N.E. v. Certas Direct Insurance Company, 2019 CanLII 76981

Citation: N.E. vs. Certas Direct Insurance Company, 2019 ONLAT 18-005306/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:

N.E.

Appellant

and

Certas Direct Insurance Company

Respondent

DECISION

PANEL:

Derek Grant, Adjudicator

For the Applicant:

Olubunmi Akinsanmi, Counsel

For the Respondent:

Celina Augero, Counsel

HEARD:

In Writing on: January 25, 2019

OVERVIEW

1The applicant (“N.E.”) was injured in an automobile accident (“the accident”) on March 23, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule''). When his claims for benefits were denied by the respondent (“Certas”), N.E. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”).

2Certas denied N.E.’s claims because it determined that all of his injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). N.E.’s position is the opposite.

3If N.E.’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary.

4If Certas’ position is correct, then N.E. is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary.

ISSUES

5Did N.E. sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to medical benefits limited by the MIG?

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

a. Is N.E. entitled to receive medical benefits for chiropractic services recommended by Mackenzie Medical Rehabilitation Centre as follows:

i. $1,384.70 in a treatment plan submitted November 9, 2016, and denied on November 23, 2016; and/or

ii. $1,384.70 in a treatment plan submitted January 9, 2017, and denied on January 19, 2017?

b. Is N.E. entitled to a medical benefit in the amount of $2,027.00 (less $720.00 already approved) for chiropractic services recommended by Dr. Fu Yan Huang, and submitted in a treatment plan dated September 19, 2016, and denied on September 28, 2016?

c. Is N.E. entitled to a medical benefit in the amount of $7609.51 for chiropractic services, recommended by Polyclinic Rehabilitation Ins. Inc., and submitted July 29, 2017, and denied on August 3, 2017?

d. Is the cost of examination expense in the amount of $2,486.00 for a chronic pain assessment, recommended by Rehabilitative Ergonomics in a treatment plan dated March 15, 2017, and denied on March 23, 2017?

e. Is N.E. entitled to interest on any overdue payment of benefits?

RESULT

7Based on a review of the evidence before me, I find that N.E.’s injuries are subject to treatment within the MIG. Therefore, I do not need to consider if the treatment plans are reasonable and necessary.

PROCEDURAL ISSUE

Dr. Karmy Report

8In its submissions, Certas submits that N.E. did not qualify Dr. Karmy as a witness. Certas argues that in doing so, N.E. did not comply with Rule 10.2 of the Tribunal’s Rules³.

9Rule 10.2 sets out the requirement that a party must provide the Acknowledgement of Expert’s Duty form and qualifications of any expert they intend to rely on for a hearing. Certas maintains that no Expert of Duty Form or curriculum vitae was provided to Certas by N.E. As a result, Certas has asked that no weight be given to the Dr. Karmy report.

10In response, N.E. submits that the lack of compliance with Rule 10.2 and 10.3 was due to an oversight, and not a blatant disregard of the Tribunal Rules. N.E. submits that a breach of Rule 10.2/10.3 is not so serious as to warrant the exclusion of a report which is relevant to N.E.’s claim. N.E. further submits that Certas has not shown that they were prejudiced by not having been provided Dr. Karmy’s credentials.

11According to Adjudicator Mazzerolle’s Order dated October 3, 2018, documents for the hearing were to be provided by November 30, 2018. Although not specifically noted, N.E. submits that Certas was provided the Dr. Karmy report prior to its January 14, 2019 submission deadline date.

12For the reasons that follow, I find Certas was not prejudiced by the lack of documentation of Dr. Karmy’s qualifications or the Acknowledgement of Expert Duty form. Even if N.E. provided Certas with the Dr. Karmy report on the deadline date of November 30, 2018, Certas had sufficient time to request or remind N.E. of the missing qualifications/Acknowledgement of Expert Duty form or to file a motion prior to its January 14, 2019 submission deadline.

13Further, Certas has not provided me with any evidence of how it is prejudiced by the lack of documentation of Dr. Karmy’s qualifications or the Acknowledgment of Expert Duty form. I do not find that N.E. was intentional with not providing the qualifications and Expert Duty form. As such, I will give the Dr. Karmy report the weight I find appropriate for this proceeding.

ANALYSIS

The Minor Injury Guideline

14The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.

15Section 18 further provides that the $3,500.00 limit does not apply to an insured person “if her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500.00 limit.”

16The onus is on N.E. to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries⁴.

Accident related injuries

17N.E. has not provided me with compelling evidence to establish his physical injuries are anything but minor. To the contrary, I find that the evidence supplied is consistent with a minor injury. The medical reports, clinical notes and records, and the injuries indicated in the treatment plans are consistent with the definition of ‘minor injuries’. Again, I am not presented with evidence of how the accident-related injuries N.E. claims to have suffered are not minor.

Treating Practitioners

18The evidence submitted by the applicant from Dr. Weinstock who treated the applicant immediately following the accident and Dr. Ayden Banibashar chiropractor, who completed a disability certificate on behalf of the applicant, establish on balance that the applicant sustained soft tissue injuries as a result of the accident.

19For instance, On March 24, 2016, at a post-accident visit to his Family Physician, Dr. Weinstock (Dr. Gorlick was away on leave), N.E. presented with right sided neck and lower back pain. Dr. Weinstock recommended hot showers and Advil.

20On April 19, 2016, N.E.’s visit to Dr. Gorlick, consisted of pain complaints including left neck and left upper back tightness, lower back pain, shoulder pain, headache and mild sleep disturbance. Dr. Gorlick diagnosed N.E. with “soft tissue injury to the neck and back”. Dr. Gorlick recommended physiotherapy, heat, stretching and pain medication. As a result, I place little weight on the report of Mr. Banibashar, as neither of the regular treating practitioners recommended chiropractic treatment.

21On April 28, 2016, Chiropractor Ayden Banibashar diagnosed N.E. with “injury of muscle and tendon at neck level, sprain/strain of thoracic spine, dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, headache, nausea, dizziness and giddiness, other sleep disorders and other anxiety disorders”⁵. Mr. Banibashar indicated that as result of the injuries sustained, N.E. faced a recovery time of 9-12 weeks. The injuries listed by Mr. Banibashar are consistent with injuries that are considered ‘minor’.

Diagnostic Reports

22A May 9, 2018 ultrasound ⁶ showed “mild DDD (degenerative disc disease) at L3-4 with mild disc space and tiny anterior osteophytes at this level”. Further, the report indicated the “lumbar spine and SI joints are otherwise normal. No compression fractures or other abnormalities seen”.

23A second diagnostic imaging report⁷ revealed “right shoulder is normal; no bony or joint abnormalities are seen”. In addition to the lumbar and shoulder x-rays, the report goes on to report that the cervical spine “is normal, the disc spaces are well preserved and the neural formina are clear”.

Dr. Karmy Report

24N.E. also relied on the report of Dr. Karmy which I was not persuaded by and afforded little weight. On April 10, 2017, over one year post-accident, N.E. met with Chronic Pain Specialist Dr. Grigory Karmy. Dr. Karmy diagnosed N.E. with a plethora of injuries including but not limited to a sleep disorder, post-concussion syndrome and post-traumatic headaches.

25I am not persuaded by Dr. Karmy’s report for several reasons:

(i) First, he makes no mention of any objection testing conducted to reach his conclusion of N.E.’s accident related injuries. Dr. Karmy appears to base his opinion solely on N.E.’s subjective complaints;

(ii) Second, Dr. Karmy’s diagnosis of chronic headache is contradicted by the medical evidence of only two headache complaints N.E. presented with to Dr. Gorlick, being April 19, and June 1, 2016;

(iii) Third, there are lumbar, cervical and shoulder reports done subsequently to Dr. Karmy’s report, which contradicts Dr. Karmy’s reporting; and

(iv) Lastly, Dr. Karmy’s report that N.E. suffers from sleep disturbance as a result of the accident is contradicted by the applicant’s November 28, 2016 visit to Dr. Gorlick, where the applicant he reported “issues with snoring when sleeping supine”. It appears Dr. Karmy did not consider the issue with snoring that disturb N.E.’s sleep or discuss the cause of the snoring. As such, I do not find sleep disturbance to be a clear result of the accident.

26Based on the combined evidence of the diagnostic reports, clinical notes and records from N.E.’s treating doctors, I find that N.E. has sustained minor injuries from the subject accident. As a result, N.E. has not satisfied his onus to prove that he has suffered anything but minor physical injuries as a result of the subject accident.

CONCLUSION

27N.E. sustained predominantly minor physical injuries that fall within the MIG. Accordingly, N.E. is not entitled to payment for the treatment plans claimed in this application. His 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. 3Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635
5. 5OCF-3 dated April 28, 2017.
6. 6Lawrence Bathurst X-Ray and Ultrasound - Lumbar Spine Ultrasound report dated May 8, 2018
7. 7Lawrence Bathurst X-Ray and Ultrasound – Right Shoulder Ultrasound report dated May 10, 2018