Citation: Burnett v. Certas Home and Auto Insurance, 2024 ONLAT 22-008912/AABS

Licence Appeal Tribunal File Number: 22-008912/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:

Violet Burnett

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Alyssa Barrs, Counsel

HEARD:

By Way of Written Submissions

1Violet Burnett, (the "applicant") was involved in an automobile accident on May 16, 2020, 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 Certas Home & Auto Insurance (the "respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 limit and in the Minor Injury Guideline? ("MIG")
Is the applicant entitled to a non-earner benefit ("NEB") in the amount of $185.00 per week from June 13, 2020, to May 16, 2022?
Is the applicant entitled to $1,995.00 for a psychological assessment, proposed by Scarborough Medical Centre ("SMC") in a treatment plan/OCF-18 ("OCF-18") submitted on August 10, 2020, and denied on August 13, 2020?
Is the applicant entitled to $2,544.76 for a chronic pain assessment, proposed by Q Medical in an OCF-18 submitted on February 04, 2021, and denied on February 05, 2021?
Is the applicant entitled to $1,400.00 for chiropractic services, proposed by SMC in an OCF-18 submitted on August 20, 2020, and denied on August 21, 2020?
Is the applicant entitled to $3,714.49 for chiropractic services, proposed by SMC in an OCF-18 submitted on October 15, 2020, and denied on October 20, 2020?
Is the applicant entitled to $1,300.00 for massage therapy, proposed by SMC in an OCF-18 submitted on October 15, 2020, and denied on October 20, 2020?
Is the applicant entitled to $4,089.95 for psychological services, proposed by SMC in an OCF-18 submitted on October 22, 2020, and denied on October 28, 2020?
Is the applicant entitled to $4,392.27 for psychological services, proposed by SMC in an OCF-18 submitted on February 17, 2021, and denied on February 18, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant's impairments are predominantly minor and therefore subject to the treatment limits of the MIG.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. The applicant is not entitled to NEB.

iv. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

v. The application is dismissed.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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."

5An insured person 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 injury or 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.

6In all cases, the burden of proof lies with the applicant.

The applicant did not sustain injuries that warrant removal from the MIG

7I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, she remains within the MIG and is subject to its $3,500.00 limit on treatment.

8The applicant submits that a s. 25 Psychological Examination Report, by Dr. Konstantine Zakzanis, psychologist, dated October 20, 2020, provides a compelling argument for her removal from the MIG, both physically and psychologically. Also, she argues that the report by Dr. Zakzanis details her psychological conditions of an adjustment disorder with depressed mood, and post-traumatic stress disorder, from this accident, which have been exacerbated by her pre-existing psychological conditions. I infer from her submissions that these are the grounds for her to access treatment beyond the MIG and the $3,500.00 funding limits.

9The applicant also relies on the clinical notes and records of Stevenson Memorial Hospital, a Disability Certificate ("OCF-3") completed by Dr. Dan Shlepakov, chiropractor, the record of Ms. Cindy Pritchard, nurse practitioner, dated June 26, 2017, as well as a psychological pre-screen report that was appended to the OCF-18 for a psychological assessment that is in dispute.

10The respondent argues that there is no evidence that the applicant's pre-existing psychological conditions were exacerbated by the accident, and therefore the conditions do not prevent her from achieving maximal medical recovery within the MIG limits. Moreover, it argues that the applicant has sustained accident-related whiplash, soft tissue, and strain injuries, which all fall within the MIG, and the applicant did not sustain a psychological impairment as a result of the accident. To support this position, it relies upon the records of Enhance Care Clinic (the applicant's current physician's office) and Dr. Nicole Morfetas, the applicant's previous family physician.

11I find that the applicant has provided limited medical evidence of non-minor accident-related impairments.

12To begin, the hospital records from Stevenson Memorial Hospital support that the applicant sustained strain injuries to her lumbar and cervical spine, as well as whiplash, right thumb pain/swelling, headaches, neck pain, left thigh pain, and right forearm pain, which all fall within the definition of a minor injury under s. 3(1).

13The physical injuries identified in the applicant's OCF-3 are all sprain and strain injuries of the cervical spine, lumbar spine, thoracic spine, fingers, and sacroiliac joint, which are minor injuries. The OCF-3 also identifies effusion of joint, superficial injury to the head, and injury to the muscles/tendons of the thumb, wrist, and hand, fatigue and malaise, which also fall within the definition of a minor injury.

14The remaining injuries are concussion, migraine, other symptoms/signs involving cognitive functions and awareness, dizziness, and a number of psychological conditions. However, I place no weight on the psychological, concussion, and cognitive diagnoses, by Dr. Shlepakov, as he is a chiropractor, and this is outside of his scope of practice. I find that the applicant's injuries fall within the definition of a minor injury.

15With regard to s. 18(2), an applicant may be removed from the MIG if they have 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. Here, the applicant relies on her self-reporting to Dr. Zakzanis and the record of Ms. Pritchard. In this piece of evidence, Ms. Pritchard noted that the applicant has been diagnosed with several pre-existing psychological conditions, and ADHD. The applicant also self-reported to Dr. Zakzanis that she had various pre-existing psychological conditions and ADHD.

16I agree with the applicant that she had pre-existing psychological conditions that were documented by Ms. Pritchard. However, this satisfies only half of the test. The second half of the test is that there must be compelling evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if subject to the MIG.

17The applicant has not directed me to a medical opinion that her pre-existing psychological conditions would prevent maximal medical recovery if she was kept within the MIG limits. I acknowledge that the applicant relies on her self-reporting to Dr. Zakzanis and the record of Ms. Pritchard, however neither doctor provided an opinion of whether the applicant's pre-existing conditions would prevent maximal medical recovery if she was kept within the MIG.

18In short, the medical evidence proffered by the applicant does not meet the requirements of s. 18(2).

19Next, the Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain syndrome or chronic pain that causes functional impairment. Here, the applicant asserts she is suffering from chronic pain. However, the applicant does not direct me to evidence to support this submission. It is well-settled that submissions are not evidence. In any event, on review of the clinical notes and records from Enhance Care Clinic, I see one accident-related complaint of right thumb swelling/pain on July 13, 2022. Notably, there is no diagnosis of chronic pain, or a referral for a chronic pain investigation. While a formal diagnosis of chronic pain or a report from a specialist is not required in order to be removed from the MIG, I find that evidence of chronic pain is lacking.

20In addition, the applicant has not supported her position with other evidence, such as evidence supporting an assessment of the six criteria under the AMA Guides that the Tribunal has adopted as a tool for assessing chronic pain claims. Therefore, I have limited evidence to find that the applicant should be removed from the MIG on the basis of chronic pain. This finding is supported by the dearth of medical evidence, the lack of complaints to the applicant's family physician and the absence of objective evidence of a functional limitation.

21Finally, an applicant may also escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant largely relies on the s. 25 report of Dr. Zakzanis, where she was diagnosed with an adjustment disorder with depressed mood and post-traumatic stress disorder, to support her position that these impairments clearly transcends the limitations of minor injury classification.

22I find the s. 25 report of Dr. Zakzanis to be of limited evidentiary value for the following reasons. First, Dr. Zakzanis did not review the clinical notes and records of the applicant's pre-accident and post-accident family physicians. The only documentation reviewed by Dr. Zazkanis were two documents, the psychological progress report, and the OCF-3. As such, it does not appear that Dr. Zakzanis was provided a comprehensive medical record when coming to his conclusions.

23Second, there is no evidence to support Dr. Zakzanis's findings, aside from the report itself. As noted above, Dr. Zakzanis did not review the applicant's pre-accident and post accident records from her family physicians. Significantly, if these records had been reviewed, it would have demonstrated that while the applicant complained and sought medical attention for her pre-existing psychological conditions (both before and after the accident), she did not complain of psychological symptoms from the accident. Indeed, the records from both Dr. Morfetas and Enhance Care Clinic support that the applicant received psychological treatment from CAMH and Ontario Shores for her pre-existing chronic psychological impairments only.

24Lastly, Dr. Zakzanis's findings are not supported by the other contemporaneous medical evidence, like the records of Dr. Morfetas and Enhance Care Clinic. Likewise, I give the pre-screen psychological report little weight, as it is also not supported by these records.

25In the same vein, the record from Stevenson Memorial Hospital, dated February 2, 2023, holds little probative value. I note in this clinical entry, the applicant sought emergency attention for an acute situational crisis and she was prescribed Trazodone, however there is no reference to the accident. Also, as noted above, the applicant has not complained of accident-related psychological impairments to her family physicians. Thus, I am not satisfied on a balance of probabilities, that this entry establishes that the applicant has a psychological impairment as a result of the accident.

26In conclusion, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

27In its submissions the respondent confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has not met her evidentiary onus to establish that her accident-related impairments warrant treatment beyond the MIG limits, it is not necessary for me to consider the reasonableness and necessity of the disputed treatment plans.

The applicant is not entitled to NEB

28I find that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life.

29Section 12(1) of the Schedule 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 Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (CanLll) ("Heath"), which focuses on a comparison of the applicant's pre-and post-accident activities.

30The applicant argues that she has significant limitations in her daily activities, as a result of the severity of her injuries from the accident. The applicant further submits that she experiences fear and avoidance with her motorcycle riding, which was a previously enjoyed activity. To this end, she relies upon the s. 25 Report by Dr. Zakzanis.

31In response, the respondent submits that the OCF-3 completed by Dr. Shlepakov, indicates that the applicant has not suffered a complete inability to carry on a normal life. It also submits that the evidence does not support that the applicant meets the test for NEB.

32I find that the applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident.

33The applicant has not provided submissions of her pre-accident activities of daily living, or more crucially, demonstrated how her engagement in these activities has changed as a result of the accident. Moreover, in her submissions, the applicant did not identify the activities she values or provide evidence of the frequency and time commitments of her pre-accident activities as required by Heath. In the absence of this information, it is difficult to compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.

34Instead, the applicant summarized and directed me to her self-reporting to Dr. Zakzanis to support her NEB claim. Upon review of this report, I note that the applicant self-reported that prior to the accident, that she rode her motorcycle regularly, however this does not provide me with evidence of the frequency/time commitments pre-accident, or whether she valued this activity most. Likewise, I acknowledge that the applicant self-reports to Dr. Zakzanis that she was unable to reach some of the usual destinations to which she would travel prior to the accident because of fear. However, once again, I have not been provided with particulars of how often and the time commitments prior to the accident.

35Furthermore, I acknowledge that the applicant reported to Dr. Zakzanis that "I don't go out very much at all anymore. I limit what I do on my bike. I would go for rides every single day, one or two days. Now, only straight to work. And back…" However, a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEB. The test for entitlement to NEB is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of her pre-accident activities, which I find is lacking here.

36Similarly, I acknowledge that the applicant reported to Dr. Zakzanis that she is socially withdrawn, has difficulty taking care of her pets, is limited in her housekeeping tasks and has difficulty with her work. I find that this self-reporting also does not meet the stringent NEB test, as her self-described functional deficits do not rise to the level that they continuously prevent her from engaging in substantially all of her pre-accident activities.

37The applicant also does not direct me to a medical opinion from a treating physician that she suffers a complete inability to carry on a normal life. Notably, the applicant's own disability certificate does not support her claim for NEB, and Dr. Zakzanis did not provide an opinion with respect to this. Additionally, the applicant's records from Enhance Care Clinic, did not note any changes to the applicant's functionality as a result of the accident.

38Accordingly, I find that the applicant has not demonstrated on a balance of probabilities that she suffers a complete inability to carry on a normal life and thus, she is not entitled to NEB as claimed.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

39Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

40For the reasons outlined above, I find that: