Citation: N.S. vs. Intact Insurance Company, 2020 ONLAT 19-007714/AABS

Released Date: 08/28/2020

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:

N. S.

Applicant

And

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Virginia Essipova, Counsel

For the Respondent:

Dylan Crosby, Counsel

HEARD:

By way of written submissions

OVERVIEW

1N.S. (the “applicant”) was involved in an automobile accident on June 10, 2017 and sought benefits from Intact Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE¹

3I have been asked to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?

ii. If the answer to the first question is no, is the applicant entitled to the following:

a) a medical benefit in the amount of $1,070.92 for chiropractic treatment recommended by Downsview Healthcare Inc. (“Downsview”) in a treatment plan (OCF-18) submitted on January 12, 2018, and denied by the respondent on January 24, 2018?

b) a medical benefit in the amount of $1,170.72 for chiropractic treatment recommended by Downsview in a treatment plan (OCF-18) submitted on March 13, 2018, and denied by the respondent on March 20, 2018?

c) a medical benefit in the amount of $1,734.04 for chiropractic treatment recommended by Downsview in a treatment plan (OCF-18) submitted on September 11, 2018, and denied by the respondent on September 18, 2018?

d) a cost of examination in the amount of $2,000.00 for a psychological assessment, recommended by Downsview in a treatment plan submitted September 11, 2018, and denied by the respondent on September 18, 2018?

e) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. Therefore, he is not entitled to the treatment plans in dispute as the MIG limits have been exhausted. Interest is not payable as I do not find that any payments are overdue.

BACKGROUND

5On June 10, 2017, the applicant was involved in a collision when his vehicle t-boned another vehicle which made a sudden left hand turn in front of him. A few days following the accident the applicant visited his family doctor complaining of lower and upper back and neck pain.

6The applicant took some time off work as a result of his impairments and resumed his employment as an Uber driver in February 2018.

7Following the accident, the applicant commenced treatment pursuant to the MIG at Downsview. The applicant now seeks a finding that his injuries are not predominantly minor and that the disputed treatment plans are reasonable and necessary.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

8I find the applicant’s impairments fall within the MIG.

9Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

10Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that his impairments are not minor and not subject to the $3,500.00 cap.

11The applicant argues that his impairments do not fit within the definition of the MIG because he sustained a neurological impairment (sciatica) and a psychological impairment as a result of the accident. Further, he submits that his impairments remain unresolved and he requires further treatment. He relies on the clinical notes and records (“CNRs”) of Dr. Thirugnanasampanthapillai (family doctor) and Oxbury Medical Clinic (walk-in-clinic), a disability certificate (OCF-3), dated June 17, 2017 prepared by Dr. Pivtoran, chiropractor, as well as the psychological report of Helen Ilios, psychotherapist (supervised by Dr. Shaul) dated October 1, 2018 in support of his position that his impairments are not minor.

12The respondent maintains that the applicant’s impairments fit within the MIG. It contends that the CNRs relied upon by the applicant do not support that he sustained any ongoing physical or a psychological impairment as a result of the accident. In addition, the only record that references sciatica was completed two years-post accident by a doctor at a walk-in-clinic. Moreover, the applicant has not submitted any evidence linking sciatica to the accident. Further, the report of Ms. Ilios should be given little weight as there was no objective evidence to back up her findings that the applicant sustained a psychological impairment.

13The respondent relies on the insurer examination (“IE”) reports of Dr. Khaled, general practitioner, dated March 2, 2018 and November 5, 2018 as well as the psychological IEs of Dr. Clewe dated March 2, 2018 and Dr. Corbin dated November 7, 2018. These IE assessors determined that the applicant’s accident related impairments are minor from both a physical and psychological perspective. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.

Did the applicant sustain a physical impairment as a result of the accident which would remove him from the MIG?

14The applicant submits that he did not have any pre-existing health issues that would prevent him from achieving maximum medical recovery within the MIG, so he does not claim he is removed from the MIG as a result of a pre-existing condition.

15The applicant relied on a disability certificate prepared by Dr. Pivtoran, chiropractor. The disability certificate dated June 17, 2017 diagnosed the applicant with: concussion, post-traumatic headache, post-concussion syndrome, cervical strain and sprain, lumbar strain and sprain, thoracic strain and sprain, shoulder sprain and strain, and acute stress reaction; behaviour – symptoms and signs involving emotional state. In my view, with the exception of the diagnosis of concussion and post-concussion syndrome the physical impairments listed by Dr. Pivtoran on the OCF-3 fit within the MIG.

16Other than the OCF-3 completed by Dr. Pivtoran no other evidence was submitted to support that the applicant hit his head or sustained a head injury as a result of the accident. He also did not report that he hit his head to his family doctor or any of the assessors. Therefore, I find Dr. Pivtoran’s diagnosis of concussion or post-concussion syndrome is not substantiated by the evidence. Therefore, I have given the disability certificate prepared by Dr. Pivtoran little weight and I do not find that the applicant is not removed from the MIG as a result of a concussion or post-concussion syndrome.

17I also agree with the respondent that the CNRs of the applicant’s family doctor do not support his position that he sustained a physical or neurological impairment (sciatica) as a result of the accident that would remove him from the MIG. The CNRs of his family doctor support that since the accident the applicant has attended on three occasions (June 12 and 23, 2017 and May 7, 2018) regarding his accident related complaints. The applicant complained of upper and lower back and neck pain. The last visit in May 2018 notes “one year since mva -back pain - on and off.” The applicant’s family doctor did not refer him to any specialists and there is no mention of sciatica in these CNRs.

18The applicant heavily relied on one CNR from Oxbury Medical Clinic (a walk-in clinic), dated May 1, 2019 which notes “mva 2 years ago – since then neck pain. Uber driver getting worse.” Under diagnosis it states, “lumbar strain – sciatica.” In my view, a CNR from two years post-accident from a doctor at a walk-in clinic is not conclusive evidence that the applicant suffers from sciatica as a result of the accident. It is unclear who authored this CNR and what medical information they had in their possession when this entry was made. Further, as highlighted by the respondent, the applicant has not undergone any medical imaging or nerve conduction studies to investigate sciatica.

19The applicant submitted the Tribunal’s decision in 16-000272 v. Aviva Insurance Canada (Insurance Company) 2016 CanLII 153011 in support of his position that a diagnosis of sciatica does not fall within the MIG. While I agree with the applicant that a diagnosis of sciatica would not fall within the MIG, this decision is distinguishable as the insured in that case was diagnosed by his family doctor with sciatica as a result of the accident. Further, the insured in that case submitted a neurological report which linked the accident to the insured’s condition. This type of evidence was not before me.

20The respondent relied on the IE reports of Dr. Khaled who determined that the applicant’s physical impairments fit within the MIG. Dr. Khaled conducted a physical examination which revealed functional range of motion and the doctor opined that the applicant’s soft tissue injuries sustained in the accident had healed and further treatment is not reasonable and necessary. I accept Dr. Khaled’s opinion over one CNR from a walk-in clinic as it is more consistent with the evidence before me.

21I do not find that the applicant suffers from a neurological impairment as a result of the accident that would remove him from the MIG.

Did the applicant sustain a psychological impairment as a result of the accident which would remove him from the MIG?

22The applicant submits he sustained a psychological impairment as a result of the accident. He relied on the psychological assessment of Ms. Ilios, psychotherapist, dated October 1, 2018, supervised by Dr. Shaul, psychologist. The report states that following the accident the applicant began to experience fear of travelling in a vehicle and his sleep was disturbed due to pain resulting in him feeling tired and irritable. Moreover, the report states that the applicant often feels sad and depressed due to pain and his inability to do things post accident that he previously enjoyed. The applicant also reported that he does not socialize as often post-accident.

23Ms. Ilios administered the following tests: Beck Depression Inventory-II (BDI-II); Beck Anxiety Inventory (BAI) and Symptom Checklist (SCL-90). The applicant’s test results revealed that the applicant reported depression in the moderate range, mild symptoms of anxiety and mild to moderate levels of distress. Ms. Ilios diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in a vehicle). The only CNRs reviewed by Ms. Ilios in completing this report were the OCF-3 and OCF-18s prepared by Downsview Healthcare.

24The respondent relied on the psychological IEs of Dr. Clewe dated March 2, 2018, who assessed the applicant regarding his entitlement to an income replacement benefit and Dr. Corbin dated November 7, 2018 who assessed whether the applicant sustained a psychological impairment which would remove him from the MIG. After completing clinical interviews and psychometric tests both psychologists determined that the applicant did not sustain a psychological impairment as a result of the accident. Significantly, the IE of Dr. Corbin and the assessment of Ms. Ilios were completed in the same month yet had drastically different results².

25The respondent argued that the applicant’s psychological report should be given little weight for the following reasons:

i) A Tamil interpreter was present for the psychological IEs but not Ms. Ilios’s assessment;

ii) The IEs were completed by psychologists and Ms. Ilios is a psychotherapist. Dr. Shaul never met with the applicant or reviewed the test results. Therefore, the IE doctor’s opinions should be preferred;

iii) Ms. Ilios’s assessment diagnosed the applicant with specific phobia (travelling in a vehicle) even though the applicant is employed as an Uber driver working 40 to 50 hours a week;

iv) The psychometric tests administered by Ms. Ilios contained no validity measures and, despite the applicant’s results of low anxiety on the BAI, Ms. Ilios diagnosed the applicant with mixed anxiety.

v) Dr. Corbin and Dr. Clewes administered tests with validity measures which were consistent with the results of their clinical interviews.

26In his submissions, the applicant indicated that he reported feeling depressed to Dr. Corbin as he feels pain when he works. Therefore, he suffers from a psychological impairment as a result of the accident. Other than this statement, the applicant did not raise any concerns with the quality of the psychological IEs, nor did he address whether the reports contained accurate information about what he did not or did not report to these assessors. Despite being given an opportunity to file reply submissions, the applicant opted not to. As a result, the above concerns raised by the respondent have not been addressed.

27I agree with the respondent that Ms. Ilios’s diagnosis of specific phobia (travelling in vehicle) is inconsistent with the fact that the applicant resumed employment as an Uber driver in February 2018. A functional abilities evaluation indicated that he works 40 to 50 hours a week in this capacity. In her report, Ms. Ilios states that the applicant avoids being in a vehicle as much as possible. In my view, this diagnosis is contradicted and leads me to question Ms. Illios’s other diagnoses. If the applicant suffered from driving anxiety to the degree opined by Ms. Ilios then he would not be able to work as an Uber driver. Further, the fact that the applicant did not have a Tamil interpreter present for his own assessment raises questions regarding the accuracy of the assessment and the validity of the tests administered.

28When a decision rests on conflicting medical opinions and inconsistencies in the evidence, other sources of information become more important. For example, the CNRs of the applicant’s family doctor and the treating clinic. I find the applicant’s family doctor’s CNRs do not support that he sustained a psychological impairment as no reference is made to any symptoms of depression in the three CNRs. Further, the applicant did not submit the CNRs of Downsview Healthcare for this hearing. The respondent argued that I should make an adverse inference from the applicant’s failure to submit these records. I do not find this to be necessary as ultimately the onus is on the applicant to prove that he sustained a psychological impairment that would remove him from the MIG. Based on the evidence before me, the applicant has failed to convince me on a balance of probabilities that he sustained a psychological impairment as a result of the accident.

29I do not find that the applicant sustained a psychological impairment as a result of the accident that would remove him from the MIG.

ORDER

30For all of the above reasons, I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit;

ii. The applicant is not entitled to any of the disputed treatment plans as the MIG limit has been exhausted; and,

iii. The applicant is not entitled to interest as I do not find any payments are overdue.

Footnotes

1. 1The order issued by the Tribunal dated January 13, 2020 included a cost of examination for an accounting report in the amount of $2,825.00 as an issue in dispute. The respondent also addressed the applicant’s claim for an award which was not included in the Tribunal’s order. Since the award was not included in the Tribunal’s order and the applicant did not address it or the accounting report in his submissions, I have not addressed either as an issue in dispute.
2. 2Dr. Corbin’s IE assessment took place on October 24, 2018.