Citation: G.M.K. vs. Aviva Insurance Company, 2019 ONLAT 18-009487/AABS
Tribunal File Number: 18-009487/AABS
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:
G.M.K.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Poeme Manigat
APPEARANCES:
For the applicant: Ardi Deti, Paralegal
For the respondent: Robert Jones, Counsel
Written Hearing on: May 27, 2019
OVERVIEW
1The applicant (“GMK”) was injured in an automobile accident (“the accident”) on September 29, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). GMK applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent, Aviva Insurance.
2The respondent denied the applicant’s claims because it determined that the applicant’s injuries fit the definition of “minor injury” as stipulated under s. 3(1) of the Schedule, therefore falling within the Minor Injury Guideline2 (“MIG”). The applicant’s position is the opposite.
3If the applicant’s position is correct, I must address the issue of whether claiming the cost of an examination for a psychological assessment is reasonable and necessary.
4If the respondent’s position is correct, the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed under s.18(1) of the Schedule, and in turn, a determination of whether the claimed medical benefits are reasonable and necessary, will not be required.
5The applicant claims interest on any overdue payment of benefits.
ISSUES
6Did the applicant sustain predominately minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?
7If the applicant’s injuries are not within the MIG, I must determine the following:
I. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a psychological assessment by Pilowsky Psychology Professional Corporation, which was submitted on December 23, 2016 and denied on July 10, 2017?
II. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8Based on a review the evidence before me, I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness and necessity of the psychological assessment or the issue of interest.
ANALYSIS
The Minor Injury Guideline
9Section 3(1) 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.” The MIG defines, in detail, what each of these terms mean.
10Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
11GMK argues that his injuries fall outside the MIG because of his psychological injuries. The onus is on GMK to show that his injuries fall outside the MIG3.
Did the applicant sustain psychological injuries?
Accident-related injuries - psychological
12To support his position, the applicant relies mainly on the findings of Dr. Pilowsky4, the clinical notes and records (CNR) of Dr. Ansari, and his own reporting. Dr. Pilowsky diagnosed the applicant with Post-traumatic Stress Disorder, with Phobic Avoidance and Major Depressive Disorder, Single Episode, Moderate.
13In support of its position, the respondent relies primarily on the findings of Dr. Day5 and Dr. Marchuk6. These doctors opined that the applicant does not suffer from a psychological impairment allegedly caused by the September 29, 2016 accident, nor does the applicant suffer from any ongoing physical impairments.
14The applicant submits that Dr. Day’s findings are inconsistent with the applicant’s psychometric test results. Although some of the psychometric test results are in line with Dr. Pilowsky’