Tribunal File Number: 17-003286/AABS
Case Name: 17-003286 v Certas Home and Auto Insurance Company
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:
Applicant
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rakesh Sharma
APPEARANCES:
Representative for the Applicant:
Francesco Blasi & Michael Wentzel
Counsel for the Respondent:
Richard Campbell
Written Hearing:
October 24, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in an automobile accident on April 27, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (Schedule).
2The applicant applied for medical benefits that were denied by the respondent because the applicant was placed into the Minor Injury Guidelines (MIG). The applicant disagreed with the decision and submitted an application to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the “Tribunal”).
3The parties participated in the case conference but were unable to resolve the issues in dispute, resulting in to an Order from the Tribunal, dated August 10, 2017, for a written hearing to be conducted on the issues listed in the order.
ISSUE ADDED BY THE APPLICANT
4In their submissions, the applicant added an issue in dispute that does not form part of the original Order:
(i) Whether or not the applicant’s injuries fall within the MIG?
5In its submissions, the respondent responded to the issue raised by the applicant. Therefore, I shall address it as an issue in dispute forming part of the written hearing.
ISSUES IN DISPUTE
6The following are the issues to be decided at this hearing:
(i) Are the applicant’s injuries predominantly minor injuries as defined in section 3 of the Schedule, subject to treatment within the $3,500.00 monetary limit stated under section 18 of the Schedule?
(ii) Is the applicant entitled to the cost of examination in the amount of $2,200.00 for psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Dr. Judith Pilowsky dated August 18, 2016, denied by the respondent on August 27, 2016?
(iii) Is the applicant entitled to receive a medical benefit in the amount of $4,605.48 for psychological treatment recommended by Pilowsky Psychology Professional Corporation, in treatment plan dated September 15, 2016, denied by the respondent October 28, 2016?
(iv) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of benefits?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7Based on the totality of the evidence before me, I find that:
(i) The applicant’s impairment is predominantly a minor injury and therefore he remains in the MIG.
(ii) As I have determined the applicant is within the MIG, I do not need to consider whether the treatment plans are reasonable and necessary or the issue of interest.
(iii) The applicant is not entitled to an award under Ontario Regulation 664.
ANALYSIS
Are the applicant’s injuries predominantly minor injuries as defined in section 3 of the Schedule, subject to treatment within the $3,500.00 monetary limit stated under section 18 of the Schedule?
8The MIG establishes a framework for the treatment of minor injuries. The term “minor Injury” is defined in section 3 of the Schedule 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”. The term “strain” “sprain” “subluxation” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
9In the decision of Scarlett v. Belair Insurance (2015 ONSC 3635, 2015 ONSC3635) the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Thus the applicant must establish his entitlement to the benefits over the $3500 limit for minor injuries on a balance of probabilities.
Does the applicant suffer from psychological injuries that would take him outside of the MIG?
10Based on the submissions and evidence provided, it is my finding that the applicant does not have a psychological impairment that would take him outside of the MIG.
11The applicant asserts that his psychological injuries are significant and are not predominantly minor injuries. He submits that he suffers from:
(a) Post-Traumatic Stress Disorder with Driver Anxiety; and
(b) Adjustment Disorder with Depressed Mood.
12The applicant relies upon an in-person psychological assessment report, dated October 25, 2016 from his assessor, Dr. Simrat Padda (psychologist) and a rebuttal letter, dated January 10, 2017, from Dr. Judith Pilowsky (psychologist).
13The respondent states that the applicant does not suffer from any psychological injury and therefore the MIG applies. The respondent relies upon an in-person insurer examination report dated September 21, 2016, from Dr. Ian Smith (psychologist). In addition, the respondent relies on two paper review insurer examination reports dated November 3, 2016 and March 7, 2017, respectively, prepared by Dr. Ian Smith (psychologist).
14In analyzing the evidence before me, I find that Dr. Padda did not conduct a response validity test to assess the accuracy of the response by the applicant during the psychological testing, Dr. Smith conducted the test and found low probability of exaggeration of distorted response by the applicant. Both assessors conducted clinical interviews and psychological diagnostic testing. Both assessors completed different set of psychological diagnostic tests to come to their respective conclusions. Both assessments were completed within a week of each other. Dr. Padda completed assessment on September 15, 2016 and Dr. Smith completed it on September 21, 2016.
15The applicant had stated numerous psychological symptoms to Dr. Padda on September 15, 2016 and most of the symptoms were absent during the assessment by Dr. Smith on September 21, 2016. The applicant also stated to Dr. Smith that he does not require psychotherapy treatment.
16Dr. Padda’s psycho diagnostic test findings were mild depression, moderate level of anxiety and moderate risk for development of chronicity. Based on diagnostic criteria of DSM V Dr. Padda diagnosed the applicant with symptoms of: (A) Post-Traumatic Stress Disorder with Driver Anxiety. (B) Adjustment Disorder with Depressed Mood.
17I attach less weight to the conclusion drawn by Dr. Padda, as she has not explained how the assessment findings of mild depression, moderate level of anxiety and moderate risk for development of chronicity met the diagnostic criteria of the DSM-V, resulting into the applicant’s above-mentioned diagnosis. In addition, the discrepancy in the name of the applicant in response to a Minor Injury Guideline question on page 10 of the report is a significant oversight and further undermines the credibility of the assessment process. The same college registration number on the report dated October 25, 2016 of Dr. Padda and on the letter dated January 10, 2017 of Dr. Pilowsky indicates lack of attention in finalizing the documents.
18I attach minimal weight to Dr. Judith Pilowsky rebuttal letter dated Jan. 10, 2017 as she had not conducted an in-person assessment of the applicant and it is not clear if she had reviewed the report dated September 21, 2016 of Dr. Smith. In the letter she refers to “my report” and “my opinion” but there is no prior report/ opinion from Dr. Judith Pilowsky.
19I prefer the report of Dr. Smith as he started with response validity test and found low probability of exaggeration of distorted response by the applicant. The assessment findings of “sub clinical anxiety and depressive complaints with a slight concern expressed over low frustration and sub clinical anxiety and with no evidence that catastrophic thoughts resulted in a significant risk of psychological factors impacting the perception of pain and disability” lead to the diagnosis of the applicant not meeting the diagnostic criteria for psychological conditions and no discernible mva related psychological impairments.
20The insurer examination paper review report dated November 3, 2016 prepared by Dr. Smith stated to have reviewed the report of Dr, Padda Psychological assessment report dated October 25, 2016, and maintained his opinion as stated in report dated September 21, 2016.
21Dr. Pilowsky also stated that perhaps a language barrier could have contributed to the apparent discrepancies noted by Dr. Smith. She was the first one to speak with the applicant and conducted a phone interview on August 18, 2016 and does not state language barrier. Therefore, I do not take the language barrier into consideration in respect of the relied upon reports by the parties.
22Based on the evidence before me, I find that the applicant has not met the onus of proving on the balance of probabilities that as a result of the motor vehicle accident, he suffered significant and predominant psychological injuries that are not minor injuries so as to take him outside of the MIG.
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of benefits?
23I find the applicant is not entitled to an award under Ontario Regulation 664.
Section 10 of Regulation 664 states that if the Tribunal finds that the insurer unreasonably withheld or delayed payments the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts owing.
24As I did not find any benefit owing to the applicant there cannot be an award in this case.
25The applicant is not entitled to an award under Ontario Regulation 664.
Released: May 17, 2018
Rakesh Sharma, Adjudicator