Citation: Cruz v. Certas Direct Insurance Company, 2022 ONLAT 20-008727/AABS

Licence Appeal Tribunal File Number: 20-008727/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:

Maria Louise Cruz

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

Elizabeth Gutierrez Nadal, Counsel

For the Respondent:

David Koots, Counsel

Angeline Pillay, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Maria Louise Cruz, the applicant, was involved in an automobile accident on January 29, 2019, and sought benefits from Certas Direct Insurance Company, the respondent, pursuant to the Statutory Accident Benefits Schedule, Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in this hearing are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 6, 2019 to January 29, 2021?

ii. 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 Minor Injury Guideline?

iii. Is the applicant entitled to a medical benefit in the amount of $322.52 ($3,107.55 less $2,685.03 approved) for chiropractic services recommended by Scarborough West Physiotherapy and Rehabilitation Centre pursuant to a treatment plan (“OCF-18”) denied on July 24, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $2,385.80 for physiotherapy services recommended by Scarborough West Physiotherapy and Rehabilitation Centre pursuant to an OCF-18 denied on November 3, 2020?

v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant has effectively withdrawn the issue of income replacement benefits as an issue in dispute for this written hearing, as she has not provided any submissions or evidence on this issue.

4I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the Minor Injury Guideline (“MIG”).

5As the MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

6The respondent is not liable to pay an award under Regulation 664.

7As no benefits are owing, no interest is payable.

income replacement benefit (“IRB”)

8The Case Conference Report and Order dated April 6, 2021, included IRBs as an issue in dispute for this written hearing. However, the applicant did not list IRBs as an issue in dispute in her written submissions, nor has she provided any written submissions or evidence on this issue. As such, I agree with the respondent’s submissions that the applicant has effectively withdrawn the issue of IRBs as an issue in dispute for this written hearing.

minor injury guideline

9The MIG establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

10Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that they have a pre-existing condition, documented by a medical practitioner, that prevents maximal medical recovery under the MIG or if they provide evidence demonstrating that their injuries are not included in the minor injury definition. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG.

11The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.²

12The applicant submits that her accident-related injuries fall outside of the minor injury definition, on the basis of four grounds: that her physical impairments include a concussion, that she was diagnosed with a psychological disorder, that she suffers from chronic pain, and that she had a pre-existing injury of the temporomandibular joint which would prevent recovery under MIG limits.

Did the Applicant sustain predominantly minor physical injuries?

13The applicant submits that she should be removed from the MIG, as she suffered a concussion as a result of the accident and developed post-concussive syndrome, with persistent headaches. To establish this impairment, the applicant relies on the clinical notes and records (CNRs) of her family physician Dr. Divya Sood, who noted a “mild concussion”.³ The applicant also submits that both Dr. Sood, and the applicant’s treating physiotherapy clinic, Scarborough West Physiotherapy and Rehabilitation Centre, noted the applicant’s ongoing headaches. Finally, the applicant cites the decision S.S. v. Aviva Insurance Company,⁴ as support for her argument that the mere diagnosis of a mild concussion entitles an applicant to be removed from the MIG.

14In contrast, the respondent submits that the applicant was never diagnosed with a concussion by Dr. Sood and that the CNRs of Dr. Sood and the emergency room records do not indicate any findings of a head injury. The respondent further argues that although there are intermittent references to headaches in the months post-accident, these have not been linked to a concussion and that the applicant had reported by February 2020 that her headaches were better and that she only got them 1-2 times a month.⁵

15After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not adduced sufficient objective, medical evidence that she has sustained a concussion as a result of the accident.

16The emergency room records on the day of the accident indicate that the applicant complained of non-cardiac chest pain, but that she did not make any complaints related to a head injury. No diagnostic imaging of the head was done at the hospital, and the emergency room physicians did not diagnose the applicant with a head injury or a concussion.⁶

17Although the applicant states that her family physician Dr. Sood diagnosed her with a mild concussion, I agree with the respondent’s submissions that the CNRs of Dr. Sood do not indicate a formal diagnosis of a concussion. The applicant submits that in a medical visit on January 31, 2019, Dr. Sood noted a mild concussion. However, from my review of the CNR entry of that date, Dr. Sood only noted that the applicant complained of a mild headache “unsure if related to eye surgery, no dizziness, no vomiting”.⁷ There was no other reference to a concussion diagnosis in subsequent CNR entries, other than an entry dated May 30, 2019, where Dr. Sood states “mild post-concussive sx – now almost completely resolved”. In a short-term disability (STD) form completed by Dr. Sood, of the same date, Dr. Sood noted “mild concussion possibly”.⁸

18I agree with the respondent’s submissions that Dr. Sood raised the “possibility” of a mild concussion in one CNR entry and in the STD form. However, in my view, a notation referencing a possibility of a concussion is very different than a formal diagnosis of a concussion, particularly when the family doctor did not discuss or investigate the matter further. Dr. Sood did not order any imaging or make a referral to confirm a finding of a concussion, nor did she continue to record or investigate a possible concussion in subsequent visits. It does not appear that Dr. Sood conducted a neuro-behavioural cognitive assessment or any type of assessment to determine post-concussive symptoms. The applicant has not provided any other medical opinion that she sustained a concussion as a result of the accident. Further, the emergency room records do not indicate any reports of a head injury or concussion like symptoms at the time of the accident.

19With respect to the applicant’s headaches, the applicant submits that this is evidence of post-concussive syndrome. However, the applicant has not provided a medical diagnosis or opinion that her headaches were caused by a concussion. In fact, the applicant’s intermittent reports of headaches were discussed in a medical visit with Dr. Sood on November 21, 2019.⁹ During this visit the applicant was requesting an MRI as she was worried about an aneurism. Dr. Sood queried whether a pinched nerve was the case of the headaches and did not feel that an MRI was warranted. I agree with the respondent’s submissions that it does not appear that either the applicant or Dr. Sood thought that a possible concussion was the cause of the applicant’s intermittent headaches.

20As such, I find that the applicant has not adduced sufficient objective, medical evidence that she sustained a concussion as a result of the accident, warranting removal from the MIG.

Did the Applicant sustain a psychological impairment that would remove her from the MIG?

21The applicant claims that she sustained a psychological impairment as a result of the accident that would place her claim outside of the MIG. Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

22The applicant submits that soon after the accident, she began to experience psychological symptoms including anxiety, flashbacks, sleep disturbances, social withdrawal, and inability to cope. As a result, the applicant asserts that Dr. Sood diagnosed her mood-acute adjustment disorder¹⁰, which warrants her removal from the MIG. In contrast, the respondent submits that the applicant was never in fact diagnosed with a psychological disorder and that within three months of the accident, the applicant’s psychological symptoms had essentially resolved.

23Upon a review of the submissions and evidence, I find that the applicant has not adduced sufficient evidence that she suffers from a psychological impairment warranting removal from the MIG.

24Although the applicant states that Dr. Sood diagnosed her with an adjustment disorder, I agree with the respondent’s submissions that this is not reflected in the CNRs of Dr. Sood. From my review of the CNRs, it appears that in the week post-accident, the applicant reported feeling anxious, having trouble sleeping and a fluctuating mood. In the CNR entry a week after the accident, on February 4, 2019, Dr. Sood noted the applicant’s symptoms and queried “Mood-acute adjustment disorder?”¹¹. Dr. Sood further noted that she provided supportive listening and counselling and that the applicant “may need therapy if ongoing sx”. No further notation is provided about an adjustment disorder or subsequent counselling in Dr. Sood’s CNRs.

25I do not find that this single notation by Dr. Sood, less than a week after the accident, is a formal diagnosis of an adjustment disorder. Rather, I agree with the respondent’s submissions that in the week post-accident, while the applicant was experiencing anxiety related to the accident, Dr. Sood appeared to be cognisant of the fact that a mood disorder could potentially develop and that therapy may be needed if symptoms continued. However, I think that Dr. Sood’s use of a question mark in the CNR entry, “Mood-acute adjustment disorder?”, implies that no definitive diagnosis was being made.

26This is particularly the case given that the CNRs indicate that over the following few months the applicant reported to Dr. Sood that her mood was improving. After May 2019, the applicant brought up psychological concerns to Dr. Sood only once, stating that her mood was “upset” when she had a headache.¹² The applicant does not point me to any evidence that she continued to report accident-related psychological symptoms to Dr. Sood or that the doctor formally diagnosed her with an adjustment disorder.

27In the first week post-accident, the CNRs indicate that Dr. Sood provided counselling and supportive listening to the applicant regarding anxiety surrounding the accident. However, the applicant does not direct me to any evidence that any subsequent counselling or psychological support was ever required or requested by the applicant after the first week post accident.

28To escape the MIG, a psychological diagnosis requires the development of ongoing, substantive and residual symptoms or clinically-significant psychological distress. Although there is some evidence to suggest that the applicant may have suffered some psychological sequelae, or consequences, immediately after the accident, a measure of psychological impact is expected to accompany minor injuries, and is specifically contemplated in the MIG’s “functional restoration approach.”¹³ The applicant’s reported psychological concerns were not significant enough for her to raise them with her family doctor after the initial period post-accident or for the applicant to request any further psychological support.

29As a result, on a balance of probabilities, I find that the applicant has failed to establish that she sustained a psychological impairment as a result of the accident.

Does the Applicant have a Pre-Existing Condition that would Prevent Maximal Recovery under the MIG?

30I do not find that the applicant had a pre-existing medical condition which would prevent her from achieving maximal medical recovery within the MIG.

31Pursuant to s. 18(2) of the Schedule, an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG.

32The applicant submits that her pre-existing injury of the temporomandibular joint (TMJ) warrants removal from the MIG. The applicant relies on a pre-accident CNR entry from Dr. Sood, dated September 18, 2018, which noted that the applicant had TMJ pain and had attended physiotherapy for it¹⁴. The applicant submits that post-accident, she again began to suffer from TMJ pain which she reported to her treatment providers at Scarborough Physiotherapy & Rehabilitation Centre.

33I find that although the applicant has led evidence that she had suffered from TMJ pain prior to the subject accident, she has not met the requirement under s. 18(2) of providing medical evidence from any treating medical practitioner opining that this pre-existing injury would impact on her ability to achieve maximum medical recovery under the MIG.

34The existence of a pre-existing injury and a potential exacerbation of the pre-existing injury does not on its own take an applicant outside the MIG. Without additional medical evidence that this TMJ injury would preclude maximal medical recovery within the MIG, I find that the applicant has not adduced sufficient evidence to establish that her pre-existing injury warrants removal from the MIG.

Did the Applicant Develop Chronic Pain as a Result of the Accident?

35The applicant submits that in addition to her ongoing headaches, she continues to experience neck, bilateral shoulder, upper and lower back pain, as a result of the accident. As evidence, the applicant relies on the CNRs of Dr. Sood indicating ongoing pain complaints and her numerous reports of pain to her treating physiotherapy and chiropractic clinics.

36Upon my review of the evidence and submissions of the parties, I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove her from the MIG.

37The applicant has provided limited evidence of chronic pain. The applicant does not direct me to any diagnosis of chronic pain or chronic pain syndrome in the CNRs of Dr. Sood or any other medical practitioner. The applicant submits that a formal chronic pain diagnosis is not required to remove an applicant from the MIG. While I agree with the applicant that a formal diagnosis is not necessarily required to establish chronic pain, some evidence of functional impairment or disability is necessary, in addition to ongoing reports of pain.

38I note that an applicant can still be found to be within the MIG, even if she suffers from ongoing, post-accident pain. A certain degree of pain can be expected as a clinically associated consequence of minor, soft tissue injuries and their sequalae. Treatment for pain of this kind is contemplated in the $3,500.00 funding limit under the Schedule.

39Therefore, it is not simply reports of ongoing pain that establish a finding of chronic pain. Rather, ongoing pain must be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on an individual’s well-being. This Tribunal has often used the American Medical Association’s Guides (“AMA Guides”) chronic pain criteria as an assistive tool to evaluate chronic pain complaints where there is no diagnosis of chronic pain.

40In applying these AMA Guides criteria, the applicant has not provided evidence that she is dependent on or has abused prescription pain medication, is excessively dependent on health care providers or family, that she has withdrawn from social, work or recreational activities due to pain, or that she suffers from secondary physical deconditioning due to fear-avoidance of pain. There is no evidence that the applicant has been unable to restore pre-injury function after a period of disability, such that she is incapable to pursue work, family or recreational needs. The applicant returned to work within three weeks of the accident and reported to Dr. Sood that she was working out at a gym almost daily by May 2019.¹⁵ Other than self-reports of functional limitations the applicant has not led any evidence demonstrating functional impairment.

41As a result, on a balance of probabilities, I find that the applicant has failed to establish that she suffers from chronic pain as a result of the accident, that would warrant removal from the MIG.

42As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

43In her submissions, the applicant raised the issue that the respondent has not yet paid her the full MIG limit, despite the approved and incurred expenses she has sustained to date. The applicant submits that the respondent has only paid $1,594.18 out of the $3,500.00 MIG amount, without justification.

44The respondent submits that it fully intends to pay the applicant the amount remaining under the MIG limit, once collateral benefits have been accounted for, and once the amounts have been submitted via HCAI. The respondent notes that it is unclear whether the applicant has not yet incurred the remaining amount or if the clinic has not yet billed it to the insurer. However, the respondent does not dispute that it will pay the outstanding amount under the MIG.

45The applicant did not provide reply submissions on this issue. Therefore, I have no reason to doubt that the respondent will pay the remaining balance of the MIG limit to the applicant, once collateral benefits have been accounted for, and once the amounts have been submitted via HCAI. As such, there is no need for me to provide a ruling on this issue.

Interest

46Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

47As no benefits are overdue, no interest is payable under s. 51.

Award

48Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

49In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.

order

50For the reasons outlined above, I find that:

i. The applicant’s injuries fall within the Minor Injury Guideline.

ii. The applicant is not entitled to the disputed treatment plans.

iii. The respondent is not liable to pay an award under Regulation 664.

iv. The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Applicant’s Document Brief, Tab 4 – CNRs of Dr. Sood, pgs. 24-27 and Tab 5 – Great West Life Short Term Disability form
4. 4S.S. v. Aviva Insurance Company, 2019 CanLII 130376 (ON LAT)
5. 5Respondent’s Submissions, Tab 6 – pgs. 10-11
6. 6Applicant’s Document Brief, Tab 3 – Scarborough Grace Hospital Records, pgs. 18-22
7. 7Respondent’s Submissions, Tab 6 – CNR of Dr. Sood, dated January 31, 2019
8. 8Respondent’s Submissions, Tab 7 – Short-term Disability form dated May 30, 2019
9. 9Respondent’s Submissions, Tab 6 – CNR of Dr. Sood, dated November 21, 2019
10. 10Applicant’s Document Brief, Tab 4 – CNRs of Dr. Sood, pg. 26
11. 11Ibid.
12. 12Respondent’s Submissions, Tab 6 – CNR of Dr. Sood, pgs. 9-10
13. 13Superintendent’s Guideline No. 01/14
14. 14Applicant’s Submissions, Tab 2 – CNR entry of Dr. Sood dated September 18, 2018
15. 15Respondent’s Submissions, Tab 6, pgs. 6-7