B.Y.S. v. Security National Insurance Company, 2020 CanLII 34452

Citation: B.Y.S. vs. Security National Insurance Company, 2020 ONLAT 18-010853/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:

B. Y. S.

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Yu Giang, Paralegal

For the Respondent: Anju Sharma, Counsel

HEARD: In Writing December 30, 2019

OVERVIEW

1[B. Y. S.] claims that he sustained several physical and psychological injuries as a result of an automobile accident on August 19, 2016. [B. Y. S.] applied for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule). He sought medical benefits for chiropractic services, the cost of hospital expenses associated with the accident and the cost of a psychological assessment, all of which were denied by the respondent on the basis that [B. Y. S.] injuries are within the Minor Injury Guideline. The respondent further maintains the treatment plans in dispute are not reasonable and necessary.

2[B. Y. S.] maintains his injuries are not within the Minor Injury Guideline. He maintains that he has chronic pain and sustained a psychological that takes him out of the MIG. He maintains the treatment plans in dispute are reasonable and necessary.

ISSUES IN DISPUTE

3The issues are as follows:

a. Did [B. Y. S.] sustain a predominantly minor injury as defined under the Minor Injury Guideline and, thus, is he limited to a $3,500 limit on treatment?

b. If [B. Y. S.]’s injuries are found to be outside of the Minor Injury Guideline, is [B. Y. S.] entitled to the disputed medical benefits on the basis that they are reasonable and necessary:

i. Is [B. Y. S.] entitled to receive a medical benefit in the amount of $2819.02 for chiropractic treatment recommended by Woodbine Perfect Rehab Centre in a treatment plan dated July 21, 2017 and denied August 11, 2017?

ii. Is [B. Y. S.] entitled to receive a medical benefit in the amount of $1300 for chiropractic treatment recommended by Woodbine Perfect Rehab Centre in a treatment plan submitted December 9, 2016 and denied January 19, 2017?

iii. Is [B. Y. S.] entitled to receive a medical benefit in the amount of $1250.00 for hospital expenses from North York General Hospital set out in OCF-6 submitted dated August 29, 2016 and denied January 12, 2017?

iv. Is [B. Y. S.] entitled to the cost of an examination in the amount of $700.00 for a psychological assessment, recommended by Perfect Choice Psychological Services in a treatment plan dated November 29, 2016 and denied January 28, 2017?

c. Is [B. Y. S.] entitled to interest on any overdue payment of benefits?

d. Is the respondent entitled to an award for costs?

RESULT

4For the reasons set out below, I find that [B. Y. S.]’s impairment falls within the Minor Injury Guideline. [B. Y. S.] is not entitled to the medical benefits in dispute nor the cost of the psychological assessment. Interest is not payable as there are no overdue payment of benefits. I deny the request for costs.

THE LAW - THE MINOR INJURY GUIDELINE

5The main consideration in this appeal is whether [B. Y. S.]’s injuries fall within the Minor Injury Guideline.

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 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 also defined in s. 3. Section 18(1) limits recovery to $3,500 when the MIG applies.

7Based on the totality of the evidence before me, and for the reasons that follow, I find [B. Y. S.] has not proven on a balance of probabilities that he sustained injuries that are other than predominantly minor injuries.

ANALYSIS

[B. Y. S.]’s Injuries

8[B. Y. S.] was a student at the time of the accident. He was transported by ambulance from the scene of the accident with complaints to the paramedics of neck pain, headaches, and dizziness. The OCF-6 ¹ in dispute is for the cost of the ambulance for transportation to the hospital and physician and emergency visit fees. The clinical notes from the hospital ² recorded complaints of neck pain. An X-Ray taken at the hospital did not reveal any cervical or lumbar fractures. He was discharged from the hospital and diagnosed with cervical sprain. This is [B. Y. S.]’s only visit to a doctor for accident related injuries.

9Other visits to a doctor based on my review of the clinical notes of a walk-in clinic³ show a visit to the walk-in clinic in April 2016, and on December 12, 13 and 21, 2016. These are for various ailments unrelated to the accident. [B. Y. S.] produced the clinical notes and records of Appletree Medical Clinic relating to his visit post-accident on December 21, 2016. The primary reason for the visit was abdominal cramps, diarrhea and a headache. The records indicate [B. Y. S.] was involved in a prior accident in August 2016 and had neck pain intermittently. His visit to the walk-in clinic on December 12, 2018 was for non accident related concerns.

10Beginning in September 2016 and for two months thereafter, [B. Y. S.] attended at the [Rehab Centre] for chiropractic treatment. He was assessed by Dr. Tavares, chiropractor. In the OCF-18 dated December 9, 2016, Dr. Tavares listed the following injuries: dislocation, sprain and strain of joints and ligaments at neck level, headaches, malaise and fatigue, non-organic sleep disorders and dizziness. He listed other psychological injuries such as phobic anxiety disorder, emotional shock and anxiety. These injuries are repeated in the OCF-18 dated July 21, 2017⁴ by Dr. Tavares following a re-assessment. The OCF-18 of December 9, 2016 refers to difficulty with sustained postures given the patient’s cervical, thoracic, lumbar and shoulder impairment, the presence of radicular, neurological and psychological symptomology and outlines that the goals of treatment are to reduce pain, increase the range of motion and allow [B. Y. S.] to return to activities of daily living. I note the OCF-18 of July 21, 2017 is unsigned. Dr. Tavares is a chiropractor and as such his listing of psychological injuries are beyond his expertise as a chiropractor.

11The insurer’s examination (“IE”) by Dr. Oshidari ⁵ discussed below refers to several OCF-3’s completed by Dr. Tavares and reviewed by Dr. Oshidari but these were not filed into evidence.

12The OCF-18s for chiropractic services were denied by the respondent on the basis of MIG. In its letter of January 19, 2017,⁶ the respondent advised [B. Y. S.] that the OCF-18 was denied on the basis that the injuries fell within MIG and lack of evidence submitted on his behalf to take [B. Y. S.] out of MIG he respondent stated it was not referring the OCF-18 for an independent evaluation but it was waiting for the results of the physiatry and psychological assessments being completed on its behalf. The respondent in its letter of August 19, 2017⁷ denied the OCF-18 of July 21, 2017 on the basis of the findings of Dr. Oshidari’s physiatry report discussed below. The respondent advised [B. Y. S.] by letter dated December 29, 2016 that an IE assessment would be required. ⁸ The IE assessment was completed by Dr. Goodfield in July 2017 as discussed below.

Chronic Pain

13[B. Y. S.] submits he is suffering from chronic pain as a result of the accident. [B. Y. S.] admits that he suffered mainly soft tissue injuries.⁹ However, he argues he did not recover in the usual healing time and has not reached his pre-accident state. He argues he continues to experience the impact of the accident, through physical pain and emotional distress, which impairs his ability to complete and carry out aspects of daily living. ¹⁰

14A diagnosis of chronic pain is not required to establish that an applicant is suffering from chronic pain which takes an applicant out of the MIG. The same applies to the issue of a psychological impairment.¹¹ Although a diagnosis of chronic pain is not required, there must be compelling evidence of symptoms that are continuous, and of a severity that they cause suffering and distress accompanied by functional impairment or disability. I find the medical evidence presented does not establish an ongoing functional impairment to support pain which is chronic and sufficient to take [B. Y. S.] out of the MIG.

15First, there is no diagnosis in this appeal of chronic pain.

16Second, no records from a treating medical doctor were submitted to support a finding of chronic pain or severe continuous symptoms of a severity that they cause suffering and distress accompanied by functional impairment or disability.

17Third, [B. Y. S.] was assessed by a physiatrist, Dr. Oshidari on June 6, 2017 (in respect of MIG) and on March 8, 2018¹² (in respect of a claim for a non-earner benefit which is not in dispute). Dr. Oshidari reviewed the OCF-18 dated December 9, 2016 that is in dispute. Dr. Oshidari’s conclusion stated in both reports is [B. Y. S.] suffered soft tissue injuries as a result of the accident. The respondent argues that [B. Y. S.]’s injuries are soft tissue injuries and he has returned to a functional level that makes a diagnosis of chronic pain untenable.

18In his report, Dr. Oshidari noted [B. Y. S.] was assessed at the hospital immediately following the accident and has not seen a medical doctor regarding the injuries since the day of the accident. [B. Y. S.] reported a 50-60% improvement in his physical injuries, denied the use of medication and was independent in performing all of his activities of daily living. [B. Y. S.] reported his only complaint from the accident was neck pain with radiation into the shoulders. The assessment by Dr. Oshidari of the cervical and thoracolumbar spine revealed full range of motion and [B. Y. S.] was pain free. The range of motion for both shoulders was normal. [B. Y. S.] complained only of mild discomfort and pain in the neck area. His walk was normal. Overall, Dr. Oshidari noted the assessment was unremarkable. There was no spinal involvement such as radiculopathy, myelopathy or stenosis. Dr. Oshidari opined that [B. Y. S.]'s injury resulting from the motor vehicle accident was a minor injury. This conclusion is repeated in the March 8, 2018 report. Dr. Oshidari concluded there was no structural or physiological abnormality.

19Based on the totality of the evidence before me, I find [B. Y. S.] does not suffer from chronic pain. I find that [B. Y. S.] has not met his onus to establish that he suffers from chronic pain to remove him from the MIG.

Psychological Impairment

20To support his position that he suffered a psychological impairment as a result of the accident, [B. Y. S.] relies on the recommendations set out in an OCF-18 for $2000.00 dated November 29, 2016¹³ by Dr. Ming Che Yeh, psychologist at Perfect Choice Psychological Services which recommends a psychological assessment based on a pre-screening report that documented issues with sleep, loss of focus, driver anxiety and frustration. The respondent partially approved the OCF-18 in the amount of $1300.00 leaving a balance of $700 in dispute.

21The respondent obtained an IE assessment by Dr. Goodfield, psychologist, on July 10, 2017 and March 8, 2018 ¹⁴ (the latter refers to a non-earner benefit). Dr. Goodfield assessed [B. Y. S.] and found no conditions or pre-existing conditions that would impact his psychological recovery. Dr. Goodfield did not find any psychological grounds to take [B. Y. S.] out of the MIG. Dr. Goodfield opined [B. Y. S.] did not meet the required DSM5-diagnosis that would support a psychological impairment. [B. Y. S.] was seen by Dr. Ming Yeh on January 3, 2017 and complained of fear of driving. In his assessment with Dr. Goodfield, Dr. Goodfield noted no fear of driving by [B. Y. S.].

22Despite claiming he is psychological impaired as a result of the accident, [B. Y. S.] has not sought or obtained any psychological treatment and has not complained of any psychological impairment to a medical doctor.

23I find [B. Y. S.] has not submitted evidence to support his claim of a psychological impairment to warrant taking him out of the MIG. I find based on the totality of the evidence that [B. Y. S.] did not suffer a psychological impairment to take him out of the MIG. [B. Y. S.] bears the burden to prove the psychological impairment is such that his injuries fall outside of the MIG. He has not met the burden of proof. Arguments presented in the written submissions of [B. Y. S.] are not evidence.

24I find the evidence presented by the respondent’s IE assessors, discussed above, supports its position that the injuries are minor.

25Based on my finding that [B. Y. S.]’s injuries are within the MIG, it is not necessary to determine if the claim for medical benefits and for the psychological assessment are reasonable and necessary. [B. Y. S.] is limited in his recovery to expenses that fall under the $3,500. [B. Y. S.] has exhausted the MIG limit and is not entitled to any further coverage. This applies to the claim for the OCF-6 expenses.

26The respondent in its denial of the OCF-6 requested [B. Y. S.] submit the OCF-6 expenses first to his collateral benefit provider. The respondent submits it wrote to [B. Y. S.] stating the OCF-6 could then be resubmitted to the insurer for its consideration. Based on the evidence presented it does not appear that the OCF-6 was sent to the collateral benefit provider or resubmitted to the respondent.

27The respondent states further that as [B. Y. S.] has exhausted the limits of MIG, the OCF-6 expenses are not payable. I agree. [B. Y. S.] is limited in his recovery to expenses that fall under the $3,500. [B. Y. S.] I have found is in MIG and he has exhausted the MIG limits.

Failure to Properly Assess the Treatment Plans

28[B. Y. S.] submits the respondent failed in its ongoing obligation to assess and re-assess the claim as new information becomes available from doctors, specialists, assessors and treatment providers.¹⁵ He states the respondent declined to forward the treatment plans for chiropractic treatment for independent examination.¹⁶ He argues that by denying the benefits based on uncertain conclusions provided by its assessors, the respondent failed to properly provide [B. Y. S.] with firm and clear “medical and all of the other reasons” why they refused to pay for the proposed treatments and assessments as required by section 38(8) of the Schedule¹⁷ with the result that it is prohibited from claiming that MIG applies pursuant to section 38(11) of the Schedule.¹⁸ He argues other than the applicability of MIG the respondent has not provided any further assessment despite receiving updated medicals.¹⁹ The respondent objects to [B. Y. S.] questioning the validity of the denials at this stage of the proceeding as it was not raised previously. Alternatively, it submits it properly assessed the treatment plans in dispute.

29[B. Y. S.] is open to questioning the validity of the denials but, I do not agree with the position advanced by [B. Y. S.] regarding section 38(8) and (11). I find the respondent has assessed and re-assessed the treatment plans in dispute and did not deny the treatment plans in dispute on the basis of uncertain conclusions. To the contrary the conclusions relied on for the denials were in my assessment conclusive.

30As discussed above, Dr. Oshidari and Dr. Goodfield assessed and re-assessed [B. Y. S.] in May and July 2017, respectfully and in March 2018. Dr. Oshidari in his physiatry assessment concluded the injuries are within the MIG and he further concluded [B. Y. S.] did not meet the test of a complete inability to carry on a normal life. The same finding applies with respect to the claim of a psychological impairment. Dr. Goodfield concluded there was no psychological impairment to take [B. Y. S.] out of MIG. The respondent’s reasons for the denials were outlined in its denial letters of January 19, 2017, August 11, 2017 and December 29, 2016. The respondent declined to send both chiropractic treatment plans for independent evaluation however, it provided the denial based on the limited medical evidence presented to it by [B. Y. S.], and then the findings in the physiatry assessment. [B. Y. S.] admits the insurer submitted the proposed psychological assessment for an independent evaluation. ²⁰

31The evidence presented by [B. Y. S.] fails to establish his injuries are out of MIG. The medical evidence from the walk-in clinic and the hospital and the absence of medical records from the family doctor records do not support his claim that he is out of MIG. [B. Y. S.] who has failed to present medical evidence to meet his burden of proof that the injuries sustained take him out of MIG.

32In conclusion, I disagree with [B. Y. S.]’s claim that the respondent failed to assess [B. Y. S.] and the insurer is thus prohibited from claiming that MIG applies.

Interest

33Since I found benefits are not payable, [B. Y. S.] is not entitled to interest as there are no overdue payments of benefits.

COSTS

34A motion was made on August 28, 2019 to change the format of the hearing from an in person hearing to a written hearing. At the motion, the respondent requested costs claiming it was unreasonable for [B. Y. S.] to proceed with a non-earner benefit after a case conference based on the evidence available to him at that time. [B. Y. S.] is entitled to bring a non-earner claim even if the evidence is not fully supportive of the claim. There is no obligation on [B. Y. S.] to have withdrawn the claim after the case conference. The parties indicate the claim was withdrawn on the eve of productions and before the date of the written hearing (scheduled for October 28, 2019) and date of the written submissions. I find no evidence of prejudice to the respondent entitling it an award of costs in the circumstances. The claim for costs is denied.

CONCLUSION

35For the reasons outlined above, I find that [B. Y. S.]’s injuries are predominately minor injuries. [B. Y. S.] is not entitled to the treatment plans and cost of the psychological assessment as the $3,500 MIG limit has already been exhausted. [B. Y. S.] is not entitled to interest as no benefits are payable. The respondent is not entitled to a claim for costs.

Released: April 17, 2020

Thérèse Reilly

Adjudicator

Footnotes

1. 1Tab 1, OCF-6 of expenses from North York Hospital dated August 29, 2016, written submissions of [B. Y. S.].
2. 2Tab 2, clinical notes and records from the North York Hospital, written submissions of [B. Y. S.].
3. 3Tab 3, Clinical Notes of Apple Tree Medical Centre, written submissions of [B. Y. S.].
4. 4Tab 6, OCF-18 dated July 21, 2017, Dr. Tavares, written submissions of [B. Y. S.].
5. 5IE Physiatry Assessment report, Dr. Oshidari dated June 6, 2017, tab 5 written submissions of the respondent.
6. 6January 19, 2017 letter from the respondent to [B. Y. S.], tab 13, written submissions of the respondent.
7. 7August 11, 2017 letter from the respondent to [B. Y. S.], tab 7, written submissions of [B. Y. S.].
8. 8Letter dated December 29, 2016 from the respondent, Tab 17 written submissions of the respondent.
9. 9Paragraph 33 of [B. Y. S.]’s written submissions.
10. 10Paragraph 34 of [B. Y. S.]’s written submissions.
11. 11Neither party referred me to the Supreme Court of Canada decision in Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543, in which it was held an actual diagnosis is not required.
12. 12IE Physiatry Assessment report, Dr. Oshidari dated March 8, 2018, tab 6 written submissions of the respondent.
13. 13[B. Y. S.] claims the OCF-18 was attached in the written submissions as tab 8. A review of the documents filed for the hearing did not reveal a copy of the OCF-18 in dispute and therefore the copy was not available for review or filed as evidence.
14. 14IE report of Dr. Goodfield, dated July 10, 2017 and March 8, 2018, tabs 10 and 11, written submissions of the respondent.
15. 15Paragraphs 35 and 36 of the written submissions of the respondent.
16. 16Paragraphs 9 and 11 of the written submissions of [B. Y. S.].
17. 17Paragraph 36, written submissions of [B. Y. S.].
18. 18Paragraphs 37 and 38 of the written submissions of [B. Y. S.].
19. 19Paragraph 41, written submissions of [B. Y. S.].
20. 20Paragraph 48, written submissions of [B. Y. S.].