Tribunal File Number: 18-001003/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:
A.A.
Appellant(s)
and
Certas Home and Auto Insurance Company
Respondent
DECISION
PANEL:
Rupinder Hans, Adjudicator
APPEARANCES:
For the Applicant:
Meleni David, Counsel
For the Respondent:
Stanford Cummings, Counsel
HEARD:
In Writing on: October 15, 2018
OVERVIEW
1On January 12, 2016, the applicant, A.A., who was twenty-two years old at the time was involved in a motor vehicle accident.
2The applicant applied for medical benefits, specifically, treatment plans related to physiotherapy, massage and chiropractic services, and the cost of examination for a functional abilities evaluation, that were denied by the respondent, Certas Home and Auto Insurance Company. The denial was based upon the respondent’s position that the applicant’s injuries were predominantly minor injuries, and thus, treatment of them fell within the Minor Injury Guideline (the “Guideline”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
3The applicant disagreed, and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).
4The applicant submits that he has sustained both physical and psychological impairments that take him outside of the Guideline. He also asserts that he suffers from a documented pre-existing condition, Crohn’s disease, which was exacerbated due to the accident and that prevents him from achieving maximal recovery if subject to the Guideline.
5If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.
6If 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 IN DISPUTE
7Are the applicant’s injuries predominately minor as defined by the Schedule and subject to treatment within the Guideline?
8If the applicant’s injuries are not within the Guideline, then I must determine the following issues:
i. Is the applicant entitled to receive a medical benefit in the amount of $182.50, for physiotherapy services recommended by Mississauga Active Physiotherapy Services, in treatment plan that was submitted on April 11, 2016, denied by the respondent on April 20, 2016?
ii. Is the applicant entitled to receive a medical benefit in the amount of $765.00, for massage services recommended by Mississauga Active Physiotherapy Services, in treatment plan that was submitted on June 16, 2016, denied by the respondent on November 24, 2016?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,200.00, for chiropractic services recommended by Mississauga Active Physiotherapy Services, in treatment plan that was submitted on June 16, 2016, denied by the respondent on November 24, 2016?
iv. Is the applicant entitled to receive payment for the cost of examination in the amount of $1,349.98 for a functional abilities evaluation, performed by Mississauga Active Physiotherapy Services, submitted to the respondent on June 16, 2016, denied by the respondent on June 29, 2016?
v. Is the applicant entitled to receive interest on the overdue amounts?
RESULT
9Based upon a review of the evidence and submissions, I find that the applicant’s injuries fall within the Guideline, and since he has exhausted the $3,500 limit, he is not entitled to payment for any of the disputed treatment plans. There is no interest owing.
ANALYSIS
I. The Applicability of the Guideline
10The 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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1).
11Subsection 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.
12Section 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.”
13In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisonal Court reviewed the minor injury provisions in the Schedule, and found that the onus of establishing entitlement beyond the $3,500.00 limit rests with the claimant. Applying Scarlett, the onus is on the applicant 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 injuries.
A. Did the applicant sustain predominantly minor physical injuries?
14The evidence before me establishes that the applicant sustained a physical impairment that is predominantly a minor injury. I find that the applicant’s physical injuries are soft tissue injuries that fall within the definition of a “minor injury” as listed in section 3(1) of the Schedule. The applicant has not met his burden.
15The Disability Certificate, dated February 1, 2016, lists the applicant’s injuries as sprain and strain of lumbar spine; sprain and strain of thoracic spine; whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs; other sleep disorder; other anxiety disorders; dislocation, sprain and strain of joints and ligaments of shoulder girdle; and headache. The applicant submits because of his continued pain symptoms he has suffered a diminished quality of life and not returned to his pre-accident activities of normal life.
16An x-ray taken after the accident of his left shoulder and pelvis and left hip revealed no bony or joint abnormality and no fractures.
17The day after the accident the applicant visited his family doctor, Dr. V. Santhakumar, and reported injuries to his neck, left shoulder, upper back, aches and pains all over his body. He was prescribed pain medications and physiotherapy in an effort to return him to his pre-accident level of functioning. He attended physiotherapy treatment until his benefits were stopped. There is no evidence that the applicant continued to seek ongoing treatment from his family doctors for the above.
18The applicant further submits that at the time of the accident he was enrolled in the last year of his Bachelor of Business Administration program at [ ] University, and that after the accident he struggled with his education because of his declined health and he dropped his plans for further education. The respondent counters that the applicant graduated and obtained full-time employment working as a Program Analyst with [ ] Hydro where he is responsible for managing a department. I note that in the IE Psychiatric Assessment Report of Dr. Ariel Zielinsky, psychiatrist, dated June 2, 2016, it is noted that the applicant’s goal is to become an Accountant and start his own business. There is no mention in the report that this is no longer the applicant’s goal or that his education was interrupted.
19The respondent submits that the applicant suffered soft tissue injuries with some associated pain complaints that do not result in any objective functional impairment. The respondent further notes that the applicant has maintained an active lifestyle and social life and even visited Sri Lanka for several weeks in the fall of 2016.
20I find that the applicant has not established that he suffered anything other than soft tissue injuries, and he has further not established any functional impairment. I found persuasive the IE physiatry report of Dr. Seyed Hosseini, physiatrist, dated November 9, 2016 (“Physiatry Report”). Dr. Hosseini states that ten months post accident the applicant did not present with any significant ongoing accident-related musculoskeletal impairment. He diagnosed soft tissue injuries. He further found that from a musculoskeletal perspective, the applicant’s injuries were minor and within the Guideline. I find that the applicant has not convinced me otherwise.
21Given the above, it is my finding that the applicant has physical injuries that fall within the definition of “minor injury” as per the Schedule.
B. Does the applicant have a psychological impairment that would take him outside of the Guideline?
22I find that the applicant has failed to establish that he sustained an accident related psychological impairment.
23Psychological injuries, if established, fall outside the Guideline, because the Guideline only governs “minor injuries” and the prescribed definition does not include psychological impairments.
24The applicant submits that after the accident he has difficulty concentrating, mood swings, anxiety, feeling of helplessness and hopelessness, emotional and effective cognitive functioning, and he requires treatment to return to his normal activities of daily living. I note that there are no clinical notes and records from treating medical professionals supporting a psychological impairment, or that he was diagnosed or receiving treatment in this regard.
25Instead, I find persuasive the IE Psychiatric Assessment Report of Dr. Ariel Zielinsky, psychiatrist, dated June 2, 2016. Dr. Zielinsky states that the applicant did not present with any psychiatric impairment and no diagnosis was made. The applicant denied symptoms of post traumatic stress disorder such as flashbacks, and denied mood related issues or sleep disturbance. When asked to rate his improvement from the emotional and physical point of view from 0 to 100, the applicant rated a 70-80 percent improvement. The applicant is noted as looking forward to his new job.
26Dr. Zielinsky notes that there was no evidence of emotional distress or pain behaviours. The applicant denied having any emotional issues affecting his daily life as a result of the accident, and there were no psychophysiological signs of anxiety. He is overcoming his fear of driving, particularly on the highway, and he is noted as determined to do so on his own.
27I further note that the Functional Abilities Evaluation, dated May 16, 2016, prepared by Dr. Lucio Evangelista, states that the applicant has returned to driving short distances. The applicant has acknowledged this in his submissions.
28Given the above, it is my finding that the applicant has failed to prove a psychological impairment that would take him outside of the Guideline.
29However, if the applicant can establish a pre-existing medical condition that will prevent him from achieving maximal recovery under the Guideline, then he is not subject to the $3,500 limit.
C. Pre-existing condition
30Section 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 do so, the applicant must provide compelling evidence meeting the following requirements to escape the Guideline:
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 on treatment costs under the Guideline.
31The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the Guideline: it must be shown to prevent maximal recovery within the cap imposed by the Guideline. The Guideline requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.
32The applicant submits that he should be removed from the Guideline as his pre-existing Crohn’s disease was exacerbated by the injuries he sustained from the accident, and that prevents maximal recovery from his accident related injuries. I find that the applicant has established a pre-existing medical condition, but has failed to establish that the pre-existing condition will prevent maximal recovery from the minor injury if he is subject to the $3,500 treatment limit.
33In 2008, at the age of approximately 15 years old the applicant was diagnosed with colonic Crohn’s disease and had remained largely asymptomatic for several years. He remained under the care of Dr. A. Hillary Steinhart, Gastroenterologist at [ ] Hospital, and the applicant relies upon Dr. Steinhart’s clinical notes and records to establish the diagnosis. Since his diagnosis, he has been on a maintenance methotrexate program receiving injectable maintenance Methotrexate, and has undergone changes in his medications and dosages to better manage his disease.
34The applicant submits that his stress levels increased due to the increase in his pain symptoms after the accident thereby causing an exacerbation of his Crohn’s disease. As a result, he required more medication to manage his disease. A post accident clinical note from Dr. Steinhart, dated September 7, 2016, states that the applicant is experiencing a flare of his Crohn’s disease inflammatory activity and his medication is increased. A November 29, 2016 clinical note states that his Crohn’s disease seems to be more under control. A June 20, 2017 clinical note states that the applicant is doing very well in response to escalation of Remicade therapy, and he is noted as reporting that he is feeling quite good.
35The respondent argues that like most people suffering from Crohn’s disease the applicant’s conditions has fluctuated over the years, and that there is no evidence that his Crohn’s disease flare-ups were caused by the accident. The respondent notes that the applicant stopped taking his Methotrexate for the two months prior to the accident, November and December 2015, because he was advised by a pharmacist not to mix it with antibiotics he was prescribed to treat a tooth infection. The respondent submits that the post-accident fluctuation of the applicant’s Crohn’s disease was caused by his discontinuing his maintenance medication and not as a result of his accident related injuries. The respondent further notes that the clinical notes and records of the treating physician do not mention the accident or that it exacerbated the applicant’s Crohn’s disease.
36The respondent also relies upon, and I am persuaded by, the Physiatry Report wherein Dr. Hosseini wherein he states that the applicant’s Crohn’s disease is under the care of a specialist, his condition is reported as stable, and is unlikely affecting his musculoskeletal recovery.
37I am not persuaded that the applicant’s Crohn’s disease will prevent him from reaching maximal recovery from his accident-related injuries. The medical evidence before me suggests that the applicant Crohn’s disease has fluctuated over the years. There are no expert reports or medical evidence stating that the applicant’s Crohn’s disease was exacerbated by the accident, or that his disease will prevent him from reaching maximal recovery under the Guideline. The applicant has not met his burden.
38The applicant also submits that he had pre-existing neck pain, upper back pain and shoulder pain which has been exacerbated by the accident. The applicant has failed to point to any medical evidence that shows these pre-existing conditions.
39Given the above, I find that the applicant did not provide compelling evidence that he has a pre-existing medical condition that will prevent his achieving maximal recovery from the minor injury if he is subject to the $3,500 limit or treatment under the Guideline.
40For the reasons set forth above, I find that the applicant has not established that he suffers from accident related physical or psychological impairments that would fall outside the definition of a minor injury, or that he suffered from a pre-existing medical condition that would prevent him from achieving maximal recovery under the Guideline limit.
II. The treatment plans and interest
41As I have found that the applicant’s injuries fall within the Guideline, and because the applicant has exhausted the $3,500 limit, I do not need to address whether the treatment plans are reasonable and necessary. Further, no interest is owing.
CONCLUSION
42After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that the application is denied in its entirety.
Released: August 08, 2019
Rupinder Hans
Adjudicator