Steel v. Certas Direct Insurance Company, 2024 CanLII 126979

Citation: Steel v. Certas Direct Insurance Company, 2024 ONLAT 23-001081/AABS

Licence Appeal Tribunal File Number: 23-001081/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:

Georgia Steel

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Kayla Cuff, Paralegal

For the Respondent: Jaskarn Pabla, Counsel

HEARD: By way of written submissions

OVERVIEW

1Georgia Steel, the applicant, was involved in an automobile accident on June 2, 2021, 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 the respondent, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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 Minor Injury Guideline (MIG) limit?

ii. Is the applicant entitled to $2,000.00 for an attendant care assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 ("treatment plan") dated August 2, 2021?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Prime Health Care Inc. in a treatment plan dated November 1, 2022?

iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Prime Health Care Inc. in a treatment plan dated October 31, 2022?

v. Is the respondent liable to pay an award under s. 10 of Reg. 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:

i. The applicant's injuries are predominantly minor and, as a result, the applicant remains subject to treatment within the $3,500.00 MIG limit;

ii. If any of the disputed treatment plans are incurred, the applicant is entitled to payment of the benefits set out therein up to the MIG limit;

iii. As there are no overdue benefits, the applicant is not entitled to interest under s. 51 of the Schedule; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The applicant remains subject to the MIG

4I find that the applicant's injuries are predominantly minor and therefore the applicant remains subject to the MIG.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) 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."

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7In this matter, the applicant submitted that she is removed from the MIG because:

a) she sustained an accident-related psychological condition; and

b) she suffers from chronic pain with functional impairment as a result of the accident.

8The respondent submits that the applicant's psychological complaints were not caused by the accident. The test to determine causation is the "but for" test. Causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries "but for" the subject accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a "necessary" cause.

a) The applicant has not sustained a psychological condition

9I find that the applicant has not proven on a balance of probabilities that she sustained a psychological condition due to the accident.

10The applicant submits that she suffers from a psychological condition as a result of the accident and, as such, should be removed from the MIG. In support of her position, the applicant relies on the clinical notes and records (CNRs) of Dr. Nicola Crawford, her family physician, a letter from her treating psychotherapist, Meredith Brown, dated October 16, 2023, and a letter dated April 19, 2023, from Dr. Kaitlin Baenziger, psychiatrist.

11The respondent submits that the applicant has not proven, on a balance of probabilities, that she has sustained a psychological condition as a result of the accident. The respondent submits that the CNRs of Dr. Crawford and the letters of Ms. Brown and Dr. Baenziger show that her psychological issues were caused by her childhood trauma, her job as a welder and the inability to obtain profitable work as a painter. The respondent submits that the applicant has not been diagnosed with a psychological impairment that was caused by the accident.

12The applicant submits that she has experienced psychological symptoms since the accident and relies on the CNRs of Dr. Crawford to prove this point. I find that the CNRs of Dr. Crawford do not prove that the applicant experienced psychological symptoms since the accident. Rather, they show that the applicant did not raise any mental health concerns with Dr. Crawford until April 13, 2022, when the applicant asked Dr. Crawford to refer her to a trauma therapy program. The notes on that day do not refer to the accident but indicate that the applicant has concerns about childhood trauma and its impact on her relationship with her daughter.

13The CNRs of Dr. Crawford contain a note in which the applicant reports experiencing psychological symptoms that she attributes to the accident. That is the October 20, 2022 note, in which the applicant reports that she feels triggered by the topic of the accident, has developed sleep disturbances since the accident and has felt more emotionally fragile since the accident. On other dates, the applicant reports the following causes of her psychological symptoms and mood:

i. On April 13, 2022, the applicant reported to Dr. Crawford that she had concerns about childhood trauma and its impact on her relationship with her daughter;

ii. On November 24, 2022, the applicant reported to Dr. Crawford an improvement in her mood, which she attributed to the fact that she had been looking for a new job in the arts;

iii. On April 19, 2023, the applicant reported to Dr. Kaitlin Baenziger, psychiatrist, that her husband's health issues were a current trigger and indicated that she wanted to address her childhood trauma in order to improve her relationship with her adult daughter.

14On October 20, 2022, the applicant reported to Dr. Crawford that she is used to being there for her family and did not want to burden anyone with her problems. The applicant submits that this statement explains why she did not report accident-related psychological symptoms prior to October 20, 2022, which was approximately 15 months after the accident. I do not accept this submission because the applicant consulted Dr. Crawford regularly after the accident in relation to physical complaints related to the accident, physical complaints unrelated to the accident and mental health complaints unrelated to the accident. Therefore, I do not accept that the applicant was experiencing psychological symptoms since the accident and neglected to report them to Dr. Crawford.

15I give Dr. Crawford's note of October 20, 2022 less weight because:

i. her diagnosis appears to be based entirely on the applicant's self-report rather than any objective psychometric testing;

ii. the applicant reports accident-related psychological symptoms for the first time approximately 15 months after the accident, despite consulting with Dr. Crawford regularly between June and September 2021 about her accident-related symptoms;

iii. Dr. Crawford's notes do not contain any measurement or consideration of the degree or magnitude of the applicant's psychological symptoms; and

iv. Dr. Crawford does not consider whether the applicant's reported psychological symptoms on this date are connected to her other reported psychological complaints, specifically the relationship problems with her daughter, which the applicant attributes to a childhood trauma.

16The applicant also relies on the April 19, 2023 letter from Dr. Kaitlin Baenziger, psychiatrist, which is contained in Dr. Crawford's CNRs. Dr. Baenziger assessed the applicant and approved her for enrollment in a trauma therapy program. The letter does not refer to the accident in relation to the applicant's mental health concerns. I find that this letter does not support the applicant's position that she suffers from an accident-related psychological impairment because Dr. Baenziger does not attribute the applicant's symptoms to the accident. Rather, the letter describes the applicant's husband's health issues, relationship problems with the applicant's daughter and childhood trauma as possible stressors and goals for therapy.

17The applicant also relies on the October 16, 2023 letter of Meredith Brown, psychotherapist, which indicates that the applicant began psychotherapy treatment in December 2022. Ms. Brown states in the letter that the applicant told her about the accident and reported that it had a psychological impact on her, including an increase in feelings of anxiety and vulnerability. Ms. Brown states that the applicant reported to her that "depressive episodes have come on with regularity in the last year."

18Ms. Brown's letter was written on October 16, 2023 and appears to be a summary of what the applicant has reported to Ms. Brown on unknown dates, rather than contemporaneous notes made on specified dates when psychotherapy treatment was provided. Ms. Brown's letter does not indicate how often she provided psychotherapy to the applicant or on what dates. The letter does not indicate whether she saw the applicant on October 16, 2023, the date the letter was drafted, or whether Ms. Brown relied on any notes that she may have made during the applicant's psychotherapy sessions in drafting the letter. I have not been directed to any CNRs related to Ms. Brown's treatment of the applicant. It is not clear to me the extent to which Ms. Brown's letter is based on either her memory or the applicant's memory. Therefore, I question the reliability of this evidence and give it little weight.

19I recognize that the accident does not need to be the only cause of the applicant's psychological condition. However, it does need to be a necessary cause in order to meet the test for causation. Given the deficiencies in the applicant's evidence as set out above, the delay in the applicant's report of psychological symptoms for 15 months after the accident, and the fact that the applicant attributed different causes to her psychological concerns on different dates, I find that the applicant has not proven, on a balance of probabilities, that she would not have sustained a psychological condition but for the accident. Therefore, I find that the applicant is not removed from the MIG.

b) The applicant is not removed from the MIG on the basis of chronic pain

20I find that the applicant has not proven on a balance of probabilities that she has accident-related chronic pain with functional impairment.

21The applicant submits that she should be removed from the MIG due to her accident-related chronic pain. In support of her position, the applicant relies on: the CNRs of Dr. Crawford, her family doctor, which reflect a diagnosis of chronic knee pain attributed to osteoarthritis in December 2021; the CNRs of Benjamin Roesner, registered massage therapist, who treated her for lateral epicondylitis in March and April 2023; and the treatment plan dated October 31, 2022 completed by Dr. Chad Hefford, chiropractor, which proposed a chronic pain assessment.

22The respondent submits that the documents relied on by the applicant do not demonstrate that she has been diagnosed with chronic pain syndrome or that she has chronic pain that causes functional impairment and, as such, she has not met the burden required to discharge her from the MIG.

23The October 31, 2022 treatment plan was completed by Dr. Hefford and certified by Dr. Grigory Karmy, physician, and recommended a chronic pain assessment. It lists chronic post-traumatic headache, chronic shoulder strain/sprain and chronic lumbar spine strain/sprain in the injury and sequelae information.

24I find that the CNRs of Dr. Crawford demonstrate that the applicant suffered left neck and shoulder pain shortly after the June 2, 2021 accident and throughout June 2021. On September 30, 2021, the applicant reported improvement in all symptoms from the accident. Specifically, she reported no pain in her back and good mobility in her left arm and shoulder. She reported that the only pain remaining was in the left side of her neck. Dr. Crawford's notes indicate that the applicant's new job as a welder and the heavy helmet and position required for this job were contributing to her discomfort, however the applicant expressed that she wanted to continue as a welder. The only subsequent reference to the accident in Dr. Crawford's notes was over one year later, on October 20, 2022, when the applicant reported mental health concerns related to the accident, including sleep disturbances related to a dull, achy headache.

25I find that the subsequent reports of pain in the CNRs of Dr. Crawford were specifically attributed to causes other than the accident. For example, the December 16, 2021 diagnosis of osteoarthritis in the applicant's left knee indicates that she had chronic knee pain for a few years and that she used to be a runner and ran several kilometers per day. There is no reference in this note to the accident being the cause of the pain or to aggravating the pain in the applicant's knee. Rather, it attributes the development of osteoarthritis to the applicant's prior hobby of long-distance running.

26Further, the applicant's diagnosis of lateral epicondylitis (tennis elbow) was directly attributed to repetitive movements at her welding job. Dr. Crawford completed both a Request for Health Information form and a Functional Abilities Form in support of the applicant's Workplace Safety Insurance Board (WSIB) claim in relation to the injury. Dr. Crawford's CNRs do not connect the applicant's lateral epicondylitis to the accident. Conversely, Dr. Crawford's letter of February 21, 2023, written in response to the WSIB Request for Health Information, specifically indicates that the applicant had no known pre-existing conditions that were impacting her forearm or elbow prior to February 2, 2023.

27I find that the CNRs of Dr. Crawford directly contradict the chronic injuries listed in the treatment plan of October 31, 2022. Specifically, I find that Dr. Crawford's CNRs demonstrate that the applicant:

i. did not report post-accident lumbar spine pain to Dr. Crawford;

ii. reported experiencing headaches on only one occasion when she reported mental health symptoms in October 2022; and

iii. reported the accident-related shoulder injury had resolved by September 2021.

28In the CNRs of Benjamin Roesner, registered massage therapist, who treated the applicant in March and April 2023 in relation to her lateral epicondylitis, the applicant reported to Mr. Roesner that she was diagnosed with lateral epicondylitis in February 2023, but that her elbow was bothering her since shortly after the accident and became worse in October of 2022. I find that this report conflicts with the CNRs of Dr. Crawford, which specify that the applicant was not suffering from arm pain prior to February 2023.

29Where the CNRs of Dr. Crawford conflict with the CNRs of Mr. Roesner or the treatment plan dated October 31, 2022, I give more weight to the CNRs of Dr. Crawford because Dr. Crawford saw the applicant regularly throughout the post-accident period and her notes are generally contemporaneous reports of how the applicant was feeling, symptoms she reported and observations Dr. Crawford made on the date of each visit. Conversely, the contradictory report in Mr. Roesner's notes was based on the applicant's report made during her first consultation with Mr. Roesner in March 2023, which was nearly two years post-accident. Similarly, the contradictory opinions in the treatment plan were based on Dr. Hefford's interview with the applicant over one year post-accident. I note that Dr. Hefford does not indicate that he reviewed any of the applicant's medical records during the preparation of the treatment plan. I therefore find that the CNRs of Dr. Crawford are more likely to provide an accurate account of the applicant's post-accident symptoms and I place more weight on them.

30I find that the applicant has not established on a balance of probabilities that she has accident-related chronic pain or any functional impairment caused by accident-related chronic pain. Therefore, the applicant is not removed from the MIG on this basis and, as a result, remains subject to the MIG.

31As I have found the applicant remains subject to the MIG, and the parties agree that $1,800.00 remains in the MIG limit, the applicant is entitled to treatment up to the MIG limit.

Interest

32As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

34The applicant submits that the respondent unreasonably kept the applicant within the MIG, denying the applicant necessary treatment. Further, the applicant submits that the respondent made errors in their denials and failed to comply with s. 38(8) of the Schedule, thus unreasonably denying the applicant treatment. However, the applicant did not specify what those errors were or how they resulted in non-compliance with s. 38(8).

35The respondent submits that the applicant failed to provide the particulars of her award claim within 30 days of receipt of the adjusters' log notes, as required by the Tribunal's September 6, 2023 Case Conference Report and Order and, as a result, the applicant should be precluded from claiming an award under s. 10. The respondent confirmed that it provided the log notes to the applicant on November 3, 2023.

36Despite the applicant's failure to provide particulars of her award claim, the basis for her award claim was that the respondent acted unreasonably by keeping her within the MIG. As I have found that the applicant remains within the MIG, I find that the applicant has not proven, on a balance of probabilities, that the respondent acted unreasonably. Therefore, I dismiss the applicant's claim for a s. 10 award.

ORDER

37I find:

i. The applicant's injuries are predominantly minor and remain subject to treatment within the $3,500.00 MIG limit;

ii. If any of the disputed treatment plans are incurred, the applicant is entitled to payment of the benefits set out therein up to the MIG limit;

iii. As there are no overdue benefits, the applicant is not entitled to interest under s. 51 of the Schedule; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.