C. Z. v. Security National Insurance Company, 2020 CanLII 35476

Citation: C. Z. vs. Security National Insurance Company, 2020 ONLAT 18-012296/AABS

Amended Released Date: 04/24/2020

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.

[C. Z.]

Applicant

and

Security National Insurance Company

Respondent

AMENDED REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Yu Jiang

Counsel for the Respondent: Raymond (Rakhman) Ashurov

Heard in writing on: October 28, 2019

OVERVIEW

1The applicant was injured in an automobile accident on July 27, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a front-seated passenger in a vehicle that was stopped at an intersection when the vehicle was rear-ended. As a result of the accident, the applicant sustained physical injuries and anxiety and sleep disorders² for which he sought treatment.

3The applicant applied for medical benefits and an income replacement benefit (“IRB”) that were denied by the respondent because he was placed into the Minor Injury Guideline (the “MIG”) and because the respondent determined the IRB was not reasonable and necessary. The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule? If yes, then;

ii. Is the applicant entitled to the cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Perfect Choice Psychological Services submitted on October 8, 2016 and denied on February 26, 2017?

iii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week for the period of January 15, 2017 to date and ongoing?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant sustained predominately minor injuries as defined in the Schedule and he is subject to treatment within the MIG;

ii. as a result of being found to have injuries within the MIG and the MIG limits having been exhausted, there is no need to determine the reasonableness and necessity of the psychological assessment in the amount of $2,000.00;

iii. the applicant is not entitled to an IRB; and

iv. as there are no outstanding benefits, the applicant is not entitled to interest or an award.

ANALYSIS

Applicability of the Minor Injury Guideline

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 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 “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7Section 18(2) of the Schedule makes provision for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8The applicant bears the onus to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.³

9The applicant’s Disability Certificate (OCF-3)⁴ notes that the applicant suffered the following: Injury of muscle and tendon at neck level, headache, a sprain and strain of the thoracic spine, the shoulder joint, lumbar spine, sacroiliac joint and wrist. Also, rotator cuff syndrome subluxation complex (vertical), injury of the muscle and tendon at the hip, thigh level and at lower leg level, as well as phobic anxiety disorders, nonorganic sleep disorder and malaise and fatigue.

10The applicant acknowledges that his injuries are mainly soft tissue injuries⁵ which would be treated within the MIG limits.

11However, the applicant submits he should be treated outside the monetary limits of the MIG as a result of a psychological injury and chronic pain which are not within the definition of the MIG.

12The onus is on the applicant to prove on a balance of probabilities with compelling medical evidence that he suffers from a psychological impairment and chronic pain.

Does the applicant have psychological impairments that would take him out of the MIG?

13It is my finding that the applicant does not have psychological impairments that would take him outside of the MIG for the following reasons.

14The applicant submits that he has travel anxiety and sleep disturbances since the accident. As a result of those issues and the pre-screening interview for the treatment plan (OCF-18) requesting a psychological assessment, the applicant submits that he should be treated outside of the MIG.

15The respondent submits that the applicant’s family doctor’s clinical notes and records do not mention any psychological issues.⁶ The respondent further relies upon its insurer examination (“IE”) report of Dr. Lubbers.⁷ In his report, Dr. Lubbers opines that based on his clinical impression and from the testing conducted, the applicant has mild anxiety and is not considered to constitute a clinically significant condition. Furthermore, the applicant does not meet the diagnostic⁸ criteria for a DSM-5 mental or behavioural disorder and associated clinically significant psychological impairment.

16I place more weight on the respondent’s IE report than the OCF-3 and the treatment plan (OCF-18) the applicant relies upon. I find that the psychological impairments noted on the OCF-3 are beyond the scope of practice of a chiropractor and an OCF-18 on its own is not compelling evidence to show the treatment plan is reasonable and necessary. I have not been directed to any clinical notes and records or any evidence from any of the applicant’s treating practitioners who have been treating him on a regular basis that note any psychological impairments.

17As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he suffers from a psychological impairment that would remove him from the definition of the MIG.

18I will now turn to discuss whether the applicant has chronic pain that would remove him from the MIG.

Does the applicant have a chronic pain condition that would remove him from the MIG?

19It is my finding that the applicant has not proven on a balance of probabilities that he suffers from chronic pain that would warrant his removal from the MIG for the following reasons.

20The applicant submits he has chronic pain as a result of the accident and that he has not recovered in the usual healing time seen with the types of injuries he has sustained and because he has not reached his pre-accident state.

21However, the applicant has not directed me to any evidence of his injuries being chronic in nature. Submissions alone are not evidence and without any evidence to suggest that his pain may be chronic in nature or a chronic pain diagnosis from any treating medical practitioner, I find that the applicant has not satisfied his onus to show that he is suffering from chronic pain that would take him outside of the MIG.

22As a result of the above, I find that the applicant’s injuries are within the definition of the MIG and as the monetary limits of the MIG have been exhausted there is no need to conduct an analysis of whether the psychological assessment is reasonable and necessary.

23I will now turn to discuss whether the applicant is entitled to IRB’s.

Is the applicant entitled to an income replacement benefit?

24It is my finding that the applicant has not proven on a balance of probabilities that he is entitled to an IRB for the following reasons.

25In order to qualify for an IRB, the applicant must be able to show that he was employed at the time of the accident and as a result of and within 104 weeks after the accident he suffers a substantial inability to perform the essential tasks of that employment.⁹

26The applicant submits that his employment was physically demanding at Tim Hortons and at the dental laboratory where he worked. He submits that, due to his continuing pain and psychological impairments, he was unable to maintain steady employment.

27The applicant worked at Tim Hortons serving customers from July 2, 2015 to until the date of the accident on July 27, 2016 and also worked at a Dental Laboratory as a worker doing packing and cleaning from July 1, 2016 to July 29, 2016.¹⁰

28The applicant submits the essential tasks of his employment require prolonged standing for hours at a time, upper body and limb co-ordination as well as concentration and focus on the customers in his care. As a result of his physical and psychological impairments, he is unable to complete the essential tasks of his employment.

29According to the Employer’s Confirmation Form (OCF-2) his job description at Tim Hortons was to “serve customers”¹¹ and his job description at the dental laboratory was “packing case, cleaning”.¹²

30The applicant has not provided submissions or pointed me to any evidence of what the essential tasks of his employment were and what essential tasks he has a substantially inability to complete as a result of the accident.

31The applicant further submits that the respondent denied his IRB claim at a very early stage and did not request any medical records and as a result, the IE’s were conducted without the benefit of his treating practitioners’ records.

32The respondent submits the IRB was terminated as a result of the IE’s conducted by General Practitioner, Dr. Tepperman, Psychologist, Dr. Lubbers and a Functional Abilities Evaluation (“FAE”) by Physiotherapist, Dennis Polygenesis.¹³

33The FAE assessment noted that the applicant’s pre-accident vocation was rated at the Light Physical Demands Characteristic while his demonstrated functional ability exceeded that at the Medium Physical Demands Characteristic. The applicant did not report limitations with sitting or standing¹⁴ and neither Dr. Tepperman nor Dr. Lubbers found any physical or psychological impairments in the applicant that would cause a substantial inability to perform the essential tasks of his employment.

34The respondent further submits the applicant’s failure to return to work is solely due to the fact that he chose to pursue a degree in University in the Fall of 2016 and not as a result of the accident.¹⁵

35Other than the applicant’s submissions and case law he relies upon, he has not directed me to any evidence to support his submissions that he suffers a substantial inability to perform the essential tasks of his employment. Submissions alone are not evidence and with the onus being on the applicant to prove on a balance of probabilities, I am not persuaded that the applicant has a substantial inability to perform the essential tasks of his employment.

36The case law the applicant relies upon are Financial Services Commission of Ontario (“FSCO”) cases of Burgess v. Pembridge,¹⁶ Al-Shimasawi and Wawanesa,¹⁷ and Thangarasa and Gore Mutual,¹⁸ as well as the Supreme Court of Canada case of Smith v. Co-operators General Insurance Company.¹⁹

37I am not bound by FSCO case law, however I do not find them to be relevant to the matter at hand. The applicant relies on the Burgess case for the proposition that the applicant must be able to engage in employment in a competitive, real world setting, taking into account employer demands for reasonable hours and productivity. I do not find this relevant as the applicant has not provided evidence to show what essential tasks the he is able or unable to do.

38The applicant relies upon Al-Shimasawi in support of his position that the respondent has an ongoing responsibility to assess the condition of the applicant, and if the insurer denies a benefit it does not preclude the insurer from requesting an assessment in accordance with the Schedule. I do not find this case relevant as the respondent did request an IE of the applicant. It is not clear what medical evidence the respondent did not consider as I was not directed to it in the applicant’s submissions.

39The last FSCO case the applicant relies upon is Thangarasa in support of his position that that adjusters must read all available evidence including the treating practitioners and of the IE assessors before deciding whether or not to rely on the conclusions set out in the IE report. I also do not find this to be relevant to the case at hand as I was not directed to what evidence the applicant is suggesting the respondent did not review. The only medical documentation provided for the purposes of the hearing are the clinical notes and records of the family doctor and the OCF-3 and OCF-18. Other than notations of massage therapy from the family doctor, I was not directed to any evidence in support of the applicant’s submissions that he has a substantial inability to complete the essentials tasks of his employment.

40Lastly, the applicant relies upon the Smith case from the Supreme Court of Canada in support of his position that the Schedule is consumer protection legislation and that the insurer has a duty to treat an insured person fairly and reasonably. I agree with the Smith case and it is binding on the Tribunal however, I was not directed to any evidence of unfair or unreasonable treatment of the applicant by the respondent.

ORDER

41As a result of the above and on a balance or probabilities, I find that:

i. the applicant sustained predominately minor injuries as defined in the Schedule and he is subject to treatment within the MIG;

ii. as a result of being found to have injuries within the MIG and the MIG limits having been exhausted, there is no need to determine the reasonableness and necessity of the psychological assessment in the amount of $2,000.00;

iii. the applicant is not entitled to an IRB; and

iv. as there are no outstanding benefits, the applicant is not entitled to interest or an award.

Amended Release Date: April 24, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the Applicant at Tab 2, Disability Certificate (OCF-3) dated August 3, 2016.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
4. 4Written Submissions of the Applicant at Tab 2, Disability Certificate (OCF-3) dated August 3, 2016.
5. 5Written Submissions of the applicant at para. 16.
6. 6Submissions of the Respondent at Tab 1.
7. 7Ibid at Tab 4.
8. 8Dr. Lubbers Psychological Report dated January 3, 2017 at Tab 4, pages 8-9.
9. 9Section 5(1) of the Schedule.
10. 10Written Submissions of the Applicant at Tab 5.
11. 11Written Submissions of the Applicant at Tab 5, page 2.
12. 12Ibid at page 8.
13. 13Submissions of the Respondent at Tabs 16 and 17.
14. 14Ibid at Tab 6.
15. 15Ibid at Tab 8, Dr. Lubbers report dated December 15, 2016 at page 7.
16. 16FSCO A11-001160, June 14, 2013.
17. 17FSCO A05 B 002737, 2007-05-11.
18. 18FSCO A02 B 001360 (2005).
19. 192002 SCC 30, 2 S.C.R.