D.A. v. Certas Direct Insurance Company, 2020 CanLII 40344

Citation: D.A. vs. Certas Direct Insurance Company, 2020 ONLAT 19-002274/AABS

Released Date: 05/28/2020

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.

Between:

D. A.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: [D.A.], Applicant Natalia Poliakova, Counsel

For the Respondent: Maggie Morgan, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on November 1, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a hearing.

ISSUES IN DISPUTE

3The issues in dispute were identified and agreed to as follows:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to an income replacement benefit, in the weekly amount of $400.00, for the period of April 1, 2017 and ongoing, submitted on November 8, 2016, denied on April 1, 2017?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,198.00 for chiropractic treatment recommended by Dr. Nayeri, in a treatment plan (OCF-18) submitted on April 12, 2017, and denied on May 1, 2017?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,330.00 for medical services, recommended by Humber River Medical Diagnostics, in a treatment plan (OCF-18) submitted on September 12, 2018, and denied on September 19, 2018?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for medical services, recommended by Finch Health Centre, in a treatment plan (OCF-18) submitted on December 20, 2018 and denied on December 22, 2018?

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

RESULTS

4The applicant sustained predominantly minor injuries as defined under the Schedule

5The applicant is not entitled to any medical benefits claimed.

6The applicant is not entitled to any interest.

BACKGROUND

7The applicant was involved in an accident on November 1, 2016. He was taken to Sunnybrook Health Sciences Centre where he complained of chest pain and shoulder pain. A CT of the chest showed an old left clavicle fracture and multilevel degenerative disc changes. He was sent home and told to see his family doctor.

8Dr. Peirovy, family doctor, sent the applicant for an ultrasound of the shoulder when the applicant complained of shoulder and chest pain, on November 10, 2016. The medical findings showed mild supraspinatus and infraspinatus tendinosis and infraspinatus calcific tendinitis.² Dr. Peirtovy saw the applicant five times between November 1, 2016 and May 2, 2019 for neck and left shoulder pain. There is no medical reference to any psychological complaints.

9On November 11, 2016, Dr. Nayeri completed an Disability Certificate (OCF-3) indicating that the applicant had: whiplash associated disorder with complaint of neck pain with musculoskeletal signs ,shoulder, specific strain of shoulder joint, sprain and strain of lumbar spine, and chest pain unspecified.³ These were also the findings of Dr. Brooks.⁴ The applicant had suffered a fractured left shoulder in 2012 following a fall. There are no medical records showing any ongoing complaints.

10The applicant saw Dr. D. Wong, a neurologist, on February 13, 2017. An x-ray taken at this time revealed mild degenerative disc disease at C4-5, C5-6, and C6-7 and prominent anterior osteophytes at C5 and C6.⁵ Farooq Ismail, physiatrist, in a report dated March 28, 2017, diagnosed the applicant with soft tissue injuries of his cervical spine (WAD 2) and his left shoulder with no objective musculoskeletal or neurological impairment that would necessitate further diagnostic tests, investigations, or other medical or rehabilitation interventions.⁶

11Dr. M. West, physician, in a treatment plan dated September 12, 2018 listed the applicant’s injuries as: whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs; sprain and strain of shoulder joint; sprain and strain of lumbar spine and chest pain unspecified.⁷

12Dr. D. Brooks completed a treatment plan (OCF-18), on December 20, 2018 for a Chronic Pain Assessment. Dr. Brooks opined that the applicant’s physical condition and clinical status fit the picture of Chronic Pain Syndrome.⁸

ANALYSIS

Did the applicant sustain predominantly minor injuries as defined under the Schedule?

13I find that the applicant sustained predominantly minor injuries, as defined under the Schedule for the reasons set out below.

14Section 3(1) of the Schedule defines a minor injury as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00. The $3,500.00 limit on medical and rehabilitation injuries will not apply, however, if the applicant shows that he suffered from a pre-existing medical condition that prevents him from reaching maximum medical recovery.

15Chronic pain can be a sequelae of soft tissue injuries.⁹ In order for an applicant to be removed from the MIG based on chronic pain, the applicant is required to prove that his chronic pain is not merely sequelae of the soft tissue injuries, but that it is the applicant’s predominant injury.¹⁰ A diagnosis of chronic pain without any discussions of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that chronic pain is more than a sequelae.¹¹

16There has been no evidence put before the Tribunal of any discussion of the level of pain, its effect on the applicant’s function or whether the pain is bearable without treatment.

17In addition, there is no evidence before the Tribunal that the applicant has met any three of the criteria for a diagnosis of chronic pain, set out in the case of M.N.M. and Aviva Insurance, Tribunal file No; 17-007825/AABS. That case sets out six criteria described in the American Medical Association (“AMA”) Guides which state that at least three of them must be met for a diagnosis of chronic pain:

a. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse or family;

c. Secondary physical deconditioning due to disuse and/ or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu including work, recreation, or other social contacts;

e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and,

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behavior.

18Dr. Brooks did not discuss these criteria in his analysis of Chronic Pain Syndrome. The applicant has not met the criteria set out above.

19The onus is on the applicant to prove its case, on the balance of probabilities, which he has not done.

Is the applicant entitled to an income replacement benefit, in the weekly amount of $400.00, for the period of April 1, 2017 and ongoing, submitted on November 8, 2016, denied on April 1, 2017?

20Neither party has addressed this issue in their written submissions, so I will take it that this issue has been resolved. I have not been provided with evidence to determine the applicant’s entitlement to an IRB.

Medical Benefits

21Pursuant to section 15 of the Schedule, an insurer is only liable to pay for incurred medical expenses that are reasonable and necessary.

Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,198.00 for chiropractic treatment recommended by Dr. Nayeri, in a treatment plan (OCF-18) submitted on April 12, 2017, and denied on May 1, 2017?

22I find that the expenses in the treatment plan are not reasonable and necessary for the reasons set out below.

23This treatment plan was for chiropractic treatment. The applicant had attended chiropractic treatment for a total of 21 times between November 11, 2016 and April 26, 2017.¹² Under part 9 of the treatment plan, Dr. Nayeri noted that the applicant had decreased pain and inflammation; improved ranges of motion, strength endurance and posture; and further improvements. No specific details were provided with respect of the improvements.¹³

24Dr. F. Ismail diagnosed the applicant, as set out in his report dated March 28, 2017, with soft tissue injuries of his cervical spine (WAD 2) and his left shoulder with no objective musculoskeletal or neurological impairment that would necessitate further diagnostic tests, investigations, or other medical or rehabilitation interventions.

25The reports of Dr. Ismail, Dr. Peirovy, and Dr. Nayeri are all consistent in their findings of soft tissue injuries.

26There are no medical reports to suggest that further intervention is necessary. Dr. Ismail states the opposite that no further interventions are not necessary

Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,330.00 for medical services, recommended by Humber River Medical Diagnostics, in a treatment plan (OCF-18) submitted on September 12, 2018, and denied on September 19, 2018?

27I find that the expenses in the treatment plan are not reasonable and necessary for the reasons set out below.

28This treatment plan was for an orthopaedic assessment. There are no medical reports to suggests that further intervention is necessary. The reports of Dr. Ismail, Dr. Peirovy, and Dr. Nayeri are all consistent in their findings of soft tissue injuries. Dr. Ismail states that no further interventions are not necessary. The family doctor, Dr. Peirovy, made no referrals to any orthopaedic specialists and made no recommendations for an orthopaedic assessment.

Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for medical services, recommended by Finch Health Centre, in a treatment plan (OCF-18) submitted on December 20, 2018 and denied on December 22, 2018?

29I find that the expenses in the treatment plan are not reasonable and necessary for the reasons set out below.

30The OCF-18 submitted in the treatment plan was for a chronic pain assessment. Part 6 of the treatment plan listed the applicant’s injuries as: whiplash associated disorder with complaint of neck pain with musculoskeletal signs; dislocation, sprain and strain of joints and ligaments of shoulder girdle; sprain and strain of lumbar spine; sprain and strain of other and unspecified parts of knee, sprain and strain of other and unspecified parts of thorax; malaise and fatigue; disorders of initiating and maintaining sleep and dizziness and giddiness.¹⁴

31The reports of Dr. Ismail, Dr. Peirovy, and Dr. Nayeri are all consistent in their findings of soft tissue injuries. The applicant’s family doctor, Dr. D. Peirovy made no recommendations for a chronic pain assessment.

32I find that there is no medical evidence to have a chronic pain assessment.

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

33The applicant is not entitled to any interest as no benefits are owing.

CONCLUSION

34For the reasons set our above, the applicant’s application is dismissed

Footnotes

1. 1O. Reg. 34/10.
2. 2Clinical Notes and records of Dr. J. Peirovy Applicant Hearing Record Tab 3.
3. 3Clinical Notes and records of Dr. J. Peirovy Applicant Hearing Record Tab 3.
4. 4Medical report of Dr. David Brooks Applicant Hearing Record Tab 3.
5. 5Ibid.
6. 6Response to medical recommendations dated December 22, 2018 Tab 2P
7. 7Treatment and assessment Plan dated September 12, 2018 Tab 2M
8. 8Medical report of dr. D. brooks Applicant’s hearing record Tab 3.
9. 9B.U. v. Aviva, 2015 CanLII 96167(ONT LAT) Tab 9.
10. 10LJ v. TD Insurance, 2018 CanLII 13142(ONT LAT) Tab 10.
11. 11YXY v. The Personal, 2017 CanLII 59515 (ONT LAT) Tab 11.
12. 12Clinical Notes and Records of Dr. Hooman Nayeri from November 11, 2016 to April 19, 2017 Tab 2J.
13. 13Treatment and Assessment Plan dated April 12, 2017 Tab 21,
14. 14Treatment and Assessment plan dated December 20,2018 tab 20