M.K. v. Aviva General Insurance Company, 2019 CanLII 43873

Citation: M.K. vs. Aviva General Insurance Company, 2019 ONLAT 18-003998/AABS

Date: April 18, 2019

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:

MK

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Paramsothy Prishanty, Counsel

For the Respondent:

Hashim Mohammed, Counsel

HEARD:

In Writing on: November 19, 2018

OVERVIEW

1The applicant, MK, was involved in an automobile accident on July 30, 2015. His car was struck by an intersecting vehicle.

2MK sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Aviva, denied his claim.

3Aviva denied MK’s claims because it determined that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline² (“the MIG”). MK’s position is the opposite.

4If Aviva’s determination is correct, then MK is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by 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.

5If MK’s position is correct, then I must address the issue of whether each of the medical benefits disputed is reasonable and necessary.

ISSUES

6Did MK sustain predominantly 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, then:

1. Is MK entitled to receive a medical benefit in the amount of $3,108.96 for psychological treatment pursuant to a Treatment and Assessment Plan (“OCF18”) completed by Harinder Mrahar (Psychologist), submitted on January 30, 2017 and denied on March 17, 2017?

2. Is MK entitled to receive a medical benefit in the amount of $1,446.90 for physiotherapy treatment recommended in an OCF18 completed by Abhishek Sharma, submitted on December 22, 2017 and denied on January 22, 2018?

3. Is the applicant entitled to receive a medical benefit in the amount of $3,361.65 for psychological treatment recommended in an OCF18 completed by Julie Villano, submitted on September 29, 2017 and denied on October 29, 2017?

4. Is MK entitled to the cost of examination in the amount of $2289.85 for chronic pain assessment recommended in an OCF18 completed by Dr. Igor Wilderman, submitted on August 4, 2017 and denied on September 30, 2017?

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

RESULT

8MK’s appeal is denied. There are no overdue payments and therefore no interest owing.

REASONS

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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

10The onus is on the applicant to show that his injuries fall outside of the MIG.³

11MK submits that he should be removed from the MIG because:

i. He has a pre-existing condition.

ii. He suffers chronic pain.

iii. He sustained psychological injuries as a result of the accident.

12It is uncontested that any of the medical conditions asserted by MK and listed in paragraph 9 above would, if proven, remove him from the MIG.

Pre-existing Condition

13Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit on treatment costs under the MIG.⁴

14The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

15MK submits that he has “previous conditions” of diabetes and high blood pressure that have presented a barrier to his recovery from his accident-related injuries. MK does not point me to any medical opinion or analysis that explains how or why these conditions impede his ability to recover from his injuries with treatment within the cap on benefits set by the MIG.

16MK’s submissions simply fail to meet the standard of proof for establishing a pre-existing condition for the purposes of exempting him from the MIG.

Did MK suffer a psychological injury that would remove him from the MIG?

17Psychological injuries, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition does not include psychological injuries. This is uncontested by Aviva.

18MK submits that, as a result of the accident, he has been diagnosed with mild depressive episode and adjustment disorder by Dr. Harinder Mrahar, psychologist, after a consult “on or about” January 30, 2017. Dr. Mrahar, in a report dated February 24, 2017, reiterated this diagnosis and opined that MK’s prognosis included possible deterioration. He further opined that MK’s psychological injuries represent a barrier to his physical recovery.

19Aviva relies on insurer’s examination (IE) reports by Dr. Shariar Moshiri, psychologist, to rebut MK’s claim:

1. In his report dated February 1, 2016, Dr. Moshiri noted that MK denied any need for psychological treatment, has resumed driving “without fear” and on diagnostic tests scored in the sub-average range for both depression and anxiety, “which rendered clinically insignificant levels for a diagnosis”. Dr. Moshiri did not identify a psychological impairment.

2. Dr. Moshiri’s addendum report of November 29, 2016, completed after reviewing clinical notes and records from Dr. Mather, MK’s family physician, confirmed the above-noted findings.

3. In his report dated May 5, 2017 – commissioned in response to an assessment and OCF-18 from Dr. Mraher submitted in January 2017 – Dr. Moshiri noted that MK again denied any need for psychological treatment, indicated that he was psychologically fit. Test results indicated insignificant levels of depression and anxiety not warranting treatment.

20I find that MK has failed to prove that he sustained psychological injury that would remove him from the MIG. This is because:

1. Dr. Mrahar’s report indicated test results that indicate minimal and mild levels of depression and anxiety – actually consistent with IE scores – and he offers no explanation of how or why this level of difficulty would prevent maximum medical recovery within the cap set by the MIG.

2. I find the reports of Dr. Moshiari persuasive. I find that MK offers an unpersuasive explanation for disavowing his statements to Dr. Moshiari – on two separate occasions – that he was psychologically fit and did not require psychological treatment. His submissions do not, in fact, address his statements as reported May 5, 2017.

Does MK suffer chronic pain that would remove him from the MIG?

21Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

22Aviva submits that the Tribunal should apply criteria set out in its decision in M.N.M.⁵ in which it was noted that “chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain." The Tribunal applied the six criteria found in the American Medical Association Guidelines, which stipulates a minimum of three of six criteria must be present for a chronic pain diagnosis:

1. use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. excessive dependence on health care providers, spouse or family;

3. secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

4. withdrawal from social milieu, including work, recreation, or other social contracts;

5. failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreation needs;

6. development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviours.

23Aviva submits that MK does not exhibit any of these criteria. It notes with respect to criterion 5 – functional impairment – that MK has resumed recreational pursuits, jogging, going to temple and going to the beach. He returned to work as a gas station shortly after the accident and, by 2017, was employed full-time as a forklift operator. This was documented by Dr. David Berbrayer, physiatrist, in a report dated October 17, 2017. Aviva further notes that a reported dated March 28, 2016 by Dr. Irina Safir, GP, noted that MK reported being independent with personal care and housekeeping tasks (albeit with pain). Dr. Safir further opined that MK had reached maximum medical recovery (MMR) from facility-based treatment and considered the MIG to be applicable to his injuries.

24I find that MK’s submissions offer insufficient analysis for me to determine that he suffers chronic pain, because:

i. He relies on x-rays taken in July 2016 and September 2018 to prove chronic pain, but there is no explanation of how or why the conditions noted, such as a mild scoliosis or disc space narrowing, would create chronic pain, or why what he describes as degenerative changes are related to the accident.

ii. His descriptions of functional impairment are vague and therefore unpersuasive. For example, he does not explain what “modified duties” at work means. He does not directly contradict any of Aviva’s assertions about his post-accident activities.

iii. MK does not contest the criteria submitted by Aviva for determining chronic pain and does not offer evidence that he meets them. He does not point me to medical reports that specify chronic pain in describing his condition.

25MK’s injuries do not include a chronic pain condition.

CONCLUSION

26MK’s injuries are minor and his entitlement to medical benefits is governed by the MIG. Accordingly:

i. It is not necessary for me to determine the merits of disputed treatment plans.

ii. There are no overdue benefit payments and therefore no interest is owing to RH.

Released: April 18, 2019

___________________________

Christopher A. Ferguson

Adjudicator

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.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
5. 5M.N.M. v Aviva Insurance Canada, 17-007825/AABS, July 30, 2018 at para 6. [M.N.M.]