Licence Appeal Tribunal

Citation: Grilo v. Certas Home and Auto Insurance Company, 2021 ONLAT 20-008156/AABS

Licence Appeal Tribunal File Number: 20-008156/AABS

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:

Joshua Chambers Grilo Applicant

and

Certas Home and Auto Insurance Company Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Mary Tran, Paralegal

For the Respondent: Adam Fox, Counsel

HEARD by Videoconference June 3, 2021 and Written Submissions

BACKGROUND

1Joshua Chambers Grilo (“applicant”) was involved in an automobile accident on March 2, 2019 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Certas Home and Auto Insurance Company (“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 paid benefits to the $3,500.00 funding limit and denied other benefits including income replacement benefit (“IRB”).

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

4The issues to be decided are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

ii. Is the applicant entitled to an IRB of $400.00 per week from March 2, 2019 to date and ongoing, subject to any amounts paid?

iii. Is the applicant entitled to the following amounts for chiropractic services recommended by Mediwise Health Care Centre: a. $1,226.80 in a treatment plan (OCF-18) submitted May 15, 2019 and denied May 22, 2019? b. $3,805.76 in a treatment plan (OCF-18) submitted June 6, 2019 and denied June 12, 2019? c. $3,084.14 in a treatment plan (OCF-18) submitted August 28, 2019 and denied September 5, 2019? d. $2,555.66 in a treatment plan (OCF-18) submitted November 29, 2019 denied December 11, 2019?

iv. Is the applicant entitled to the following amounts for psychological services, recommended by Mediwise Health Care Centre: a. $4,314.20 in a treatment plan (OCF-18) submitted August 7, 2019 and denied August 15, 2019? b. $3,865.38 in a treatment plan (OCF-18) submitted November 8, 2019 and denied November 18, 2019?

v. Is the applicant entitled to $1,920.53 for a psychological assessment, recommended by Mediwise Health Care Centre in a treatment plan submitted July 19, 2019 and denied July 23, 2019? (all treatment plans collectively referred to as the “disputed treatment plans”)

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

RESULT

5I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. As the MIG limit has been exhausted³, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary. I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. No interest is payable.

LAW

6The 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.

7To 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.

8The onus is on the applicant to establish, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁴

9An employed person’s entitlement to an IRB falls under s. 5(1)1.i. of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment? After 104 weeks post-accident the test for eligibility for IRB changes.

10The onus is on the applicant to establish entitlement to IRB on a balance of probabilities.

11Section 15 of the Schedule provides that, subject to s. 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident for certain services and medication.

12The onus is on the applicant to establish entitlement on a balance of probabilities.

ANALYSIS

Positions of the Parties

13The applicant submits that his injuries are not minor and that he suffers from chronic pain and psychological injury as a result of the accident, taking him outside the MIG, and that the disputed treatment plans are reasonable and necessary. The applicant also submits he is entitled to IRB.

14The respondent submits that the applicant’s injuries resulting from the accident are within the MIG and that the applicant has failed to establish otherwise. Further, the respondent submits that the applicant’s records establish that his physical and mental health was affected by two unrelated incidents, one before and one after the March 2, 2019 accident. Specifically, mid-January, 2019 the applicant was involved in a motor vehicle accident while working for Ashley Home Furniture store (“January accident”) and on March 25, 2019 he was the victim of an armed robbery during which he was shot (“the shooting”). The respondent also submits that the disputed treatment plans are not reasonable and necessary. The respondent submits the applicant is not entitled to IRB.

Did the Applicant Suffer Injuries That Are Predominantly Minor?

15I find that the applicant’s physical injuries from the accident are minor injuries because none of the applicant’s medical reports and records indicate any physical injuries arising from the accident other than soft tissue injuries.

16The applicant testified that he had left ankle pain, right shoulder pain and left side rib pain post-accident, diagnostic imaging and other hospital records from the day of the accident show only soft tissue injuries which are in the MIG.

17The March 20, 2019 OCF-3, disability certificate, by Dr. Osoba, applicant’s chiropractor lists the applicant’s physical injuries as muscle and tendon strain and injuries, sprain and strain of thoracic and lumbar spines, all of which are in the MIG. The disability certificate also lists myalgia and various types of pain, nervousness, malaise, fatigue, emotional shock and stress. This disability certificate does not establish that the applicant should be removed from the MIG because Dr. Osoba is not qualified to medically diagnose these physical or psychological issues.

18When the applicant saw Dr. Jalota, his family physician, on March 20, 2019, Dr. Jalota noted recurring pain on back and neck from the January accident, new pain on left ankle, right shoulder and left side of ribs from the March 2, 2019. There is no indication of any physical injuries which would be outside the MIG.

19The medical evidence before me that establishes the applicant had sprain and strain type physical injuries from the accident all of which fall within the definition of “minor injury”. However, the applicant submits that he suffers from chronic pain and psychological injury that removes him from the MIG.

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

20I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain and psychological injury justifying treatment beyond the MIG.

21With respect to chronic pain, there are some references in the records of Dr. Jalota about chronic pain. For example, Dr. Jalota refers the applicant for a medical cannabis assessment for anxiety, chronic pain and sleep disorder in August, 2019 and indicates to the applicant’s legal representative in September, 2019 that the applicant sustained anxiety, insomnia and chronic neck and back pain in the accident. However, March 17, 2020, Dr. Jalota referred the applicant to Dr. Bhangu, physiatrist, for “chronic back pain s/p MVC in Jan 2019” which tends link the applicant’s back pain to the January accident. The applicant did not refer to any records from Dr. Bhangu in this hearing. This is consistent with the paramedic’s ambulance report from the day of the accident which shows that the applicant said he had ongoing back pain from a previous accident, a statement denied by the applicant in his testimony.

22The pain complaints the applicant made to Dr. Jalota are inconsistent and many indicate that the level of pain experienced by the applicant is not so great that he is willing to take prescription medication. For example, October 7, 2019 Dr. Jalota recommended the applicant take Cymbalta to help with anxiety and pain but noted that the applicant declined. November 27, 2019 Dr. Jalota notes that the applicant stopped taking the meds he was given because it wasn’t working. Dr. Jalota prescribed Cymbalta as a result of which in January, 2020 the applicant told Dr. Jalota that it improves his pain, helps him sleep and his pain is improving. April 13, 2020 Dr. Jalota noted the applicant “states he has been in a lot of back pain recently…is currently not taking anything for the pain”. In May, 2020 Dr. Jalota noted that “is having a lot of pain to his lower back area…not taking any OTC meds…does not seem like its worsening or improving…no red flags…can consider nsaids prn if really bad”. July 2, 2020 Dr. Jalota noted that the applicant told him he does not want pain meds or sleep meds but is okay continuing med marijuana prn for pain.

23On August 27, 2020 Dr. Jalota notes that the applicant complained of ongoing back pain but declined Dr. Jalota’s offer of a referral to an orthopaedic specialist.

24The applicant’s pain did not prevent him from travel post-accident. On October 26, 2020 the applicant told his family physician he still has back and neck pain and is “going to travel for 1 month to stress relieve”. The applicant asked for a note that he is unable to work due to pain since accident and this was supplied by Dr. Morkos, applicant’s family physician, who writes “Patient states was unable to work due to pain since accident”. When the applicant asked that the wording of this note be changed from “patient states” to “due to these injuries he is unable to work…”. Dr. Morkos refused. Dr. Jalota notes January 6, 2021 that the applicant reports his “back is better”.

25Dr. Jalota does not diagnose chronic pain syndrome, as opposed to chronic pain. Dr. Jalota does not refer the applicant to a physician pain specialist.

26With respect to psychological injury, Dr. Jalota recommended psychotherapy but did not refer the applicant to a psychiatrist until the applicant asked for this for his depression and anxiety on February 4, 2021, almost two years post-accident. Dr. Jalota’s referred the applicant to Dr. Pendharkar, psychiatrist. However, the applicant did not point to any report or records from Dr. Pendharkar or any other psychiatrist. Instead, the applicant submits that he was unable to see Dr. Pendharkar because the office was closed in March, 2021. I find this explanation unpersuasive. Dr. Jalota could have been asked for a referral to a different psychiatrist if the applicant’s need was great.

27I give the report of Dr. Awad, applicant’s otolaryngology and head and neck surgeon, little weight. Dr. Awad diagnosed insomnia which he concluded is likely related to a post-traumatic stress response (“ptsd”) following a recent motor vehicle accident. Firstly, Dr. Awad does not identify whether this is the January accident or the accident. Secondly, there is no indication in Dr. Awad’s August 30, 2019 report that he is aware of the shooting. Thirdly, there is no significant evidence that Dr. Awad has the appropriate medical education, training or experience to make a psychological diagnosis if that is what he was intending by relating the applicant’s insomnia to ptsd.

28Further, the applicant was not functionally impaired by any pain or psychological injury he attributes to the accident. Justice O’Marra of the Ontario Court of Justice found in his Reasons for Judgment on Sentencing that the applicant worked at an aromatherapy business, which was also an unlicenced marijuana dispensary, March 25, 2019. The applicant admitted in his testimony that he worked at Levasleep post-accident.

29Dr. Jalota’s records show that the applicant did not raise any psychological issues with Dr. Jalota until April 3, 2019, after the shooting and after the January accident. At that time, Dr. Jalota does not clearly attribute the psychological issues to any cause.

30The Mediwise Healthcare Centre referral for the applicant to see a psychologist is dated March 25, 2019 and April 3, 2019. March 25, 2019 is the day of the shooting and April 3, 2019 is approximately one week after the shooting. Although the April 3, 2019 Mediwise Healthcare Centre psychological pre-screening report is signed by Dr. Mrahar, applicant’s psychologist, it indicates that the applicant screening was performed by Emmanuel Joseph Cyriac, clinical social worker. There is no mention in either the referral or the pre-screening report of the shooting, tending to indicate that either the shooting was unknown to the applicant’s own assessors or it was considered not to impact his psychological state. If the latter, no explanation is given. As a result, although the referral and the pre-screening both reference the accident I give this referral and the pre-screening report little weight and find that they are insufficient to establish a psychological impairment resulting from the accident and not the shooting or the January accident on a balance of probabilities.

31July 16, 2019 the applicant reported to Dr. Jalota that he has seen a counsellor once only but did not hear back and Dr. Jalota advised him to start counselling. August 27, 2019 the applicant reported to Dr. Jalota that he is starting counselling.

32The July 30, 2019 report by Bruce Cook, M.A., C. Psych. Assoc. indicates the assessment of the applicant was done because the applicant had complained of psychological and physical difficulties resulting from the accident. The assessment included a clinical interview and the administration of psychological self-report questionnaires. Bruce Cook’s report is qualified by the statement that “should there be information of relevance that was unavailable at the time of this assessment, the opinions as expressed in this report may be altered…” Mr. Cook relies on the applicant’s self-reporting in the interview and the tests. The shooting is not mentioned in this report – only the accident as a cause for the what Mr. Cook concludes is ptsd and major depressive episode, tending to indicate that either the shooting was unknown to Mr. Cook or it was considered not to impact his psychological state. If the latter, no explanation is given. As a result, I give this report little weight and find that it is insufficient to establish a psychological impairment resulting from the accident and not the shooting incident on a balance of probabilities.

33In his October 30, 2019 psychological progress report Dr. Mrahar recommends further psychotherapy treatment for the applicant following completion of 16 sessions. Again, this report is fundamentally flawed by the lack of any reference to or recognition of the shooting and explanation of how it likely affected or did not affect the applicant’s psychological condition post-accident.

34Also missing from the Dr. Mrahar’s pre-screening report, Mr. Cook’s report and Dr. Mrahar’s October 30, 2019 report is any self-reporting from the applicant that he complained of physical and psychological issues from the January accident.

35This is consistent with the applicants admissions in cross-examination that he withheld medical information from his own assessors including the traumatic experience of being victimized and shot during a robbery while he was working on March 25, 2019 at an aromatherapy business which was also an unlicenced marijuana dispensary. The fact that the applicant withheld medical information from his own assessors leaves their reports fundamentally flawed and their assessments insufficient to establish a causal connection between the applicant’s psychological and pain complaints and the accident on a balance of probabilities.

36I prefer the opinion of respondent’s psychologist Dr. Dancyger because he was aware of the shooting at the time of the applicant’s assessment and commented on it in his report, conducted a thorough assessment of the applicant including testing, and reviewed an extensive list of the applicant’s records. Dr. Dancyger opined September 19, 2019 that the applicant’s test results cannot be interpreted, provide no evidence to support his subjective complaints and suggest a lack of effort on his part, an exaggeration of his complaints and some underlying motivation for his complaints that was not being disclosed or of which he may not even be aware. Dr. Dancyger opined that there is no valid and objective evidence to suggest that the applicant suffers from an impairment as a direct result of the accident.

37Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain or psychological injury 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 conditions is on the applicant and he has not done so.

Is the Applicant Entitled to IRB in the Amount of $400.00 per Week to Date and Ongoing, Subject to any Amounts Paid?

What were the essential tasks of the applicant’s employment?

38The applicant testified that he worked at Ashley Home Furniture (“furniture store”) at the time of the accident and worked after the accident but stopped because of his injuries. The applicant claims pre-104 week IRB and post-104 week IRB.

39The furniture store’s records show the applicant worked from December, 2018 to February 5, 2019 but was not employed at the time of the accident. In January, 2019 the applicant was off work due to a WSIB injury. The furniture store’s March 19, 2019 OCF-2 confirms that the applicant was employed as a delivery driver whose job description is delivery and assembly of furniture to customer’s homes but contains no information under the heading “Essential Tasks of Job”.

Does the applicant suffer a substantial inability to complete the essential employment tasks?

40I find that the applicant is not eligible for IRB based on a lack of medical evidence establishing he has substantial inability to complete the essential tasks of his pre-accident employment.

41As to the applicant’s alleged physical injuries from the accident resulting in a substantial inability to complete the essential employment tasks of his employment, I find that this is not established by the applicant’s medical evidence. I have already found the applicant’s physical injuries to be minor.

42The March 20, 2019 disability certificate by Dr. Osoba relied on by the applicant does not establish that the applicant suffers a substantial inability to complete the essential tasks of his employment because Dr. Osoba is not qualified to medically diagnose any physical or psychological injuries. Although Dr. Osoba states that the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident and states the applicant cannot return to work on modified hours and/or duties, no meaningful explanation is given in the disability certificate for either of these statements other than to describe the applicant’s injuries. Further, the period of anticipated disability expired before August 2, 2019 when the respondent determined the applicant not to be entitled to IRB.

43Dr. Jalota did not restrict the applicant’s ability to work after the accident and most of Dr. Jalota’s records appear to be a note of what the applicant reported about work from time to time. Dr. Morkos, when asked for a note to excuse the applicant from work so that he could travel wrote only that “Patient states was unable to work due to pain since accident”. Dr. Morkos refused to change this wording when asked by the applicant to change “patient states” to “due to these injuries he is unable to work…”.

44It is also clear that the applicant worked post-accident even though he was not working at the time of the accident. This finding has been made by the Court as set out above. The applicant also admitted in his testimony that he worked at Levasleep post-accident. Further, the applicant sought a note from Dr. Morkos to excuse him from his work.

45This is consistent with the report of Dr. Khan, respondent’s physiatrist, who after assessing the applicant on July 25, 2019 opined that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident, there being no significant objective accident-related physical impairments. The applicant told Dr. Khan that he had returned to driving post-accident, albeit with alleged fear and anxiety.

46As to the applicant’s alleged psychological injuries from the accident resulting in a substantial inability to complete the essential employment tasks of his employment, I find that this is not established by the applicant’s medical evidence. I give the opinions of Dr. Mrahar and Bruce Cook little weight for the reasons given above and prefer the opinion of Dr. Dancyger. Dr. Dancyger reported that the applicant did not report any feelings of emotional distress or discomfort during his transportation to his psychological assessment and found the applicant not to appear particularly anxious or depressed. This opinion indicates the applicant, more likely than not, does not suffer a substantial inability to complete his essential employment tasks. Although the applicant reported being on edge, anxious and depressed, Dr. Dancyger noted that the applicant’s testing showed he can distort his clinical presentation.

47Taken as a whole, the weight of the medical evidence fails to establish that the applicant meets the eligibility test for IRB. Even 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.

Does the applicant suffer a complete inability to engage in any employment?

48As the applicant has not satisfied his burden of substantiating entitlement to pre-104 week income replacement benefit, the post-104 week income replacement benefit test of complete inability to engage in any employment cannot be met.

Is the Applicant Entitled to the Disputed Treatment Plans?

49Having found that the applicant’s injuries fall within the MIG and given that the respondent has funded the full limits of the MIG, it is not necessary to decide the reasonableness and necessity of the disputed treatment plans.

Interest

50As no benefits are payable, no interest is payable.

ORDER

51For 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. As the MIG limit has been exhausted, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary. I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. No interest is payable. The applicant’s claim is dismissed.

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. 3Respondent’s Submissions dated June 25, 2021, para 44.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.