Tribunal File Number: 17-005672/AABS
Case Name: 17-005672 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:
Applicant
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Bobby Vujicic, Counsel
For the Respondent: Stanislav Bodrov, Counsel
Heard: In writing on March 7, 2018
OVERVIEW
1The applicant was injured in an automobile accident on January 7, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied the applicant’s claim
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) pursuant to section 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).
3A case conference on November 30, 2017 where a written hearing was scheduled to decide the issues in dispute.
ISSUES
4The following issues are in dispute:
a. Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?
b. Is the applicant entitled to a medical benefit in the amount of $1,494.50 for chiropractic services recommended by Mackenzie Medical Rehab Centre Inc., in a treatment plan (OCF-18) submitted to the respondent on August 19, 2015?
c. Is the applicant entitled to the cost of a psychological assessment in the amount of $2,000.00 recommended by Verity Medical Assessments Inc.in an OCF-18 submitted to the respondent on September 10, 2015?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant has not met her onus of establishing on a balance of probabilities that her injuries fall outside the confines of the Minor Injury Guideline1 (“MIG”) due to her physical injuries and/or her psychological impairment.
6As a result, I have not considered whether the treatment plans in question are reasonable and necessary as the applicant has already received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries; No interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
7Section 3 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.”
8S. 18(1) caps recovery for predominately minor injuries at $3,500.00.
9The applicant must establish on a balance of probabilities that she falls outside the confines of the MIG and that she is entitled to the medical benefits in dispute.
Physical Injuries
10The applicant has brought forward the argument for MIG exclusion on the basis of her physical injuries and pain; specifically the injury in her right knee.
11In support of her claim, the applicant relies on the October 30, 2016 MRI performed on her right knee. This MRI was requested by Dr. Garcia after the applicant visited the doctor on March 21, 2016, or more than two years post-accident.
12The applicant also relies on the fact that Dr. Garcia diagnosed the applicant with “advanced chondromalacia of the patella” on November 14, 2016.
13For the reasons that follow, I find that the applicant’s injury to her right knee did not exclude her from the MIG.
14There is no evidence that the applicant complained of pain or injury to her right knee until two years after her motor vehicle accident. I therefore am unable to find a causal connection between the accident and the diagnosis made by Dr. Garcia in November of 2016 – which was three years after the applicant’s accident.
15The knee pain or knee injuries are not noted in her Emergency Room record from the night of the accident. The applicant was also assessed by Dr. Silver at the request of the respondent on April 29, 2015 for an insurer examination. The applicant failed to mention any knee pain during the assessment. When the applicant was re-evaluated by Dr. Silver on September 30, 2015, once again at the request of the respondent, the applicant did not complain of any knee injury or pain.
16In support of her claim, the applicant submitted two Disability Certificates (OCF-3’s), one completed by Dr. Sina Kazemi, dated March 12, 2015 and the other by Dr. Laura Tummonds and dated July 8, 2015. Neither contains any reference to right knee specific pain. The certificates do list the following injuries: radiculopathy, tension-type headaches, sprain and strain of the thoracic spine, injury of the muscle and tendon at neck level, sprain and strain of the shoulder joint and rotator cuff, other and unspecified injury of the tendon of the rotator cuff of the shoulder, dislocation, sprain and strain of the thorax, the joints and ligaments of the lumbar spine and pelvis. I find that all of the injuries listed fall squarely within the MIG.
17Therefore, I am unable to find any evidence to support the applicant’s submission that her knee injury is related to the accident and that she should be removed from the MIG. Even if I am wrong and there is a causal connection between that the accident and the applicant’s current right knee condition, she failed to present any evidence in respect of how the condition documented in her MRI and the diagnosis of Dr. Garcia made in November of 2016 would remove her from the MIG.
Psychological Impairments
18The applicant also argues that she should be removed from the MIG because she sustained psychological injuries as a result of the accident. I do not agree.
19In support of her claim that the applicant submitted two Disability Certificates (OCF-3’s), one completed by Dr. Sina Kazemi, dated March 12, 2015 and the other by Dr. Laura Tummonds, dated July 8, 2015. Both OCF-3’s indicate that the applicant suffers from “nervousness, other sleep disorders and other anxiety disorders”.
20I put little if any weight on these reports because both practitioners are chiropractors and it is outside their scope of practice to treat and diagnose psychological conditions.
21Psychological assessments were conducted on behalf of both the applicant and respondent. The applicant was assessed by Dr. Rubenstein on behalf of the respondent on October 8, 2015. He conducted a clinical assessment of the applicant and had her complete three psychometric tests.
22Dr. Shaul conducted an assessment at the applicant’s request on December 10, 2015. Dr. Shaul did not conduct his examination himself, but rather the examination was conducted by Helen Ilios, a counsellor working under the supervision of Dr. Shaul. The report does not indicate if Dr. Shaul ever met the applicant on a one-on-one basis and how he assessed the information provided to him by Ms. Ilios.
23Dr. Rubenstein looked at the applicant’s daily living and found no changes to her activities. She states that she continues to work part time. She also is able to perform household chores, travel using public transit, enjoys swimming and relaxing and is actively socially engaged.
24Dr. Rubenstein finds that the applicant has no psychological impairments and opines that all of her injuries fall within the MIG. Dr. Shaul, on the other hand, diagnoses the applicant with adjustment disorder with mixed anxiety, major depressive disorder and specific phobia (traveling in a vehicle) and concludes that the applicant’s injuries fall outside the MIG.
25Dr. Shaul’s report states the applicant is dealing with psychological symptoms including disturbed sleep, reduced energy, anxiousness, lower mood, and social isolation. However, the report only describes how these symptoms affect the applicant’s daily living in a minimal way. The applicant has not provided compelling evidence that she has a psychological impairment that would remove her from the MIG. There is no evidence that she has any psychological symptoms that negatively affect her functioning. Dr. Shaul’s report does not establish this.
26I have concerns with Dr. Shaul’s report; though Dr. Shaul’s report is quite detailed, I find most of the information contains very little information in terms of the applicant’s psychological symptoms and focuses more on her complaints of physical pain. In fact, most of what the applicant complains about during the report relates to the applicant’s physical discomfort rather than her psychological symptoms or impairments.
27Both doctors performed testing on the applicant; Dr. Rubenstein and Dr. Shaul’s finding’s in terms of Beck Depression Inventory II (BDI – II) and Beck Anxiety Inventory (BAI) were quite similar; Dr. Rubenstein found that the applicant scored “mild” on the BDI – II test and “moderate” on the BAI test, while Dr. Shaul found the applicant scored “moderate” on the BDI test – II and “moderate” on the BAI test.
28I also reviewed and considered the clinical notes and records of Dr. Garcia, the applicant’s family doctor, which revealed no complaints of psychological symptoms. The applicant was asked about her mood, and reported no complaints or symptoms. She specifically answered “no” when asked if she had issues with her energy, appetite and sleep on both April 27, 2015 and November 14, 2016.
29I find that the reports, or lack of reports, made to her family doctor is not consistent with the diagnosis of mixed anxiety, major depressive disorder and specific phobia (traveling in a vehicle) made by Dr. Shaul. I therefore put more weight on the report of Dr. Rubenstein. I also put more weight on Dr. Rubenstein’s report because he personally interviewed the applicant and Dr. Shaul did not.
30I find that the applicant did not sustain a psychological impairment that removes her from the MIG.
Cost of Disputed Treatment Plans
31I have found that the applicant’s injuries are predominantly minor in nature and therefore subject to the confines of the MIG. I will not address whether each individual treatment plan is reasonable and necessary, as the applicant has already received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries.
Interest on overdue payment of benefits
32The applicant is not entitled to any payment of benefits; therefore she is also not entitled to any payment of interest on any overdue payment of benefits.
CONCLUSION
33For the reasons outlined above, I find that:
The Applicant sustained predominately minor injuries as defined under the Schedule.
Since the answer to issue one is yes, I find that the applicant is not entitled to the chiropractic treatment and psychological assessment which are in dispute.
a. The applicant is not entitled to interest on any overdue payment of benefits.
Released: June 1, 2018
___________________________
Stephanie Kepman, Adjudicator
Footnotes
- Scarlett v. Belair Insurance, 2015 ONSC 3635