S.N. v. Certas Direct Insurance Company, 2020 CanLII 43644

Citation: S.N. vs. Certas Direct Insurance Company, 2020 ONLAT 18-012376

Released: June 17, 2020

Tribunal File Number: 18-012376/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:

S.N.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Aida Davari, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on July 29, 2017. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2The respondent refused to pay for part or all of the treatment as recommended in four treatment/assessment plans that the applicant submitted between August 2017 and January 2018. The applicant then applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

3The applicant’s position is that the chronic pain and psychological symptoms he suffered as a result of the accident, along with his pre-existing chest pains, “independently or in collaboration” prevent him from achieving maximal recovery within the Minor Injury Guidelines (the “MIG”). With respect to his rehabilitation, the applicant is of the position that the chiropractic, psychological assessment and attendant care treatment plans he submitted are reasonable and necessary. Finally, the applicant argues that the respondent has unreasonably delayed or withheld benefit payments, warranting a special award in favour of the applicant.

4The respondent argues that there is no basis for the applicant to receive benefits beyond those contained in the MIG. Therefore, according to the respondent, the applicant is ineligible for any of the treatment plans, and the respondent was not unreasonable in denying the applicant’s claims.

ISSUES

5The issues in dispute in this hearing are:

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

ii. Is the applicant entitled to a medical benefit in the amount of $3,327.60 for chiropractic treatment recommended in a treatment plan submitted on August 15, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $312.81 for chiropractic treatment recommended in a treatment plan submitted on January 17, 2018?

iv. Is the applicant entitled to a cost of examination in the amount of $1,230.92 for attendant care assessment as recommended in a treatment and assessment plan submitted on August 31, 2017?

v. Is the applicant entitled to a cost of examination in the amount of $2,000 for psychological assessment recommended in a treatment and assessment plan submitted on November 14, 2017?

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

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

RESULT

6I find that the applicant’s injuries are minor and he falls within the MIG. The evidence before me does not establish, on a balance of probabilities, any reason to exclude the applicant from the MIG. Given that result, it is unnecessary for me to address the balance of the issues. The application is dismissed.

BACKGROUND

7The applicant was involved in an accident near the [an intersection] in Mississauga on July 29, 2017. He was the front-seat passenger when the car he was in was rear-ended. There were no secondary collisions and neither police nor ambulance attended the scene. The airbags did not deploy. The applicant reports that though he did not hit his head, his head was jerked forwards and backwards. The applicant was working full-time as a machine operator at the time of the accident.

8On August 8, 2017, the applicant went to a walk-in clinic complaining of low backache and disclosed to the walk-in physician that he had been in an accident. It does not appear that the applicant ever disclosed the accident or complained of injury to his primary care doctor. The applicant visited [the clinic] on August 3, 2017, where Dr. Le completed an OCF-3 form (Disability Certificate). The OCF-3 form lists the applicant’s injuries and sequelae as:

a. Cervical spine strain/sprain;

b. Thoracic spine strain/sprain;

c. Post-traumatic headache;

d. Behaviour – other anxiety disorder;

e. Behaviour – other sleep disorder;

f. Elbow strain/sprain (bilateral);

g. Knee strain/sprain (right);

h. Ankle strain/sprain (right); and,

i. Chest contusion.

9Various clinicians at [the clinic] subsequently submitted OCF-18s on behalf of the applicant, of which the following were denied:

a. August 3, 2017 OCF-18 requesting $3,327.60 for chiropractic treatment;

b. August 30, 2017 OCF-18 requesting $1,230.92 for attendant care assessment;

c. November 7, 2017 OCF-18 requesting $2,000.00 for psychological assessment; and,

d. December 13, 2017 OCF-18 requesting $1,301.96 for chiropractic treatment (only partially denied).

ANALYSIS

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

10I find that the applicant sustained predominantly minor injuries in the July 29, 2017 car accident. The applicant has not satisfied, on a balance of probabilities, that the injuries he sustained in the accident, namely his psychological symptoms and chronic pain, take him out of the Minor Injury Guidelines (the “MIG”). I am also not satisfied that his alleged chest pain is a pre-existing medical condition that will prevent him from achieving maximal recovery within the MIG.

The Law

11The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule defines a minor injury as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation. A minor injury also includes any clinically associated sequelae to the injuries noted above. An applicant who falls within the MIG is eligible for up to $3,500 in medical and rehabilitation benefits. An applicant may escape the MIG under s. 18(2) if they can demonstrate that a pre-existing condition documented by a health practitioner prevents maximal medical recovery.

12The applicant in this case alleges that his injuries from the accident do not fall within the MIG. The applicant further alleges that his pre-existing chest pain prevents him from achieving maximal recovery within the MIG benefit amounts. The onus is on the applicant to prove his case on a balance of probabilities. It is not, as the applicant alleges, incumbent on the respondent to proffer contrary medical evidence in order for the Tribunal to dismiss the applicant’s case. I do not accept the applicant’s arguments for the following reasons.

The applicant’s physical injuries fall squarely within the MIG

13First, the evidence does not support a conclusion that the applicant suffered chronic pain or psychological symptoms as a result of the accident. With the exception of chest contusion, anxiety and sleep disorders, all the injuries noted on the OCF-3 are sprains/strains. These fall squarely within the definition of minor injury. There is no further evidence in any of the reports about the nature and extent of the chest contusion noted. Without any such evidence, the Tribunal cannot conclude that the contusion was anything more than a bruise.

14Notes from the applicant’s visit to a walk-in clinic support the conclusion that the applicant’s injuries fall within the MIG. He was assessed as having no tenderness and normal range of motion, with the likely diagnosis being whiplash. No contusion was noted, nor were any complaints of anxiety or difficulty sleeping.

Evidence of the applicant’s psychological impairment is unreliable

15Second, I find the evidence with respect to the applicant’s psychological symptoms to be unreliable. Dr. Le notes on the OCF-3 anxiety disorder and sleep disorder, but provides no further information about either, or how Dr. Le arrived at those diagnoses. Dr. Le is a chiropractor. I find that, absent any more information about Dr. Le’s qualifications, psychological diagnoses fall outside the realm of Dr. Le’s qualifications. I accord little weight to Dr. Le’s opinion in that respect. Dr. Le recommends a further psychological assessment.

16Dr. Shaul, a psychologist of the same clinic, conducted a psychological pre-screening on August 30, 2017. This pre-screening appears to conclude, based solely on a series of unrecorded questions, that the applicant needs an extensive psychological assessment. Dr. Shaul notes that the applicant self-reports pain, irritability, frustration, depression, sleep difficulties, social decline, cognitive decline, and nervousness which generally and specifically affect the applicant’s day-to-day functioning. Dr. Shaul does not, however, provide any diagnosis or assessment as to the actual psychological impairment from which the applicant might suffer.

17For this Tribunal to find that an applicant is removed from the MIG by virtue of psychological injury, the applicant must show an actual psychological impairment.¹ Some case law has required that the impairment be severe or extreme.² Self-reported symptomology, even when noted down by a psychologist, are not sufficient. Dr. Shaul did not conduct any tests or objective assessments of the applicant’s symptoms to determine what the underlying impairment might be.

18The November 7, 2017 OCF-18, signed by Dr. Shaul, yet completed by Dr. Hefford, does not assist the applicant. Dr. Hefford is a chiropractor and does not appear to be qualified to conduct psychological assessments. The OCF-18 was completed August 30, 2017, but submitted November 7, 2017, and contains no further information with respect to what might be psychologically ailing the applicant than the pre-screening. In fact, it, like the pre-screening, appears to just push diagnosis of the applicant further down the road.

19I also note, with some skepticism about Dr. Shaul’s thoroughness, that the respondent has identified a previous case before this Tribunal in which Dr. Shaul’s pre-screening report, similar to this one, was found to be insufficient to conclude that the applicant suffered from psychological injury. For these reasons, I find that the applicant has not established a psychological injury or impairment that would remove him from the MIG.

Evidence of the applicant’s chronic pain is unreliable

20Third, chiropractor Dr. Minnella’s assessment of the applicant’s chronic pain is the only evidence substantiating the applicant’s claim. I find it to be unreliable.

21On February 4, 2019, Dr. Minnella assessed the applicant’s injuries and impairments sustained in the accident. Dr. Minnella’s report was prepared at the request of counsel and in the context of litigation, 18 months after the injury. Dr. Minnella relied upon the OCF-18s submitted to date, the OCF-3, and clinical notes from Prime Health and the walk-in clinic the applicant attended.

22While I take no issue with Dr. Minnella’s credibility, there are inconsistencies within the evidence. The applicant appears to have not been forthcoming with Dr. Minnella about his hypertension and cardiovascular issues, as noted in his primary care doctor’s notes. This casts a shadow of doubt over whether the applicant was forthcoming in other parts of Dr. Minnella’s examination. Further, Dr. Minella concludes that the treatment plans submitted are reasonable and necessary to treat the applicant’s chronic pain, but at the same time states that referral to a chronic pain specialist is necessary to determine treatment options. Dr. Minnella is not a chronic pain specialist and does not appear to have any special training with respect to assessing or treating chronic pain.

23Most importantly, while Dr. Minnella determined that the applicant suffered from some reduced flexibility and pain in his back and neck, referring to it as chronic pain or chronic injury, he stopped short of diagnosing the applicant with chronic pain syndrome. This Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take an applicant out of the MIG.³ While an explicit diagnosis may not be necessary in the face of adequate evidence with respect to how chronic pain manifests and affects an applicant’s day-to-day life, there is little such evidence in Dr. Minnella’s report.

The applicant’s pre-existing chest pain does not satisfy the test in section 18(2)

24Lastly, section 18(2) of the Schedule provides that an applicant can fall outside of the MIG if his or her health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition, which will prevent the applicant from achieving maximal recovery with the $3,500 limit. The use of the term ‘compelling evidence’ does not change the burden of proof. It remains a civil standard, but the sufficiency of the evidence to meet that standard must be determined on the facts of each individual case.⁴

25Notes from the applicant’s primary doctor indicate that the applicant complained on several occasions of chest pain or chest tightness. The applicant’s primary care doctor conducted his own tests and referred the applicant to a cardiologist. In general, the investigation found that the applicant suffered from cardiovascular disease, possibly angina, coronary artery disease, and hyperlipidemia.

26Those complaints began in 2016, well before the accident. They are ‘pre-existing’. There is no evidence in any report, however, as to how this chest pain prevents the applicant from maximal recovery under the MIG, let alone compelling evidence as required under section 18(2) of the Schedule. The applicant argues that the chest contusion identified in the OCF-3 exacerbated his pre-existing chest pain. I find this difficult to believe. There is no evidence that the contusion went below the applicant’s skin, and the pre-existing chest pain has nothing to do with tissue damage. Further, none of the clinician’s notes indicate that the chest pain became worse after the accident.

27In sum, I find that the applicant’s injuries fall within the MIG, and there is insufficient evidence to exclude him from the MIG.

ii. Are the proposed treatment plans reasonable and necessary?

28Having found that the applicant is not excluded from the MIG, it is unnecessary for me to consider whether the proposed treatment plans are reasonable and necessary.

29Further, because the applicant is not entitled the proposed treatment plans, there is no basis on which to award interest to the applicant or order a special award against the respondent for unreasonable conduct.

30Finally, while cost awards under the Statutory Powers Procedure Act and this Tribunal’s rules are not tied to the outcome of a case, the outcome cannot be ignored in determining whether a party’s conduct is unreasonable, frivolous, vexatious, or in bad faith. In this case, the positions taken by the respondent in response to the applicant’s claims were warranted, as evidenced by the outcome of this decision. Further, there is nothing in the record to indicate the respondent acted frivolously or vexatiously during the course of the proceeding. There is no basis to award costs.

CONCLUSION

31For the reasons above, I find that the applicant falls within the MIG and is not entitled to the proposed treatment plans. Consequently, he is not entitled to interest, and no special award is ordered as against the respondent.

32The application is dismissed.

Footnotes

1. 117-004796 and 17-004801 v. Certas Direct Insurance Company, 2018 CanLII 97830, at paras. 24-27.
2. 217-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142.
3. 317-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, at para. 27.