R.N. vs. Certas Direct Insurance Company
Tribunal File Number: 18-012404/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:
R.N.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
PANEL: Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant: Alexei Antonov Samuel Gnanasegaram
For the Respondent: Aida Davari
HEARD: In Writing on: October 14, 2019
OVERVIEW
1R.N. was injured in an automobile accident on July 29, 2017 and sought benefits from the respondent, Certas Direct Insurance, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the "Schedule"). R.N. applied for medical and rehabilitation benefits that were denied by Certas because it determined her injuries were predominately minor and therefore subject to treatment within the Minor Injury Guideline ("MIG"), the limit for which has been exhausted. R.N. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following are the issues in dispute:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. Is the applicant entitled to a medical benefit in the amount of $3,187.60 for chiropractic treatment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on August 15, 2017, and denied on August 17, 2017?
iii. Is the applicant entitled to a medical benefit in the amount of $201.96 ($1,301.96 less the partially approved amount of $1,100.00) for chiropractic treatment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on November 22, 2017, and denied on November 24, 2017?
iv. Is the applicant entitled to a medical benefit in the amount of $1,200.26 for chiropractic treatment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on January 26, 2018, and denied on February 7, 2018?
v. Is the applicant entitled to a medical benefit in the amount of $1,258.30 for chiropractic treatment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on May 14, 2018, and denied on May 28, 2018?
vi. Is the applicant entitled to payment for the cost of examination in the amount of $1,230.92 for an attendant care needs assessment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on August 30, 2017, and denied on September 1, 2017?
vii. Is the applicant entitled to payment for the cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on October 26, 2017, and denied on November 6, 2017?
viii. Is the applicant entitled to payment for the cost of examination in the amount of $2,000.00 for a chronic pain assessment recommended by Prime Health Care Inc. in a treatment plan (OCF-18) submitted on May 30, 2018, and denied on June 5, 2018?
ix. Is the applicant entitled to an award under Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed the payment of benefits?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find R.N. sustained predominantly minor physical injuries because of the accident which are treatable within the MIG. I find she has not demonstrated, on a balance of probabilities, that she sustained psychological impairments as a result of the accident or suffered from pre-existing impairments that would remove her from the confines of the MIG. Accordingly, as the MIG limits have been exhausted, R.N. is not entitled to payment for any of the treatment plans in dispute.
ANALYSIS
Applicability of the Minor Injury Guideline
4I find the medical evidence indicates that R.N. suffered predominantly minor physical injuries as a result of the accident. The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Applying Scarlett v. Belair Insurance,2 R.N. must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.
5R.N. argues several grounds for removal from the MIG, including her physical injuries, psychological impairments and pre-existing conditions. In addition to clinical notes and records and a psychological report, R.N. relies on a Disability Certificate ("OCF-3") from Dr. Le, chiropractor, dated August 3, 2017, which lists her accident-related impairments as: chest contusion, cervical spine strain/sprain, thoracic spine strain/sprain, post-traumatic headaches, anxiety disorder, sleep disorder, bi-lateral elbow strain/sprain and bilateral knee sprain/strain. Her initial OCF-1 dated August 1, 2017 details her post-accident injuries as "back pain, shoulder pain, arms and anxiety."
6In response, Certas argues that the injuries alleged by R.N. are all soft-tissue in nature and fall within the definition of minor injuries under the Schedule. Certas argues that there is limited support that her impairments arose as a result of what was a relatively minor accident and that her complaints are not corroborated by the medical records in evidence or by the treatment she underwent. Certas relies on the s. 44 examination and reports of Dr. Hosseini, physiatrist, who found that R.N. "presented with predominantly soft tissue complaints of the cervical and lumbar spine, without any objective musculoskeletal or neurological findings, which could be treated within the MIG."
7I agree with Certas. On the evidence, I find the physical injuries documented in the weeks and months after R.N.'s accident falls squarely within the definition of "minor injury" under the Schedule, as they are listed as headaches and sprain and strain-type injuries. On the medical records, I find nothing to suggest that R.N.'s physical injuries are severe or require treatment beyond the MIG. Indeed, on review of the clinical notes and records of her family physician, it does not appear that R.N. has ever even reported the accident and subsequent complaints do not link her pain to it. In her reply, R.N. criticizes Dr. Hosseini's determination, arguing the determination did not consider her headaches, mechanical lumbar strain and elbow tendinitis. I agree with Certas that the post-traumatic headaches listed in R.N.'s OCF-3 and OCF-18s do not remove her from the MIG because she has never alleged a head injury and has seemingly denied hitting her head against the interior of the vehicle and has consistently denied a loss of consciousness. There is nothing in the medical records to suggest R.N.'s reported headaches are a result of the accident or are otherwise anything other than sequelae to soft tissue injuries.
8In a similar vein, I find R.N.'s complaints of back pain and elbow pain, while documented, are not expressly connected to the accident and there is no support for this contention. Indeed, Certas' submissions provide compelling support for the weaknesses in R.N.'s evidence: during her visit on November 25, 2017, R.N. complained of low back pain that she had been experiencing for only "one week". During her visit on September 15, 2018 when she complained of right elbow pain, she expressly denied any "history of trauma". Similarly, on August 28, 2018, over a year following the accident, she attended the hospital and complained of right elbow pain that she had been experiencing on an "intermittent" basis for "1 month", which had "[become] constant 2 weeks ago." During the visit, R.N. denied any "fall or trauma". The August 28, 2018 visit was the first time R.N. complained of right elbow pain to any OHIP covered physicians following the accident. As mentioned, these visits are all void of any reference to the accident and R.N. has not provided evidence linking these impairments to the accident, which it is her burden to prove.
9For these reasons, I prefer the report and findings of Dr. Hosseini, as his diagnosis was proportional to the medical evidence which, in my view, suggests that R.N. sustained minor physical injuries as a result of the accident that are treatable within the MIG.
Pre-Existing Conditions
10R.N. also alleges she suffered from pre-existing conditions that will prevent her from achieving maximal recovery under the MIG and that require treatment beyond the MIG. Under s. 18(2), an applicant may escape the confines of the MIG if they provide compelling evidence of a pre-existing medical condition, documented by a health practitioner before the accident, that would prevent them from achieving maximal medical recovery if kept within the limits of the MIG. I find R.N. has not shown, on a balance of probabilities, that she suffered from pre-existing conditions that require access to treatment beyond the limits of the MIG.
11With regards to her pre-existing conditions, R.N. directs the Tribunal to her pre-accident complaints of "chest-focused dyspnea", panic attacks/stress and anxiety that were allegedly aggravated by the accident. To be frank, R.N.'s argument on this point is, at best, confusing and, in practice, ineffective. While there are mentions of anxiety and palpitations in the medical documentation, there is no indication from a medical professional—other than Dr. Shaul, whose report is addressed below—that these conditions somehow prevent R.N. from achieving maximal medical recovery from her accident-related impairments if subjected to the MIG. Similarly, R.N. does not explain how any of her dyspnea, asthma, her 2014 cholecystectomy or epigastric pain were exacerbated by the accident or why it prevents her from maximal recovery.
12Simply having experienced medical issues in the past is not sufficient for removal from the MIG in the present, especially where there is no compelling evidence that these issues have been exacerbated. I find R.N. has not provided compelling evidence from a health practitioner of a pre-existing medical condition that was documented prior to the accident and she has not provided any documents from a health practitioner on how her pre-existing conditions would prevent her maximal recovery from injuries sustained in the accident if subjected to the MIG cap.
Psychological Impairments
13R.N. also argues that she sustained psychological impairments as a result of the accident (but that also existed pre-accident) that warrant her removal from the MIG. To escape the MIG due to psychological impairments, R.N. must show that she has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically-significant psychological distress. Self-reported symptoms of anxiety and references to anxiety in clinical notes and records do not amount to a diagnosis. Here, I find that R.N. has not demonstrated a psychological impairment that justifies treatment beyond the MIG.
14In support of her position, R.N. relies on the opinion of Dr. Shaul/Dr. Ilios, psychologist, who authored a report dated April 6, 2019, nearly two years post-accident. In this report, Dr. Shaul determined that R.N. is suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in and around a vehicle) as a result of the accident. In addition, Dr. Shaul determined that R.N. meets the stringent Non-Earner Benefit test, opining that she has a complete inability to carry on a normal life as a result of the accident.
15In response, Certas relies on the report of Dr. Sivasubramanian, psychiatrist, who assessed R.N. on January 31, 2018 for the purposes of a s. 44 examination. The report determined that while R.N. was more anxious in the first few months after the accident, she no longer experienced any heightened startle responses, was no longer bothered by intrusive thoughts of the accident and was never plagued by any nightmares. The report states that R.N. confirmed that she continued to drive, did not avoid vehicular travel and provided an example that while "she was reluctant to travel to Mississauga to visit her sister [she] now does so without significant difficulty". R.N. also stated that her mood was typically good. The report finds that, from a purely psychiatric perspective, R.N. did not have any functional limitations or restrictions and the report concluded that R.N.'s complaints did not meet the threshold criteria for any diagnosable psychiatric disorder or condition.
16I prefer the report of Dr. Sivasubramanian to that of Dr. Shaul. On review of the medical documentation and clinical notes provided, I agree with Certas that there is limited evidence of any ongoing, substantive, post-traumatic symptomology or clinically significant psychological distress in R.N. as a result of the accident. Dr. Shaul's own testing results in the report indicate that R.N. is "experiencing minimal and mild levels of emotional distress" but he then discounts these scores based on R.N.'s self-reporting. While self-reporting provides valuable insight into psychological impairments and R.N. may suffer from anxiety, there is limited evidence of ongoing or continuous psychological complaints elsewhere to support this finding. I find Dr. Shaul's ultimate diagnosis to be so out of line with the bulk of the medical documentation and I find the concluding remarks to be so disproportionate to the bulk of the file and R.N.'s own self-reporting elsewhere that I assign the report limited weight. Indeed, I struggle to reconcile the testing results above and the dearth of complaints in the rest of the file with statements like: "R.N. is experiencing significant psychological symptoms as a result of her index accident" and R.N.'s "current psychological condition has increased to a level of impairment that prevents her from performing her activities of daily living" or, most questionably, that R.N. has a complete inability to carry on a normal life. Put another way, I find the report to be so disingenuous on the evidence that it is unreliable.
17Accordingly, I find R.N. has not demonstrated that she suffers from a psychological condition that would remove her from the MIG. As a result, I find that R.N. has not demonstrated, on a balance of probabilities, that she suffers from pre-existing conditions or psychological impairments that justify treatment beyond the limits of the MIG. For the reasons above, I see no reason to interfere with Certas' determination—on the basis of two s. 44 reports confirming same—that R.N.'s accident-related impairments are treatable within the MIG.
Are the treatment plans reasonable and necessary?
18Having determined that R.N.'s impairments are properly within the MIG, it is my understanding that the MIG limits have been exhausted. Accordingly, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary.
Award, Costs and Interest
19R.N. alleges that Certas acted in a "malicious, oppressive and high-handed" manner when it denied the treatment plans in dispute and held her within the MIG. R.N. seeks an award under s. 10 of O. Reg. 664 as well as costs in this matter due to her exorbitant financial efforts and the use of specialist assessments to combat Certas' behaviour. I disagree. As above, I find no reason to deviate from Certas' determination that R.N. sustained predominately minor injuries and certainly no evidence that it acted in a "malicious, oppressive or high-handed" manner in doing so. In my view, the evidence relied on by R.N. to meet her onus was rather underwhelming—even for a MIG case—and I see no basis to grant an award or costs. As no benefits are even overdue, it follows that an award and interest are not payable.
CONCLUSION
20For the reasons outlined above, I find that R.N. sustained predominantly minor physical injuries because of the accident which are treatable within the MIG. Further, I find she has not demonstrated, on a balance of probabilities, that she sustained psychological impairments or suffered from a pre-existing condition that would justify treatment beyond the MIG. R.N. is not entitled to payment for any of the treatment plans in dispute as the MIG limits have been exhausted. As no benefits are overdue, no interest is payable, and an award and costs are not warranted.
Released: January 24, 2020
Jesse A. Boyce, Adjudicator