M.C. v. TD General Insurance Company, 2019 CanLII 126187

Citation: M.C. vs. TD General Insurance Company, 2019 ONLAT 19-000782/AABS

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:

M.C.

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Appellant: Loreto Scarola, Paralegal

For the Respondent: Raymond (Rakhman) Ashurov, Counsel

HEARD in writing on: August 26, 2019

OVERVIEW

1The applicant was injured in an automobile accident on September 10, 2017 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to the funding limit provided by the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to payment for the costs of examinations in the amount of $2,055.33 for a psychological assessment recommended by All Health Medical Centre in a treatment and assessment plan dated April 6, 2018?

3. Is the applicant entitled to receive a medical benefit in the amount of $4,512.14 for psychological treatment recommended by Dr. I. Gladsteyn in a treatment and assessment plan dated April 16, 2018?

4. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

5. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3The applicant sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to the disputed treatment and assessment plans, interest, or an award.

BACKGROUND

5The applicant was the passenger of a car which was struck perpendicularly on the driver’s side by another vehicle. He did not seek medical attention immediately following the accident but went to a walk-in clinic about a month later complaining of pain in the left shoulder and low back. The physician at the walk-in clinic prescribed medication for pain and advised the applicant to engage in physiotherapy, massage therapy, and acupuncture.

6The applicant commenced treatment pursuant to the MIG. The applicant now seeks a finding the injuries as a result of the accident are not predominantly minor and the disputed treatment plans are reasonable and necessary.

THE MINOR INJURY GUIDELINE

7There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

9The applicant claims to suffer from psychological injuries as a result of the accident and submits those injuries are not covered by the MIG and, accordingly, the $3,500.00 funding limit should not apply. In addition, the applicant claims the respondent never delivered a denial for the April 16, 2018 treatment plan and is precluded from characterizing the applicant’s injuries as minor and subject to the MIG.

10The respondent argues the denials were delivered and proper and submits applicant has failed to provide objective evidence of a psychological injury and is subject to the MIG and the $3,500.00 funding limit.

11On a balance of probabilities, I find the applicant has suffered predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit.

PSYCHOLOGICAL INJURY

12I find the psychological injuries claimed do not remove the applicant from the MIG because they are based on exaggerated symptoms and inconsistent reports. The report of Dr. A. Syed, neuropsychologist, dated June 7, 2018 (“the Syed report”) addresses these issues through the use of validity testing but the report of Dr. I. Gladshteyn, psychologist, dated April 22, 2018 (“the Gladshteyn report”) does not. For this reason and those outlined below, I prefer the Syed report over the Gladshteyn report. The Gladshteyn report concluded the applicant presented with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, whereas the Syed report ruled the same diagnosis out on account of the applicant’s unreliable and invalid test scores.

13The applicant has inconsistently reported facts during the assessments following the accident, compromising the quality of the assessments and reports. For example, in the Syed report, the applicant claimed to have taken a month off work following the accident, returning to work out of financial necessity. But the applicant reported he did not seek medical advice from his family physician for a month following the accident on account of his work schedule. In another example, the applicant reported to Dr. Syed that his return to work ended in April 2018 when, according to the applicant, physical and psychological injuries prevented him from working anymore. However, the Gladshteyn report notes the applicant was employed as a part-time waiter following the accident and in a report by Dr. P. Tupperman, physician, dated June 11, 2018, the applicant was reported to have worked as a chef following the accident for about 5 months until starting work as a waiter on a full-time basis. The Gladshteyn report also notes the applicant, following the accident, was dependant on his wife for housekeeping tasks such as cooking, yet the applicant returned to work as a chef during this time. The applicant reported only right shoulder pain in the Gladshtyen and Syed reports, whereas x-rays following the accident were conducted on the left shoulder. Lastly, the applicant acknowledged a subsequent accident during the assessment with Dr. Syed in which the subject vehicle was so badly damaged it was deemed unworthy of repair. Although, in the Syed report, the applicant claimed the accident did not cause any injuries, he did not report this accident at all during the Gladshteyn assessment.

14The psychometric testing outlined in the Syed report was more rigorous than during the assessment with Dr. Gladshteyn. Dr. Syed’s assessment included several psychometric tests with validity test components and found the applicant was feigning psychological injuries. Dr. Syed determined it was not reasonable to accept the applicant’s subjective reporting of his accident-related impairments. Whereas Dr. Gladshteyn’s assessment only included one test with a validity measure. The sole validity measure found no exaggeration on behalf of the applicant. The Syed report found the same result in the same psychometric test however, further testing with validity components conducted for the Syed report found significant evidence of malingering.

15The applicant’s solitary complaint of symptoms of anxiety leading to sleep issues does not overcome the reporting discrepancies outlined above. On November 23, 2017, during the applicant’s second visit to a walk-in clinic following the accident, he reported difficulty falling asleep due to worries about random changes and recovery. This is the only other record of the applicant complaining of psychological symptoms outside of the two psychological assessments. A visit to the same walk in clinic a week prior, on November 16, 2018, noted no psychological symptoms. During the third visit following the accident, on January 4, 2018 after shoulder and lumbar spine x-rays were conducted, the applicant complained of back pain but said he was able to return to exercising at the gym. Again, no psychological symptoms were noted during this visit.

WERE THE DENIALS PROPER AND DELIVERED?

16Despite a finding that the applicant’s injuries are predominantly minor in nature, fall within the MIG, and are subject to the $3,500.00 funding limit, the applicant may still be entitled to some medical benefits if the respondent is found to have failed to adhere to its obligations outlined in sections 38(8) and 38(9) of the Schedule.

17The applicant claims entitlement to the psychological treatment plan dated April 16, 2018 on a procedural basis. The applicant submits he never received a response to the treatment plan dated April 16, 2018, pursuant to section 38(8), and also submits the respondents letter dated June 14, 2018 failed to refer to the MIG, contrary to section 38(9).

18I agree with the applicant and find the respondent did not refer to the MIG in the June 14, 2018 refusal to pay and there is no evidence to indicate the applicant or the applicant’s representative received the respondent’s letter dated April 16, 2018. However, I find the applicant is not entitled to payment of the treatment plan because the applicant did not incur any of the goods and services proposed in the treatment plan.

19Similarly, I find the respondent did not refer to the MIG in the April 18, 2018 letter denying the psychological assessment proposed in a treatment plan dated April 6, 2018. However, the applicant did not allow the respondent the requisite time to reply prior to incurring the costs outlined in the treatment and assessment plan. Pursuant to section 38(11)2, the applicant is entitled to the costs starting on the 11th business day following receipt of the treatment and assessment plan. Section 38(11)2 does not entitle the applicant to costs incurred before the 11th business day, as is the case here.

20Pursuant to section 38(11)1, the failure to provide proper notice of a denial of benefits prohibits the respondent from taking the position the applicant has an impairment to which the MIG applies. However, the Court of Appeal has determined this provision only applies to the specific treatment and assessment plan for which there was a deficient denial¹ - it does not impose a permanent prohibition as the applicant suggests.

21The applicant presents no evidence or submissions to suggest any of the goods and services proposed in the April 16, 2018 treatment plan were incurred. Pursuant to section 38(11)2, the respondent must pay for all goods and services consumed starting on the 11th day following receipt of the treatment plan until the day the respondent provides a proper notice. As a result, the applicant is not entitled to the treatment plan dated April 16, 2018 simply because the respondent did not satisfy section 38(9).

22Procedural issues aside, I find the April 16, 2018 psychological treatment plan is not reasonable and necessary. Having found the psychological injuries claimed by applicant are founded on exaggerated symptoms and inconsistent reports and do not warrant removal from the MIG, I see no reason why any treatment for the same injuries claimed would be reasonable and necessary.

THE DISPUTED TREATMENT PLANS and INTEREST

23The applicant’s injuries are predominantly minor injuries as defined by the Schedule. As a result, the applicant is not entitled to the disputed treatment and assessment plans because they propose goods and services which are not included in the MIG.

AWARD

24Pursuant to section 10 of Regulation 664 the applicant may be entitled to an award because the respondent unreasonably withheld payment of a benefit. The applicant submits the respondent withheld or delayed payments by failing to properly assess him under section 44 and failed to deliver the notice denying the treatment plan dated April 16, 2018. I disagree and find the applicant is not entitled to an award for the following reasons.

25The applicant’s position on the failure to provide notice of the denial of the treatment plan dated April 16, 2018 is addressed above. I see no evidence the respondent unreasonably withheld payment of the treatment plan considering there is no evidence the applicant incurred any of the goods and services described in it.

26The Respondent is under no obligation to conduct a section 44 assessment. Section 44(1) of the Schedule holds the respondent may require an insured person to be examined. This is not mandatory language and it does not require the respondent to conduct an insurer’s examination in order to deny funding for a treatment and assessment plan.

27Further, I find Dr. Syed’s decision to conduct additional psychometric testing with validity measures is not unreasonable. As outlined earlier, the applicant’s account of facts following the accident appeared to be inconsistent. Considering this, I appreciate the additional validity measures used to address the inconsistencies.

CONCLUSION

28The applicant’s injuries as a result of the accident are predominantly minor injuries as defined by the Schedule.

29The applicant is not entitled to payment for the psychological assessment because he incurred the services prior to the 11th day following the respondent receiving the treatment and assessment plan.

30The applicant is not entitled to the treatment plan dated April 16, 2018 because it is not reasonable and necessary.

31The applicant is not entitled to interest as no payments went overdue. No award is payable as the respondent did not unreasonably withhold any payments of benefits.

Footnotes

1. 1Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707