R. K. v. Allstate Insurance Company of Canada, 2020 CanLII 69928

Citation: R.Z. v. Allstate Insurance Company of Canada, 2020 ONLAT 19-012039/AABS

Released Date: 09/11/2020

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:

R. K.

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Joshua D. Nightingale, Counsel

For the Respondent:

Caroline Meyer, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1R. K. (“applicant”) was involved in an automobile accident on August 26, 2017 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was 28 years old at the time of the accident.

2Allstate Insurance Company of Canada (“respondent”) determined that 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 has not paid any income replacement benefits (“IRB”). The applicant has received medical benefits to the full limits of the MIG but the respondent has denied further medical benefits. The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

3The issues to be decided are:

(i) Are the applicant’s injuries predominantly minor as defined in the Schedule, subject to the $3,500.00 treatment limit under the MIG?

(ii) Is the applicant entitled to receive IRB in the amount of $400.00 weekly for the period of September 1, 2017 to August 26, 2019?

Is the applicant entitled to receive medical benefits as follows:

(iii) In the amount of $3,082.55 for psychological services recommended by Unison Medical Assessments submitted in a treatment plan dated August 7, 2018, and denied by the respondent on October 4, 2018?

(iv) In the amount of $2,197.92 for psychological services recommended by Unison Medical Assessments submitted in a treatment plan dated July 12, 2018, and denied by the respondent on August 3, 2018?

(v) In the amount of $1,995.01 for orthotics recommended by Unison Medical Assessments submitted in a treatment plan dated September 25, 2017, and denied by the respondent on November 28, 2017?

(vi) In the amount of $1,015.29 for physiotherapy services recommended by Islington Village Health submitted in a treatment plan dated August 14, 2018, and denied by the respondent on August 27, 2018?

(vii) In the amount of $1,582.48 for physiotherapy services recommended by Islington Village Health submitted in a treatment plan dated September 11, 2018, and denied by the respondent on October 24, 2018?

(viii) In the amount of $2,016.53 for physiotherapy services recommended by Islington Village Health submitted in a treatment plan dated April 2, 2019, and denied by the respondent on May 2, 2019?³

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

RESULT

4I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit and as a result, the treatment plans have not been considered. I also find that the applicant is not entitled to an IRB as claimed, or in any other amount for the period in dispute. The applicant’s claim is dismissed. No interest is payable.

LAW

5The 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.

6To be eligible for treatment above the $3,500.00 funding limit, the applicant must establish that his or her impairments sustained in the accident are not predominantly minor, or produce compelling evidence, provided by a health practitioner, that was documented before the accident, that the applicant has a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit.

7Section 5(1)2 of the Schedule provides that an insured person can be eligible for IRB if they were self-employed at the time of the accident and they suffer, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their self-employment.

8Section 4(3) of the Schedule outlines how IRB is calculated if the claimant was a self-employed person at the time of the accident. Section 4(3) provides that IRB is calculated on income from the most recent completed taxation year. This section provides that the weekly income or loss from self-employment at the time of the accident is 1/52 of the amount of the person’s income or loss from the business for the last completed taxation year.

9Sections 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.

10The onus is on the applicant to establish, on a balance of probabilities, that his or her injuries fall outside of the MIG, that any proposed treatment plan he or she seeks is reasonable and necessary⁴ and that he or she is entitled to IRB.

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

11The applicant submits he suffered accident-related physical injuries to his upper and lower back, left knee, bilateral shoulders, left wrist and both hands and recurring headaches.

12I find that the applicant’s physical injuries from the accident are minor injuries because none of the applicant’s medical evidence indicates any physical injuries arising from the accident other than soft tissue injuries. After the accident, the applicant did not go to the hospital and it appears from the OHIP records that he did not seek medical attention regarding the accident until January 2018, some five months later. Although the applicant told the respondent’s assessor, Dr. Harmantas, general practitioner, that he went to Dr. Kozvawski, his family physician, within a week of the accident, was examined, given painkillers and took Tylenol 3 as needed, no records of Dr. Kozvawski were filed. X-rays were negative for fracture but the applicant told Dr. Harmantas that he attended physical therapy at Good Health rehabilitation facility, took two weeks off work, did some work from home and returned to modified hours.

13The applicant relies on the records of Islington Village Health, a treatment facility which made three of the disputed treatment plans and the disputed treatment plans themselves. However, these records are insufficient evidence of the applicant’s physical injuries as they do not contain medical diagnosis.

14The most detailed medical evidence of the applicant’s accident-related physical injuries is the January 2018 report of Dr. Harmantas who, after examining the applicant, diagnoses soft tissue injuries to the applicant’s lumbar spine, left wrist and left forearm. Dr. Harmantas also noted headaches which he declined to comment on as being beyond the scope of his practice and deferred to a neurologist. In addition, he found no compelling evidence of a pre-existing musculoskeletal condition and no objective evidence of any on going physical impairments and found the applicant’s injuries to be within the MIG.

15There is nothing in the medical evidence before me that establishes the applicant had anything other than sprain and strain type physical injuries from the accident. These fall within the definition of “minor injury”. However, the applicant argues that he suffers from psychological injury that removes him from the MIG.

Does the applicant have psychological injury as a result of the accident?

16The applicant submits that he sustained psychological injuries in the accident which should remove him from the MIG. The applicant relies on the April 29, 2019 report of Dr. Fink and the July 27, 2018 report of Dr. Todorovic, the applicant’s psychologists at Unison Medical Assessments. Dr. Fink diagnoses adjustment disorder with predominant disturbance of other emotions (anger), somatization disorder, and nonorganic insomnia and recommended 12 sessions of psychotherapy. Dr. Todorovic diagnoses adjustment disorder and mixed anxiety and depressive disorder and recommended 12 sessions of psychotherapy, neither of which were funded by the respondent.

17I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological injury justifying treatment beyond the MIG. There are a number of issues which undermine the reliability of the reports of Dr. Fink and Dr. Todorovic and I give them both little weight for the following reasons.

18Firstly, although both Dr. Todorovic and Dr. Fink state the applicant was referred for a psychological assessment to determine the consequences of the accident, neither report identifies who made the referral and the reports do not show they were copied to Dr. Kozvawski. As a result, there is no evidence that the referrals were from the applicant’s treating physician for medical reasons.

19Secondly, although both Dr. Todorovic and Dr. Fink state their reports are based on “documentation available at the time of the assessment”, the applicant’s presentation, self-reporting and psychometric tests administered, neither report describes any documentation reviewed, leaving doubt whether either reviewed any of the applicant’s medical records or just accepted his self-reporting.

20Thirdly, the applicant’s self-reported medical history to both Dr. Todorovic and Dr. Fink appears to be inaccurate. The applicant told both that he had no history of mental problems and had never consulted with a mental health professional. However, the OHIP records indicate that the applicant was treated for mental health issues pre-accident by Dr. Kozvawski in March and April 2017 and August 14, 2017, less than two weeks pre-accident. Further, the applicant told Dr. Todorovic that he saw his family physician the day after the accident, was examined, had an x-ray and was prescribed medication for headaches and insomnia. The applicant told Dr. Fink that he went to a walk-in clinic and then to see his family doctor a couple of days later. Neither of these self-reports are supported by any medical records and are contradicted by the OHIP records. Both psychologists premised their reports on inaccurate self-reporting.

21Fourthly, although in Dr. Todorovic’s report it is noted that the applicant demonstrated symptoms of severe depression and anxiety based, in part, on the results of the applicant’s Beck Depression Inventory (BDI-II), and above average range for depression, anxiety and somatic problems based on The Pain Patient Profile (P-3), these are both self-reporting tests. Similarly, Dr. Fink relies on the applicant’s self-reporting of anxiety and level of avoidance for driving, the same P-3 testing to find the applicant’s depression, anxiety and somatic issues is above average and the BDI-II test to find moderate depression as well as other self-reporting tests. The self-reporting basis for these tests undermines their objectivity, especially when, as in this case, the applicant has in other self-reporting to both psychologists, provided unreliable information as above.

22The applicant did not bring forward any evidence from any his family doctor indicating a referral to a psychiatrist for injuries resulting from the accident. Post-accident, the applicant was able to work and, according to the photographs and other material filed by the respondent, engage in his gambling activities. The applicant did not bring forward any evidence to corroborate his self-reported limitations on activities of daily living. In this case, I find the psychological treatment plans themselves, without supporting medical evidence, are insufficient to establish psychological injuries resulting from the accident.

23Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from psychological injuries as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Is the Applicant Entitled to IRB in the amount of $400.00 per week as claimed?

24At the time of the accident the applicant submits that he was self employed as a real estate agent […] and earned commission income in 2015 of $38,872.50, in 2016 of $80,760.98, in 2017 $86,282.55 and in 2018 of $46,422.16.

25The applicant submits that he was unable to continue working at the same capacity after the accident because of pain, anxiety in vehicles, physical limitations and cognitive difficulties but that despite this, he continued to work but the number of deals he was able to close decreased substantially and he suffered a reduction of earning in 2018 of almost 50% from the year prior. The applicant claims to be entitled to IRB because he suffered a “loss of income”.

26The applicant submits that the tasks of his employment involves travelling across the GTA to meet with clients and visiting buildings. The applicant submits he missed opportunity because these locations were too far for him to get to because of his anxiety and nervousness while in vehicles.

Does the applicant suffer a substantial inability to complete the essential employment tasks of his self-employment?

27I find that the applicant does not suffer a substantial inability to complete the essential employment tasks based on a lack of medical evidence. To meet the eligibility test for IRB in s. 5 (1) 2 of the Schedule a self-employed person must suffer, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their self-employment. The applicant does not meet this eligibility test for the following reasons.

28The applicant concedes in his submissions that he “continued to work but the amount of deals he was able to close decreased substantially”.

29The applicant’s T4A’s in 2017 and 2018 show that post-accident he continued to earn income, although reduced, from the same pre-accident employment.

30The applicant has not established by persuasive evidence that this decrease was caused by a substantial inability to complete the essential tasks of his self-employment as a result of his injuries from the accident.

31The applicant’s medical evidence, as set out above, does not establish that he is unable to complete the essential tasks of his self-employment.

32There is no evidence from the applicant’s employing real estate agencies in support of his submissions other than the T4As.

33The fact that the applicant’s income decreased post-accident does not meet the s. 5(1)2 eligibility test for IRB which requires a substantial inability to perform the tasks of pre-accident self-employment.

34Lastly, I also agree with the respondent’s submissions that in his OCF-1 the applicant indicated that his injuries did not prevent him for working, that the applicant failed to submit an OCF-3 and as a result, failed to complete his application for IRB and failed to prove a disability arising from the accident.

35Even if there may be some tasks of his employment that the applicant might not be able to return to, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment. The onus of proof is on the applicant and I find that he has failed to meet it.

Is the Applicant entitled to the Disputed Treatment Plans?

36Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

37As no benefits are payable, no interest is payable.

ORDER

38For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit and as a result, the treatment plans have not been considered. I also find that the applicant is not entitled to an IRB as claimed. The applicant’s claim is dismissed. No interest is payable.

Footnotes

1. 1O.Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
3. 3The treatment plans in dispute are collectively referred to as “the disputed treatment plans”.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Crt.)