C.A. v. Aviva Insurance Company, 2020 CanLII 27416

Citation: C.A. vs. Aviva Insurance Company, 2020 ONLAT 18-008624/AABS

Released Date: April 3, 2020

Tribunal File Number: 18-008624/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:

C. A.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Nisaa Khan, Counsel

HEARD: In Writing

June 24, 2019

OVERVIEW

1The applicant, C.A., was involved in an automobile accident on June 27, 2017 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹ from the respondent, Aviva.

2Aviva denied C.A.’s claims because it took the position that her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline² (“the MIG”). C.A. disagrees.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. C.A. argues that her injuries take her out of the limits set out by the MIG. Based on treatment that C.A. has received to date, the MIG limit has been exhausted.

ISSUES

4The issues in dispute were identified and agreed to as follows:

a. Are C.A.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?

5If C.A.’s injuries are not subject to the MIG limits, then I must determine the issues as follows:

a. Is the medical benefit in the amount of $2,200.00 for psychological treatment recommended by Toronto Assessment Centre, in treatment plan (OCF-18) denied on November 21, 2017, reasonable and necessary?

b. Is the medical benefit in the amount of $200.00 for Disability Certificate (“OCF-3”) form completion, submitted by Spinal Touch, and denied on August 31, 2017, reasonable and necessary?

c. Is the medical benefit in the amount of $3,990.70 for psychological treatment recommended by Horizon Diagnostic, in a treatment plan (OCF-18) denied on April 5, 2018, reasonable and necessary?

d. Is C.A. entitled to interest on any overdue payment of benefits?

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

RESULT

6For the reasons set out below, I find that C.A.’s impairment falls within the MIG. C.A. is not entitled to the medical benefits as MIG limit has been exhausted. C.A. is not entitled to the cost of the OCF-3. Interest is not payable as there is no overdue payment of benefits. C.A. is not entitled to an award as there was no unreasonable withholding of benefits.

LAW

Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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 terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in s.3(1).

8The onus is on the applicant to show that her injuries fall outside of the MIG.³

9C.A. argues that her injuries go beyond the definition of “minor injury” because she has sustained psychological impairments which remove her from the MIG.

Did C.A. sustain psychological injuries that remove her from the MIG?

10I considered the reports of Drs. Marino, Tham and Drs. Toneatto and Mahmood with special attention to the self-reporting of C.A. I find that the evidence does not support the conclusion that C.A.’s psychological impairments would remove her from the MIG.

11For example:

i. C.A. attended a s. 44 assessment on November 8, 2017 with Dr. Marino.⁴ In the report, C.A. reported the following:

a. denied experiencing any significant changes with respect to her mood after the accident⁵;

b. She reported non-compensable issues unrelated to the accident due to the death of her aunt’s boyfriend⁶;

c. She denied fearing for her life at the time of the accident, flashbacks and engaging in avoidant behaviours. She also continued to feel close to family and friends⁷.

ii. On June 13, 2018, C.A. was again assessed by Dr. Marino. In his report⁸, Dr. Marino notes the following self-reporting claims:

a. C.A. denied any significant changes with respect to mood in relation to the accident. She was forthcoming noting she was dealing with non-compensable family issues. However, she adamantly stated these stressors were not accident-related;⁹

b. She reported no psychological complaints and again stated she was not interested in and did not require psychological treatment;¹⁰

c. She had not requested psychological treatment and had advised Dr. Toneatto and her lawyer she was not interested in psychological treatment. She reported significant stress having to attend all the appointments in relation to the accident;¹¹

iii. Dr. Marino concluded that C.A. demonstrated no significant psychological impairment or diagnosis directly attributable to the accident and that C.A. had reached maximum medical improvement from a psychological standpoint;¹²

iv. Family Physician Dr. Tham received the November 10, 2017 psychological assessment¹³ by Drs. Toneatto and Mahmood on December 19, 2017, in which they diagnosed C.A. with psychological impairments. However, I find that the report of Drs. Toneatto and Mahmood does not explain in sufficient detail how C.A.’s reporting and the test results supported a diagnosis of psychological impairment. Further, Dr. Tham noted no psychological impairments, which also contradicts the report of Drs. Toneatto and Mahmood; and

v. At paragraph 13 of C.A.’s submissions, she noted she suffered mental and behavioural disorders associated with puerperium as per the OCF-18 in dispute. The International Statistical Classification of Diseases and Related Health Problems, 10th Edition, a medical classification list by the World Health Organization, defines “puerperium” as “commencing within six weeks of delivery”. It is unclear if C.A. is claiming that the mental or behavioural disorders are a result of the puerperium or the accident. Aviva submits, and I agree, that C.A. has provided no evidence that she was pregnant prior to the accident or that this disorder is as a result of the accident.¹⁴

12C.A. has not provided persuasive medical evidence to demonstrate that her psychological impairment as a result of the accident would remove her from the MIG limit.

13The report by Drs. Toneatto and Mahmood and the reports of Drs. Marino and Tham are in complete contrast with each other. Therefore, I must consider and weigh other evidence in order to determine whether C.S. suffered psychological impairments that would remove her from the MIG.

14Despite the objective test results, the expertise of the assessors, or even the suggestion by her legal representative to seek a psychological assessment and treatment, I am persuaded by the statements made by C.A. clearly indicating that she is not in need of psychological treatment and the accident is not the cause of any psychological issues that she suffers from. I rely on the following:

i. On June 25, 2018, C.A.’s statement to Dr. Marino that, “I am going through stuff, but it is because of my family not because of the accident. Please make these appointments stop because the accident has nothing to do with what I am going through right now.” She further noted a number of times throughout the assessment: “Please tell them I don’t want any treatment. Please put an end to this”.¹⁵

ii. C.A.’s repeated statements of a lack of need or desire for psychological treatment does not support that psychological treatment is reasonable or necessary. Further, C.A. herself acknowledges that her current psychological status is not attributable to the accident but rather her personal life.

15For these reasons, I find that the evidence does not support that C.A.’s psychological impairments, as a result of the accident, are significant enough to remove her from the MIG limits.

Is the Disability Certificate payable?

16Aviva raises the issue that the OCF-3 was not requested by it and thus it is not obliged to pay for these pursuant to s. 25(1) of the Schedule. That section states that an insurer shall pay for reasonable fees charged for preparing a disability certificate if required under ss. 21, 36 or 37 of the Schedule.

17Aviva contends there is no obligation under the Schedule for an insurer to pay for a disability certificate it did not require or request. I agree. Aviva did not require an OCF-3 as C.A. is not applying for a specified benefit. As such, the claim for the OCF-3 is denied.

AWARD

18Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments.

19C.A. contends that Aviva unreasonably withheld payment of the treatment plans. I have already found that C.A.’s accident-related impairments do not take her out of the MIG limit, therefore she not entitled to the treatment plans. On this basis, Aviva cannot be found to have unreasonably withheld payment of same. As such. C.A. is not entitled to an award.

CONCLUSION

20C.A. has not met the onus on her to prove her impairments are not predominantly minor. As such, C.A. is not entitled to the treatment plans in dispute as the $3,500 MIG limit has already been exhausted. No interest is owing as there is no overdue payment of benefits. C.A. is not entitled to an award. The claim is dismissed.

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. 4Respondent’s Submissions - TAB 2: Dr. Alfonso Marino Psychological Assessment Report, dated November 20, 2017, page 6.
5. 5Ibid - TAB 6: Dr. Marino Psychological Assessment Addendum Report dated June 25, 2018, page 6.
6. 6Ibid.
7. 7Ibid.
8. 8Respondent’s Submissions - TAB 6: Dr. Marino Psychological Assessment Addendum Report dated June 25, 2018.
9. 9Ibid, page 7.
10. 10Ibid, pages 4, 7.
11. 11Ibid, pages 7, 10.
12. 12Ibid, page 10.
13. 13Ibid - TAB 7: Dr. Tony Toneatto and Arshad Mahmood Psychological Assessment Report dated November 10, 2017, pages 1-2.
14. 14TAB B: ICD-10 Version: 2016, https://icd.who.int/browse10/2016/en#/F53.
15. 15Respondent’s Submissions - TAB 6: Dr. Marino Psychological Assessment Addendum Report dated June 25, 2018, pages 7, 10.