Christian Camacho Diaz v. Pembridge Insurance, 2023 CanLII 44327

Citation: Diaz v. Pembridge Insurance, 2023 ONLAT 20-012881/AABS

Licence Appeal Tribunal File Number: 20-012881/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:

Christian Camacho Diaz Applicant

and

Pembridge Insurance Respondent

DECISION

ADJUDICATOR: Kevin Lundy

APPEARANCES:

For the Applicant: Christian Camacho Diaz, Applicant Alexei Antonov, Counsel Francesco Vumbaca, Articling Student

For the Respondent: Diana Oliveira, Counsel

HEARD: By Written Submissions

OVERVIEW

1Christian Camacho Diaz (the ‘applicant’) was involved in an automobile accident on November 2, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the ‘Schedule’). The applicant was denied benefits by Pembridge Insurance (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

2At the time of the accident, the applicant was twenty-five years old and driving his mother’s vehicle. According to the partial collision report submitted, the applicant was attempting to change lanes when another vehicle struck his vehicle on the passenger side. Photographs of the damage show evidence of an impact primarily in the area of the rear passenger side door, as well damage to the front driver’s side window.

3The applicant takes the position that the evidence establishes that he should be removed from the Minor Injury Guideline (‘MIG’) as he has sustained a psychological impairment and chronic pain with functional impairment as a result of the accident. The respondent maintained its position that the applicant’s injuries could be treated within the limitations of the MIG.

ISSUES

4The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
2. Is the applicant entitled to $2,527.12 for chiropractic services, proposed by the Downsview Health Clinic in a treatment plan/OCF-18 (‘plan’) dated November 28, 2018?
3. Is the applicant entitled to $3,335.98 for psychological services, proposed by the Downsview Health Clinic in a plan dated July 20, 2019?
4. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by the Downsview Health Clinic in a plan dated January 9, 2019?
5. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

5In his written submissions, the applicant withdrew issue #5 as listed in the amended case conference order and report dated August 10, 2021, specifically whether he is entitled to $200.00 for a psychological pre-screening form, proposed by the Downsview Health Clinic in a plan dated July 30, 2019.

RESULT

6I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to subsection 40(8) of the Schedule, plus any applicable interest; and

c. The applicant is not entitled to an award.

ANALYSIS

The Minor Injury Guideline

7Section 3(1) of the Schedule defines a “minor injury” 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 and includes any clinically associated sequelae to such an injury.” Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident. The applicant bears the burden of proving, on a balance of probabilities, that his injuries are not minor within the meaning of the Schedule.

8The applicant takes the position that his injuries are not predominantly minor as he was diagnosed with chronic pain by Dr. Oleksandr Pivtoran, Chiropractor and with psychological impairments by Dr. Andrew Shaul, Psychologist and Ms. Helen Ilios, Psychotherapist.

Chronic Pain

9I find that the applicant failed to demonstrate that he suffered from chronic pain as his evidence on this issue is almost entirely the product of self-reporting with very little objective medical evidence to support his subjective descriptions of his symptoms. This subjectivity was compounded by the vague assertions advanced by Dr. Pivtoran in his recommendations for further treatment.

10Dr. Pivtoran initially assessed the applicant on December 18, 2018 and March 25, 2019 and completed two related Disability Certificates (OCF-3s). He determined that that as a result of the accident, the applicant sustained sprain and strain of the cervical spine, post-traumatic headaches, sprain and strain of the joints and ligaments of the left shoulder, sprain and strain of the joints and ligaments of the thoracic spine, acute stress reaction, symptoms and signs involving emotional state, nonorganic sleep disorder, malaise and fatigue; nervousness and unspecified behavioural syndromes.

11In his report dated February 18, 2021, Dr. Pivtoran noted that the applicant had reported to his family doctor a prior history of migraine headaches that predated the accident by two years. However, the only reference to this condition in the February 18, 2021 report appeared in the context of documents reviewed in its preparation. While he stated that, “the patient's pre-existing headaches were significantly negatively affected by the subject MVA” and recommended the opinion of a neurologist, Dr. Pivtoran offered no explanation on how he came to this conclusion. I find that this omission is significant particularly as the applicant apparently opted not to disclose his history of headaches to Dr. Pivtoran directly, despite the seeming relevance of this information given that he attributed his present headaches to the accident.

12The applicant reported no other pre-existing health conditions to Dr. Pivtoran. Significantly, the applicant’s family doctor, Dr. Victor Vera Silva reported no contact with the applicant whatsoever with respect to the accident. The applicant also submitted no diagnostic imaging to support his position that his injuries are sufficiently severe to warrant removal from the MIG.

13Dr. Pivtoran diagnosed the applicant with chronic pain and joint dysfunction in various areas of the body as a result of the accident. Although he did not diagnose the applicant with chronic pain syndrome, he indicated that the applicant’s impairments fall outside of the MIG and provided a diagnosis of myofascial pain syndrome and features of a chronic pain syndrome, opining that further investigation would be needed to assess the applicant’s ongoing pain and functional impairment. He did not offer details on the “features” of chronic pain observed, but appeared to advance a rather circular argument that these vaguely articulated symptoms justify further treatment and investigation to clarify the severity of the same “features.”

14In addition, he stated that the applicant suffers a substantial inability 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. He acknowledged that the applicant had returned to employment on modified duties against medical recommendations. However, it was not clear in the OCF-3s or his report that Dr. Pivtoran was sufficiently aware of the applicant’s actual job duties upon which to base his conclusion that the applicant was substantially unable to perform them. Aside from listing the applicant’s job title as “construction” in the OCF-3s and his report and noting that the applicant had described his job as “busy” and “demanding,” Dr. Pivtoran did not clarify what tasks or actions the applicant’s job actually entailed, let alone how his functionality may have been affected by the accident or even how his duties were subsequently modified. In his report dated February 18, 2021, he simply acknowledged that, “the patient has resumed his duties on a fulltime basis.”

15Dr. Pivtoran also determined that the applicant suffered a substantial inability to engage in caregiving activities at the time of the accident and a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident. However, Dr. Pivtoran did not offer any details either in his report or in either OCF-3 regarding precisely how the applicant’s functionality was adversely affected, preferring instead to rely upon two checkmarks next to “yes” for both inquiries in Part 6 of the OCF-3s with a vague assertion that the applicant would be unlikely to recover from his injuries within twelve weeks. In his report, he reiterated the conclusions in Dr. Shaul’s report that the applicant’s psychological condition “has increased to a level of impairment that prevented him from performing his activities of daily living, and likely would prevent him from achieving maximal medical recovery with the confines of the Minor Injury Guideline.” If he answered the question at the end of the report that directly addressed this issue, it appeared to have been omitted from the submitted document.

16Although the respondent asserts that, as a chiropractor, Dr. Pivtoran is not qualified to diagnose chronic pain, it offers no authority for the assertion that a chiropractor cannot provide such a diagnosis. Rather, I find it is Dr. Pivtoran’s almost total reliance on the applicant’s own self-reporting coupled with excessive vagueness that substantially diminishes the probative value of his opinion. As well, the fact that he has deemed his own treatment plan for of $2,527.12 dated November 28, 2018, “reasonable and necessary” does not necessarily preclude offering the opinion. However, his promotion of the plan tends to reduce the evidentiary weight of that opinion since the opinion is not offered at arm’s length and Dr. Pivtoran may benefit financially if the plan were deemed reasonable and necessary as he states.

17In 16-00438 v. Personal Insurance, 2017 CanLII 59515 at paragraph 27, the Tribunal found that, “ongoing pain alone is insufficient to take one out of the MIG” and that it “also must be accompanied by some functional impairment,” which I find that the applicant in the present case has failed to prove.

18Similarly, in Lin v. Certas, 2022 CanLII 70253 (ON LAT), the Tribunal was not persuaded that complaints on submitted OCF forms established ongoing chronic pain. While the applicant did seek treatment at the Downsview clinic, his attendance was sporadic at best and he made no pain complaints to his family doctor at all. The Court in Lin observed that a comparably low record of complaints of “one pain related visit to a family physician over a two year period is insufficient to establish the type of debilitating chronic pain affecting functionality that might otherwise remove the Applicant from the MIG.” I find that this analysis applies to the present case.

19Ultimately, I find that the applicant has failed to demonstrate on the balance of probabilities that he should be removed from the MIG due to chronic pain.

Psychological Impairments

20I prefer the submissions of the respondent over those of the applicant and find that the applicant failed to demonstrate that he suffers from psychological or emotional injuries caused by the accident that are sufficiently serious to remove him from the MIG.

21On March 25, 2019, the applicant was examined by Dr. Andrew Shaul, Psychologist and Ms. Helen Ilios, Psychotherapist. Dr. Shaul completed a Psychological Assessment Report dated April 30, 2019 based upon Ms. Illios’ interview of the applicant. The report does not clarify whether Dr. Shaul ever met with the applicant directly or if he relied entirely upon Ms. Illios’ findings. This ambiguity tends to reduce the probative weight of Dr. Shaul’s findings since the report does not clarify the extent to which Dr. Shaul supervised Ms. Ilios or the degree to which each of them contributed to the final diagnosis. The problem relates not to the fact of Dr. Shaul’s and Ms. Illios’ chosen method of collaboration, but with respect to whether Dr. Shaul relied upon direct evidence from a clinical examination or upon second hand information from his colleague.

22In any event, Dr. Shaul diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood as well as a specific phobia related to travelling in and around a vehicle. Specifically, the applicant reported symptoms of anxiety when in a vehicle, avoiding entering a vehicle whenever possible, nervousness while travelling as a pedestrian, sleep difficulties including flashbacks and thoughts of the accident, reduced energy, loss of pleasure, motivation and interest in previously enjoyed activities. His changed mood included sadness, anxiety, irritability and frustration, constant preoccupation with pain and thoughts of the accident, physical discomfort and difficulty coping with pain and social isolation.

23Although Dr. Shaul’s report was drafted approximately five months after the accident, significantly, the applicant offered little evidence to establish that he struggled with psychological or emotional issues between the date of the accident itself and the date of the report. While the OCF-3 Forms vaguely allude to psychological issues, I agree with the respondent that there is insufficient evidence to demonstrate that the applicant sustained psychological injuries from the accident.

24Although the respondent did not obtain its own psychological assessment of the applicant to contest Dr. Shaul’s opinion, no provision in section 44 of the Schedule requires it to do so and the absence of an expert opinion offered by the defence does not in any way negate or reduce the applicant’s burden of proof.

25As with Dr. Pivtoran’s report, Dr. Shaul’s report is based almost entirely upon self-reporting by the applicant and significantly lacks validity testing to confirm that that the applicant’s subjective descriptions regarding the severity of his psychological and emotional issues are objectively reliable. As well, Dr. Shaul and Ms. Illios relied on only one disability certificate and one treatment plan and no clinical notes or treatment provider notes were provided to them to assist in formulating their opinion. As a result, there is no evidence to suggest that Dr. Shaul ever reviewed or cross-referenced the applicant’s answers in the clinical interview conducted by Ms. Illios with any medical records. Consequently, I am left with little more than the applicant’s own subjective descriptions of his psychological issues, as reiterated through Dr. Shaul’s report, with no validity testing to confirm the accuracy or proportionality of these statements.

26For instance, despite the Tribunal’s order to produce an OHIP summary or a prescription summary, neither were disclosed or submitted, further supporting the respondent’s position that little if any evidence exists to confirm the applicant’s contention that he was afflicted with serious psychological symptoms. Even if he was experiencing some degree of psychological distress, the absence of these supporting documents or evidence that the applicant sought treatment (beyond filing the application to the Tribunal) tend to suggest that symptoms were not sufficiently sever to justify removal from the MIG.

27In 16-00438 v. Personal Insurance, 2017 CanLII 59515 at paragraphs 12 and 38, the Tribunal stated that “reference to ‘psychosocial symptoms’ in the MIG is a recognition that a minor injury includes some psychosocial or psychological symptoms that are treatable within the MIG.” As a result, although I accept the applicant’s evidence that he was suffering from some psychological issues, he has failed to demonstrate on the balance of probabilities that he could not be treated within the limitations of the MIG.

28The interpretation of reasonableness and necessity is contextual under the Schedule. The statutory test is whether a treatment plan is reasonable and necessary in the circumstances. However, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.

29Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. Therefore, following the analysis in Patel v. Security National Insurance Company, 2022 CanLII 14936 (ON LAT), the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, only up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule.

Interest

30Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.

Award

31The applicant is not entitled to an award under section 10 of Regulation 664 on the grounds that the respondent unreasonably withheld or delayed the payment of benefits. In support of an award, the applicant alleges that “…the Respondent ignored the medical information in its possession while continuing to maintain its denial of various accident benefits…”

32However, given the scarcity of objective medical evidence to support the applicant’s claims, I find that the applicant has failed to demonstrate that the respondent adopted an unreasonably adversarial approach to the handling of the claim contrary to its obligation to act in good faith.

33Although only $2,602.20 has been paid for treatment to date, this is a result the applicant’s own decision to discontinue his treatment in August 2019, following two lengthy interruptions in treatment from January 5, 2019 to March 25, 2019 and from March 25, 2019 to July 13, 2019. He ultimately attended only twelve chiropractic treatment sessions in total. The applicant’s own conduct in this regard tends to suggest that the $3,500 MIG limit was sufficient to treat his injuries.

34Given the minimal medical evidence provided to the respondent to support the applicant’s claims, I find that the applicant failed to meet his evidentiary burden to establish on the balance of probabilities that the respondent “engaged in conduct which was malicious, arbitrary, high-handed and departed to a marked degree from the ordinary standards of behaviour expected of a sophisticated insurance company.”

35Lastly, in 17-007475 v. Aviva, 2018 CanLII 112117 (ON LAT), upon review of the submitted redacted log notes and denials, the adjudicator found no basis for an award as the log notes contained no evidence of misconduct and the denials were based upon medicals and IEs. I find this case persuasive as the log notes would contain the best evidence of any inappropriate or arbitrary approach to the file. In the present case, the adjuster’s redacted log notes include no evidence of misconduct on the part of the adjuster.

ORDER

36For the reasons outlined above, I find that:

a. The applicant sustained predominantly minor injuries as defined under the Schedule and is therefore subject to treatment within the $3,500.00 limit of the MIG.

b. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to subsection 40(8) of the Schedule, plus any applicable interest in accordance with section 51 of the Schedule.

c. The applicant is not entitled to a special award.