Shaida Etaat v. Certas Home and Auto, 2022 CanLII 49947

Citation: Etaat v. Certas Home and Auto, 2022 ONLAT 20-006508/AABS

Licence Appeal Tribunal File Number: 20-006508/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:

Shaida Etaat Applicant

and

Certas Home and Auto Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal For the Respondent: Adam Fox, Counsel

HEARD VIA WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on June 21, 2018. She was the sole occupant and driver of a 2014 Honda Civic. She was travelling southbound on Jane Street approaching an intersection when a third-party vehicle failed to stop at a red light while attempting to make a right turn. Her vehicle was impacted on the right passenger side. The applicant struck her head against the window but did not lose consciousness. She sought medical attention at Southlake Regional Health Centre and reported pain in her neck, upper back, lower back, hips from the right side, shooting pain under knees and pain to the left side of her head.¹

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 ("Schedule"). The applicant was denied certain benefits by Certas and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

3The applicant was placed outside of the Minor Injury Guideline ("MIG")² following the insurer's examination ("IE") conducted by Dr. Lee, Psychologist, on October 17, 2019.

4A case conference was conducted on October 28, 2020 and a written hearing was scheduled.

ISSUES

a. The following issues are to be decided: Is the applicant entitled to the treatment plans and assessments recommended by Life Point Medical as follows: i. $1,236.85 for chiropractic services submitted on September 20, 2018? ii. $3,090.09 for chiropractic services submitted on November 21, 2018? iii. $3,020.36 for chiropractic services submitted on July 16, 2018? iv. $4,164.59 for psychological services submitted on November 27, 2018? v. $1,845.72 for a psychological assessment submitted on September 27, 2018? vi. $2,000.00 for a chronic pain assessment submitted on July 16, 2019?

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

5Issue v as listed above was approved by the respondent. It is no longer in dispute as part of this application.

RESULT

[6] I find the applicant is not entitled to: i. $1,236.85 for chiropractic services; ii. $3,090.09 for chiropractic services; iii. $3,020.36 for chiropractic services; iv. $4,164.59 for psychological services; v. $2,000.00 for a chronic pain assessment; and vi. Interest on any overdue payment of benefits.

ANALYSIS

Productions Issue Raised

[7] Certas has requested that I draw an adverse inference from the applicant's failure to comply with the following production orders made in the October 29, 2020 Case Conference Report and Order: a) Complete clinical notes and records of the applicant's family physician from three years pre-accident to present and ongoing; b) Complete clinical notes and records of any treating/assessing physicians, clinics, and service providers from three years pre-accident to present and ongoing; c) Complete account and invoices from all treating/assessing clinics; d) Records from all hospitals attended from three years pre-accident to present an ongoing; and e) Prescription history from three-years pre-accident to present and ongoing.

8The case conference adjudicator was clearly persuaded that these records were relevant to the issues in dispute. I agree.

9Although I am not specifically prepared to make an adverse inference, the lack of productions will go to the weight accorded to the applicant's evidence presented. I am particularly troubled that the records of the applicant's Family Physician, Dr. Drue Mandel, were not provided to the respondent by the production deadline of February 1, 2020. Instead, these records were appended to the applicant's written submissions provided April 9, 2021. I also note that only one clinical entry from Dr. Mandel was provided in the three years of pre-accident clinical notes and records ordered which was an entry dated February 20, 2018.

10The applicant did not provide any written reply submissions and, thus, did not address the production issue raised by the respondent.

Are the Treatment Plans and Assessments Reasonable and Necessary?

11Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

12The applicant bears the onus of proving entitlement to the proposed treatment by proving the OCF-18s are reasonable and necessary on a balance of probabilities.³

13In determining whether an assessment is reasonable and necessary, it must also be noted 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.⁴ To do so, the applicant must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessments.

14On the evidence provided, the applicant has failed to satisfy her onus that the OCF-18s and the assessments proposed are reasonable and necessary on a balance of probabilities. The applicant is not entitled to the treatment plans in dispute, nor the psychological or chronic pain assessments.

Chiropractic Services in the Amounts of $1,236.85, $3,090.09, and $3,020.36

15The applicant relies primarily on the self-reporting provided to her Family Physician, Dr. Mandel, and what is outlined on the OCF-18 dated September 19, 2018 in support of chiropractic treatment in the amount of $3,090.09. In this OCF-18, prepared by Dr. Rudi Chan, Chiropractor, an Examination Report is appended in the Additional Comments Section of the document. The applicant reports headaches, neck pain, upper and lower back pain, and dizziness. The applicant reported less severity with her symptoms and the frequency of aggravation decreased. However, she struggled with bending, lifting and prolonged postural strain.⁵

16The applicant also relies on a Chiropractor Assessment conducted by Dr. Chan on November 21, 2018 and Solmaz Zanjani dated July 12, 2019. These reports are pre-populated forms that include sections for Range of Motion. Range of motion numbers are outlined and both documents include self-reports of pain including headaches, upper and lower back pain.⁶ In the report dated July 12, 2019 the applicant also reports pain in the left knee.⁷

17Similarly, the OCF-18 dated November 21, 2018 in the amount of $3,090.09 provided by Dr. Chan, includes an Examination Report appended to the Additional Comments section of the document. Again, the applicant cites discomfort with movement aggravated by prolonged standing, bending, and lifting. However, Dr. Chan notes that frequency of aggravation has decreased but that the applicant continues to engage in activities of daily living that aggravate her condition. He recommends functional exercises, and core strengthening.⁸

18Finally, in the OCF-18 dated July 12, 2019 in the amount of $3,020.36 provided by Dr. Solmaz Zanjani, Chiropractor, the Additional Comments section of the document contains observations made regarding the applicant's physical injuries. Dr. Zanjani notes self-reported pain with prolonged standing, walking, sitting, bending/lifting. At that time the applicant reported a 10% improvement with treatment and was continuing to stretch and exercise at home. He recommended chiropractic treatment and functional exercises for core strengthening of the neck and lower back based on a rehabilitation program.⁹

19Conspicuously absent are any s. 25 reports related to physical or orthopaedic issues. The only medical assessment report provided was by Dr. Ko, Physiatrist, who conducted an IE on November 5, 2019. Dr. Ko indicated there was no objective evidence of ongoing organic pathology and opined that the applicant sustained soft issue injuries. He further opined that the applicant did not sustain an impairment and there were no objective findings that were causally related to the accident. Finally, Dr. Ko concluded there were no ongoing limitations in the applicant's pre-existing activities of daily living, and she had no physical impairment.¹⁰

20Dr. Ko's report post-dates all of the chiropractic treatment plans provided and provides a more recent examination of the applicant's symptoms. It is clear from Dr. Ko's report that the applicant's condition is improving in the approximate one-year period between the OCF-18 from November 2018 and the IE conducted in November 2019 by Dr. Ko.

21The applicant provided a clinical note from Dr. Mandel dated March 6, 2020. The applicant's self-reporting indicates she is still having ongoing neck and back pain since the accident. Dr. Mandel states that the applicant has full range of motion in her neck, tenderness in her upper trapezius, tender lumbar paraspinals, and pain at all extremes of movement. He recommended stretches and exercise and provided a referral to a pain clinic.¹¹ However, Dr. Mandel did not link any of these symptoms to the motor vehicle accident.

22When I balance the evidence related to these treatment plans, I am persuaded by the IE report provided by Dr. Ko. His findings were based on a review of the clinical notes and records, diagnostic imaging, the applicant's self-reporting, and his objective physical examination. This was not simply a boilerplate document with check boxes and notes in margins, or additional comments appended to a treatment plan, but a deliberate physical assessment designed specifically to assess whether the physical treatment plans were reasonable and necessary.

23On the evidence, I find that the applicant has not established on a balance of probabilities that the treatment plans for chiropractic treatment are reasonable and necessary.

$4,164.59 for Psychological Services

24The applicant is seeking a determination whether the psychological services recommended by Dr. Svetlana Gabidulina, Psychologist, in the OCF-18 dated November 21, 2018 are reasonable and necessary. Dr. Gabidulina first assessed the applicant for a Psychological Screening Report dated July 20, 2018. In this initial assessment, Dr. Gabidulina diagnosed the applicant with situational (isolated) phobias, moderate (automobile anxiety – driver/passenger), and depressive episode, moderate.¹²

25As a result of the second assessment completed October 24, 2018, Dr. Gabidulina identified barriers to recovery as flashbacks and bad dreams, isolation from friends, and feelings of hopelessness. In the s. 25 Assessment Report dated November 19, 2018, Dr. Gabidulina indicates the applicant suffers from situational (isolated) phobias, severe (automobile anxiety – driver/passenger). Dr. Gabidulina recommended 16 sessions of psychological treatment.¹³

26Dr. John W. Lee, Psychologist, conducted a s. 44 Psychology Assessment on October 17, 2019. Dr. Lee concluded that the applicant exhibited symptoms congruent with Adjustment Disorder with Mixed Anxiety and Depressed Mood. These emotional adjustment symptoms are a direct result of the motor vehicle accident. Dr. Lee recommended 12 sessions of cognitive behavioural therapy to address the applicant's emotional adjustment symptoms. Dr. Lee further indicated that from a psychological perspective, the applicant's injuries were not minor as defined in s. 3 of the Schedule and were outside of the MIG. He recommended that this treatment plan was partially reasonable and necessary at 12 hours of psychological treatment, testing, and submission of a progress report in the amount of $2,444.15.¹⁴

27In response, Certas approved $2,444.15 for the purpose of 12 hours of psychological treatment and placed the applicant outside of the MIG. This was outlined in an OCF-21 provided to the applicant on March 31, 2021.¹⁵ As of the date of the respondent's submissions, the applicant had only consumed approximately $1,053.00 in psychological treatment of the $2,444.15 approved.

28Certas submits that the applicant has not otherwise provided evidence that the applicant continues to require or intends to obtain further psychological treatment. I agree. While I am persuaded the applicant requires some psychological treatment as set out in both expert reports, the applicant has not provided any additional clinical notes or evidence to demonstrate a current or ongoing need for psychological treatment. Aside from the mention of psychological difficulties to her Family Physician, Dr. Mandel, on March 6, 2020, there are no other clinical notes and records provided to otherwise establish that treatment beyond the $2,444.15 already approved is reasonable and necessary on a balance of probabilities.

$2,000.00 for a Chronic Pain Assessment

29The applicant submits a chronic pain assessment is required, as laid out in the OCF-18 dated July 16, 2019, prepared by Dr. Tajedin Getahun, Physician, and Solmaz Zanjani, Chiropractor. The treatment plan indicates the applicant is experiencing functional limitation due to compromised flexibility post-accident, lack of strength and misalignment. The impact is severe enough to significantly limit the applicant's ability to perform basic activities and social interaction was highly affected due to physical pain.¹⁶ However, neither Dr. Getahun or Dr. Zanjani provided any clinical notes and records directly in support of this chronic pain assessment.

30I do not dispute that the applicant suffers pain. However, the applicant has failed to establish this pain is a result of the accident. The applicant reported pain that limited her ability to go out and socially interact to Hiral Lakhani, Social Worker, in June 2019.¹⁷ She also provided self-reports to her Family Physician, Dr. Mandel, of physical impairments affecting her functioning, including low energy and motivation in March of 2020.¹⁸

31The applicant, however, has not produced any objective evidence of her pre-accident condition other than a sole clinical note from Dr. Mandel dated February 20, 2018, in which she clearly reports low back bilateral pain.¹⁹ No other clinical notes and records have been provided related to her pre-accident condition. Additionally, every OCF-18 submitted indicates it is "unknown" whether prior to the accident she had any disease, condition, or injury that could affect her response to treatment for injuries.²⁰ The applicable test for determining whether impairments were caused by the accident is the "but for" test: whether the applicant would not have had impairments but for the accident. The accident is not required to have been the sole cause or have been sufficient it itself to cause chronic pain. Rather the accident need only have been a "necessary cause".

32The lack of objective evidence regarding her pre-accident condition coupled with the absolute lack of pre-accident records is determinative. Given these weaknesses in the evidence, I am not persuaded on a balance of probabilities that the necessary cause of the applicant's current pain is a result of the accident on June 21, 2018. Thus, I do not find this assessment is reasonable and necessary pursuant to the Schedule.

Interest

33Interest is only payable on any overdue payment of benefits pursuant to s. 51 of the Schedule. As no payments are overdue, no interest is payable.

ORDER

[34] The application is dismissed and the applicant is not entitled to: i. $1,236.85 for chiropractic services; ii. $3,090.09 for chiropractic services; iii. $3,020.36 for chiropractic services; iv. $4,164.59 for psychological services; v. $2,000.00 for a chronic pain assessment; and vi. Interest on any overdue payment of benefits.

Footnotes

1. 1Applicant's Submissions, paras. 3-4.
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 Insurance, 2015 ONSC 3635 at paras. 20-24.
4. 4Ibid.
5. 5Tab 13(a) Respondent's Submissions.
6. 6Tab 9, Applicant's Submissions.
7. 7Ibid.
8. 8Tab 13(b) Respondent's Submissions.
9. 9Tab 13(c) Respondent's Submissions.
10. 10Tab 16(b) Respondent's Submissions.
11. 11Tab 7(c) Applicant's Submissions.
12. 12Tab 13(d) Respondent's Submissions.
13. 13Tab 12 Applicant's submissions.
14. 14Tab 16(a) Respondent's Submissions.
15. 15Tab 20 Respondent's Submissions.
16. 16Tab 13(e) Respondent's Submissions.
17. 17Tab 10 Applicant's Submissions.
18. 18Tab 7(c) Applicant's Submissions.
19. 19Tab 7(a) Applicant's Submissions.
20. 20Tabs 13(a), 13(b), 13(c), 13(d), 13(e), Respondent's Submissions.