L.D. v. Certas Home and Auto Insurance Company, 2020 CanLII 43088

Citation: L.D. vs. Certas Home and Auto Insurance Company, 2020 ONLAT 19-001472/AABS

Tribunal File Number: 19-001472/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:

L.D.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sahereh Baghbani, Paralegal

For the Respondent:

J.- C. Rioux, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on January 22, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The respondent determined the applicant’s injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Has the applicant sustained predominantly minor injuries as defined in section 3 of the Schedule, subject to treatment within the $3,500.00 limit in the MIG?

2. Is the applicant entitled to a medical benefit in the amount of $2,635.36 for chiropractic treatment recommended by Healthmax Physio Inc. (“Healthmax”) in a treatment plan dated November 20, 2017?

3. Is the applicant entitled to a medical benefit in the amount of $2,222.80 for chiropractic treatment recommended by Healthmax in a treatment plan dated May 15, 2018?

4. Is the applicant entitled to a medical benefit in the amount of $1,890.24 for chiropractic treatment recommended by Healthmax in a treatment plan dated June 14, 2018?

5. Is the applicant entitled to payment for the cost of examination in the amount of $2,460.00 for a chronic pain assessment, recommended by Healthmax in a treatment plan dated May 17, 2018?

6. Is the applicant entitled to expenses in the amount of $76.52 for the completion of an OCF-3 dated March 20, 2017?

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

8. Is the applicant entitled to an award pursuant to section 10 of Ontario Regulation 664?

RESULT

4On a balance of probabilities, I find the applicant’s injuries as a result of the accident are not predominantly minor injuries and are not subject to the $3,500.00 funding limit.

5The applicant is entitled to the disputed treatment plans plus interest.

6The applicant is entitled to an award in the amount of 40% of the amounts withheld.

BACKGROUND

7The applicant was the backseat passenger of a vehicle which was struck from behind while waiting at a red light. He did not seek medical attention immediately following the accident, but met his family physician, Dr. C. Abeysinghe, the following day. During his initial visit to Dr. Abeysinghe, the applicant reported no pain complaints. During his next visit with Dr. Abeysinghe, on March 28, 2017, the applicant complained of worsening lower back pain which was aggravated by bending. Dr. Abeysinghe diagnosed the applicant with a back sprain and prescribed diclofenac, a nonsteroidal anti-inflammatory, and a back brace for mechanical back pain. Around the same time, the applicant started treatment at Healthmax pursuant to the MIG.

8The applicant claims to suffer from chronic pain syndrome and submits chronic injuries are not included in the MIG. As a result, he submits he qualifies for medical benefits beyond the $3,500.00 funding limit for predominantly minor injuries.

THE MINOR INJURY GUIDELINE

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish on a balance of probabilities that the MIG, and the related funding limit, should not apply.

11I have reviewed the evidence and submissions and find the applicant suffers from chronic pain syndrome as a result of the accident. Chronic pain syndrome is not included in the minor injury definition. As a result, he is not subject to the $3,500.00 funding limit provided by section 18.

Evidence

12The applicant has met his onus to prove, on a balance of probabilities, that the MIG and the related funding limit should not apply. The chronic pain assessment report by Dr. K. Rod, physician, dated September 11, 2018 concludes the applicant suffers from chronic pain syndrome, various chronic sprain/strain injuries, and chronic mood disturbances. I find Dr. Rod is qualified to make a diagnosis of chronic pain. He is director of Toronto Poly Clinic, which is described as a multi-disciplinary pain management practice, and he states that his scope of practice was accepted by the College of Physicians and Surgeons of Ontario. The applicant also provided clinical notes and records (“CNRs”) of Dr. Abeysinghe which show he has ongoing low back pain following the accident, which is temporarily relieved by prescription medication. He also submits the CNRs of Healthmax, which span from March 17, 2017 to April 2, 2018 and document his ongoing complaints of back pain and the pain relief he feels following treatment.

13On the other hand, the respondent has failed to objectively refute the applicant’s evidence. The respondent never exercised its right to medically assess the applicant pursuant to section 44 of the Schedule. As a result, the respondent produced no evidence refuting the applicant’s claims.

14I accept the applicant’s subjective complaints of pain and resulting impairment throughout his medical record and in Dr. Rod’s report. While objective medical opinions are preferred over self-reported symptoms, such objective opinions are absent from the hearing record. Here, I have no evidence before me to contradict the applicant’s self-reports or to form the base of any criticism of Dr. Rod’s report.

15The respondent is right to be critical of Dr. Rod’s report and its concerns about the quality of the report have merit, however, it provides no medical opinion to refute Dr. Rod’s diagnosis and recommendation for additional multidisciplinary treatment to address the applicant’s chronic pain and chronic strain injuries. While I generally agree with the respondent that a report like Dr. Rod’s requires additional evidence to bring a claim outside the MIG, this position fails to appreciate that such cases, as in 17-007825 v Aviva, also had a medical opinion to refute the report¹. There is no medical opinion before me to contradict Dr. Rod’s opinion. While the respondent criticizes the methodologies of Dr. Rod’s assessment, the report is cogent in that it makes a reasonable connection between the applicant’s ongoing pain symptoms and its diagnosis of chronic pain syndrome. Dr. Rod conducted a clinical interview which included a disability questionnaire, reviewed the medical records provided, and conducted a physical assessment which included range of motion and strength testing. Considering that entitlement to medical and rehabilitation benefits is adjudicated on a balance of probabilities, and the fact there is a total lack of evidence to the contrary, I find Dr. Rod’s diagnosis of chronic pain syndrome and chronic mood disturbances is with merit, is uncontested and I accept it in the absence of any dissenting opinion.

16Chronic pain syndrome and psychological injuries are excluded from the minor injury definition and the $3,500.00 finding limit. Considering Dr. Rod’s diagnosis of chronic pain syndrome and mood disturbances, I find the applicant suffered injuries which are outside the definition of a minor injury and thus, not subject to the $3,500.00 funding limit on treatment.

MNM and Aviva

17The respondent submits that the applicant’s claim of chronic pain should be assessed against the six criteria described in the American Medical Association (“AMA”) Guides as set out in 17-007825 v. Aviva Insurance Canada. It submits the applicant does not meet the test for the requisite three or more out of six criteria. The applicant submits the test prescribed by the AMA is best administered by a medical professional, but in the event it is to be administered by the Tribunal, he submits he has demonstrated he meets at least three of the criteria. I agree with the applicant.

18I am not qualified to overrule the diagnosis and advice of a regulated medical professional in the absence of any opinion to the contrary. The AMA criteria is an excellent guideline but it is not the only standard in which one can be diagnosed with a chronic pain condition and, as a result, be removed from the MIG and no longer subject to the $3,500.00 funding limit. As it was in MNM v Aviva, the AMA criteria can be used to evaluate the veracity of competing opinions. In this matter, there is no other opinion than Dr. Rod’s, who found the applicant suffers from chronic pain syndrome.

19If I am wrong and the AMA criteria is the only standard in which chronic pain syndrome is diagnosed, I agree with the applicant and find the uncontested evidence before me demonstrates he meets at least three of the six criteria set out by the AMA. The criteria are:

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

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

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

4. Withdrawal from social milieu, including work, recreation, or other social contracts;

5. 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

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

20The applicant has an excessive dependence on his family, satisfying criterion two. Dr. Rod’s report notes the applicant has been unable to take part in household tasks and relies on family members for help, particularly with strenuous activities such as garbage removal and snow removal.

21The applicant has withdrawn from social milieu and recreational activities, satisfying criterion four. While the applicant has remained employed following the accident, which he submits is testament to his response from various treatments, Dr. Rod’s report notes the applicant’s social agenda has been limited due to his injuries, causing him to feel socially isolated.

22The applicant has not returned to pre-injury function, satisfying criterion five. Dr. Rod’s report notes the applicant reported difficulty completing the essential tasks of his employment as a result of ongoing back and right shoulder pain. Additionally, following the accident, the applicant began using a back brace at work to cope with ongoing pain.

23While it is unnecessary to consider because the applicant satisfied three of the six criteria, I must note that Dr. Rod diagnosed the applicant with chronic mood swings and recommended psychological therapy. There is no evidence before me to upset Dr. Rod’s conclusion. However, I am also aware that psychology may be beyond Dr. Rod’s specialty and there is no evidence of psychological investigation or testing conducted during the assessment.

THE DISPUTED TREATMENT PLANS AND CHRONIC PAIN ASSESSMENT

24I find, on a balance of probabilities, that the disputed treatment plans are reasonable and necessary in order to provide the applicant with pain relief and manage his chronic injuries and return to work.

25The applicant has met his onus to prove the disputed treatment plans are reasonable and necessary. He submits evidence of ongoing back pain which is aggravated by physical activity and relieved by massage therapy, physiotherapy, and chiropractic treatment. The CNRs from Healthmax note the applicant’s recurring complaints of shoulder pain and back pain, soreness, and tightness. They further note the applicant feels pain relief after engaging in treatment. The CNRs of Dr. Abeysinghe, the applicant’s family physician, also note the applicant’s recurring complaints of back pain, albeit on a less consistent basis than the records from Healthmax. In fact, the applicant’s back pain was severe enough that Dr. Abeysinghe prescribed Diclofenac and Amitriptyline. Additionally, as previously noted, the applicant also submits the chronic pain assessment report of Dr. Rod which diagnosed the applicant with chronic pain syndrome and recommended physiotherapy, chiropractic treatment, psychological treatment, and nerve block injections.

26The respondent led no evidence to contradict the recommendations from the medical professionals at Healthmax and Dr. Rod. As previously noted, the respondent’s criticism of Dr. Rod’s report has merit, but holds no weight in the absence of any medical opinion disputing Dr. Rod’s diagnosis and recommendations as well as those provided by the team at Healthmax.

27Dr. Rod’s chronic pain assessment report does not need to include comment on whether the disputed treatment plans are reasonable and necessary. Contrary to the respondent’s submissions, the applicant is not obliged to produce a report which speaks to the reasonable and necessary test set out in Rattan v Aviva². While Rattan v. Aviva provides a reasonable guideline, there is no specific formula to determine whether a treatment plan is reasonable and necessary, nor does the Schedule set one out³. Furthermore, commentary by medical experts on whether a treatment plan is reasonable and necessary is not required for the applicant to meet their burden.

28In any event, I find Rattan v. Aviva distinguishable from this matter. In Rattan v. Aviva, there were competing medical opinions on whether certain treatment was reasonable and necessary and the adjudicator weighed the opinions with consideration as to whether 1) the treatment goals are reasonable 2) the goals are being met to a reasonable degree and 3) the overall cost of achieving these goals is reasonable taking into considering both the degree of success and the availability of other treatment. Here, no weighing of competing opinions is required because the respondent led no evidence to the contrary.

29I note that it is unclear whether the applicant has incurred the costs of the disputed treatment plans. If he has incurred them, my finding that they are reasonable and necessary entitles him to payment for the goods and services plus interest. If he has not incurred these costs, he may now do so, and the respondent is liable to pay for them once properly invoiced.

THE OCF-3 DATED MARCH 20, 2017

30I find the applicant has failed to meet his burden to prove entitlement to the unpaid balance of the OCF-3 dated March 20, 2017. He submits that the OCF-3 was required to prove he needs further medical benefits; however, this is not the purpose of an OCF-3. Pursuant to section 36(2), an OCF-3, otherwise known as a disability certificate, is required to initiate a claim for specified benefits such as income replacement benefits. Here, the applicant makes no such claim - he returned to work following the accident.

INTEREST

31Pursuant to section 51(1) of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The disputed treatment plans are reasonable and necessary and remain unpaid. As a result, the applicant is entitled to interest on the incurred amounts.

AWARD

32Pursuant to section 10 of O. Reg. 664, the applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. I find the respondent unreasonably withheld or delayed the applicant’s entitlement to all the benefits claimed in the disputed treatment and assessment plans.

33I agree with the applicant and find the respondent unreasonably withheld or delayed payment of the medical benefits claimed in the disputed treatment plans because it has never given a substantiated reason to deny the benefits. Despite having the right to examine the applicant pursuant to section 44 of the Schedule, the respondent chose not to exercise this right and, instead, denied the applicant’s claims based on its own criticisms of the applicant’s evidence. The evidence presented by the applicant has merit and, in the event the respondent is unsure of or questions the veracity of the evidence, the respondent must contest it with competing or contrary medical evidence. It is unreasonable to deny the applicant’s entitlement to the medical benefits, which are supported by the evidence submitted, without any medical evidence to the contrary.

34The applicant claims to be entitled to 50% of all the withheld benefits for the reasons noted above. The respondent submits that no award is payable.

35While a successful applicant may be entitled to up to 50% of the amounts withheld, I find the applicant is entitled to 40%. I find this amount sufficiently recognizes that the respondent disregarded the applicant’s medical evidence in light of no competing opinion. Yet, the amount also recognizes the merit of the respondent’s concerns regarding Dr. Rod’s chronic pain assessment report which, consequently for the respondent, were never contested with another medical opinion.

COSTS

36The applicant seeks an Order for expenses of the hearing payable by the respondent. The respondent did not reply to the request.

37I dismiss the applicants request. Costs are only payable in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. I see no such behaviour on behalf of any party during the proceeding.

CONCLUSION

38Upon review of the submissions and medical evidence, I find that the applicant’s injuries as a result of the accident are not predominantly minor injuries and fall outside the MIG. As a result, the applicant is not subject to the funding limit prescribed by section 18 of the Schedule.

39The disputed treatment plans are reasonable and necessary. The applicant is entitled to payment for the goods and services incurred. Alternatively, he may incur the goods and services which has yet to do so and the respondent is liable to pay for same once properly invoiced.

40Pursuant to section 10 of Ontario Regulation 664, I award the applicant 40% of the amount withheld as I found the respondent unreasonably delayed or withheld payments claimed by the applicant.

41The applicant is not entitled to the unpaid balance of the OCF-3 dated March 20, 2017 because there is no evidence he sought an income replacement benefit.

42Interest is payable on the disputed treatment plans pursuant to section 51 of the Schedule.

43No party is entitled to costs.

Footnotes

1. 12018 CanLII 98282
2. 218-002880 v. Aviva Insurance Company, 2019 CanLII 40262 (ON LAT) at para. 26
3. 3M.L. v Aviva Insurance Company of Canada. 2019 CanLII 83886 (ON LAT)