D.S. v. The Personal 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:
DS
Applicant
and
The Personal Insurance Company
Respondent
DECISION
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
Victoria Polyakevich
For the Respondent:
Kiren K. Dren
HEARD:
In Writing on: December 3, 2018
OVERVIEW
1The applicant DS was involved in an automobile accident on August 8, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, The Personal, denied her claim.
2The Personal denied DS’s claims because it determined that all of her 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”). DS’s position is the opposite.
3If The Personal’s position is correct, then DS is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule.
4If DS’s position is correct, then I must address the issue of whether the rehabilitation benefit disputed is reasonable and necessary.
5The Personal has raised a preliminary issue, urging the Tribunal to bar DS’s appeal from proceeding because he failed, without reasonable excuse, to attend an insurer’s examination (IE). If the Personal is correct, then DS’s appeal cannot proceed, and a determination of the substantive issues will be unnecessary.
PRELIMINARY ISSUE
6Is DS barred from proceeding with this appeal under s.55(1)2. of the Schedule because he failed to attend an IE as required by s.44(9)iii. of the Schedule?
SUBSTANTIVE ISSUES
7Did DS sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?
8If DS’s injuries are not within the MIG, then:
Is DS entitled to payments for the cost of examinations in the amount of $1,982.44 for a psychological assessment, recommended by Way to Health Clinic, in a treatment plan (“OCF-18”) dated February 8, 2018, and denied by The Personal on March 17, 2018?
Is DS entitled to interest on any overdue payment of benefits?
RESULT
9DS’s appeal is barred from proceeding under s.55(1)2. of the Schedule because he failed to attend an IE as required by s.44(9)iii. of the Schedule . There are no overdue payments and therefore no interest owing to DS.
REASONS
The Applicant’s Duty to participate in the IE and the Consequences of Non-Compliance
10Section 44(1) of the Schedule governs IEs, and among other things requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner (s.44(9)iii.). Section 44(1) provides that the IE must be reasonably necessary.
11Section 37(1) (b) of the Schedule provides that if an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary, notify the insured person that the insurer requires an examination under section 44.
12Section 37(7) of the Schedule prescribes the consequences to the insured person if he or she fails to attend an IE: the insurer may determine that the insured person is no longer entitled to the specified benefit and it may refuse to pay the specified benefit relating to the period during which the insured person failed to comply with s.44(9).
13Section 37(8)(b)(ii) requires the insurer to pay all amounts withheld during a period of non-compliance if an insured person provides a reasonable explanation for not complying with s.44(9).
14The onus is on the insured person to establish a reasonable explanation.3
15Section 55(1)2. of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him that it requires an examination under s.44, but the insured person has not complied with that section.
The Personal’s Position
16The Personal submits that it received the disputed OCF-18 on February 8, 2018 and responded with a denial based on a prior psychological IE, which had determined that psychological treatment was unnecessary. The denial notice advised DS that an additional IE would be scheduled to help determine whether the proposed OCF-18 related to injuries sustained in the accident and whether it was reasonable and necessary given the elapse in time since the accident.
17The Personal states that it sent DS a Notice of Examination (NOE) dated March 6, 2018 in which it scheduled an IE and explained that an IE had been scheduled for April 11, 2018 to assist in understanding the medical diagnosis/prognosis for recovery and resumption of function in response to the disputed treatment plan requesting a psychological assessment . It noted that there was insufficient medical documentation supporting that the Applicant's injuries fell outside of the MIG to deem the proposed treatment plan reasonable and necessary.
18The Personal states that the IE scheduled for April 11, 2018 did not take place as an interpreter had not been scheduled. It was subsequently re-scheduled for May 14, 2018, and an amended NOE with the new date was sent to DS on April 17, 2018.
19The Personal contends that its request for an IE is reasonable, given the time elapsed since the accident and since previous requests for treatment, a lack of any updated medical information from DS and the findings of previous IEs, which contraindicated psychological treatment.
20The Personal argues that the Tribunal should bar DS’s appeal from proceeding because
i. DS did not attend the IE and at the date of its response, had offered no explanation or indeed any response whatsoever to the IE request.
ii. Its NOEs complied with the Schedule.
DS’s Position
21DS states that his representative was not provided with the Notice of Assessment. On this basis there was no non-compliance. He submits:
“In 2018 as this dispute arose, [The Personal] immediately sent notice of insurer examination to the Applicant, requiring him to attend a psychological examination. Said notice of assessment was not provided to [DS’s] representatives in this process, although [The Personal] and [its] representatives were aware of this dispute. Thus there was no non-compliance in the sense of s.44 of SABS. Moreover the insurer insisted and several times rescheduled psychological examination by insurer examiner while denying an absolutely analogous examination by a specialist of the Applicant's choice. This demonstrates Respondent's awareness that there is a need for further medical investigation of the Applicant's psychological and psychiatric health.”
22I find that DS has failed to meet the onus on him to provide a reasonable explanation for failing to attend the s.44 IE scheduled by The Cooperators. The following are my reasons:
i. I note that DS’s submissions do not state that his representatives were unaware of the OCF-25s and I have no reason to believe that they were. In any event, I can find nothing in the Schedule that would lead me to conclude that failing to provide a copy of the OCF-25 to a claimant’s representatives provides a reasonable excuse for simply ignoring it. DS does not point me to either any basis, either or an authority or a reason why, for drawing this conclusion.
ii. I agree with The Personal that its decision to request an IE was reasonable under the circumstances of a lengthy period of time between treatment requests, the earlier psychological IE report it had on file, and a lack of up-to-date medical documentation from DS.4 There is no basis for any argument that an unreasonable demand was placed on DS, and thus no reasonable excuse for failing to attend.
iii. I reject DS’s implicit argument that The Personal can’t require an IE to assess an OCF18 because the IE itself is “analogous” to the requested psychological assessment. I find DS’s flat assertion unconvincing. I do not accept that IEs are analogous (or equivalent) to the assessment plans they are scheduled to evaluate. I reject as baseless the notion that scheduling an IE reflects an insurer’s “awareness that there is a need for further investigation of [DS’s] psychological and psychiatric health”. There is no basis for a reasonable excuse here.
iv. The Personal’s NOEs were clear and contained all of the information required. There is no suggestion otherwise. In my view, the NOEs created an obligation for DS to comply with s.41(9)iii. or to raise any objections at that time. I find that in the absence of a credible and reasonable explanation, this obligation and the consequences for non-compliance should be enforced in the manner prescribed by the Schedule in order to maintain its integrity and purpose.
v. DS does not claim that he provided an explanation or raised any concerns with The Personal about the IE requests. I find that this failure undermines the credibility of his claim and weakens any claim that the reasons he provides in this hearing actually explain his non-attendance.
23As the result of my findings, my decision is that DS cannot proceed with his appeal. Accordingly, a determination of the substantive issues in dispute is not necessary, and DS’s appeal is dismissed.
Are DS’s injuries minor and therefore subject to the MIG?
24Although a determination of the substantive issues in dispute was not necessary, the parties submitted evidence and argument on them and it was open to me to review them.
25My review of the evidence and arguments led me to conclude that DS did not meet the onus on him to prove that he should be exempted from the MIG.
The Minor Injury Guideline
26Section 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.
27The onus is on the applicant to show that his injuries fall outside of the MIG5
28DS submits that he should be removed from the MIG because:
i. The physical injuries he suffered in the accident are beyond the definition of “minor injury” prescribed by s.3(1) of the Schedule.
ii. He sustained a psychological injury as a result of the accident that places his claims outside of the MIG.
Did the applicant sustain predominantly minor physical injuries?
29DS asserts that he sought treatment for “the following injuries and sequelae of the MVA of 2014: chronic back pain, T11 –T12 disc protrusion, L6-Sl disc bulging; degenerative disc disorder […].” This is recorded in the clinical notes and records (CNRs) of his family physician, Dr. Eugene Bondarev.
30DS also notes an MRI of August 11, 2015 that confirmed mild disc bulge at L6 and that was inconclusive on T12-Ll to L3-L4 vertebrae.
31DS urges me to assign little weight to the opinions of Dr. Mansour Alvi, orthopedic surgeon, who conducted two insurer’s examinations (IEs) on DS and concluded that DS’s injuries are predominantly minor. DS notes that in an addendum report dated February 9, 2016, Dr. Alvi stated that “Without benefit of MRI imaging of [DS’s] left shoulder and lumbar spine it is my impression that his injuries” [are] predominantly minor”. DS asserts that Dr. Alvi failed to consider DS’s MRI results, despite having recommended an MRI for DS in earlier IE reports, and despite noting the inclusion of the MRI in his list of medical documents considered.
32I find that DS has not proven that his spinal injuries were caused by the accident. My reasons for concluding this are:
iii. Dr. Bondarev’s CNR of March 9, 2015 notes prolonged, heavy weight-lifting and bodybuilding, along with the accident, as possible [emphasis mine] causes of DS’s pain complaints. This was DS’s first post-accident visit to his doctor, seven months after it occurred. DS provides no convincing evidence that the spinal issues revealed by imaging reports were caused by the accident. I don’t find that “possible” cause meet the balance of probabilities test for proof.
iv. Dr. Bondarev’s CNRs over the course of 2015 indicate that DS ignored medical advice to reduce heavy weightlifting activity, raising concerns in my mind that spinal issues detected in post-accident imaging were, in fact, accident-caused.
33I find that DS has failed to prove that his accident-related physical injuries were not predominantly minor because of my findings set out in paragraph above, and for the following additional reasons:
v. DS doesn’t provide any analysis about injuries or complaints beyond his submissions on spinal conditions. As a result, he fails to make the case that any of these other injuries – such as headaches, cervical whiplash or shoulder problems – exceed the prescribed definition of “predominantly minor injury”.
vi. DS states in his Reply submission that “The Respondent in their [sic] submission raises issue [sic] of causation of the Applicant’s orthopaedic injuries, but it is irrelevant to the dispute, as no physio,[sic] massage or other muscle stimulation treatment is in dispute.” DS has elected not to rebut concerns about causation of his spinal injuries, and accordingly provided me with no basis on which to reject The Personal’s causation defence – a defence that strikes me as quite plausible.
Did DS sustain a psychological injury that would remove him from the MIG?
34Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. In this case, it is uncontested that the primary psychological diagnosis claimed by DS would, if proven, remove him from the MIG.
35DS notes that Dr. Bondarev’s CNRs describe his complaints of insomnia, flashbacks, and adjustment disorder with depression arising from the accident; these complaints led to the referral to Dr. Felix Yaroshevsky, psychiatrist in October 2015.
36DS asserts that he sustained a psychological injury, namely Post Traumatic Stress Syndrome (PTSD), as a result of the accident that places his claims outside of the MIG. He cites a PTSD diagnosis made by Dr. Felix Yaroshevsky, the psychiatrist to whom DS was referred by his family physician, Dr. Bondarev, in October 2015, with the accident given as the cause.
37DS submits that Dr. Yaroshevsky’s evidence outweighs the conclusions by Dr. James Murray, a psychologist who conducted an IE on September 8, 2015, and concluded that DS did not “meet the symptom validity test” and exaggerated his complaints. DS argues that because The Personal did not send him to a psychiatrist, it has simply failed to rebut his claim. He also suggests that the length of the IE appointment was insufficient for a meaningful assessment, especially given the need for a Russian interpreter.
38The Cooperators rebuts DS’s claim with the following evidence and arguments:
vii. Dr. Yaroshevsky’s PTSD diagnosis was provisional. It is unconvincing because no details as to any testing that was administered are included in the brief two page report. No details are provided in the report as to the modalities relied upon or findings which led to the provisional diagnosis.
viii. The insurer’s examination report by Dr. Murray dated September 8, 2015 in which the examiner reported no evidence of psychological impairment at a diagnostic level and further reported signs of embellishment of cognitive difficulties and pain complaints that led him to believe that DS was deliberately choosing wrong answers in psychometric testing. This made it impossible to reconcile subjective information provided in clinical interview with objective test results and observations.
ix. Dr. Murray reviewed Dr. Yanoshevsky’s report and in an addendum report dated February 9, 2016 opined that it was “not comprehensive in nature” – Dr. Murray’s diagnostic opinion remained unchanged.
x. The Cooperators submits that greater weight ought to be given to the reports of Dr. Murray as response validity testing was administered and a detailed thorough examination was conducted which led to no discernible motor vehicle accident related psychological impairments.
xi. A negative inference can be drawn from the fact that Dr. Yaroshevsky made himself available to DS for further counselling, and DS does not appear to have re-attended for further consultations. There appears to be little to no effort on DS’s part to address psychological issues, suggesting that they either didn’t arise or resolved quickly.
39On a balance of probabilities, I find that DS did not met the onus on him to prove that he sustained psychological injuries that would remove him from the MIG. This is because I find Dr. Murray’s report more persuasive, based on its description of diagnostic and validity testing, than the medical reports of Drs. Yanoshevsky and Dr. Bandarev.
40Even if DS were not barred from proceeding with his appeal, I would dismiss his appeal with respect to The Personal’s MIG determination.
CONCLUSION
41DS’s appeal is barred because of his failure to attend an IE requested by The Personal under s.44 of the Schedule. DS’s appeal is dismissed.
42DS’s evidence and argument fall short of proving that he should be exempted from the MIG.
Released: April 29, 2019
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086 – submitted by the applicant
- I note that DS does not dispute The Personal’s submissions that it lacked up-to-date CNRs and other medical documents from him, despite requests for this information.
- Scarlett v. Belair, 2015 ONSC 3635 para.24