Tribunal File Number: 17-005948/AABS
Case Name: 17-005948 v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Chris Sewrattam
APPEARANCES:
Counsel for the applicant: Lisa Bishop
Counsel for Aviva: Danielle Wilkinson
HEARD: Written Hearing March 19, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on June 19, 2015. She sought payment for benefits under the Schedule.1 Aviva Insurance Company of Canada (“Aviva”) denied payment for a number of benefits. Most of the denials stem from Aviva’s belief that the applicant’s injuries are predominantly minor and, therefore, subject to a $3,500 payment limit. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.
ISSUES
2The following issues are in dispute:
(1) Are the applicant’s injuries predominantly minor and, therefore, subject to a $3,500.00 payment limit? If the applicant’s injuries are not predominantly minor, the following issues remain in dispute:
i. Is the applicant entitled to payment for an Attendant Care Benefit in the amount of $1,398.62 per month for services provided by her spouse for the period of June 19, 2015 to June 16, 2017?
ii. Is the applicant entitled to payment for a $3,940.31 medical benefit for psychological services, submitted in a Treatment Plan dated November 26, 2015?
iii. Is the applicant entitled to payment for a $1,215.73 medical benefit for physiotherapy services (partially approved, with $117.73 remaining in dispute), submitted in a Treatment Plan dated December 3, 2015?
iv. Is the applicant entitled to payment for a $1,999.82 medical benefit for a psychological assessment, submitted in a Treatment Plan dated October 15, 2015?
v. Is the applicant entitled to payment for a $299.22 psychological assessment, submitted in a Treatment Plan dated October 15, 2015?
vi. Is the applicant entitled to payment for a $988.88 Attendant Care Assessment, submitted in a Treatment Plan dated December 2, 2015?
vii. Is the applicant entitled to payment for a $200.00 disability certificate, submitted in a Treatment Plan dated September 24, 2015?
(2) Is the applicant entitled to an award pursuant to section 10 of R.R.O. 1990, Reg. 664: Automobile Insurance?
(3) Is the applicant entitled to interest on overdue payments?
(4) Is the applicant entitled to costs under Rule 19.1?
RESULT
3The applicant is not entitled to any of the benefits in dispute, or to an award, interest, or costs. The applicant’s treatment is confined to the $3,500 limit in the Minor Injury Guideline. Neither her physical impairment nor psychological condition extends beyond the definition of “minor injury”, placing her within the Minor Injury Guideline. Aviva has reached the $3,500 payment limit.
4Since no payment is owing, the applicant is not entitled to interest.
5The applicant is not entitled to an award under s. 10 because Aviva did not act unreasonably.
6The applicant is not entitled to costs because she fails to identify any conduct in the Tribunal’s proceeding that would give rise to a costs order.
DISCUSSION
The applicant’s treatment is subject to the $3,500 payment limit in the Minor Injury Guideline
7The applicant suffers from a predominantly minor injury as a result of the accident. Her treatment is subject to the Minor Injury Guideline. The Minor Injury Guideline represents a classification within the law; it is not meant to suggest that the applicant suffers from insignificant pain. Treatment falling within the Minor Injury Guideline is subject to a $3,500 payment limit for medical and rehabilitation benefits.
8The applicant submits that the Minor Injury Guideline does not apply because she suffers from an injury that is not predominantly minor. For clarity, I divide the applicant’s submission into two parts: physical impairment and psychological condition.
1. Physical Impairment
9In terms of physical impairment, the applicant was diagnosed by her family physician with soft tissue injuries. In addition, according to a report dated June 23, 2015 from the applicant’s chiropractor, Dr. Bagheri, the applicant suffers from:
(a) An injury of muscle and tendon at neck level
(b) WAD II
(c) Headache
(d) Pain in the thoracic spine
(e) Injury of muscle and tendon at thorax level
(f) Malaise/Fatigue
(g) Disordered Sleep
A follow up diagnosis dated November 11, 2015 no longer indicated headache as a symptom.
10The applicant submits that she suffers from “chronic pain”, which she defines as pain that lasts three to six months or more. She also provides a conclusory statement from another doctor, Dr. Wong, who indicates that she suffers from “chronic pain”.
11I do not agree that the applicant suffers from “chronic pain”, or chronic pain syndrome, for two reasons. First, I reject the conclusion that pain which lasts for three to six months or more is by definition chronic pain. No medical evidence was provided to support such an evocative conclusion. Second, Dr. Wong’s diagnosis amounts to a bald statement with no testing or data to support it. I appreciate that the applicant has suffered from pain for more than six months. However, this falls short of establishing that the applicant suffers from a medical condition that, properly characterized, is a non-predominantly minor injury. To reach this level in the context of this case, I would expect at least some medical test results to support a diagnosis of chronic pain or chronic pain syndrome.
12The applicant also submits that her physical and psychological injuries combine to produce an impairment that removes her from the Minor Injury Guideline. In short, the submission is that the applicant’s psychological state may predispose her to the development of a chronic pain condition. Assuming without deciding that such a condition would remove the applicant from the Minor Injury Guideline, I find that the condition has not materialized. The applicant’s psychological condition has not caused her to develop a chronic pain condition. The evidence for my conclusion is Dr. Bagheri’s report and the documents from the applicant’s family physician.
2. Psychological Condition
13In terms of psychological injury, the applicant’s evidence consists of a report from Dr. Mills and Zhanna Poghosyan dated April 20, 2016 in which the applicant is diagnosed with the following:
(a) Adjustment Disorder with Mixed Anxiety and Depressed Mood
(b) Somatic Symptom Disorder with Predominant Pain, Moderate
Aviva contests the validity of Dr. Mills and Ms. Poghosyan’s diagnosis.
14I do not need to resolve the debate concerning Dr. Mills’ and Ms. Poghosyan’s report. After closely reading Dr. Mills and Ms. Poghosyan’s report, Dr. Bagheri’s report, and the notes of the applicant’s family physician, I conclude that the applicant’s psychological condition is a ‘minor injury’.
15The testing results of Dr. Mills and Ms. Poghosyan’s report are the most compelling evidence. The Beck Depression Inventory-II measures symptoms of depression; the Beck Anxiety Inventory measures symptoms of anxiety; the Impact of Event Scale-Revised measures the difficulties that people sometimes have after stressful events. The applicant scored “mild” on each of these tests with Dr. Mills and Ms. Poghosyan. Her qualitative answers in her interview with Ms. Poghosyan tell a similar story. The applicant reported anxiety, primarily related to coping with her physical injuries and secondarily related to coping with the event of the accident. I appreciate that such anxiety is unpleasant and that it affects the applicant’s life. However, the anxiety and the rest of the applicant’s symptoms are not severe enough that I am able to say, on a balance of probabilities, that the applicant suffers from a psychological injury that is not predominantly minor. To reach that level in the circumstances of this case, I would expect either the testing results to indicate a more severe effect on function, or for the applicant’s interview answers to suggest greater difficulty coping with and functioning through her psychological condition.
The applicant is not entitled to payment for any of disputed Treatment Plans
16The applicant is not entitled to payment for any of the Treatment Plans in dispute because her treatment is capped by the $3,500 limit in the Minor Injury Guideline. This includes the Attendant Care Benefit. Aviva is only required to pay for an Attendant Care Benefit if the applicant does not suffer from a minor injury.2
The applicant is not entitled to an award under s. 10 of R.R.O. 1990, Reg. 664
17The applicant seeks an award under s. 10 of R.R.O. 1990, Reg 664 for two primary reasons:
Aviva has yet to pay $1,100 of the $3,500 of medical and rehabilitation benefits to which the applicant is entitled
Aviva’s denial of the various Treatment Plans in dispute has prevented the applicant generating medical reports that could allow for further treatment.
18To the first reason, Aviva has provided an Explanation of Benefits dated October 22, 2015 in which it advised the applicant and her counsel that Aviva had paid for benefits up to the $3,500 limit. The applicant provides no evidence to counter. As a result, I reject the applicant’s suggestion that Aviva has not paid up to the $3,500 limit.
19To the second reason, I have found that the applicant’s treatment is confined to the $3,500 limit and, therefore, Aviva was reasonable to have denied her Treatment Plans. A section 10 award is not appropriate.
No interest is owing
20No interest is owing since there are no outstanding payments.
The applicant is not entitled to costs
21The applicant seeks costs. However, she provides no evidence that Aviva exhibited conduct in the Tribunal’s proceeding that was unreasonable, frivolous, vexatious, or in bad faith. The applicant is not entitled to costs.
CONCLUSION
22The applicant’s suffers from a predominantly minor injury. Her treatment is capped by a $3,500 limit, which was been exhausted. The applicant is not entitled to any of the medical, rehabilitation, or attendant care benefits in dispute.
23The applicant is not entitled to an award under s. 10 of Regulation 664 or costs under Rule. 19.1.
Released: September 14, 2018
__________________________
Chris Sewrattan
Adjudicator