Tribunal File Number: 16-001320/AABS
Case Name: 16-001320 v Aviva Insurance Canada
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:
P. I.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
HEARD: Written Hearing: June 7, 2017
APPEARANCES:
Counsel for the applicant: Deva Devendran
Counsel for Aviva Insurance Canada: Danielle Wilkinson
Overview:
1The applicant was injured in a motor vehicle accident on March 7, 2014. He sought benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The applicant was denied payment of benefits by Aviva Insurance Canada (“Aviva”) when he reached the Minor Injury Guideline’s (“MIG’s”) monetary limit of $3,500.
2The applicant seeks a determination from the Licence Appeal Tribunal (“the Tribunal”) that his injuries cannot be treated within the MIG and, further, that he is entitled to medical benefits for treatment and assessments outside of the Minor Injury Limit.
Issue:
3I must determine the following issues:
- Do the applicant’s injuries fall within the MIG or the Minor Injury Limit of $3,500? And if so, is he entitled to the following medical benefits:
$3,584.20 for chiropractic services, recommended by Downsview Healthcare Inc. in a Treatment Plan dated March 26, 2015?
$1,886.80 for chiropractic services, recommended by Downsview Healthcare Inc. in a Treatment Plan dated August 5, 2014?
$1,303.04 for chiropractic services, recommended by Downsview Healthcare Inc. in a Treatment Plan dated May 12, 2014?
$2,830.26 for psychological treatment, recommended by Healthway Medical Management in a Treatment Plan dated February 12, 2016? $1986.00 for a psychological assessment, recommended by Dr. J. Pilowsky in a Treatment Plan dated February 26, 2015?
$200.00 for the completion of a Treatment Plan from Downsview Healthcare Inc, submitted on August 14, 2014?
$200.00 for the completion of a Disability Certificate from Downsview Healthcare Inc., submitted on July 30, 2014?
$850.00 for a Form 1 Assessment, recommended by Healthway Medical Management in a Treatment Plan dated February 25, 2015?
$2,830.26 for psychological treatment, recommended by Dr. J. Pilowsky in a Treatment Plan, denied January 23, 2017?1
Result:
4The applicant’s injuries fall within the MIG and the Minor Injury Limit. The applicant has reached the $3,500 limit and, as a result, the applicant is not entitled to any of the medical benefits in dispute.
Analysis:
Do the Applicant’s injuries fall within the Minor Injury Guideline, capping payment at the
Minor Injury Limit?
5The medical issues in dispute in this hearing rise and fall on whether the applicant’s injuries are characterized as minor injuries, capping payment at the Minor Injury Limit of $3,500. If the applicant’s injuries are characterized as minor injuries in accordance with the Schedule, he is not entitled to any of the Treatment Plans or assessments in dispute. According to Aviva, the applicant has already reached the $3,500 payment limit.
6The onus is on the applicant to prove that his entitlement to benefits is not subject to the Minor Injury Limit. The Minor Injury Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule.
7There are two general ways in which the applicant can prove that his injury is not subject to the Minor Injury Limit. First, he can prove that he suffers from an injury that is not predominantly minor. In the circumstances of this case, this involves an analysis in two stages. I need to consider the accident’s effect on the applicant’s psychological and physical condition. Second, the applicant can prove that he suffers from a pre-existing medical condition that will prevent him from achieving maximal recovery if he is subject to the Minor Injury Limit. I find that the applicant’s injuries are minor such that payment for treatment is within the Minor Injury Limit. As a result, he is not entitled to any of the Treatment Plans in dispute. To explain why, I analyze the three analytical categories under which the applicant submits the Minor Injury Limit is inapplicable: psychological impairment, physical injury, and pre-existing injuries.
8The analysis is grouped for analytical purposes only. I have considered and appreciate that the applicant’s psychological condition, physical injuries, and pre-existing injuries affect one another.
A. Psychological Impairment
9I am not convinced that the applicant suffers from a psychological impairment. The applicant must prove that he suffers from a psychological impairment on a balance of probabilities. I am unable to conclude that it is more likely than not that the applicant suffers from a psychological disorder as a result of the accident. There are four items of relevant evidence that I must consider to evaluate the applicant’s psychological condition.
10The first is a report written by Dr. Judith Pilowsky2 dated January 8, 2016. Dr. Pilowsky was retained by the applicant to conduct a psychological assessment. The resulting psychological report diagnosed the applicant with the following disorders caused by the accident:3
post-traumatic stress disorder;
major depressive disorder, moderate, single episode;
somatic symptom disorder, persistent with predominant pain, moderate severity.
To arrive at these diagnoses, Dr. Pilowsky interviewed the applicant and conducted the following pyscho-diagnostic tests:
The Beck Depression Inventory-II (BDI-II);
The Beck Anxiety Inventory (BAI);
Pain Catastrophizing Scale (PCS).
The BDI-II score was consistent with severe levels of depression; the BAI score consistent with severe levels of anxiety; and the PCS score indicative of increased risk to develop Somatoform Disorder and pain chronicity.
11The second relevant item of evidence also comes from Dr. Pilowsky. Almost one year later, on November 8, 2016, Dr. Pilowsky released a reassessment report in which she arrived at the same conclusion. According to the reassessment report, the applicant’s psychological impairment had improved to some degree but he continued to suffer from the same psychological disorders.
12The third item is a report dated April 24, 2015 by Dr. Sherri MacKay as part of an Insurer Psychological Examination. Dr. MacKay concluded that the applicant did not suffer from an accident-related psychological impairment. I am not persuaded by Dr. MacKay’s report. It lacks similar psycho-diagnostic tests to those conducted by Dr. Pilowsky. The report relies more heavily on the applicant’s self-reports. I am not persuaded by the report for two reasons. First, the report would be more persuasive if it used measurements like the BDI-II and BAI to corroborate the applicant’s self-reports. Second, and more significantly, the applicant expressed to Dr. MacKay many difficulties that he was encountering psychologically. Dr. MacKay failed to explain why she concluded that the applicant does not suffer from an accident-related psychological impairment in the face of these seemingly contradictory self-reports from the applicant. I place no weight on Dr. MacKay’s report.
13The fourth item is a report released by Dr. Mohammed Nikkhou as part of a second Insurer Psychological Examination. In a report dated January 18, 2017, Dr. Nikkhou concluded that the applicant suffers from a subclinical degree of post-accident adjustment reaction including mixed subclinical depressive-anxiety symptoms. Dr. Nikkhou denies that the applicant suffers from a diagnosable, clinical injury as a result of the accident. As the most recent psychological examiner, Dr. Nikkhou was able to review the reports of Dr. Pilowsky and Dr. MacKay, respectively. In addition, Dr. Nikkhou interviewed the applicant and conducted a number of psycho-diagnostic tests:
structured inventory of malingering symptomatology (SIMS);
million clinical multiaxial inventory (MCM-III);
Beck Depression Inventory (BDI-II);
Rehabilitation checklist (RCL);
Rehabilitation Survey of Problems/Coping (R-SOPAC).
14After considering the four psychological reports, I prefer the analysis conducted by Dr. Nikkhou. The conclusions are drawn from reasonable inferences that arise on her sound testing methods. I especially prefer Dr. Nikkhou’s analysis to Dr. Pilowsky’s because Dr. Nikkhou was able to review the reports of Dr. Pilowsky and Dr. MacKay and factor that into her analysis. I also prefer Dr. Nikkhou’s analysis because her 2017 report is the latest pronouncement on the applicant’s condition; and, importantly, the analysis is a thoughtful and reasonable pronouncement.
15Dr. Nikkhou concluded that the applicant exhibits symptoms of post-accident adjustment reaction, including mixed subclinical depressive-anxiety symptoms. The symptoms were not severe enough to conclude that the applicant suffers from a psychological impairment. I agree with Dr. Nikkhou’s analysis and adopt her conclusion. Parenthetically, I note that I have considered and rejected the possibility that Dr. Nikkhou’s 2017 report could reflect an improvement in the applicant’s psychological condition after Dr. Pilowsky’s 2016 reports.
16The applicant has failed to prove on balance of probabilities that he suffers from a psychological impairment.
B. Physical Injury
17The applicant has failed to prove that he suffers from a physical injury that is not predominantly minor. His claims of injuries are not sufficiently supported by medical evidence.
18The applicant submits that he suffers from trigeminal neuralgia, a chronic pain disorder which causes pain in his face and head. However, there is a lack of medical evidence documenting the disorder and explaining what it is and how it affects the applicant. The applicant has submitted as evidence a decoded OHIP summary, and he points out that he was referred by his family doctor to Dr. Kim, a chronic pain specialist. Dr. Kim recommended a cocktail of physiotherapy, medication, and other therapeutic interventions. The evidence provided is not enough to rest a conclusion that the applicant suffers from a non-predominantly minor injury.
19The applicant submits that Dr. Pilowsky’s psychological diagnosis of somatic ‘symptom disorder, persistent with predominant pain, moderate severity’ and recommendation that the applicant receive treatment in a chronic pain program is further proof of a chronic pain. I place very little weight on a recommendation for a chronic pain program as proof of chronic pain. With respect to the chronic pain diagnoses, the applicant states in his submissions: “be advised that Chronic Pain, which was included as a diagnosis in DSM-4, was replaced with Somatic Symptom Disorder in DSM-5 …”. I need evidence on this issue. There is none. I refuse to accept this on the basis of submissions alone. In sum, then, Dr. Pilowsky’s psychological diagnosis does not, in any way, convince me that the applicant suffers from chronic pain.
20The applicant submits that he suffers from neck pain and as proof points to the notes and affidavit of Dr. Ajisafe, his family doctor. I accept that the applicant suffers from neck pain. I do not accept, however, that the neck pain is the product of an injury that is not predominantly minor. There is no evidence making this connection.
21Mr. Jag Dhirayain, an occupational therapist, conducted an attendant care assessment on February 13, 2015. The applicant submits that the limits of functionality documented in Mr. Dhirayain’s assessment report are proof that his physical injuries are not predominantly minor:
Decreased standing, walking and sitting tolerance;
Reduced range of motion in the cervical and thoracic/lumbar spine;
Inability to lift and carry weighted items;
Inability to lift form the lower levels;
Difficulty with crouch/squat;
Difficulty with bending, pulling, pushing, kneeling, overhead activities, and gripping.
22I am looking for proof that the applicant suffers from an injury that is not predominantly minor. Mr. Dhirayain’s assessment report shows me something close. It shows me that the applicant suffers from physical functional limitations. Are these physical functional limitations the result of an injury that is not predominantly minor? Are they the result of multiple minor injuries? I do not know. There is a lack of evidence proving that the functional limitations are the result of an injury that is not predominantly minor.
23After considering the applicant’s submissions and evidence regarding physical injuries, individually and as a whole, I am not convinced on a balance of probabilities that he suffers from an injury that is not predominantly minor.
C. Pre-existing injuries
24The applicant has failed to prove that pre-existing injuries preclude the application of the Minor Injury Limit. The Minor Injury Limit does not apply if the applicant provides compelling evidence that he has a pre-existing medical condition that will prevent him from achieving maximal recovery if he is subject to the Guideline: s. 18(2) of the Schedule. I am not convinced the Guideline prevents the applicant from achieving maximal medical recovery for any pre-existing injury that may exist.
25The applicant was involved in a separate motor vehicle accident in 2010. The applicant suggests that his struggles with back pain as a result of the 2010 accident are documented in the clinical noes and records of his family doctor, Dr. Ajisafe. Aviva disputes this. In any event, Dr. Ajisafe states in his affidavit that the applicant suffered from pre-existing back and shoulder pain that was aggravated by the 2014 motor vehicle accident. In addition, there is an X-Ray report from Dr. Young, dated April 27, 2015, which shows evidence of degenerative disc disease. Dr. Ajisafe’s notes document pre-existing experiences with left shoulder pain (rotator cuff syndrome and supraspinatus tendinosis), back pain, osteoarthritis, and knee pain.
26Whatever pre-existing injuries may have existed prior to the 2014 accident, there is insufficient indication that the applicant is prevented from achieving maximal medical recovery if he is subject to the Guideline. Dr. Ajisafe’s deposition that the 2014 accident aggravated back and shoulder pain sheds no light on this issue.
Conclusion:
27The applicant has failed to prove that his injuries are not subject to the Minor Injury Guideline. As a result, payment for his benefits is capped by the $3,500 Minor Injury Limit. Since the applicant has already reached this limit, he is not entitled to any of the Treatment Plans in dispute.
Released: August 30, 2017
Chris Sewrattan, Adjudicator
Pilowsky’s January 8, 2016 report indicates that the applicant has difficulty sleeping as a result of the accident and I accept this as true. The parties also debated whether the applicant lost consciousness at or shortly after the time of the accident. The issue does not affect my decision that the applicant’s injuries fall within the Guideline.
Footnotes
- The applicant requested to add this issue. However, I refuse to adjudicate this issue. It was not listed as an issue in dispute in the Case Conference Order. A reason was not provided for the late addition of the Treatment Plan, nor did Aviva provide responding submissions addressing the Treatment Plan.
- Dr. Pilowsky also provided an affidavit to the Tribunal in which she stated her conclusions.
- The parties disagreed as to whether the applicant suffered from insomnia as a result of the accident. Dr.