Negash v. Certas Home and Auto, 2022 CanLII 45271

Negash v. Certas Home and Auto, 2022 ONLAT 20-002472/AABS

Citation: Negash v. Certas Home and Auto, 2022 ONLAT 20-002472/AABS

Licence Appeal Tribunal File Number: 20-002472/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:

Saleh Negash

Applicant

and

Certas Home and Auto

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Olga Kanevsky, Counsel

For the Respondent:

Paul Irish, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Saleh Negash, was involved in an automobile accident on February 21, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) after his claims for benefits were denied by the respondent.

2The applicant was a driver of a vehicle that was rear-ended by another vehicle. The airbags did not deploy, and he did not lose consciousness. Neither police nor ambulance attended the scene of the accident.

3The respondent denied the applicant’s claims, including treatment for: chiropractic services, psychological assessment, and neurological assessment because it determined that all of 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 (“the MIG”).²

4The applicant submits that his injuries fall outside of the MIG because of a pre-existing medical condition.

5If the applicant’s position is correct, then I must address if the chiropractic services, psychological assessment, and neurological assessment, are reasonable and necessary pursuant to the Schedule.

6If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to interest.

ISSUES

7The following are the issues to be determined, as per the Case Conference Order of Adjudicator Cavdar, dated August 5, 2020:

i. Are the applicant’s injuries predominately 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 $2,894.33 for chiropractic services recommended by East Sheppard Rehab in a treatment plan (“OCF-18”) submitted on June 26, 2019?

iii. Is the applicant entitled to $1,603.57 for chiropractic services recommended by East Sheppard Rehab in an OCF-18 submitted on September 25, 2019?

iv. Is the applicant entitled to $112.11 for chiropractic services recommended by East Sheppard Rehab in an OCF-18 submitted on May 29, 2019?

v. Is the applicant entitled to $1,212.11 for chiropractic services recommended by East Sheppard Rehab in an OCF-18 submitted on April 29, 2020?

vi. Is the applicant entitled to $1,999.82 for a psychological assessment, recommended by Normed Assessments in an OCF-18 submitted on April 3, 2019?

vii. Is the applicant entitled to $2000.00 for a neurological assessment, recommended by Normed Assessments in an OCF-18 submitted on October 23, 2019?

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

8The respondent submitted that issue v is for both chiropractic services and massage therapy. The applicant did not submit a reply to rebut this. As such, for the purposes of this hearing, I have determined that issue v is for both chiropractic services and massage therapy.

RESULT

9I find that the applicant sustained predominately minor injuries because of this accident, and that he is not removed from the MIG as a result of any pre-existing conditions, chronic pain or psychological impairments.

10The applicant has reached the $3,500.00 funding limit on medical benefits for a minor injury. Thus, an analysis on the disputed treatment and assessment plans is not required.

11The applicant is not entitled to interest on any overdue payments of benefits.

ANALYSIS

The MIG

12I find that the applicant sustained predominately minor injuries because of this accident, and that he is not removed from the MIG as a result of any pre-existing conditions, chronic pain or psychological impairments.

13The 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.

14Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant’s evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³ The onus is also on the applicant to demonstrate that his injuries fall outside of the MIG.

15On February 28, 2019, Dr. Bruni, chiropractor, completed a Disability Certificate (“OCF-3”) and listed the following injuries as a result of the accident: acute pain; pain in joint; pain in low back; depressive episode; malaise and fatigue; disordered sleep; and nervousness. The OCF-3 completed by Dr. Bruni has injuries that are clearly within the definition of the MIG, and this was completed shortly after the accident.⁴ I do not accept the opinion of Dr. Bruni with respect to depressive episode, malaise and fatigue, disordered sleep, and nervousness, as he is a chiropractor, and a psychological diagnosis is outside of his area of practice.

16The applicant’s submissions were unclear on what grounds he should be taken outside of the MIG. The applicant submitted that the clinical notes and records contained information about a pre-existing medical condition which was documented on an MRI of the lumbar spine. As such, I will consider whether the applicant’s pre-existing medical conditions will take him outside of the MIG.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

17The applicant is not removed from the MIG as a result of a pre-existing condition, as he has failed to prove on a balance of probabilities that his pre-existing condition would prevent maximal recovery within the MIG.

18Section 18(2) of the Schedule provides that an applicant may be removed from the MIG if they provide 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.

19The standard for excluding an impairment on the basis of a pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the funding limit imposed by the MIG.

20The applicant submits that he had a pre-existing medical condition documented in an MRI of the lumbar spine conducted on July 4, 2017, which revealed: mild disc space narrowing at L5-S1; mild broad-based posterior disc bulge with mild bilateral neural foraminal stenosis and facet OA (osteoarthritis) at L4-L5; mild bilateral interfacetal at L5-S1; and subtle diffuse decreased marrow signal which may suggest marrow reconversion or infiltration.⁵

21The respondent submits that despite the applicant having back pain prior to the accident, he had no issues in the year and half before the accident. The respondent further submitted that the mere presence of a pre-existing issue does not warrant a removal from the MIG. I agree with the respondent for the reasons outlined below.

22On October 27, 2017, the applicant met with Dr. Fabian for back pain which had started in June 2017. The applicant advised that his back pain had resolved in end of July. Further, the applicant advised he had bilateral knee pain in July 2017 but that had also resolved, other than when he sat on the floor. Dr. Fabian concluded that the physical examination was unremarkable, and the applicant had improved.⁶ On November 6, 2017, Dr. Fabian met with the applicant once again. Dr. Fabian noted that there had been no further back pain since the previous visit.⁷ These records clearly support the respondent’s position that the applicant had no back pain in the year and half before the accident. Further, the applicant has failed to provide any evidence that supports that he had back pain or knee pain at the time of the accident.

23The only entry from his family physician, Dr. Gindi, that the applicant refers me to is March 2, 2019, to support that he had back pain following the accident. My review of the record indicates that although, he complained of slight lower back pain, Dr. Gindi also noted that there were no restrictions. Further, Dr. Gindi diagnosed the applicant with a strain which is within the definition of the MIG. I place significant weight on this evidence as the applicant’s own treating practitioner diagnosed him with injuries falling within the MIG.⁸ As the respondent rightly submitted, the applicant met with Dr. Gindi for the first time after the accident, on February 25, 2019, and failed to mention it. He also advised that he had lower back pain but that was due to the gym. Dr. Gindi further noted that there were no neurological symptoms.⁹

24The applicant’s submissions are unclear, but he seems to indicate that the OHIP Summary and Decoded List of Services should be reviewed. The applicant failed to provide any submissions or evidence on how the OHIP Summary and Decoded List of Services (“OHIP Summary”) would take him outside of the MIG. As such, I have placed no weight on this evidence.

25The applicant’s submissions are confusing, but he seems to indicate that the addendum report completed by Dr. Bruni should be reviewed. However, his submissions are completely silent on how this addendum report would take him outside of the MIG. On October 9, 2019, Dr. Bruni, a chiropractor, completed an addendum report. Dr. Bruni reviewed the MRI of the lumbar spine, dated July 4, 2017, and the clinical note and record of Dr. Fabian, dated October 27, 2017. Dr. Bruni failed to note that the applicant had advised Dr. Fabian that his back pain had resolved in 2017.¹⁰ As such, I place little weight on Dr. Bruni’s opinion that the applicant’s pre-existing back symptoms were aggravated by the accident and his injuries should remove him from the MIG. This opinion by Dr. Bruni is clearly contradictory to the medical evidence presented to me. It is clear that the applicant advised Dr. Fabian on two occasions that his back pain had resolved and there is no evidence that it was an issue at the time of the accident. Moreover, the applicant’s own family physician, Dr. Gindi has diagnosed him with injuries that are within the MIG. I prefer the evidence of Dr. Gindi as he is the applicant’s family physician so he would have more intimate knowledge regarding the applicant and whether his injuries fell within the MIG.

26I agree with the respondent that the onus is on the applicant to prove he has a pre-existing condition that would remove him from the MIG, and not on the respondent to rebut it. While I agree that the applicant had pre-existing back pain in 2017, there is insufficient evidence to support that this should remove him from the MIG. The applicant has failed to provide sufficient evidence of how pre-existing back pain in 2017 was exacerbated by this accident and would affect his ability to recover within the MIG. As stated above, I prefer the evidence of Dr. Gindi over Dr. Bruni and Dr. Gindi diagnosed the applicant with injuries falling within the MIG post-accident. Moreover, Dr. Gindi’s records do not support that the applicant’s pre-existing back pain was exacerbated by the accident and would affect his ability to recover within the MIG.

27The applicant’s submissions are completely silent on whether he suffered from a chronic pain condition that will take him outside of the MIG. However, as Dr. Bruni diagnosed him with chronic pain, I will consider next whether this will take him outside of the MIG.

The applicant does not suffer from a chronic pain condition that would remove him from the MIG

28The applicant has failed to discharge his evidentiary onus that he suffers from a chronic pain condition that would remove him outside of the MIG.

29On October 9, 2019, Dr. Bruni opined that the applicant had chronic pain from this accident. I have placed little weight on this for the following reasons: the applicant himself did not submit whether he suffered from a chronic pain condition as a result of this accident; there is no supporting entry from Dr. Gindi or any other treating practitioner wherein he was diagnosed with chronic pain; and from the records provided, the applicant only sought medical attention for back pain twice following this accident.

30The applicant’s submissions do not address whether he has a psychological impairment that will remove him from the MIG. However, as a cost of a psychological assessment is in dispute, I will consider next whether this will remove him from the MIG.

The applicant does not suffer from psychological injuries which would remove him from the MIG

31The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.

32The applicant did not provide any evidence that he sought medical attention from Dr. Gindi for psychological impairments following this accident. I place no weight on Dr. Bruni’s OCF-3, dated February 28, 2019, wherein he listed psychological symptoms, as he is a chiropractor, and this is outside of his scope of practice to do so. I have also placed little weight on the OCF-18, dated March 29, 2019, for a psychological assessment. It is well settled that an OCF-18 alone is not medical evidence. I note there is psychological symptoms listed in the additional comments section of the OCF-18, however there is no contemporaneous medical evidence to support this. Further, the records of 2430307 Ontario LTD., do not persuade me that the applicant has a psychological impairment as a result of the accident as it only contains a pre-screening questionnaire that was completed by the applicant.¹¹

The Respondent was compliant with s.38(8) of the Schedule

33The respondent was compliant with s. 38(8) of the Schedule for the reasons outlined below.

34Sections 38(8), (9), and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not. An insurer must also provide notice regarding the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. Section 38(11)1 sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies. Section 38(11)2 states the insurer must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives a proper notice.

35The applicant submits that all the denials with respect to the disputed OCF-18’s are non-compliant with s.38(8) of the Schedule. The applicant submits that the respondent failed to: review the disputed OCF-18’s after the receipt of the clinical notes and records of Dr. Gindi and the OHIP Summary which confirmed a pre-existing condition; and they failed to provide sufficient medical evidence for their denials.

36The respondent submits that they were compliant with s.38(8) of the Schedule as they had no or limited information to provide specific medical reasons for all the denials. The respondent also submits that on October 25, 2019, once they had received the requested information, they advised the applicant that they would be scheduling s.44 assessments to address non-earner benefits, income replacement benefits, the MIG, and the OCF-18’s that are issues ii and iv for our hearing.

37The respondent further refers me to a reconsideration decision by Linda P. Lamoureux, in T.F. v. Peel Mutual Insurance Company. They refer me to paragraph 19 which stated that an insurer’s “medical and any other reasons” should at the bare minimum provide the insured with specific details about their condition which formed the basis for the insurer’s decision or identify information about their condition that the insurer does not have but requires.¹² T.F. v. Peel Mutual Insurance Company, also stated that an insurer’s medical and any other reasons should be clear and sufficient enough to allow an unsophisticated person to make a decision of whether to accept or dispute the denial.¹³

38I agree with the respondent, as all the denials, dated April 5, 2019, June 4, 2019, June 28, 2019, October 1, 2019, October 30, 2019, and May 12, 2020, cite the MIG, what documentation was reviewed by the insurer to make the determination, and when applicable advised the applicant what medical information was required to make a further determination. Further, the insurer provided the applicant with a medical reason for the denials as they advised what documentation they had reviewed to determine he was in the MIG. Once the documentation was provided, the respondent arranged s. 44 insurer’s examinations. The applicant in his own submissions admitted that he did not provide the respondent with clinical notes and records of Dr. Gindi until October 9, 2019, and the OHIP Summary until December 11, 2019. The respondent advised the applicant on October 25, 2019, that they would be arranging s.44 assessments.

39The applicant further submits that the respondent failed to review the OCF-18’s for issues iii and v once they received the clinical notes and records of Dr. Gindi and the OHIP Summary and as such, they are payable. I disagree for the following reasons. The denial letter of October 1, 2019, with respect to the OCF-18 in the amount of $1,603.57 clearly stated that Certas did not have any clinical notes and records from a family physician that confirmed the applicant suffered from pre-existing neck pain or continued to suffer from neck pain.¹⁴ I have reviewed the records and there is no reference to pre-existing or post-accident neck pain. Further, the respondent provided clear medical reasons that an unsophisticated person would be able to determine how to proceed. I also find the denial letter dated May 12, 2020, with respect to an OCF-18 for $1,212.11 is sufficient as it was denied for the exact same reasons.¹⁵

40I further acknowledge that the applicant may disagree with the s.44 physiatry assessment conducted by Dr. Baker who he believes failed to consider the MRI of the lumbar spine, dated June 4, 2017, or the clinical notes and records of Dr. Gindi. However, under s. 38(8) of the Schedule, the insurer is only required to provide medical reasons for the denials of the OCF-18 so the applicant can make a decision to dispute or accept the denial. Clearly, the respondent has satisfied their evidentiary obligation as the applicant is aware of the medical reasons for the denials but disagrees with same. Although, neither party advised whether the MIG limits were exhausted or not, the denial letter of June 4, 2019, advised that the OCF-18 was being approved for $1,100.00 as this was the amount available under the MIG.¹⁶ As such, it is unnecessary for me to consider the reasonableness and necessity of the disputed OCF-18’s because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

INTEREST

41Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

ORDER

42For the reasons set above, I find that:

i. The applicant sustained predominately minor injuries as defined under the Schedule;

ii. The applicant is not entitled to $2,894.33 for chiropractic services;

iii. The applicant is not entitled to $1,603.57 for chiropractic services;

iv. The applicant is not entitled to $112.11 for chiropractic services;

v. The applicant is not entitled to $1,212.11 for chiropractic and massage services;

vi. The applicant is not entitled to $1,999.82 for a psychological assessment;

vii. The applicant is not entitled to $2,000.00 for a neurological assessment;

viii. The applicant is not entitled to interest; and

ix. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24 (Div. Ct.).
4. 4Applicant’s Submissions, Tab 3, OCF-3 dated February 28, 2019.
5. 5Applicant’s Submissions, Tab 4, MRI of Lumbar Spine, dated July 4, 2017.
6. 6Applicant’s Submissions, Tab 4, Clinical Notes and Records of Dr. Fabian.
7. 7Ibid.
8. 8Ibid.
9. 9Respondent’s Submissions, Tab C, Clinical Notes and Records of Dr. Gindi from June 2017 to October 9, 2019.
10. 10Applicant’s Submissions, Tab 6, Addendum Report from East Sheppard Rehab.
11. 11Applicant’s Submissions, Tab 18, Pre-screening questionaries- Normed Assessments.
12. 122018 CanLII 39373, para. 19 (ON LAT Reconsideration Decision)
13. 13Ibid.
14. 14Applicant’s Submission, Tab 9, letter from respondent, dated October 1, 2019.
15. 15Applicant’s Submission, Tab 12, letter from respondent, dated May 12, 2020.
16. 16Applicant’s Submissions, Tab 10, letter from respondent, dated June 4, 2019.