[The Applicant] v. RBC Insurance, 2018 CanLII 76430

Date: 2018-04-13

Tribunal File Number: 17-005761/AABS

Case Name: 17-005761 v RBC Insurance

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:

[The Applicant]

Applicant

and

RBC Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

Michael S. Wentzel, Paralegal for the Applicant

Andrew J.D. Smith, Counsel for the Respondent

HEARD in Writing on March 12, 2018

OVERVIEW

1[The Applicant], (“the applicant”) was involved in a motor vehicle accident (“the accident”) on September 15, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when her claims were denied.

3The respondent denied the applicant’s claims because it determined her injuries to be predominantly minor as defined by the Schedule. It indicated that it has exhausted the funding available under Minor Injury Guideline² (“the MIG”), for medical benefits.

4I must decide whether the applicant’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine the applicant’s entitlement to various medical benefits.

ISSUES IN DISPUTE

5Did the applicant sustain predominantly minor injuries as defined under the Schedule?

6The other substantive issues to be decided are:

1. Is the applicant entitled to receive the following medical benefits:

a. $3,129.48 for psychological services submitted on a treatment and assessment plan by Dr. Judith Pilowsky, psychologist, dated December 17, 2016, denied by the respondent February 17, 2017;

b. $4,930.00 for a physiotherapy treatment plan treatment plan submitted February 8, 2017, denied by the respondent on June 5, 2017; and,

c. $2,200 for the costs of a psychological assessment submitted November 14, 2016 and denied on December 9, 2016?

7Is the respondent liable to pay an award under Regulation 664, Automobile Insurance³ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

8Is the applicant entitled to interest on any overdue payments from the registrant?

RESULT

9I find that the applicant’s injuries are classified under the Schedule as predominantly minor in nature and fall within the MIG because the applicant has failed to prove she sustained a psychological injury from the accident that would remove her from the MIG.

10My finding with respect to the applicant’s injuries and classification of those injuries within the MIG mean that the applicant is not entitled to the benefits she claims.

11As I have denied the applicant’s claims, there is no interest payable by the respondent.

REASONS & ANALYSIS

Minor Injury Determination

12The respondent 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”). The applicant’s position is exactly the opposite.

13If the respondent’s position is correct, the applicant is then subject to the $3,500.00 limit on benefits prescribed by the s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

14Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”

15The onus is on the applicant to prove that her injuries or impairments fall beyond the MIG.⁴

The Applicant’s Physical Injuries

16My reading of the applicant’s submissions confirms that she does not claim to have sustained accident-related physical injury beyond soft-tissue injuries covered by the MIG. Accordingly it is settled that the applicant’s physical injuries fall within the prescribed definition of “minor injury”.

17The parties’ dispute arises from one issue:

i. Has the applicant sustained psychological injuries or impairments that remove her from the MIG?

MIG and Psychological Impairments

18The applicant argues that she has psychological impairments which remove her from the MIG. Psychological impairments, if established, fall outside the MIG, because the MIG only covers “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological impairments.

19The respondent concedes that a psychological diagnosis may remove an applicant from the MIG. It asserts however, that a psychological diagnosis must be reasonable and that “a person can still have some sequelae as the result on an accident and still fall within the MIG”.

20As a result of the foregoing, I must determine whether or not the applicant sustained psychological injuries as the result of the accident.

21The applicant relies on the following evidence to support her claim of psychological impairment beyond the MIG:

i. A diagnosis by Dr. Judith Pilowsky, psychologist, of adjustment disorder with depressed mood and symptoms of PTSD with phobic avoidance, based on:

a. a brief psychological interview of the applicant, reported in the November 14, 2016 treatment and assessment plan;

b. more extensive interviewing in a psychological assessment conducted December 17, 2016;

c. “severe range” test results in standard tests for depression (“BDI-II”) and anxiety (“BAI”);

d. an “increased risk” rating for “somatoform disorder and pain chronicity” on the “PCS”⁵ in the December 17th examination;

e. a pre-accident history that includes psychological symptoms and treatment (counselling) arising from a previous motor vehicle accident, with no evidence that these were unresolved before the accident occurred.

ii. Clinical notes and records (“CNRs”) of Dr. Nighat Shaheen, her family physician, for the period September to November 2016 which includes notes of insomnia and anxiety for which the physician prescribed Remeron (i.e. mirtazapine, an anti-depressant), and discussed other medications and recommended psychotherapy. The CNRs are consistent with the applicant’s reporting to Dr. Pilowsky.

22The applicant cited M.G. v. Primmum⁶ in support of the persuasive value of the tests conducted by Dr. Pilowsky.

23To rebut the applicant’s evidence, the respondent relies on:

i. The insurer’s examination (IE) report by Dr. Terra Seon in which the psychologist found no basis for a psychological diagnosis based on:

a. test results for psychological conditions and pain symptoms (BBHI-2, SIMS⁷) that produced invalid profiles due to symptom magnification by the applicant;

b. P3⁸ test results that indicated significant pain symptoms and which were valid, but which Dr. Seon opined should be interpreted very cautiously because the scores were barely within the range for non-exaggerated symptoms;

c. Dr. Seon’s observations from interviews that the applicant remained engaged in almost all social and occupational pre-accident activities, suggesting that while the applicant may have been experiencing some emotional difficulties, her impairments problems fell short of the threshold for a diagnosis or recommendation for psychological treatment.

24On balance, I find the evidence against psychological impairment stronger than the evidence for it, because:

i. The psychometric test results for both sides are similar: the applicant presents as someone with high levels of psychological distress. I find Dr. Seon’s report more persuasive because it includes validity testing to confirm the accuracy of results before drawing conclusions from them. This leads me to consider Dr. Seon’s report as more reliable and objective, and his report concludes that there is no valid or objective finding to support a psychological diagnosis or treatment plan.

ii. Despite very high test results, Dr. Pilowsky failed to opine on possible symptom magnification by the applicant (intentional or not). This gap weakens the probative weight of Dr. Pilowsky’s report.

iii. The case cited by the applicant, M.G. v. Primmum on weighing test-based evidence is unhelpful to me because it does not address the concern about validity testing raised by the respondent. A case cited by the respondent, H.Y. v. Aviva⁹ addresses the issue of validity head-on and is more persuasive to me: I find test results backed by validity testing to carry greater persuasive weight.

iv. It is unclear, because the applicant’s self-reporting is inconsistent, how well she has managed her return to social and occupational function within a few weeks of the accident. I am persuaded by Dr. Seon’s report that the degree to which the applicant has resumed pre-accident activities is inconsistent with the significant psychological impairment suggested by psychometric testing.

v. While Dr. Shaheen’s CNRs clearly indicate the applicant’s emotional distress, they do not include any psychological diagnoses. One note, dated November 18, 2016 indicated specifically no need for a psychological or psychiatric referral at that time.

25As the result of my findings with respect to the competing evidence, I find that the applicant did not suffer psychological impairment that would remove her from the MIG.

26Because the applicant’s entitlement to medical benefits is capped by the MIG, it is unnecessary for me to review the merits of her claim for medical benefits.

AWARD

27Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

28Having found for the respondent, the applicant’s award request is without basis.

INTEREST

29Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

30There are no overdue benefit payments and accordingly no interest due to the applicant.

CONCLUSION

31The applicant’s injuries fall within the MIG. As a result, his entitlement to benefits is governed by MIG and are subject to the $3,500.00 cap imposed by s.18 of the Schedule. The claimed benefits cannot be paid.

32There is no basis for an award in this matter.

33There are no overdue payments and therefore no interest due.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act, RSO 1990, c.I.8
3. 3R.R.O. 1990, Reg. 664
4. 4Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.
5. 5“BDI-II” means Beck Depression Inventory II, “BAI” means Beck Anxiety Index and PCS means “Pain Catastrophizing Scale”.
6. 6M.G. v. Primmum Insurance Co., 2017 CanLII 33672 (ON LAT)
7. 7“BBHI 2” means “Brief Battery for Health Improvement 2”, and “SIMS” means Structured Inventory of Malingered Symptomology.
8. 8“P3” is the “Pain Patient Profile”
9. 9H.Y. v. Aviva Insurance Company of Canada, 2017 CanLII 39433 (ON LAT)