT

5I find that L.H.’s injuries fall within the MIG and, therefore, it is unnecessary to consider the reasonableness or necessity of the treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.

6Additionally because I have found that L.H. has sustained minor injuries as a result of the accident, Certas is not liable to pay L.H. attendant care benefits. L.H. is also not entitled to interest or an award and the application is dismissed.

ANALYSIS

Did L.H. sustain predominately minor injuries as defined under the Schedule?

a) The Minor Injury Guideline (“MIG”)

7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

8Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

9The onus is on L.H. to show that her injuries fall outside of the MIG.² In this case, L.H. argues that her physical injuries sustained in the accident are not “minor injuries” as defined in the Schedule. In the event that I find that her physical injuries are “minor injuries,” L.H. argues in the alternative that she should be removed from the MIG because she sustained psychological injuries/distress as a result of the accident and/or she has pre-existing injuries.

10I find that L.H. sustained “minor injuries” as defined in the Schedule. I also find that L.H. is not removed from the MIG because of any pre-existing conditions or from any psychological injuries or distress as a result of the accident.

b) Physical Injuries

11As a result of the accident, L.H. was diagnosed with the following physical injuries: neck pain;³ dizziness and giddiness, tension-type headache, headache, low back pain, whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs, other sprains and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of other and unspecified parts of lumbar spine and pelvis, sprain and strain of sacroiliac joint, pain in thoracic spine, injury of unspecified nerve of upper limb (level unspecified), sprain and strain of other ligament of ankle, sprain and strain of ankle (unspecified).⁴ I find that all of these injuries fall under the definition of a “minor injury” in the Schedule.

12L.H. was diagnosed with other injuries following the accident that, if proven on a balance of probabilities, would remove her from the MIG. However, because none of the various imaging that L.H. had following the accident revealed any physical injuries beyond “minor injuries,” and for the reasons that follow, I am unable to find that L.H. sustained any physical injuries as a result of the accident that would not be “minor injuries” as defined in the Schedule.

13L.H. submitted a Disability Certificate (OCF-3) dated December 8, 2016, that was completed by Ms. Aliya Salayeva, chiropractor. Ms. Salayeva lists lumbar and other intervertebral disc disorders with radiculopathy and radiculopathy under the injury and sequelae information section in this OCF-3. There are no attachments to Ms. Salayeva’s OCF-3 or additional information provided on how she arrived at these diagnoses such as testing, imaging, etc. As such, I give no weight to Ms. Salayeva’s diagnosis of lumbar and other intervertebral disc disorders with radiculopathy and radiculopathy, as there is no objective medical evidence to support her findings.

14L.H. has also submitted a June 25, 2017 Emergency Report from North York General where she is diagnosed with sciatica.⁵ I cannot, however, determine if this diagnosis is as a result of the accident from the information provided. For example, the triage form states that L.H.’s current complaint was “lower back pain since MVC Nov 2016,” but under the history section, it states, “patient [complained of] lower back pain started 2 weeks ago, resolved, and started feeling the pain again 5 days ago.”⁶ The information that L.H.’s back pain has been “since” the accident is inconsistent with the information that her back pain started 2 weeks prior and resolved. Furthermore, L.H. attended Dr. Ali Erfanfar on June 27, 2017, following her attendance at North York General, and Dr. Erfanfar only diagnoses L.H. with back pain and there is no mention of the accident in his CNR entry of this date.⁷

15Based on the reasons set out above, I find the physical injuries that L.H. sustained as a result of the accident are “minor injuries” as defined in the Schedule.

c) Psychological Injuries

16L.H. has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any psychological injury or distress from the accident.

17L.H. claims that her psychological distress as a result of the accident places her claims outside of the MIG. L.H. relies upon the Tribunal decisions of 7-005791 v Aviva Insurance Canada⁸ and 16-002818 v Unifund Assurance Company⁹ for the proposition that psychological symptoms alone are sufficient for a removal from the MIG.

18Tribunal decisions on whether or not psychological symptoms alone warrant a removal from the MIG are not in agreement. For example, the Tribunal held in 16-000438 v The Personal Insurance Company,¹⁰ that the reference to “psychosocial symptoms” in the MIG is a recognition that a minor injury includes some psychosocial or psychological symptoms that are treatable within the MIG. Therefore, the Tribunal found in this case that an applicant must show that his or her psychological complaints are not merely psychological or psychosocial symptoms, but that he or she has sustained a psychological impairment as a result of the accident.

19I do not propose to reconcile these differing opinions because the decisions relied upon by L.H. are distinguishable on the facts. In 17-005791 and in 16-002818, a full psychological assessment was completed that included a number of tests administered to the applicant. In this matter, L.H. relies upon the April 11, 2017 Psychological Pre-Screen report completed by Fahimeh Aghamohseni, psychologist, which accompanied the treatment plan (OCF-18) recommending a psychological assessment. Even though Dr. Aghamohseni opined that L.H. presented sufficient psychological difficulty as to warrant a more comprehensive psychological assessment,¹¹ I cannot afford any weight to his pre-screen report for the following reasons:

(i) L.H. did not submit as evidence any CNRs from Dr. Aghamohseni;

(ii) the Pre-screen report was completed based on Dr. Aghamohseni’s interview of L.H. and the subjective information provided by L.H. without any testing; and

(iii) there is no indication of what medical reports or records Dr. Aghamohseni reviewed in preparation of the report and there is no information about the duration of the pre-screen.

20The occurrence of psychological complaints from L.H. that gave rise to any type of assessment only arose two year post-accident. The timing, especially in light of L.H.’s psychological complaints as early as December 16, 2016 in her application of for accident benefits of “driving anxiety and nightmares,” indicates that L.H.’s psychological complaints were not anything more than minor. I was offered no explanation for L.H.’s delay in seeking psychological assistance and there was no evidence that L.H. had been prescribed any medications for her psychological complaints to date.

21For the reasons stated above, L.H. has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any psychological injury or distress from the accident.

d) Pre-existing Injuries

22L.H. has also failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing injuries.

23Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 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 $3,500.00 on treatment costs under the MIG.¹²

24The standard for excluding an impairment on the basis of pre-existing conditions 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.

25There was no compelling evidence before me demonstrating that L.H. had a pre-existing medical condition which would prevent her maximal recovery within the $3,500.00 MIG limit. L.H. presented evidence of a previous right ankle fracture, a previous low back injury and previous soft tissue injuries from a 2010 motor vehicle accident. However, while there were general comments about these previous injuries being re-aggravated from the subject accident, there is no medical evidence or opinion that any of these previous injuries would prevent L.H. from achieving maximal recovery within the MIG financial limit.

Attendant Care Benefits

26As I have found that L.H. sustained minor injuries as a result of the accident and is not removed from the MIG as a result of a psychological injury/distress or as a result of a pre-existing injury, Certas is not liable to pay attendant care benefits to L.H. because section 14 of the Schedule only requires attendant care benefits to be paid where injuries are not minor.

27Since I have found that L.H.’s injuries as a result of the accident fall within the MIG, I do not need to determine whether or not the treatment plans are reasonable and necessary as the maximum of $3,500.00 for medical and rehabilitation benefits in the MIG has been exhausted.

Award

28Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

29As I have found in that there are no payment of benefits owing, and L.H. has not provided any evidence on any previous delay or withholding of benefits by Certas under the MIG, L.H. has failed to prove on a balance of probabilities her entitlement to an award in this matter.

Interest

30Because I have found that there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

31For the reasons outlined above, I find:

(i) L.H. sustained predominately minor injuries as defined under the Schedule; accordingly, it is not necessary to determine whether or not the treatment plan and the costs of examinations are reasonable and necessary because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

(ii) Certas is not liable to pay attendant care benefits to L.H. because her injuries fall under the MIG;

(iii) L.H. is not entitled to interest or an award; and

(iv) The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Clinical Notes and Records of Dr. Ali Erfanfar, December 5, 2016 entry, Applicant’s Book of Exhibits, page 72.
4. 4Disability Certificate (OCF-3) dated December 8, 2016 and completed by Aliya Salayeva, Applicant’s Book of Exhibit’s, page 92.
5. 5Applicant’s Book of Exhibits, page 167.
6. 6Ibid. at page 168.
7. 7Updated Clinical Notes and Records of Dr. Ali Erfanfar, June 27, 2017 entry, Applicant’s Book of Exhibit’s, page 208.
8. 82018 CanLII 112107 (ON LAT) at para. 17 [17-005791].
9. 92017 CanLII 39709 (ON LAT) [16-002818].
10. 102017 CanLII 59515 (ON LAT) [16-000438].
11. 11Applicant’s Book of Exhibits, page 164.
12. 12Minor 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”.