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:
[The Applicant]
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Appellant: Haider Bahadur, Counsel
For the Respondent: Jessica Rogers, Counsel
HEARD in writing on: September 23, 2019
OVERVIEW
1The applicant was injured in an automobile accident on April 11, 2016 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, in response, the applicant 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 as follows:
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”)?
Is the applicant entitled to payment for the costs of examinations in the amount of $2,200.00 for a psychological assessment recommended by I. Gladshteyn in a treatment and assessment plan dated January 5, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $3,940.00 for a psychological treatment plan recommended by I. Gladshteyn in a treatment and assessment plan dated March 30, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $3,339.64 for a physiotherapy treatment plan recommended by Dr. S. Arabnezhad in a treatment plan dated February 10, 2017?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant suffered predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit. He is not entitled to the benefits claimed because they propose treatment outside the MIG.
BACKGROUND
4The applicant was a passenger in a car which was struck on the passenger side. The applicant went to his family physician, Dr. A. Attia, the following day. He was diagnosed with a shoulder sprain and advised to attend physiotherapy, exercise, and use Tylenol as required. He was also advised to follow up in one week and to go to the hospital emergency room if his symptoms worsened.
5Within a few days of the accident, the applicant commenced physiotherapy, massage therapy, and chiropractic treatment. The extent of the treatment received is unknown as the applicant did not provide any records from a treatment facility. The parties agree, however, that the applicant has incurred only $2,227.35 in treatment as of this hearing.
6The applicant claims that his pre-existing depression, anxiety, and chronic pain preclude him from recovering within the MIG and the funding limit.
7Additionally, the applicant experienced symptoms of psychological injury on December 8 and 18, 2016. On December 8, he saw Dr. Attia and complained of a depressed mood. On December 18, he was brought to the hospital by police after a family member called emergency services due to alleged threatening behaviour. He attributes these incidents to the accident and, as a result, claims to suffer accident-related injuries which are not included in the MIG and, in turn, not subject to the $3,500.00 funding limit.
THE MINOR INJURY GUIDELINE
8There 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 to include 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.
9If 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.
PRE-EXISTING CONDITIONS
10I find no compelling evidence the applicant has a pre-existing medical condition which would preclude maximal recovery if he were subject to the MIG and its $3,500.00 funding limit.
11The applicant submitted certain medical records documenting various injuries prior to the accident, such as a fracture of the left orbital bone in 2008, a finger fracture on his non-dominant hand in 2009, and another finger fracture in June 2015 from playing basketball. The respondent argues that the applicant has failed to prove any of these ailments were being treated at the time of the accident, and there is no evidence these pre-existing conditions would impact his recovery. I agree.
12The medical records are not indicative of a pre-existing condition which would impact the applicant’s recovery. For example, the report by Dr. Arabnezhad, chiropractor, written in January 2017, lacks any objective evaluation and medical records to support its conclusion that the applicant’s recovery is impeded by the pre-existing medical conditions listed above, that he suffers from psychological limitations, and that he “falls outside the minor injury guideline”. The report fails to include any evaluation results, such as range of motion tests. The report notes his pre-existing conditions but does not provide any evidence of the conditions. Other than noting the conditions are “negative prognostic indicators”, the report does little to indicate how the pre-existing conditions claimed would preclude recovery if subject to the MIG and the funding limit. More remarkable is that Dr. Arabnezhad’s report is provided for this hearing in the absence of any clinical notes and records from Dr. Arabnezhad’s clinic which has administered all of the applicant’s 2016 accident-related treatment to-date. This is remarkable considering the records from the treatment facility would provide an account of the applicant’s condition and, likely, show any signs of a difficult or prolonged recovery.
13Further, I see no evidence the applicant was suffering from ongoing pain or chronic pain at or around the time of the accident. There are no records indicating the applicant was engaging in treatment at the time, nor is there evidence the fractures he previously sustained were impairing him at or around the time of the accident. In fact, there is no evidence of any kind to show ongoing or chronic pain for the year prior to the accident. Likewise, there is no evidence to indicate the applicant’s previous fractures, or pain from them, would preclude his recovery if subject to the MIG and the $3,500.00 funding limit.
14Similar to the applicant’s chronic pain complaint, there is no evidence to show the applicant suffered from depression and anxiety at or around the time of the accident. There are no records to show the applicant was engaging in psychological treatment for the year prior to or at the time of the accident. Nor is there evidence the applicant was under the clinical care of a psychologist or psychiatrist. The last record of the applicant suffering from psychological symptoms before the accident was a psychological assessment report by N. Dent from about a year prior.
15The psychological assessment report dated May 4, 2015 by N. Dent, psychological associate and conducted by I. Kulikov, psychometrist, found the applicant suffered from an adjustment disorder with mixed anxiety and depressed mood. However, this report is not evidence of the applicant suffering from psychological injuries at the time of the accident. Rather, it is evidence suggesting that he suffered from depression and anxiety at the time the assessment occurred. Further, there is no evidence suggesting the applicant followed through on the recommendations and engaged in any psychological treatment after it. I am unable to determine the applicant was suffering from psychological injuries at the time of the accident without any information to fill in the gap between the May 4, 2015 assessment and the accident.
PSYCHOLOGICAL INJURY
16After reviewing the evidence and submissions, I find no compelling evidence showing the applicant suffered a psychological injury as a result of the accident.
17There are no compelling medical records to support this claim. The treatment confirmation form dated April 14, 2016, the disability certificate dated April 25, 2016, and the treatment and assessment plan dated September 9, 2016 all list only sprain/strain injuries and do not note any psychological symptoms or injuries. Similarly, the applicant’s decoded OHIP summary shows no services consumed between the subject accident and the episodes in December 2016.
18I find the psychological episodes in December 2016 are not accident-related. The first episode, on December 8, 2016, appears to be minor as not as a result of the accident. On December 8, 2016 Dr. Attia assessed and counseled the applicant about depression and found no further action necessary. The record includes no reference to the accident or injuries as a result of the accident and there is no referral for any type of treatment. Similarly, the December 18, 2018 episode is not accident-related and, instead, is as a result of substance use. Dr. S. Pendharkar, psychiatrist, assessed the applicant the following morning and diagnosed him with alcohol intoxication, which was resolved by the time of the assessment, and substance use disorders. Notably, Dr. Pendharkar did not diagnose the applicant with depression or anxiety and none of the substance use disorders were attributed to the accident despite Dr. Pendharkar’s knowledge of it. In fact, Dr. Pendharkar noted the applicant’s report of an increase in substance use since the 2016 accident due to pain, but also noted the applicant reported an increase in substance use when not working and the applicant had not yet started a new job at the time of the December 2017 incidents.
19I find the report by Dr. I. Gladshteyn, psychologist, dated March 5, 2017, commissioned as a result of the 2016 accident, is less compelling than the insurer’s examination report. The Gladshteyn assessment was performed by the same psychometrist as the Dent assessment. It included the same clinical interview, the same psychometric tests, and the same conclusion that the applicant suffered from an adjustment disorder with mixed anxiety and depressed mood. While a history like this is not normally problematic, I find that it is when both reports fail to properly address whether this affects the results of the assessment. While it is not improper for the same assessor to conduct multiple assessments on an insured, the history should be recognized, documented, and discussed in the latter report. This was not included in the Gladshteyn report.
20I prefer the opinion in the IE report by Dr. J. Clewes, psychologist, dated May 25, 2017. Dr. Clewes examined the applicant and found no complaints of any accident-related psychological symptoms, concluding there was no evidence for making any DSM-IV diagnosis. Dr. Clewes’ opinion is similar to that of Dr. Pendharkar, who assessed the applicant following the psychological episodes in December 2016.
21Based on the above analysis and a review of the evidence and submissions, I find the applicant has not met the evidentiary burden to establish he suffered injuries which are not included in the definition of a minor injury. As a result, he is subject to the MIG and the $3,500.00 funding limit prescribed in section 18.
THE DISPUTED TREATMENT PLANS & INTEREST
22The applicant is not entitled to the disputed treatment plans because the applicant is subject to the MIG and the plans propose treatment not included in the MIG.
INTEREST
23Pursuant to section 51, interest is only payable on overdue payments. Having found nothing payable, I conclude no payments went overdue and no interest is payable as a result.
CONCLUSION
24I find that the applicant sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit. The applicant is not entitled to the disputed benefits, nor interest.
Released: February 5, 2020
Brian Norris
Adjudicator