Citation: Nirmal vs. Certas Direct Insurance Company, 2020 ONLAT 19-009302/AABS

Released Date: 11/02/2020

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:

Narendra Nirmal

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

N. N., Applicant

Aurora Mancuso, Counsel

For the Respondent:

Certas Direct Insurance Company

Brittanny K. Tinslay, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“N.N.”) was injured in an automobile accident (“the accident”) on November 15, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹, some of which were denied by the respondent, Certas Direct Insurance Company (“Certas”).

2N.N. submits that, as a result of injuries he sustained in the accident, the treatments he seeks are reasonable and necessary.

3Certas argues that N.N. has not established that the treatment plans are reasonable and necessary.

ISSUES

4The issues in dispute I am asked to determine are:

i. Is the payment for cost of examinations in the amount of $2,260.00 for a chronic pain assessment, recommended by Dr. Inese Robertus, in a treatment plan (“OCF-18”) dated September 13, 2018, and denied on October 2, 2018, reasonable and necessary?

ii. Is the payment for costs of examinations in the amount of $2,260.00 for a neurological assessment recommended by Dr. Inese Robertus in an OCF-18 dated January 10, 2019, and denied on February 2, 2019, reasonable and necessary?

iii. Is N.N. entitled to interest on any overdue payment of benefits?

FINDING

5N.N. is not entitled to the OCF-18s, therefore no interest is payable.

BACKGROUND

6There was a prior hearing with a decision dated December 19, 2017 by Adjudicator Hamud. The issues in dispute in the July 4, 2017, written hearing of N.N. and Certas Direct Insurance Company (17-001002 v. Certas Direct Insurance Company 2017 CanLII 87552 (ON LAT) were:

a. Is the applicant entitled to attendant care benefits in the monthly amount of $1,143.79 as submitted on December 17, 2015 by Excel Medical Diagnostic Inc. and denied by the respondent on March 18, 2016?

b. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for an orthopaedic assessment as recommended and submitted by All Health Medical Centre in a Treatment and Assessment Plan (OCF-18) on May 28, 2016 and denied by the respondent on June 8, 2016?

c. Is the applicant entitled to a medical benefit in the amount of $2,220.85 for assistive devices and occupational therapist ("OT") services as recommended in an OCF-18 submitted on January 25, 2016 and denied by the respondent on March 15, 2016?

d. Is the applicant entitled to interest for the overdue payment of benefits?

7None of these issues are before me. Although Certas made submissions referring to the findings of Adjudicator Hamud’s decision, I will only consider submissions and evidence as it relates to the issues that are before me.

LAW

8Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical 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 or assessment plan is reasonable and necessary.²

9The Supreme Court of Canada, in a decision affirming a unitary standard for civil “balance of probabilities” adjudication, defined the standard as “more likely than not.” As such, the question is whether it is “more likely than not” that N.N. requires the claimed benefits.³

ANALYSIS

Issue [4] i. – OCF-18 for a chronic pain assessment

10For the reasons to follow, I find that N.N. has not established that the chronic pain assessment is reasonable and necessary.

11Certas submits that with respect to an assessment, an insured must demonstrate with objective evidence that there are “grounds to suspect the applicant has the condition for which he or she seeks the assessment”. In support of this position, Certas refers to the Tribunal decision of V.R. v. Aviva Insurance⁴. Regarding assessments, Vice Chair Flude states at paragraph 37:

In determining whether an assessment is reasonable and necessary, it must be borne in mind that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition for which he seeks the assessment.

12I agree with Vice Chair Flude that the onus remains on an insured to establish that an assessment is reasonable and necessary. Given the varying nature of chronic pain and chronic pain syndrome between one individual to the next, it’s important to understand the criteria that has been relied on to determine if an individual suffers from chronic pain.

13The criteria for chronic pain are set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”). These criteria are cited in Adjudicator Ferguson’s decision, 17-007825 v Aviva, which I am persuaded by, at paragraph 6 as follows:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse, or family;

c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contracts;

e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

14Using these chronic pain criteria, N.N. has not established on a balance of probabilities that the chronic pain assessment is reasonable and necessary.

15N.N. did not direct me to any persuasive evidence that supports that he suffers from chronic pain as a result of the accident that would warrant a chronic pain investigation by way of an assessment. Further, N.N. failed to satisfy any of the criteria to establish that he suffers from chronic pain. Certas submits that N.N.’s records do not demonstrate that he meets the criteria for chronic pain, for example:

i. N.N. has not directed me to any evidence of abuse of prescription medication or use beyond the recommended duration;

ii. There is no evidence that N.N. has excessive reliance on healthcare providers, spouse or family. N.N. has provided no evidence of ongoing treatment after December 2016 with his family physician. In addition, there is no indication of chronic pain or chronic pain syndrome from the family physician;

iii. N.N. reported to Dr. Robertus that post-accident, he continues to perform his personal care, with no impairment. Although he reports that his wife has assumed an increased role with family activities, he is still able to participate. N.N. is still able to participate in his recreational activities, in a reduced capacity;

iv. N.N. has returned to his role as an automotive painter, working regular hours with modified duties; and

v. There is no objective medical evidence of any psychological impairment as a result of the accident.

16Certas submits that this evidence supports that N.N. does not meet any of the chronic pain criteria. I agree with Certas.

17The results of Dr. Robertus’ objective testing reveals that N.N. has substantial, whole body range of motion, within normal functional limits. Further, Dr. Robertus noted that N.N. had only moderate impairment regarding his family/home responsibilities, recreational functions, social activity and occupational functions. Consequently, I find on a balance of probabilities that N.N. has not established that the chronic pain assessment is reasonable and necessary.

Issue [4] ii. – OCF-18 for a neurological assessment

18In the disability certificate dated November 23, 2015, the following injuries are reported to have been sustained in the accident: multiple rib fractures, other sprain and strain of cervical spine, sprain and strain of thoracic spine, injury of muscle and tendon at shoulder and upper arm level, dislocation, sprain and strain of joints and ligaments of the knee, and non-organic sleep disorders. Certas submits that no head injury or headache is listed by the treatment provider, therefore N.N. has not established that the neurological assessment is reasonable and necessary.

19N.N. relies on a psychological report from clinical psychologist Dr. Cheryl Walker in support of his claim for the neurological assessment. However, as Dr. Walker is not a neurologist, I place very little weight on this report.

20N.N. also relies on an assessment report from orthopaedic surgeon Dr. Michael West, dated November 11, 2016. As this report comes over two years prior to the OCF-18 for a neurological assessment, I place little weight on this report.

21Both Drs. Walker and West recommend psychological counselling. There is no recommendation for a neurological assessment from either physician. An OCF-18, without supportive objective medical evidence, is not enough to establish that the treatment or assessment sought is reasonable and necessary. On the evidence, I am not persuaded that the neurological assessment is reasonable and necessary.

22Although N.N. relies on Tribunal case law in support of his claim for the neurological assessment, I found those cases to be distinguishable. For example, in D.Y. v. Aviva General Insurance Company⁵, Adjudicator Conway states,

Now, more than three years after the accident, she still feels pain that slows her down, makes her tired and irritable and prevents her from participating fully in child care. Over time, her vision problems have abated, and her headaches have at times become less frequent and less severe, although at other times she states that they are more frequent and more severe. She has not been able to return to school. Moreover, she has ceased all recreational activities and stays at home. She cannot be a passenger in a car without great anxiety. She has been diagnosed by both her own caregivers and consultants retained by the insurer as having post- concussion symptoms, a mild neurological disorder, and is noted to be suffering from anxiety and depression. She is in constant pain and discomfort and cannot sleep except for short periods of time.

23In the present case, one assessor has diagnosed N.N. with post-concussion syndrome, and that was orthopaedic surgeon, Dr. West. Dr. West is not a neurologist; therefore, he is not qualified to provide a valid diagnosis of any neurological symptoms that N.N. claims to suffer from.

24In another case submitted by N.N., B.U. v. Aviva Canada Inc.⁶, Adjudicator Lester states in part at paragraph 26:

The applicant testified that he hit his head on the dashboard during the accident. The report explains that the applicant was referred to a neurologist as he had complaints of headaches that caused nausea with sensitivities to light, sound and smell, and tingling in his hands and possibly his feet. A Headache Impact Test administered by Dr. Mossanen indicated that the applicant had suffered a severe impact.

25The B.U. case is distinguishable in that there is no medical evidence that N.N. “suffered a severe impact” similar to that of the applicant in B.U. Further, there is no evidence that, despite N.N. reporting that he also hit his head on the dashboard, he has had similar symptoms to those noted in B.U.

26I am not persuaded by the case law relied on by N.N. that his claim for a neurological assessment is reasonable and necessary on the same grounds established in D.Y. and B.U.

27For the reasons stated above, I find that N.N. has not persuaded me, on a balance of probabilities, that the OCF-18 for a neurological assessment is reasonable and necessary.

CONCLUSION

28N.N. has not satisfied his onus of establishing that the OCF-18s are reasonable and necessary. He is therefore not entitled to the benefits claimed and no interest is owing as there is no overdue payment of benefits.

29N.N.’s claim is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3FH v. McDougall, 2008 SCC 53 at para. 44
4. 418-002880 v. Aviva Insurance Company, 2019 CanLII 40262 (ON LAT)
5. 5D.Y. v. Aviva General Insurance Company, 2020 CanLII 30363 (ON LAT) at para 17 – Applicant Book of Authorities at Tab 10
6. 6B.U. v. Aviva Canada Inc., 2016 CanLII 96167 (ON LAT) at para 26 – Applicant Book of Authorities at Tab 11```