S. S. L. v. Certas Direct Insurance Company, 2020 CanLII 63593

Licence Appeal Tribunal

Citation: S. S. L. vs. Certas Direct Insurance Company, 2020 ONLAT 19-004473/AABS

Date: August 12, 2020

Tribunal File Number: 19-004473/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. S. L. Applicant

and

Certas Direct Insurance Company Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yu Jiang

For the Respondent: Sylvia Robin

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on January 27, 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 (the "MIG") and refused to pay for certain medical and income replacement 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 referred to me in this hearing are:

1. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
2. Is the applicant entitled to income replacement benefits ("IRBs") in the amount of $400.00 per week for the period from June 1, 2017 to-date and ongoing?
3. Is the applicant entitled to a medical benefit in the amount of $200.00 ($1,300.00, less $1,100.00 approved by the respondent) for a chiropractic treatment plan recommended by Toronto Rehab Clinic in a treatment plan dated April 13, 2017?
4. Is the applicant entitled to a medical benefit in the amount of $1,892.20 for a chiropractic treatment plan recommended by Toronto Rehab Clinic in a plan dated May 18, 2017?
5. Is the applicant entitled to the cost of examination in the amount of $2,200.00 for a psychological assessment recommended by Perfect Choice Psychology in a treatment and assessment plan dated August 3, 2017?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant withdrew her claims for the treatment and assessment plans.

5The characterization of the applicant's injuries – that they fall under the minor injury definition - cannot be a standalone issue when there are no medical or rehabilitation benefits in dispute.

6The applicant is not entitled to any IRBs or interest.

BACKGROUND

7The applicant was the driver of a vehicle which was navigating an underground parking garage with her husband as the only passenger. They encountered an oncoming vehicle in a narrow area and while her husband was attempting to exit the vehicle for reasons unknown, the oncoming vehicle drove past them and scraped the passenger side door that the applicant's husband had partially opened. The applicant reports to insurer's examination ("IE") assessors that she quickly turned her head to see the other vehicle, causing injury. However, she did not sustain any abrasion, bruises or lacerations, and denied any bodily impact inside the vehicle.

8A few days following the accident, Dr. G. Palantzas, chiropractor, completed a disability certificate on behalf of the applicant. Dr. Palantzas advised in the disability certificate that the applicant was unable to perform her pre-accident work duties and housekeeping and home maintenance due to headaches, and various soft tissue and psychological injuries and symptoms. The estimated duration of her disability was longer than twelve weeks. Notably, the clinical notes and records ("CNRs") from Dr. Palantzas or Toronto Rehab Clinic are not before me.

9A few months following the accident, on April 19, 2017, the applicant visited Dr. D. Shi, family physician, for the first time since the accident. The applicant complained of dull low back pain on and off since the accident. Dr. Shi examined the applicant and noted that she appeared well and that her back range of motion was within normal limits. Dr. Shi advised her to continue with physiotherapy and massage therapy and to take Tylenol as required. The applicant's next visit with Dr. Shi was on November 18, 2017, nearly eleven months post-accident, in which Dr. Shi declined to fill out an insurance form because the applicant only made one accident-related visit, which was the April 19, 2017 visit. There is no other information included in the November 18, 2017 entry.

10The list of claims forms in the IE's indicates that the applicant engaged in treatment at Toronto Rehab Clinic pursuant to the Minor Injury Guideline (the "MIG"). The applicant claimed entitlement to treatment beyond the $3,500.00 funding limit provided by the MIG however, she has withdrawn these claims for medical benefits and the costs of examinations.

11The remaining issues are whether the applicant suffered a minor injury as defined by the Schedule and whether she is entitled to IRBs.

THE MINOR INJURY GUIDELINE

12The 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.

13If an insurer deems an applicant's injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

14The applicant submits that her injuries should not be subject to the MIG because she has not recovered in the usual healing time seen with soft tissue injuries and suffers from chronic pain and psychological concerns. The respondent submits that the Tribunal lacks the jurisdiction to hear this issue because the MIG is a guideline and not a standalone issue entitled to a determination on its own under the Schedule.¹ The applicant was provided an opportunity to make reply submissions but chose not to.

15For the reasons cited in A.S. v Aviva and R.T. v. Certas Direct Insurance Company², and in absence of any reply submissions from the applicant, I find that the characterization of the applicant's injuries cannot be a standalone issue when there are no medical or rehabilitation benefits in dispute.

Income Replacement Benefits

16The applicant claims entitlement to IRBs and submits that she has failed to resume her duties as an event planner. She claims an inability to perform her duties which she submits include prolonged hours involving upper body and limb coordination as well as concentration and focus. She further submits that psychological injures prevent her from maintaining employment in a competitive industry.

17The respondent submits that the applicant has not met her burden of proof demonstrating her entitlement to IRBs. It further submits that the applicant's documents do not support her claim that she suffers a substantial inability to perform the essential tasks of her pre-accident employment.

18Pursuant to section 5 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment.

19I find that the applicant is not entitled to IRBs because there is no compelling evidence to support her claim that she is disabled from working as an event planner.

20The applicant provided four documents for this hearing;

1. a disability certificate completed by Dr. G. Palantzas, chiropractor, dated February 1, 2017;
2. a disability certificate completed by Dr. G. Palantzas, chiropractor, dated November 27, 2017;
3. an employer's confirmation form dated January 30, 2017; and
4. CNRs from Dr. D. Shi, family physician.

21The documents provided are not compelling evidence that the applicant is disabled from working. The disability certificates completed by Dr. G. Palantzas note that the applicant is unable to complete her work tasks as a result of headaches and numerous soft tissue and psychological injuries. However, these documents contain no information as to what the applicant's work tasks are, nor do they indicate the extent of the applicant's disability. The employer's confirmation form only provides information regarding the applicant's employer and her compensation from employment. Lastly, Dr. Shi's CNRs include only one relevant accident-related visit, during that the applicant complained of dull, on and off, low back pain. One complaint of inconsistent low back pain is insufficient evidence to prove an inability to complete the work tasks of an event planner. The applicant is required to identify her essential tasks of employment and show that her accident-related injuries impair her from completing substantially all those tasks. She has not done that during this hearing.

22The two IE assessment reports are persuasive and find that the applicant is not disabled from working. Dr. J. Castiglione, physician, examined the applicant and produced a report of the results dated July 12, 2017. Dr. Castiglione found no evidence to reasonably support that the applicant sustained any physical injury of any kind and concluded "(w)ith complete certainty I can say that her current complaints have no association with the accident." In the report, Dr. Castiglione also noted that the applicant reported to have returned to work in May 2017 and started self-employment a month after that. Dr. M. M. Sapienza, psychologist, examined the applicant via clinical interview and psychometric testing and produced a report dated September 8, 2017. The applicant's overall score on the validity testing administered was above the cut-off range, indicating a high probability of malingering and/or symptom magnification. Dr. Sapienza found that the symptoms presented and reported by the applicant are excessive and out of proportion to the accident. Dr. Sapienza concluded the report by stating that the "subject accident did not result in a permanent or serious impairment of an important mental or psychological function and was by all accounts an extremely minor, slow speed motor vehicle collision."

23The evidence is clear in that the applicant suffered no physical or psychological impairment which would prevent her from completing her essential tasks of employment. As a result, she is not entitled to IRBs.

INTEREST

24Interest is payable on any overdue payment of benefits pursuant to section 51 of the Schedule. The applicant is not entitled to any interest as no payments went overdue.

CONCLUSION

25The characterization of the applicant's injuries cannot be a standalone issue when there are no medical or rehabilitation benefits in dispute.

26There is no compelling evidence to support the applicant's claim for IRBs or interest.

Footnotes

1. 1A.S. v. Aviva Insurance Canada, 2019 CanLII 51335 (ON LAT)
2. 22020 CanLII 12782 (ON LAT)