M.S. v. Certas Direct Insurance Company, 2020 CanLII 42817

Citation: M.S. vs. Certas Direct Insurance Company, 2020 ONLAT 18-010139/AABS

Date: 06/08/2020

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:

[M.S]

Appellant

and

Certas Direct Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR: Rakesh Sharma

Appearances:

For the Appellant: Anastasiya Chepak, Paralegal

For the Respondent: Susannah Margison, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on August 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was a front seat passenger of a vehicle that was stopped at a traffic light when it was rear-ended by another vehicle. The applicant asserts that, as a result of the accident, she sustained physical and psychological impairments.

2The applicant applied for the medical benefits that were denied by the respondent on the basis that the applicant’s injuries were minor under the Minor Injury Guideline (the “MIG”²) of the Schedule, and therefore subject to a financial limit of $3,500. The applicant disagreed with the decision and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The parties participated in a case conference but were unable to resolve the issues in dispute, resulting in an Order from the Tribunal dated March 22, 2019 for a written hearing to be conducted on the issues listed below.

ISSUES IN DISPUTE

4The following are the issues to be decided at this hearing:

(i) Is the applicant’s impairments of a nature that falls within the MIG of the “Schedule”?

(ii) Is the applicant entitled to a medical benefit in the amount for $2,397.28 for psychological services recommended by Medex Assessments submitted March 19, 2018 and denied on March 22, 2018?

(iii) Is the applicant entitled to the cost of examination for $1,838.42 for a functional abilities evaluation recommended by Medex Assessments submitted June 2, 2017 and denied on June 13, 2017?

(iv) Is the applicant entitled to the cost of examination for $2,260 for a psychological assessment recommended by Medex Assessments submitted February 12,2018 and denied on February 14, 2018?

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

RESULT

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

(i) The applicant’s impairment is predominantly a minor injury and, therefore, the applicant remains within the MIG of the Schedule.

(ii) As the MIG limits have been exhausted, I do not need to consider the remaining medical issues in dispute under paragraph [4] (ii) to (v) above, and whether the treatment and assessment plans (OCF18) are reasonable and necessary or the issue of interest on any overdue payment.

MINOR INJURY GUIDELINE

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 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 section 3.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury to $3,500.

8The term “impairment” is defined under section 3(1) of the Schedule as a loss or abnormality of a psychological, physiological or anatomical structure or function.

9The onus is on the applicant to prove on balance of probabilities that the entitlement to medical benefits is not subject to the MIG and its prescribed limit of $3,500 for minor injuries.

(i) Did the applicant sustain predominantly minor physical injuries?

10Based on the parties’ submissions and the evidence submitted, I find that the applicant sustained a physical impairment that is predominantly a minor injury.

11The applicant asserts to be removed from the MIG as the physical impairments sustained were not minor injuries.

12The applicant, a 32-year-old female and personal trainer at the time of the accident, was a front seat passenger of a vehicle that was stopped at a traffic light on August 29, 2015. This vehicle was rear-ended by another vehicle. The applicant was 14 weeks pregnant at the time of the accident. The applicant was taken by ambulance to a local hospital. The hospital emergency report states, under diagnostic impression, “minor injuries.” The applicant was discharged after a few hours.

13The review of the intake report dated September 2, 2015 of the applicant’s treating clinic, [the Rehab Clinic] and the disability form (OCF3) dated September 16, 2015 indicates that the applicant sustained soft tissue injuries. The attendance sheet of [the Rehab Clinic] indicates a treatment period from September 2015 until October 2016. The clinical notes and records of the [the Rehab Clinic] state, “good feeling” and “feels much better due to treatment.”

14The clinical notes and records of the applicant’s family physician, Dr. Angelos Costaris, dated September 2, 2015 indicate that the applicant sustained soft tissue injuries. The next note of the family doctor that refers to the accident is dated May 30, 2017. The note states that the applicant is 13 weeks pregnant and has not fully recovered from the accident and had been treated by a chiropractor for a year. The next note of the family doctor that refers to the accident related injury was dated April 3, 2018. In the said note, the diagnosis was “Whiplash Associated Disorder – WAD.”

15The applicant also relies upon the letter dated August 9, 2017 of Dr. David Zeldin, MD of [The Medical Centre]. It states that the applicant continues to suffer from myofascial left-sided neck and parascapular pain, that these are common symptoms following a car accident of this mechanism, and that the applicant would benefit from ongoing physiotherapy, massage and possible acupuncture. The note does not indicate that these injuries are not minor injuries.

16The respondent asserts that based on the diagnosis of the applicant’s injuries by Dr. Costaris, Dr. Zeldin, and by the in-person examination conducted by the insurer assessors Dr, Mula, (MD) and Dr. Hosseini, (Physiatrist), the applicant’s injuries fall within the MIG. The respondent submitted the insurer examination report of Dr. Mula and of Dr. Syed Hosseini. The insurer examination report of Dr. Mula dated May 27, 2016 concluded that the applicant suffered predominantly minor injuries. The insurer examination report dated December 13, 2017 of Dr. Syed Hosseini concluded that the applicant’s injuries were predominantly minor injuries and that her physical impairments were secondary to soft tissue pain.

17I find the applicant in the written submissions did not dispute the conclusions drawn by the two insurer assessors in their reports dated May 27, 2016 and December 13, 2017. Both expert reports conclude that the applicant suffered predominantly minor injuries. Both experts have reviewed the medical evidence on record that the applicant relies upon, document social history, present complaints, medication, followed by a physical examination leading to a conclusion that the injuries suffered by the applicant were predominantly minor. I agree with the conclusions of both expert reports that opine that the applicant suffered predominantly minor injuries.

18Based on the review of the evidence before me, I find that the applicant sustained “minor injuries” as defined under the Schedule.

(ii) Did the applicant sustain a psychological impairment that removes her from the MIG?

19Based on the parties’ submissions and the evidence submitted, I find the applicant did not sustain a psychological impairment as a result of the accident.

20The applicant relied upon the expert report dated February 22, 2018 of Dr. Zack Cernovsky (Psychologist) and the clinical notes and records dated November 23, 2018 of Dr. Andrea Levinson (Psychiatrist) of the Centre for Addiction and Mental Health (CAMH) to substantiate that the applicant suffers from a psychological impairment. According to the applicant, a psychological impairment does not come under the definition of a minor injury under section 3(1) of the Schedule and, therefore, she should be removed from the MIG.

21The respondent relies upon the expert report dated February 12, 2018 and April 4, 2018 of the insurer assessor Dr. Wendy Campbell (Psychologist) to substantiate that the applicant did not suffer from a psychological impairment caused by the accident. Therefore, the applicant remains within the MIG. In addition, the respondent asserts that Dr. Levinson, of CAMH did not mention the accident as a causal factor for the assessment/ diagnosis in her clinical notes and records.

22Dr. Campbell administers a symptom validity test in order to ensure the accuracy of the applicant’s self-reporting and also by way of extensive review of the medical history and social history.

23Dr. Campbell produced a report after review of the prior medical history, medications, physical complaints, employment history, psychological functioning, substance use history, legal history, daily activities, social history, completion of clinical interview and psychological testing.

24Dr. Campbell concluded in the report that,

“In my opinion, I do not have objective, valid and reliable evidence which would support a diagnosable psychological condition in relation to the index motor vehicle accident with any degree of scientific certainty. In my opinion, the applicant does not require any mental health intervention/ formal psychological service at this juncture. The applicant’s accident related injuries fall within the treatment parameters of the Minor Injury Guideline from a psychological perspective”.³

25Dr. Cernovsky was in possession of Dr. Campbell’s report at the time of conducting his assessment and was aware of the issue of accuracy with the applicant’s self-reporting as revealed by the Symptom Validity test administered by Dr. Campbell. Dr. Cernovsky did not address the issue of accuracy with the applicant’s self reporting, before administering the tests based on self report of the applicant. Dr. Cernovsky issued his report dated February 22, 2018 based on a clinical interview and psychological testing. However, in Dr. Cernovsky’s report there is hardly any reference to the applicant’s prior medical history and the applicant’s history for almost 2.5 years post-accident. There is a concern about the reliability of the report as it states that recommendations and conclusions outlined in the report may change if the patient’s self-reporting is found to be inaccurate. Dr. Campbell’s “System Validity Test” administered to the applicant had identified issues with self reporting by the applicant.

26Dr. Cernovsky’s psychological diagnoses were: “Non organic insomnia disorder, Adjustment disorder (Anxiety and Depression). Post Traumatic Stress Disorder (PTSD) Post-Concussion Syndrome, WAD2, and not falling within the Minor Injury Guidelines (MIG) and recommended 8 one-hour sessions of psychological treatment”.

27Dr. Campbell’s, Psychological Paper Review Report dated April 4, 2018 reviewed Dr. Cernovsky’s psychological report dated February 22, 2018. Dr. Campbell observed that Dr. Cernovsky without the benefit of symptom validity testing, objective psychological measures or medical documentation review, concluded his diagnosis. Dr. Campbell did not change her opinion after reviewing Dr. Cernovsky’s report.

28I prefer Dr. Campbell’s report over Dr. Cernovsky’s report because the findings of Dr. Campbell flow from the review of the prior medical history, medications, physical complaints, employment history, psychological functioning, substance use history, legal history, daily activities, social history, behavioural observations, clinical and mental status examination followed by psychological testing.

29I concur with the conclusion of Dr. Campbell that the applicant does not have objective, valid and reliable evidence which would support a diagnosable psychological condition in relation to the accident with any degree of scientific certainty. The applicant’s accident-related injuries fall within the treatment parameters of the MIG from a psychological perspective.

30The applicant further relies upon the clinical notes and records dated November 23, 2018 of Dr. Andrea Levinson at CAMH to substantiate that she suffers from psychological impairments.

31Dr. Levinson at CAMH in her notes dated November 23, 2018 clarifies that it was not a psychological consultation but a consultation around diagnosis and care plan.

32The reason for the CAMH referral is documented in the family physician note dated September 25, 2018. The applicant complained of anxiety in caring for her two newborns. The note dated October 18, 2018 states that the applicant complained of struggling with her children, and specifically having anxiety and post-partum panic attacks. She was unable to manage arguments and to work as a personal trainer. She requested for employment insurance sick leave.

33The family doctor note dated October 22, 2018 documents counselling regarding personal issues. The family doctor completed the CAMH referral form dated October 2, 2018 mentioning the reason for referral as “Anxiety.”

34I find the referral from the family doctor to Dr. Levinson was for the applicant’s personal issues and was not accident related.

CONCLUSION

35Based on the evidence before me, I find that the applicant has not met the onus of proving on the balance of probabilities that, as a result of the accident, she sustained either physical or psychological impairments that were not predominantly minor injuries so as to be removed from the MIG.

36Since the applicant is held under the MIG and MIG limits have been exhausted, I do not need to consider the remaining medical issues in dispute under paragraph [4] (ii) to (v) above, regarding the treatment and assessment plans (OCF18) and whether they are reasonable and necessary, nor the issue of interest owing on any overdue payment.

Footnotes

1. 1O.Reg.34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s.268(1.1) of the Insurance Act
3. 3Respondent’s Written Submissions at Tab J, pgs. 114, 117.```