Citation: Nevena Veljovic vs. Certas Home and Auto Insurance Company, 2020 ONLAT 19-005714

Released Date: 08/21/2020

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:

Nevena Veljovic

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Zoran Samac, Counsel

For the Respondent:

Maggie Morgan, Counsel

Heard by way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Nevena Veljovic (“applicant”), was involved in an automobile accident on October 12, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by Certas Home and Auto Insurance Company (“respondent”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² The respondent also submits that, even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary. The applicant has applied to the Tribunal for dispute resolution.

PRELIMINARY ISSUE – APPLICANT’S FAILURE TO COMPLY WITH ORDER

3The respondent objects to the applicant filing Dr. Sadek’s records (“records”) because they were never served on the respondent contrary to the Tribunal’s January 9, 2020 Order which required service by January 31, 2020. The respondent submits that as a result the Tribunal cannot rely on the records. In reply the applicant provided proof of service of the records on the respondent on January 23, 2020. Therefore, I find that the records were served in time.

ISSUES

4The issues to be decided 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 $2,851.28 for chiropractic treatment recommended by In Motion Rehabilitation & Wellness Centre Inc. in a treatment plan (OCF-18) submitted on May 2, 2017, and denied on May 13, 2017?

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

RESULT

5The applicant sustained minor injuries under the Schedule and is subject to the $3,500.00 funding limit. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plan. The applicant’s request for partial payment of the treatment plan is dismissed. No interest is owed.

LAW

The Minor Injury Guideline

6The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

i. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

ii. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

ANALYSIS

9The applicant submits that she sustained numerous injuries as a result of the accident including headaches, WAD II neck strain/sprain, cervical disc disorder with radiculopathy, lumbar strain/sprain, left shoulder strain, bilateral knee sprain/strain, driving phobia, symptoms of anxiety/depression/concentration difficulties, non-organic sleep disorder, chronic fatigue and chronic pain. The applicant relies on the records of applicant’s family doctor, Dr. Sadek and In Motion Rehabilitation but this evidence does not support these injuries.

10I find that the applicant’s physical injuries are minor injuries. After the accident, the applicant did not seek medical treatment at hospital or from Dr. Sadek, and returned to her employment two days later. On November 10, 2016, the applicant reported the accident to Dr. Sadek and complained of neck pain, daily headache and “sleeping” in her right hand. Dr. Sadek offered to refer the applicant to an MRI but she refused. No diagnosis was made. The applicant saw Dr. Sadek in December 2016 but did not mention the accident.

11Dr. Sadek’s records do not mention the accident again between 2016 and December 2018, the date of the applicant’s last visit. Dr. Sadek’s records show various complaints in this two year period but Dr. Sadek does not link any of them to the accident. Specifically, Dr. Sadek noted “sleepy hands”, nightmares, and anxiety in February 7, 2017 and prescribed a wrist support and Seroquel. In March 2017, Dr. Sadek noted the applicant still has “sleepy hands” in the morning and cramps in her shoulders and legs, and he referred her to neurology. On April 22, 2017, Dr. Sadek noted the applicant feels anxious, can’t sleep, and asked for medication, which Dr. Sadek prescribed. On March 29, 2018, the applicant complained of “migraines daily” and was given a trial of Elavil. In August 2018, Dr. Sadek prescribed compression stockings and orthotics as “she stands a lot”. On December 7, 2018, Dr. Sadek noted the applicant’s left knee had been aggravated recently and was swollen. Dr. Sadek wrote “recent trauma: none” and sent the applicant for an x-ray and ultrasound. No imaging reports were filed for this hearing. On December 28, 2018, Dr. Sadek referred the applicant to Dr. Abbas, “orthopaedic”. No records of Dr. Abbas were filed for this hearing. Dr. Sadek did not link any of these complaints to the accident.

12All of the physical injuries suggested by the applicant, even if established to be accident related, would fall within the definition of “minor injury”. There is no evidence of any physical injuries other than soft tissue injuries. However, the applicant argues that psychological impairment or chronic pain remove her from the MIG.

Does the applicant have psychological impairment or chronic pain as a result of the accident?

13I find that the applicant has not met her burden of proof that she suffers from psychological impairment or chronic pain as a result of the accident justifying treatment beyond the MIG.

14Dr. Sadek did not diagnose any psychological impairment or chronic pain as a result of the accident and did not refer her to a chronic pain specialist, sleep specialist, psychiatrist or psychologist. The records of In Motion Rehabilitation do not contain any medical diagnosis.

15Although there is some reference to pain in the records of Dr. Sadek, there is no evidence before me of further investigation of psychological impairment or chronic pain. Further, the applicant’s reporting of pain and such possible psychological issues as anxiety, depression and sleep disorder pain is not continuous. It appears that the applicant’s pre-accident employment continued. The case cited by the applicant⁴ is not helpful as the proposition that chronic pain can take an applicant out of the MIG is not in issue here.

16Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that she suffers from psychological impairment or chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Medical Benefit: Are the treatment plans reasonable and necessary?

17Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the chiropractic treatment plan and cost of examination in dispute are reasonable and necessary.

18The applicant submits that even if her injuries are in the MIG, then $931.00 of the subject treatment plan should be ordered to be paid by the respondent. The applicant did not file the disputed treatment plan. Therefore, the applicant’s request for partial payment fails due to applicant’s failure to establish that the disputed plan exists, it’s terms and that it is reasonable and necessary.

Interest

19As no benefits are payable, no interest is payable.

ORDER

20For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plan. The applicant’s request for partial payment of the treatment plan is dismissed. No interest is payable.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 4Ali v. Certas Direct Insurance Co. FSCO