Citation: Salmon v Certas Home and Auto Insurance Company, 2020 ONLAT 19-007524/AABS

Released Date: 10/21/2020

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:

Marie Salmon

Applicant

and

Certas Home and Auto Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Kathryn McRae Hill, Paralegal

For the Respondent:

Richard J. Campbell, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant ("M.S.") is a 31-year-old woman who was involved in an automobile accident on January 29, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She was driving her vehicle in snowy conditions and slowed down due to traffic. She was struck by another vehicle from the rear and, in turn, collided with the rear of the vehicle in front of her.

2Air bags did not deploy. M.S. exited the vehicle independently. No emergency services attended the scene. Initially, M.S. felt neck and jaw pain as a result of the accident.

3The respondent ("Certas") determined that M.S.'s injuries fell within the Minor Injury Guideline ("MIG") and, on that basis, denied her certain benefits. She disagreed with this decision and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.

ISSUES TO BE DECIDED

4The following issues are to be decided:

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 within the Minor Injury Guideline?

ii. Is the applicant entitled to the following medical benefits:

a. $1,280.00 for physiotherapy in a treatment plan (OCF-18) dated May 14, 2018 which was partially approved up to $1,184.57 on May 26, 2018?

b. $1,090.00 for physiotherapy in a treatment plan (OCF-18) dated July 16, 2018 which was partially approved up to $1,010.50 on July 25, 2018?

c. $2,641.00 for psychological services in a treatment plan (OCF-18) dated August 22, 2018?

d. $1,090.00 for physiotherapy in a treatment plan (OCF-18) dated October 10, 2018? and

e. $1,090.00 for physiotherapy in a treatment plan (OCF-18) dated November 21, 2018?

iii. Is the applicant entitled to the following costs of examinations:

a. $1,995.33 for a psychological assessment in a treatment plan (OCF-18) dated June 28, 2018?

b. $2,090.00 for a social work assessment in a treatment plan (OCF-18) dated February 1, 2019?

c. $2,200.00 for a chronic pain assessment in a treatment plan (OCF-18) dated February 15, 2019?

d. $2,219.74 for a driving reintegration assessment in a treatment plan (OCF-18) dated November 9, 2018?

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

v. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

5On a balance of probabilities, I find that M.S. sustained predominantly minor injuries as a result of the accident and is subject to treatment within the MIG.

6In accordance with s. 38(11) of the Schedule, M.S. is entitled to payment in the amount of $1,090.00 for physiotherapy services as outlined in the Treatment and Assessment Plan (OCF-18) dated October 10, 2018 because Certas failed to give notice in accordance with s. 38(8). An insurer who fails to comply with s. 38(8) is prohibited from taking the position that the MIG applies in relation to the plan.

7Certas advised M.S. on December 12, 2018 that the $3,500.00 cap on medical and rehabilitation benefits had been reached. Based on this determination, M.S. is not entitled to payment for any of the remaining Treatment and Assessment Plans (OCF-18s). I need not consider whether the plans are reasonable and necessary.

8M.S. is entitled to interest on the outstanding amount of $1,090.00, calculated in accordance with s. 52 of the Schedule.

9M.S. has made no submissions and presented no evidence in support of her claim for an award under Regulation 664. That claim is denied.

ANALYSIS

Did M.S. sustain predominantly minor injuries as a result of the accident?

10To be eligible for certain benefits claimed in her application, M.S. must demonstrate that her injuries are not predominantly minor. If I determine that her injuries are minor, M.S.'s treatment will be subject to the $3,500.00 funding limit for medical and rehabilitation benefits pursuant to s. 18 of the Schedule, and I will not need to consider whether the disputed treatments and assessments are reasonable and necessary. If I find that her injuries are not minor, M.S. will be entitled to the claimed benefits if she can demonstrate that they are reasonable and necessary.

11Section 3(1) of the Schedule defines a "minor injury" 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".¹

12M.S. bears the onus of establishing that her injuries are not predominantly minor and fall outside the treatment limit in the MIG.²

Soft tissue injuries

13The evidence before me establishes, on a balance of probabilities, that M.S. sustained predominantly minor, soft tissue injuries as a result of the accident. Dr. Bai-Sen Cheng, M.S.'s family physician, assessed her the day after the accident and diagnosed her with "neck, upper back, lower back myofascial pain" and "left face ache", as M.S. felt her face could have hit the steering wheel due to the force of the collision.³

14M.S.'s family physician referred her to Dr. Alireza Kachooie, Physiatrist, whose September 6, 2019 physical assessment showed M.S. as exhibiting "distinct moderate stiffness on range of motion of cervical spine", noted "less that 40% restricted lateral rotation and tilt"; "markedly stiff" thoracolumbar motion; and "markedly stiff bilaterally but pain free" hip range of motion. Dr. Kachooie diagnosed M.S. with post-whiplash generalized stiffness involving the axial joint and pelvis area.⁴ These fall within the definition of minor injuries.

15M.S. submits that, in addition to minor soft tissue injuries, she sustained chronic pain and psychological impairments as a result of the accident that remove her from the MIG.

16Certas submits that the evidence M.S. has provided in support of her diagnoses of chronic pain and psychological conditions is unreliable and should be given little weight. It maintains that M.S.'s injuries are predominantly minor and that the disputed treatment plans are not reasonable and necessary.

17For the following reasons, I find that M.S. sustained no psychological injuries or impairments and no chronic pain that would warrant her removal from the MIG.

Psychological injuries

18M.S. submits that she sustained accident-related psychological injuries that meet the threshold for diagnosis under the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"). Those injuries, she submits, remove her from the MIG.

19M.S. relies on the July 28, 2018 Psychological Evaluation Report of Dr. Romeo Vitelli, Psychologist, who diagnosed her with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational Type: Vehicular. Dr. Vitelli also noted that she "is reporting some posttraumatic symptoms" and concluded that she has "a moderate level of posttraumatic stress".⁵ Dr. Vitelli opined that M.S.'s prognosis is guarded given the severity of her impairments, ongoing cognitive difficulties and chronicity of symptoms.

20Dr. Vitelli's conclusions are inconsistent with the clinical observations noted in his report. From a psychometric perspective, M.S. exhibited mild levels of anxiety on the Back Anxiety Inventory and normal levels of depressive symptomatology on the Beck Depression Inventory. Her scores on the depression, anxiety and somatization scales of the Pain Patient Profile were average.

21According to Dr. Vitelli, M.S.'s self-reported psychological symptoms included: a reduction in sleep by roughly one hour each night; occasionally losing track of thoughts and having trouble organizing them; being easily distracted; being "more irritated" when in pain; having difficulty with laundry; and going to the mall and the movies less often.⁶

22Overall, however, M.S.'s symptoms had not significantly altered her daily routines. Nowhere in his report does Dr. Vitelli describe extreme symptomatology or significant functional impairments. He does not address the fact that she returned to work within a week of the accident, is independent in self-care, can perform almost all housekeeping duties and is socially active. His conclusion that M.S. was unable to perform her activities of daily life or handle daily responsibilities is not specifically supported.

23Certas submits that M.S.'s psychological complaints do not meet the threshold for DSM-5 diagnoses. It relies on the October 14, 2018 s. 44 Insurer's Examination report of Dr. A. Zielinski, Psychiatrist. During the assessment, M.S. reported to her that she no longer has a fear of driving or being in a car.⁷ On that basis, Dr. Zielinski concluded that M.S. fails to meet the criteria for vehicular-related Specific Phobia; M.S.'s anxiety related to being in a car had resolved fully on its own.⁸

24Dr. Zielinski conducted three psychometric tests: the DASS-21 (depression, anxiety and stress scale), on which M.S. showed moderate levels of emotional distress and low levels of anxiety and depression; the PDI (pain disability index) on which M.S.'s score was below the average for pain disability; and the Ray Memory Test, which tests likelihood of malingering or symptom exaggeration and on which M.S. scored a 12/15 for effort and engagement – a normal test result.⁹

25Dr. Zielinski also concluded that, while M.S. exhibited aspects of Adjustment Disorder with Depressed and Anxious Mood, she did not meet the full criteria for diagnosis. Specifically, her dysthymia (persistent depressive disorder) was mild and did not affect function and did not meet the criteria for a major depressive disorder.¹⁰

26I prefer Dr. Zielinski's analysis over Dr. Vitelli's. The conclusion that M.S. did not suffer from a Major Depressive Disorder and could not meet the criteria for a diagnosis of Adjustment Disorder is consistent with the results of both assessors' psychometric testing and with M.S.'s self-reports as to the impact of her complaints on her psychological and social functioning.

27Certas submits that Dr. Vitelli's report lists his name as the supervising "Examiner" and Stav Balanovsky, a social worker, as the "Assessor". Certas submits that this raises questions as to who interviewed M.S. and provided an opinion, because there is no evidence that Ms. Balanovski is qualified to administer psychometric tests or provide a psychological opinion.

28I do not need to deal with the issue of whether Ms. Balanovski is qualified as a psychological expert. Regardless of who authored it, I give limited weight to Dr. Vitelli's report because it does not link the objective evidence and subjective reports to its diagnostic conclusions. The conclusions related to the degree of impairment resulting from M.S.'s accident-related injuries are not corroborated by other evidence.

29M.S. also relies on the December 4, 2019 report of Nazila Isgandarova, Social Worker, which lists psychological impairments and recommends "emotional support", 12 counselling sessions with a social worker, aqua therapy and supervised personal training.¹¹ This report has little evidentiary weight. Reema Malek, Social Worker, is also identified as an author, but neither Ms. Igandarova nor Ms. Malek possesses the qualifications to assess and diagnose psychological injuries and impairments.

30There are glaring errors in the Isgandarova-Malek report. In discussing the Holmes-Rahe Life Stress Inventory, the authors clearly refer to another (male patient), whose restaurant had closed. There are other indicators that portions of the report had been reproduced from other sources: the list of complaints is almost word-for-word as it appears in Dr. Vitelli's report, but the source is not specifically cited. The recommendations are not justified as rationally connected to M.S.'s symptoms, and some fall outside the scope of the authors' professional practice.

31Based on the evidence, I cannot accept that M.S. suffers from a psychological condition that meets the threshold for a DSM-5 diagnosis or that substantially impairs her psychological functioning. I conclude that her psychological complaints are the sequelae of her minor, soft tissue injuries and do not warrant removal from the MIG.

Chronic pain

32M.S. submits that she suffers from chronic pain and should be removed from the MIG on that basis. She relies on the June 24, 2019 assessment report of Dr. Tajedin Getahun, Orthopaedic Surgeon, who diagnosed her as having "chronic pain affecting the lumbosacral spine".¹²

33Certas calls into question whether Dr. Getahun is qualified to assess or diagnose chronic pain. It submits that Dr. Getahun provides no information on the medical evidence he considered or evaluated in preparing his report; no comment on M.S.'s function or impairment; no discussion of any impact on M.S.'s activities of daily living; and no analysis in support of his conclusion that M.S. suffers from chronic pain.

34Dr. Getahun's report fails to provide a reliable or conclusive diagnosis. He opines that M.S. suffers from chronic myofascial strain and concludes that she has chronic pain affecting the lumbosacral spine. However, he does so while noting that she returned to work shortly after the accident and is able to work despite her pain and has returned to her pre-accident socialization. His physical examination showed normal range of motion in the cervical spine; no specific areas of tenderness in the thoracic spine; and normal range of motion in the upper and lower extremities. M.S. had "tenderness" in the lower lumbar spine with evidence of guarding bilaterally. However, there is no discussion of how this finding manifests in functional impairment, or how, as Dr. Getahun concludes at p. 5 of his report, that "[M.S.'s] accident-related injuries have resulted in loss of competitive advantage in the workforce".¹³

35Dr. Getahun's opinion does not establish that M.S. suffers chronic pain of a severity or duration that would warrant treatment outside of the MIG. Functionally, M.S. is not substantially impaired by her pain symptoms. Her injuries are treatable within the MIG.

Did Certas comply with the notice requirement in s. 38 of the Schedule?

36M.S. raises procedural arguments as to whether certain of Certas's denials complied with the Schedule. She submits that Certas failed to indicate the dates upon which several of the treatment plans were received, and that those treatment plans should be paid because there is no evidence they were responded to in the 10 days required under the Schedule. She also argues that Certas should pay the treatment plans it denied in full because it failed to indicate the specific goods and services included in those plans that it was denying.

37Specifically, M.S. submits that the following Treatment and Assessment Plans (OCF-18s) should be paid because Certas provided no indication of when it received them, and that there is no evidence the denials were made in accordance with the Schedule:

i. OCF-18 dated May 14, 2018: Certas issued its denial with reasons on May 26, 2018 and indicated in its correspondence it had received the plan on May 16, 2018. I find Certas issued its denial within 10 business days as required by the Schedule;

ii. OCF-18 dated July 16, 2018: Certas issued its denial with reasons on July 25, 2018. I find Certas issued its denial within 10 business days as required by the Schedule;

iii. OCF-18 dated August 22, 2018: Certas issued its denial with reasons on September 6, 2018. I find Certas issued its denial within 10 business days as required by the Schedule;

iv. OCF-18 dated October 10, 2018: Certas issued its denial with reasons on October 31, 2018 and gave no indication of the date it had received the plan. Certas has made no submissions on the issue and the documents in evidence do not shed light on the reason for the delay. I cannot conclude that Certas issued its denial within 10 business days as required by the Schedule. As a result, M.S. is entitled to the expenses in the Treatment and Assessment Plan, regardless of whether they are reasonable and necessary.¹⁴

Is M.S. entitled to interest on any outstanding payments of benefits?

38I have determined that M.S. is entitled to payment in the amount of $1,090.00 for physiotherapy services as outlined in the Treatment and Assessment Plan (OCF-18) dated October 10, 2018 because Certas failed to give notice in accordance with s. 38(8).

39M.S. is entitled to interest on this amount, calculated in accordance with s. 52 of the Schedule.

Is M.S. entitled to an award under Regulation 664?

40M.S. has made no submissions and has presented no evidence in support of her claim for an award under Regulation 664. I can only conclude that she has abandoned this issue. In any event, I see no evidence of bad faith or frivolous or vexatious conduct on the part of Certas that would justify such an award and as such, the claim is denied.

ORDER

41M.S. is entitled to payment in the amount of $1,090.00 plus interest calculated in accordance with s. 52 of the Schedule.

42M.S. is not entitled to an award under Regulation 664.

Footnotes

1. 1Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10.
2. 2Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
3. 3Applicant's Brief, Clinical notes and records of Dr. Bai-Sen Cheng, p. 36.
4. 4Applicant's Brief, Clinical notes and records of Dr. Kachooie, pp. 209-210.
5. 5Insurer's Medical Brief, Tab 4: Report of Stav Balanovsky and Dr. Romeo Vitelli [Balanovsky/Vitelli Report], p. 12.
6. 6Vitelli/Balanovsky Report, pp. 8-11.
7. 7Respondent's Medical Brief, Tab 3: Dr. Zielinski psychiatric report of October 14, 2018 [Zielinski report] at p. 6.
8. 8Zielinski report at p. 12.
9. 9Zielinski report at p. 10.
10. 10Zielinski report at p. 10.
11. 11Respondent's Medical Brief, Tab 5: Report of "Nazila Isgandarova" and "Reema Malik", p. 6.
12. 12Respondent's Medical Brief, Tab 2: Dr. Getahun Report [Getahun Report], p. 11.
13. 13Getahun Report, pp. 3-5.
14. 14Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 at paras. 16-21.