Released Date: 08/12/2020
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:
A.S Applicant
and
Certas Home and Auto Insurance Company Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam
APPEARANCES:
For the Applicant: Clifford Singh, Counsel
For the Respondent: Katie Stanger, Counsel
HEARD: By Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1[A.S] ("applicant"), was involved in a motor vehicle accident on December 15, 2009 ("accident") and sought benefits from Certas Home and Auto Insurance Company ("respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 At the time of the accident she was 19 years of age.
2In October 2012, the applicant was in another motor vehicle accident ("second accident").
3The applicant was denied benefits by the respondent and she submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("Tribunal") on May 11, 2019. The respondent paid some $9,000.00 in medical and rehabilitation benefits and some $3,000.00 for cost of examinations.
Which Version of the Statutory Accident Benefits Schedule Applies?
4The applicant relies on s. 25 (1) 5 of the current Schedule. The respondent submits that s. 24 of the Schedule in force at the time of the applicant’s accident applies.2
5I find that the applicant’s entitlement to the cost of examinations is governed by the current Schedule. The Schedule has been amended many times since first introduced and the issue of applicability of amendments to earlier accidents has been addressed before. An applicant has no vested right to determination of benefits under the Schedule as it was at the time of the accident.3
6This is made clear by s. 268(1) of the Insurance Act which provides that every motor vehicle liability policy, including such contracts in force when the Schedule is amended, are deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. The Supreme Court of Canada has stated that legislative retrospectivity is undesirable where either vested or substantive rights could be affected.4 The applicant’s right to benefits, if injured in the accident, did not vest at the time of the accident because her right to benefits was contingent on established ongoing need, services provided and expenses incurred. Therefore, in this case, the amendment to the Schedule after the accident changed the future legal effect of an ongoing situation, making the change to the legislation prospective and not retrospective. In other words, as stated by the Tribunal before, if s. 24 of the 1996 SABS was intended to apply prospectively then the transitional rules would have defined and allowed for such application.5
PRELIMINARY ISSUE – Applicant’s Late Production of Documents
7The respondent raises as a preliminary issue that the applicant has included documents within her submissions at tabs 9, 10, 11, 12, 15, 18, 19 and 21 that were produced to the respondent on April 14, 2020 in breach of the Tribunal’s case conference Order which ordered production by March 26, 2020. The respondent submits this has prejudiced the respondent’s ability to know the case it has to meet and requests that, taking this prejudice into consideration, less weight be given to this evidence.
8Although a breach of a Tribunal Order is always a serious matter, the respondent did not request these documents be disregarded and elected to proceed with the hearing. Therefore, these documents will be assessed in the usual course.
ISSUES
9The issues to be decided in this hearing are:
i. Is the applicant entitled to payments for the cost of examinations in the amount of $24,400.00 for a catastrophic assessment ("CAT assessment), recommended by Novo Medical Assessments in a treatment plan submitted May 10, 2018?
ii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,881.50 for a Physiatry Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted January 15, 2018 and denied by the respondent on February 12, 2018?
iii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,486.00 for a Financial Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted January 15, 2018 and denied by the respondent on February 12, 2018?
iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,486.00 for a Functional Abilities Examination ("FAE") Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted January 15, 2018 and denied by the respondent on February 12, 2018?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10The applicant is not entitled to the costs of examinations as claimed. No interest is payable. The applicant’s application is dismissed.
LAW
11Section 25 (1) 5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured charged for preparing an application under s. 45 for a determination of whether the insured has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 45 (1) provides that an insured who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
12Section 25 (5) (a) provides that the insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and the preparation of the related report. The applicant bears the onus of proving the reasonableness of the assessments claimed.
13Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.
ANALYSIS
Are the Disputed Costs of Examinations Reasonable and Necessary?
14The applicant submits that all the disputed costs of examinations are reasonable because more than 10 years since the accident the applicant continues to experience ongoing pain with no lasting improvement and has been suffering with crippling psychological, cognitive and emotional symptoms and stressors. The applicant relies on the reports and records of the following: Dr. Pilowsky, the applicant’s psychotherapist; the applicant’s physicians - Dr. Emad, Dr. Wang, Dr. Banjo and Dr. Okonkwo - at Grand River Hospital, K-W Urgent Care Clinics, and Spinetec physiotherapy facility; Brenda Labron, the applicant’s occupational therapist; Counselling Collaborative Program, Vitality Rehabilitation and Wellness the respondent’s assessors Dr. Weisleder, orthopaedic assessor, and Dr. Sivasubramanian, psychiatrist, Dr. Heitzner, physiatrist.
15The respondent submits that the applicant has failed to discharge her onus to demonstrate that the cost of examinations in dispute are reasonable. The respondent argues they are not reasonable and the respondent should not be required to fund them. The respondent also submits that the evidence demonstrates that the applicant has no impairment from the 2009 accident and that any residual symptoms arose solely from the second accident in 2012.
Is Applicant Entitled to $24,400.00 for Catastrophic Impairment ("CAT") Assessment?
16I find that the applicant is not entitled to payment of $24,000.00 for the CAT assessment because there was no reasonable basis to investigate whether the applicant is catastrophically impaired. There is insufficient objective medical evidence to suggest the applicant may have a whole person impairment of 55% or greater. Even bearing in mind that, by their nature, assessments are speculative and are conducted to determine if an applicant has a specific condition or meets a specific threshold, there must be some suggestion that the specific condition exists and arose from the accident and that further investigation is reasonable. That is lacking here. The CAT assessments include OT, neurology, neuropsychiatric consultation, cognitive, testing mental health, orthopedic and chronic pain. The CAT assessment also includes a summary at a cost of $2,000.00 each and $200.00 for the treatment plan (OCF 18) and $200.00 for catastrophic application (OCF 19) plus review of medical records plus tax. There is no evidence that the applicant has ever submitted a catastrophic application.
17Although the applicant says she experienced pain throughout her body, began to develop severe migraines approximately one week post-accident, was prescribed Tylenol #3 by her family physician and was referred for physiotherapy, the records of Dr. Abdalla, her family doctor, do not show this. The applicant did not bring forward any medical records from the time of the accident showing that she was treated for injuries from the accident by any physician. The applicant was employed after the accident until the second accident and after the accident she was able to live alone and perform activities of daily living including cleaning, cooking, grocery shopping, laundry and other household tasks.
18It was not until after the second accident that the applicant participated in any assessments. As a result, there is insufficient evidence to establish on a balance of probabilities that the applicant suffered physical injuries with ongoing pain and little improvement or crippling psychological, cognitive and emotional symptoms as a result of the accident as argued by the applicant. There is no medical evidence pre-2012 that the applicant sought or received any medical treatment or diagnosis for any injuries resulting from the accident. The applicant admits that prior to the accident she had no pre-existing physical, cognitive or psychological symptoms or conditions. Grand River Hospital records from March 2014 also show the applicant suffered a head injury after striking her head on ice and was experiencing dizziness.
19After the second accident in 2012, the applicant obtained medical treatment. The respondent argues that an adverse inference should be drawn against the applicant in relation to causation and the costs of assessments in dispute because the applicant has not produced the entire 2012 accident benefits file and therefore it is unknown what other assessors may have concluded, what benefits were funded by the second insurer or the status of the applicant’s claim. I disagree. Firstly, the onus of proof is on the applicant and she bears the risk that she has failed to bring forward sufficient evidence to establish her case. Secondly, the respondent could have sought an Order for production but did not do so.
20The applicant relies on excerpts from a report by Dr. Pilowsky, the applicant’s psychotherapist. Dr. Pilowsky’s notes show the applicant received some treatment with Dr. Pilowsky after the second accident. Given that the applicant did not file all of Dr. Pilowsky’s report I give it no weight.
21Many of the medical records the applicant relies on are based on the applicant’s self-reporting years after the accident. On January 24, 2012, [the Clinic] ("KW") recorded the applicant complained of left shoulder and leg pain and requested x-rays and pain management. Although the clinic noted, "Injury 2 yrs ago from ? MVA. Pain off and on since", this appears to be based on the applicant’s self-reporting and the presence of the question mark would tend to indicate it may be questioned by the clinic. In July 2013 and February 2015, back pain was diagnosed at KW but this record does not clearly link the back pain to the accident as opposed to the second accident and the reference to back pain since 2009 is noted to be self-reporting. On July 23, 2013, Dr. Emad, the applicant’s physician, noted that the applicant complained of a sore back since the car accident in 2009 and prescribed medication. Again, this note is unpersuasive as it based on the applicant’s self-reporting more than three years after the accident. The applicant self-reported to Dr. Emad: "chronic pain/abdella, has issues with back pain since 2009". The applicant’s lumbar spine x-ray was normal. In September 2016, Brenda Labron, the applicant’s occupational therapist, wrote to Dr. Abdalla that the applicant reports multiple and significant symptoms of anxiety and depression and that "she reports these began after the 2009 accident as the pain and cognitive issues caused a fear of the future". I give all of these records little weight because they are based on the applicant’s self-reporting many years after the accident. Further, Ms. Labron’s life care plan dated September 29, 2016 references the date of loss as the date of the second accident.
22On August 4, 2017 Dr. Wang, applicant’s family physician, diagnoses depression/anxiety and prescribes counselling and medication. Dr. Banjo, applicant’s psychiatrist at [the Hospital], in February 2019, diagnosed major depressive disorder mixed with anxiety disorder (generalized anxiety disorder, social anxiety), gave her supportive therapy and suggested Cymbalta. Dr. Okonkwo, applicant’s outpatient adult mental health physician at [the Hospital] in September 2019 diagnosed high anxiety with depressive symptoms, polysubstance use disorder, possibly anxiety and depressive symptoms secondary to substance use and generalized anxiety with panic attacks and restarted her on Cymbalta and Mirtazapine. Neither Dr. Banjo or Dr. Okonkwo attribute her psychological condition solely to the accident although they do note her self-reporting about it. These and other [Hospital] records of various dates do not establish a need for the CAT assessment.
23The February 2015 records of Spinetec Health Care Solutions, physiotherapy provider, referenced both the accident and the second accident, specifically the onset of pain in 2009, and "much worse in 2012". None of the physiotherapy records or those of Counselling Collaborative Program, Vitality Rehabilitation and Wellness sufficiently establish medical conditions from the accident to warrant the CAT assessment.
24Although the applicant relies on the March 2015 report of Dr. Weisleder, the respondent’s orthopaedic assessor, I find this report does not establish that the CAT assessment is reasonable. Dr. Weisleder, diagnosed closed head injury, cervical strain, thoracic strain and lumbar strain injuries as a direct result of the accident but opined that the applicant has reached pre-injury status apart from some residual pain and stiffness in the region of her neck, should, upper back and lower back. The applicant argues that this infers that Dr. Weisleder is acknowledging the applicant’s injuries should have already resolved but have not. I find this argument unpersuasive. Dr. Weisleder’s opinion is clear and the suggested inference does not constitute medical evidence.
25Similarly, I find that the report of Dr. Sivasubramanian, respondent’s psychiatrist, does not establish that the CAT assessment is reasonable. Although in August 2015, Dr. Sivasubramanian diagnoses major depressive disorder of mild severity as well as a specific phobia (passenger and driving anxiety) with an overlay of substance use disorder, he opined that her major depressive disorder, mild severity, has likely already stabilized and her specific phobia continues to slowly but progressively improve over time. The purpose of Dr. Sivasubramanian’s assessment is to evaluate the applicant with respect to two treatment plans not in issue in this hearing. More importantly, Dr. Sivasubramanian’s report is not helpful here because it does not address causation between the accident and the second accident.
26I also find that the November 2016 report of Dr. Heitzner, the respondent’s physiatrist, does not establish that the CAT assessment is reasonable. Dr. Heitzner expressly rejects the notion of further investigations. Dr. Heitzner finds that from a musculoskeletal point of view, the applicant has a very good range of motion with no objective neurological impairments but she reports chronic pain to the left side of her neck, left mid back, left lower back. Dr. Heitzner found "she has pain on palpation in the areas of concern, in the background of high perceivable disability pain behaviours and inconsistencies on physical examination…At this time, her main complaint is psychological in nature…From a musculoskeletal perspective I do not believe that she requires any further intervention, pain medication or investigation as a result of the MVA related impairments."
27Taken together, the weight of the applicant’s medical evidence does not suggest catastrophic impairment levels. Although the applicant may have sustained some injuries in the accident and undergone some physical therapy as a result, there is no evidence that they were not minor. The applicant relies on medical records, reports and assessments in 2012 to 2019 to establish that the CAT assessment submitted in 2018 is reasonable for injuries attributable to the accident. None of this evidence is persuasive because of the number of years between these records and the accident. Reliance is placed in many of these records on the applicant’s self-reporting many years later about the 2009 accident, making these records unreliable. Further, the delay of more than eight years before the applicant submitted the disputed assessment, coupled with the intervening second accident in those years make it unlikely that there is any causal connection between the accident and the need for further assessment in 2018 in the absence of persuasive pre-2012 medical evidence. The CAT assessment is therefore not reasonable.
28I also find that the overall cost of the CAT assessment is not reasonable. The cost of $24,000.00 is unreasonable given the lack of evidence that such assessment is warranted and the lack of evidence establishing a causal connection between the assessments and the accident.
29I find that the applicant has not established that the CAT assessment is reasonable with respect to injuries resulting from the accident and that the applicant is not entitled to payment of $24,000.00.
Is the Applicant Entitled to $2,881.50 for Physiatry Assessment, $2,486.00 for a Financial Assessment and $2,486.00 for Functional Abilities Examination ("FAE") Assessment?
30The applicant relies on the above medical evidence in support of her claims for the costs of these three assessments.
31I find that the applicant is not entitled payment of the physiatry assessment because she has not established, on a balance of probabilities and with sufficient medical evidence, that it is reasonable and necessary. The applicant relies on Dr. Heitzner’s report. However, Dr. Heitzner opines that the applicant does not require any further investigation as a result of the MVA related impairments. This is supported by the 2014 post-second accident report of Dr. Khaled, general practitioner, relied on by the respondent. In that report, Dr. Khaled opined, "I am aware that the insured had a prior accident in 2009 but the injuries from that accident were soft tissue injuries only and had largely resolved prior to the subject motor vehicle collision." Based on these two reports, which I find more persuasive than the applicant’s medical records, I find that the weight of the medical evidence establishes that the applicant does not have physical injuries resulting from the accident substantial enough to warrant this assessment. As a result, further investigation of the applicant’s physical injuries from the accident and the associated cost of $2,881.50 is not reasonable and necessary.
32I find that the applicant is not entitled to the payment of the financial assessment because she has not established, on a balance of probabilities, that it is reasonable and necessary. The applicant was employed after the accident. The applicant has failed to establish a causal connection between the applicant’s alleged need for financial support and any injuries resulting from the accident substantial enough to warrant this assessment. Therefore, this assessment and the associated cost of $2,486.00 is not reasonable and necessary.
33I find that the applicant is not entitled to payment of the functional abilities examination because she has not established, on a balance of probabilities, that it is reasonable and necessary. The applicant was able to be employed after the accident and perform the usual household and other tasks of daily living. The applicant has failed to establish a causal connection between the applicant’s alleged need for functional ability investigation and any injuries resulting from the accident substantial enough to warrant this assessment. Therefore, this assessment and the associated cost of $2,486.00 is not reasonable and necessary.
Interest
34As no benefits are payable, no interest is payable.
ORDER
35For the reasons outlined above, I find that the applicant is not entitled to the costs of examinations as claimed. No interest is payable. The applicant’s application is dismissed.
Released: August 12, 2020
Avril A. Farlam Vice Chair
Footnotes
- O. Reg. 34/10.
- Statutory Accident Benefits – Accidents on or After November 1, 1996 ("1996 SABS").
- Motor Vehicle Accident Claims Fund v. Barnes, [2017] OFSCD No. 99, paras 12 and 31; 18-001406 v. Certas Home and Auto Insurance Company, 2018 CanLII 132564 (ON LAT).
- R. v. Dinley, 2012 SCC 58, 2012 S.C.C. 58 (Supreme Court of Canada).
- A.B. v. Aviva Insurance Canada, 2019 CanLII 130375 (ON LAT), para 12.