Hawokani v. Certas Home and Auto Insurance Company, 2022 CanLII 6788

Citation: Hawokani vs. Certas Home and Auto Insurance Company, 2022 ONLAT 20-009051/AABS

Licence Appeal Tribunal File Number: 20-009051/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:

Anunga Hawokani

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Mary Tran, Paralegal

For the Respondent: Norma Barron, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Anunga Hawokani (the “applicant”) was involved in an automobile accident on August 21, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Certas Home and Auto Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES

3I have been asked to decide the following issues:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?

2. If the answer to the first question is no, is the applicant entitled to the following benefits:

a. Treatment plans (OCF-18s) for chiropractic services recommended by Mediwise Health Care Clinic (“Mediwise”):

i. $524.60 ($3,749.60 less $3,255.00 approved) submitted September 4, 2018 and denied September 11, 2018?

ii. $3,643.68 submitted November 1, 2018 and denied November 8, 2018?

iii. $2,921.42 submitted December 29, 2018 and denied January 3, 2019?

iv. $3,225.80 submitted April 10, 2019 and denied April 17, 2019?

b. A cost of examination in the amount of $1,920.53 for a psychological assessment recommended by Mediwise in an OCF-18 submitted December 13, 2018 and denied December 18, 2018?

c. A medical benefit in the amount of $3,963.64 for psychological services recommended by Mediwise in an OCF-18 submitted February 1, 2019 and denied February 7, 2019? and

d. A cost of examination in the amount of $2,401.25 for a chronic pain assessment recommended by Q Medical in an OCF-18 submitted June 6, 2019 and denied June 15, 2019?

3. Is the applicant entitled to a non earner benefit (“NEB”) in the amount of $185.00 per week from August 21, 2018 to August 20, 2020?

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

RESULT

4After reviewing both parties’ submissions and all of the evidence I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. Since I have determined that the applicant’s impairments are minor, I need not decide whether the treatment plans are reasonable and necessary as the MIG limit has been exhausted.

ii. The applicant is not entitled to a NEB as I do not find that she sustained a complete inability to carry on a normal life as a result of any accident related impairment.

iii. As no payments are overdue, no interest is payable.

BACKGROUND

5On August 21, 2018, the applicant was involved in an accident when her vehicle was t-boned by another vehicle which ran a stop sign. She was transported to hospital where she complained of right knee pain. An x-ray was taken of the right knee which was normal. Following the accident, she commenced treatment at Mediwise. The applicant now seeks a finding that her injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary. She also claims that she meets the test for entitlement to a NEB.

6The respondent has paid $3,500.00 in medical benefits up to the MIG limit.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

7I find the applicant’s impairments fall within the MIG for the following reasons.

8Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

9Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, the Tribunal has determined that chronic pain or a psychological condition with functional impairment may warrant removal from the MIG. The onus is on the applicant to demonstrate on a balance of probabilities that her injuries fall outside of the MIG.

10The applicant argues that her impairments do not fit within the definition of the MIG because she suffers from a psychological impairment as well as chronic pain as a result of the accident. Further, she submits that her accident-related impairments remain unresolved and she requires further treatment. She relies on the clinical notes and records (“CNRs”) of Dr. Jewald, family doctor and Mediwise, the treating clinic in support of same. She also relies on the psychological assessment completed by Dr. Mrahar dated January 24, 2019 who diagnosed the applicant with an accident-related psychological impairment.

11The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNRs relied upon by the applicant do not support her position. The respondent relies on the IEs of Dr. Dancyger, psychologist dated November 26, 2018 and Dr. Khan, physiatrist dated November 26, 2018, who determined that the applicant’s physical and psychological impairments are minor and can be treated within the MIG. For the following reasons, I agree with the respondent and find that the applicant sustained a minor injury.

Pre-existing Condition

12The applicant did not argue that any pre-existing medical condition would prevent her from achieving maximum medical recovery within the MIG, so she is not removed from the MIG as a result of a pre-existing condition.

Chronic Pain

13I do not find that the applicant suffers from chronic pain as a result of the accident which would remove her from the MIG for the following reasons.

14I do not find the CNRs of Dr. Jewald, her family doctor support the applicant’s position that she suffers from chronic pain as a result of the accident. The CNRs relied upon confirm that the applicant has visited her family doctor three times regarding her accident related complaints. Her first visit was on October 2, 2018 where she reported being involved in an accident. Her next visit was on December 18, 2018, in which the doctor notes “still having pain in feet and low back. Getting physio. Pain has been since August 2018. Continue physiotherapy.” The results of diagnostic imaging of the applicant’s lumbar spine completed around the same time were normal. The last CNR of Dr. Jewald dated February 13, 2019 states “patient here for celebrex – back pain.”

15In my view, these sparse CNRs from the applicant’s family doctor do not support the applicant’s position that she suffers from chronic pain as a result of the accident. I agree with the respondent that these CNRs do not support that the applicant has any ongoing physical impairment that would remove her from the MIG.

16The applicant also relied on the CNRs of Mediwise, which she maintains support that she underwent various tests that noted significant physical impairments and limitations. Further, the fact that she has incurred the OCF-18s in dispute supports that she suffers from ongoing chronic pain and physical impairments. I do not find the CNRs of Mediwise helpful as they are not legible and contained no progress reports outlining the details and results of the tests or explain their significance. I also do not find the fact that the applicant incurred the treatment supports that she suffers from chronic pain. In addition, the disability certificate (“OCF-3”) and OCF-18s prepared by this clinic describe her accident-related impairment as “strain and sprain” type impairments to various parts of her body (along with psychological symptoms which I will address later). I find the physical impairments noted on the insurance forms fit within he MIG.

17The applicant’s submissions focused on defining chronic pain or chronic pain syndrome and its potential impact on an individual as opposed to directing me to evidence in support that she has this condition. Submissions are not evidence and I therefore give it little weight. By contrast, the respondent relied on the IE of Dr. Khan who diagnosed the applicant with soft tissue injuries which fit within the MIG. The burden of proof rests with the applicant. Based on the evidence before me, the applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain as a result of the accident. In the absence of a competing report, backed up by objective evidence I accept Dr. Khan’s opinion.

18The applicant referred to various case law in her submissions but failed to articulate how any of those decisions are relevant which I do not find helpful to the applicant’s position. I agree with the respondent that the case law relied upon by the applicant is distinguishable as in her case there was a lack of a pre-existing condition, objective injuries and medical documentation outlining consistent complaints which interfered with her ability to function.

19The respondent relied on 17-007825 v. Aviva², in support of its position that the Tribunal has consistently considered the criteria in the AMA Guides, in assessing whether an insured suffers from chronic pain. I note that the Guides are not incorporated into the Schedule as far as defining chronic pain. However, I agree that they can be a useful tool in setting out the criteria to consider in assessing whether someone suffers from chronic pain. The Guides state that at least three of the following conditions must be met:

a) Use of prescription drugs beyond the recommended duration and/orabuse 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 contacts;

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.

20I find the applicant has failed to submit persuasive evidence that she meets any of the above criteria. Based upon all of the above reasons, the applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain or chronic pain syndrome as a result of the accident that would remove her from the MIG.

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

21I do not find that the applicant suffers from a psychological impairment that would remove her from the MIG for the following reasons.

22Dr. Dancyger completed a psychological IE in which the doctor determined that the applicant did not have an accident-related psychological impairment. Dr. Dancyger’s report notes that the only psychological symptoms the applicant reported were being scared about the future (being in a vehicle) and being worried about her children. Dr. Dancyger notes that the applicant’s presentation throughout the interview was not consistent with an individual with a psychological impairment. For example, she was pleasant and smiled and joked throughout the interview with the doctor and was observed to joke and laugh with the French interpreter. Dr. Dancyger administered the following psychometric tests: Personality Assessment Inventory; Structured Inventory of Malingered Symptomatology and Green’s Non-Verbal Medical Symptom Validity Test. Dr. Dancyger determined that the applicant’s results on all three tests were invalid which could be due to careless reporting, malingering or symptom exaggeration. Dr. Dancyger concluded that the results could not be interpreted because they were invalid. Due to the findings of the clinical interview, along with the invalid test results and the observed behaviour of the applicant during the assessment, Dr. Dancyger concluded that there was no evidence of any accident-related psychological impairment.

23By contrast, the applicant relied on the psychological assessment of Dr. Mrahar. The applicant reported to Dr. Mrahar that she had disturbed sleep due to pain and nightmares as well changes in memory and concentration which impacted her ability to continue her studies at college. She also reported having a poor mood, increased stress, being socially withdrawn and vehicular anxiety. Dr. Mrahar administered psychological tests which included the Beck Depression Inventory, Beck Anxiety Inventory and Pain Patient Profile. Dr. Mrahar diagnosed the applicant with Moderate Depressive Episode, Adjustment Disorder (with anxiety) as a result of the accident.

24I prefer the IE report of Dr. Dancygar over Dr. Mrahar because Dr. Mrahar relied on the applicant’s self-reports in completing the assessment. I agree with the respondent that the applicant’s self-reports about certain post-accident details were inconsistent and contradictory. Some examples include the following:

i. Her self-reports about what transpired after the accident are inconsistent with what is documented by paramedics who attended the scene. She reported to Dr. Mrahar that she had to be helped out of her vehicle by a security guard from a nearby business following the accident. In the ambulance call report, the paramedics describe the applicant as “jumping out of her vehicle” and that she ambulated independently.

ii. The applicant did not raise any psychological complaints with her family doctor.

iii. She reported to both psychologists that she did not return to college as a result of her accident related impairments. The school records note that she had been on and off academic suspension prior to the accident and that she returned to her studies in January 2019.

iv. The applicant reported to Dr. Khan that she lost consciousness as a result of the accident which is not documented in any medical records, including the ambulance and hospital reports from the date of the accident. This was also inconsistent with what she reported to the other assessors.

v. The applicant required a French interpreter for the respondent’s IE assessments but not for her own.

vi. The applicant was inconsistent in reporting her psychological symptoms and activity limitations to the assessors.

25In my view, the fact that Dr. Dancygar’s psychometric test results came back with invalid results make sense in light of the other inconsistencies. For these reasons, I give Dr. Dancygar’s report more weight. Furthermore, the applicant had the option of filing reply submissions to address the concerns raised by the respondent but chose not to.

26The applicant has not met her onus on proving on a balance of probabilities that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG.

27Since the MIG limit has been exhausted, I need not determine whether the applicant is entitled to the disputed treatment plans. Since I do not find that any benefits are overdue, interest is not payable.

Is the applicant entitled to a NEB in the amount of $185 per week from August 21, 2018 to August 20, 2020?

28The applicant is not entitled to a NEB for the following reasons.

29Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in paragraph 50 of Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre-and post-accident activities.

30The applicant relies on the OCF-3 of Dr. Rakker, chiropractor dated September 8, 2018, which supports that the applicant had a complete inability to carry on a normal life as a result of the accident and qualified for the NEB. As already highlighted, I do not find the evidence relied upon by the applicant about her physical or psychological complaints persuasive. I also do not find the applicant’s self-reports about her post-accident physical and psychological limitations credible. However, even if I were to accept the applicant’s self-reports as truthful, I still would not find that she meets the test for a NEB. First, I am not persuaded that she sustained any accident-related impairment which interferes with her ability to carry out her daily activities. The applicant failed to link any accident related impairment with her inability to carry out her post-accident activities. In addition, the applicant did not give a fulsome picture of what her pre-accident life was like or elaborate about what activities were most important to her.

31The applicant submits that prior to the accident she was independent in her self-care activities. Post-accident she has continued to be independent with personal care. Prior to the accident she was enrolled in a Personal Support Worker certification program at Sheridan College. School records confirm that she had been on academic probation prior to the accident but has continued with her studies post-accident in another program. Prior to the accident, the applicant was a homemaker and caretaker for her four children. Post-accident she has continued to care for her children and carries out her housekeeping and home maintenance tasks, with the exception of heavy tasks such as vacuuming. The applicant maintains that prior to the accident she enjoyed driving her children to their extracurricular activities, picnics, and BBQs as well as exercising, dancing, and Zumba. Post-accident, she no longer participates in these activities.

32The applicant has failed to persuade me on a balance of probabilities that any accident-related impairments have continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Therefore, she has not met her onus in meeting the test for entitlement to a NEB.

ORDER

33For all of the above-noted reasons, I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. She is not entitled to any of the OCF-18s in dispute or interest.

ii. The applicant is not entitled to a NEB. Likewise, she is not entitled to any interest.

iii. This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 217-007825 v. Aviva Insurance Canada 2018 CanLII 98282 (ON LAT), paras 6 and 8.