TRIBUNAL D APPEL EN MATIÈRE DE PERMIS

Transcription

1 LICENCE APPEAL TRIBUNAL Safety, Licensing Appeals and Standards Tribunals Ontario TRIBUNAL D APPEL EN MATIÈRE DE PERMIS Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Citation: FA vs. Certas Home and Auto Insurance Company, 2019 ONLAT /AABS Date: January 7, 2019 File Number: /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: FA and Certas Home and Auto Insurance Company Appellant Respondent DECISION ADJUDICATOR APPEARANCES: Christopher A. Ferguson Counsel for Applicant: Nader Fathi Counsel for the Respondent: Robert Jones Heard In-Writing on: September 10, 2018

2 OVERVIEW [1] The applicant FA was involved in a motor vehicle accident ( the accident ) on September 4, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, ( the Schedule ). [2] FA applied to the Licence Appeal Tribunal (the Tribunal ) when his claims for benefits were denied. [3] The respondent ( Certas ) argues that all of the applicant s injuries fit the definition of minor injury prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline ( the MIG ). 2 The applicant s position is exactly the opposite. [4] If Certas is correct, FA is then subject to the $3, limit on benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3, maximum benefit for minor injuries has been exhausted. [5] I must decide whether FA s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine his entitlement to the medical benefit in dispute. ISSUES IN DISPUTE [6] Did FA sustain predominantly minor injuries as defined under the Schedule? [7] If the FA s injuries are not within the MIG, then I must determine the following issue: RESULT i. Is FA entitled to receive a medical benefit in the amount of $2, for a psychological assessment, recommended by Dr. Romeo Vitelli in an treatment and assessment plan ( OCF- 18 ) dated July 26, 2017, and denied by Certas on August 16, 2017? [8] I find that FA s injuries are predominantly minor in nature as defined by the Schedule and fall within the MIG. 1 O. Reg. 34/10. 2 Minor Injury Guideline, Superintendent s Guideline 01/14, issued pursuant to s (1.1) of the Insurance Act, RSO 1990, c.i.8

3 [9] My finding with respect to FA s injuries mean that that he is not entitled to the benefit he claims. It is not necessary for me to determine the merits of the disputed OCF-18. [10] As I have denied KP s claim, there is no interest payable by Certas. REASONS & ANALYSIS Minor Injury Determination [11] Section 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. The MIG defines in detail what these terms for injuries mean. [12] Section 18(1) of the Schedule prescribes a $3, limit on medical and rehabilitation benefits payable for any one accident. [13] The onus is on the applicant, in this case FA, to prove that his or her injuries or impairments fall beyond the MIG. 3 [14] FA submits that his accident-related injuries themselves exceed the definition of minor injury in s. 3(1) of the Schedule, and are not covered by the MIG, because: 1. He has a pre-existing condition that meets the criteria for exemption from the MIG prescribed by the Schedule (explained below). 2. He has a chronic pain condition, and a psychological impairment that arose from the accident, and the prescribed definition of minor injury does not include either of these impairments. Does KP have a pre-existing medical condition? [15] Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements: i. There was a pre-existing medical condition that was documented by a 3 Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.

4 health practitioner before the accident; and ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG. [16] The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person s impairment from the MIG: it is in fact intended and expected that the vast majority of pre-existing conditions will not do so. The MIG clearly requires that a pre-existing condition must be shown with compelling evidence to prevent maximal recovery within the cap imposed by the MIG. 4 [17] FA s submissions indicate that he has a quite complex medical history that includes type 2 diabetes, glaucoma, hypertension, uretolithiasis and high blood cholesterol. He has had an appendectomy and laparoscopic cholecystectomy (gall bladder removal). He has had cysts. [18] FA s submissions also refer to number of a congenital spinal deformities (transitional L5) and degenerative disc disease (osteoarthritis in the lower lumbar spine), which he states were painful before the accident and complicate treatment post-accident. [19] FA offers no analysis of how the pre-existing conditions and surgeries noted in paragraph would prevent maximal recovery if his medical benefits are capped at $3,500. My review of the clinical notes and records appended to his submission offer no medical opinion or analysis to support this claim. [20] I find that the evidence and argument by FA for pre-existing conditions is insufficient to meet the compelling evidence standard set by the MIG. [21] In addition, I find the opinion of Dr. Sangita Sharma, physician, that FA offers no compelling evidence of a pre-existing condition that would prevent maximal recovery with the MIG limits 5 persuasive on this issue because it accords with the medical evidence submitted by both parties, addresses the issue of preexisting condition directly (which FA s medical evidence does not) and is unchallenged by FA. 4 Minor Injury Guideline, Superintendent s Guideline 01/14, issued pursuant to s (1.1) of the Insurance Act page 5, Part 4, Impairments that do not come within this Guideline. 5 Insurer s examination (IE) report dated December 11, 2015.

5 [22] I find that KP cannot be exempted from the MIG on the basis of a pre-existing condition. Does FA suffer from a chronic pain condition? [23] FA submits that he continues to suffer back pain as a result of the accident and his medical records support ongoing pain complaints more than two years after the accident. [24] FA s submissions, in my view, do not include any persuasive analysis of the severity of his ongoing pain or the impact it has on his activities of daily life, such as work and housekeeping. In the disputed OCF-18, Dr. Vitelli does note FA s complaints of pain and their impact on his housekeeping and other activities, including self-care. These notes are unaccompanied by any review of medical information or diagnostic tests. [25] My review of FA s medical record does not, I find, substantiate a claim of chronic pain because: i. A lengthy gap in physiotherapy or massage treatment for accident related pain between October 2016 and March 2018, which is acknowledged but not explained by FA, militates against a finding of chronic pain. ii. iii. Examinations by FA s family physician, Dr. Drue Mandel and by Dr. Michael Ko 6, indicate a full range of motion and normal sensitivity in FA s back, hips and knees, with no muscle wasting and normal strength and gait. These reported observations do not appear to me to be consistent with chronic pain. There is no diagnosis or notation in FA s medical evidence of any chronic pain condition. [26] I conclude that FA has not met the onus on him to show that he suffers from chronic pain as a result of the accident. FA cannot be removed from the MIG on the basis of chronic pain. Does FA suffer from a psychological impairment? [27] FA relies on the OCF-18 by Dr. Romeo Vitelli, which notes sleep disorders, adjustment disorder with anxiety, malaise and fatigue and stress, based on 6 Consultation report by Dr. Michael Ko, physiatrist, dated October 19, 2016.

6 KA s self-reporting. The findings are necessarily preliminary in nature as the objective of the OCF-18 is psychological assessment. [28] To rebut KA s claim, Certas relies on an IE report by Dr. Richard Finkel, psychologist, dated July 14, 2016: i. Dr. Finkel reported that KA expressly denied driver anxiety or other anxiety symptoms, denied irritability or mood difficulties, indicated that he was sleeping well, had good motivation, stated that he had good energy and motivation, and did not see himself in need of any mental health intervention. ii. Dr. Finkel found no clinical evidence of psychological injury and opined that FA s injuries fall within the MIG from a psychiatric perspective. [29] In reviewing the medical reports of both parties, it is immediately evident that both of them depend heavily on frank and forthright self-reporting by FA. The medical conclusions in each are based in large part on FA s answers in clinical interviews. [30] In the IE with Dr. Finkel, FA s statements contradicted or were inconsistent with information provided to Dr. Vitelli. FA makes no explanation for the discrepancies in self-reporting in the different examinations. He does not attack the veracity of the IE reports on his own statements. Accordingly, I am confident in giving the IE report substantial weight in determining how FA s selfreporting speaks to his claim of psychological injury. [31] I find that unexplained discrepancies in FA s self-reporting undermine his credibility and therefore his claim on this issue of psychological injury. [32] As the result of my findings, I conclude that FA has failed to meet the onus on him to prove psychological injury as the result of the accident; accordingly, he cannot be removed from the MIG on this basis. INTEREST [33] Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. [34] The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due. CONCLUSION

7 [35] KA s injuries are minor and fall within the MIG. Accordingly, his claims are subject to a $3, cap imposed by s.18 of the Schedule, and the claimed benefit cannot be paid. [36] As the result of my findings with respect to KP s minor injuries, it was unnecessary for me to determine whether claimed treatment plans are reasonable and necessary. [37] There are no payments owing to KA and therefore no interest due on overdue payments. Released: January 11, 2019 Christopher A. Ferguson Adjudicator