Citation: M.A. vs. Wawanesa Mutual Insurance Company 2020 ONLAT 19-001655/AABS

Released Date: 05/25/2020

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. A.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Sandeep Johal

APPEARANCES:

For the Applicant:

Ardian Haruni

For the Respondent:

Michael Unea

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on September 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a driver of a vehicle proceeding through an intersection on a green light when he was struck on the driver’s side by a second vehicle that was attempting to change lanes. As a result, the applicant submits he sustained physical and psychological injuries.

3The applicant applied for medical benefits that the respondent denied on the basis that his injuries fell under the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. If the answer to issue (i) is no, then:

a. Is the applicant entitled to a medical benefit in the amount of $1,656.81 for chiropractic services recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted on January 11, 2018 and denied on March 14, 2018?

b. Is the applicant entitled to the cost of a neurological assessment in the amount of $1,970.00 recommended by Toronto Medical Centre in an OCF-18 submitted on September 17, 2018 and denied on September 28, 2018?

c. Is the applicant entitled to the cost of a psychological assessment in the amount of $1,995.33 recommended by Toronto Medical Centre in an OCF-18 submitted on March 5, 2018 and denied on March 19, 2018?

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

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant’s injuries fall within the definition of the MIG.

ii. as a result of the MIG limits being exhausted, there is no need to conduct an analysis of whether the treatment plan and the cost of examinations are reasonable and necessary; and

i. as there are no outstanding benefits, there is no interest that is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

6The 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 “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7The applicant bears the onus to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

8The applicant submits that he should not be treated within the MIG because:

1. He has psychological injuries, which are not included in the definition of “minor injury” under the Schedule; and/or

2. He also has a pre-existing injury of a bilateral big toe fracture, chronic tuberculosis and sciatica which would prevent maximal recovery if he is limited to the monetary limit under the MIG.

9I will proceed to discuss whether the applicant has a psychological injury and then move on to discuss whether the applicant has provided compelling evidence of a pre-existing injury in accordance with s. 18(2) of the Schedule to be removed from the MIG.

Does the applicant have a psychological injury to remove him from the MIG?

10For the following reasons, I find that the applicant has not proven on a balance of probabilities that he has a psychological injury that would take him out of the MIG.

11The applicant submits his family doctor, Dr. Asmal, diagnosed him with depression and anxiety as a result of the accident and also referred the applicant to consult a psychiatrist on June 13 and September 17, 2018. As a result, the applicant submits he should be removed from the MIG.

12The respondent submits the notations in the clinical notes and records of anxiety and depression are as a result of the applicant’s self-reports of anxiety complaints to his family doctor and his family doctor did not diagnose him with any such issues and there was no medication prescribed with respect to any psychological symptoms nor any referral to a specialist.

13Upon review of Dr. Asmal’s clinical notes and records, it would appear as though the applicant’s subjective complaints were that he was depressed, had anxiety, and an appointment with a psychiatrist. However Dr. Asmal does not appear to mention any objective diagnosis of depression or anxiety and nor does Dr. Asmal mention a referral to a psychiatrist. Dr. Asmal’s objective observations were that the applicant has tender paralumbar and musculature area. Dr. Asmal further notes that the applicant did not have any neurological deficit, deformity or swelling,³ and Dr. Asmal prescribed only pain medication.

14The respondent further relies upon the insurer examination (“IE”) report of Dr. Saunders, psychologist, who opined that there was no reliable evidence that the applicant suffered a psychological impairment as a result of the accident. He noted that the applicant’s behaviour and demeanour were inconsistent with his reported symptoms and test responses.

15According to Dr. Saunders’ IE report dated June 27, 2018, he completed several psychological tests including the Personality Assessment Inventory (PAI), the Carroll Depression Rating Scale-Revised (CDS-R) and the Multi-Dimensional Anxiety Questionnaire (MAQ).⁴ The PAI is a multi-scale objective psychometric instrument for identifying psychiatric symptoms and contains a number of validity indicators designed to assess factors that could distort the results of the testing.⁵ According to Dr. Saunders and based on the PAI test, there are indications that the applicant did not respond in a completely forthright manner. There are indications of negative impression management with the applicant endorsing items that present an unfavourable impression. The PAI clinical profile indicates someone who experiences marked distress and a severe impairment in functioning, however, this is only valid if the profile does not over-represent or exaggerate the actual degree of psychopathology.⁶

16The CDS-R test score was 44 and scores in this range are indicative of extreme depression as does the MAQ test, which the applicant scored in a range that was indicative of extreme anxiety. Dr. Saunders concludes that the applicant’s behaviour and demeanor were inconsistent with his reported symptoms and test responses.

17I place more weight on Dr. Saunders’ IE report to support the respondent’s position that the applicant does not have a psychological impairment that would remove the applicant from the MIG for the following reasons.

18Dr. Saunders completed clinical testing on the applicant and those test results are based on an objective clinical presentation of the applicant. Dr. Saunders found the applicant did not have a psychological impairment.

19I agree with the respondent and Dr. Saunders’ opinion. The applicant has visited with his family doctor on several occasions since the motor vehicle accident and, other than the self-reports of anxiety and depression, his family doctor did not find any psychological symptoms that warranted a referral to a specialist and nor did his family doctor find the self-reported anxiety symptoms of a severity that would warrant medication being prescribed.

20The onus is on the applicant to prove and, on a balance of probabilities, I find that the applicant has not persuaded me that he has a psychological impairment which would remove him from the MIG.

21I will now turn to discuss whether the applicant has a pre-existing condition that would remove him from the MIG.

Requirements to be removed from the MIG

22Even if the applicant’s injuries fall within the definition of minor injury, the applicant can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:

a) Have a pre-existing medical condition;

b) The pre-existing medical condition was documented by a health practitioner before the accident; and

c) the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

23I find that the applicant has not satisfied his onus and has not provided any submissions or evidence of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

24The applicant submits he had a history of significant bilateral big toe fracture, chronic tuberculosis and sciatica.⁷

25Evidence of a pre-existing condition on its own does not remove an applicant from the MIG.

26As per s.18(2) of the Schedule, the applicant must provide evidence as to whether the pre-existing condition will prevent maximal recovery from the minor injury if he is subject to the $3,500 limit under the Schedule.

27Without that part of s.18(2), the applicant has not satisfied the requirements under the Schedule to be removed from the MIG as a result of any pre-existing injury.

28As a result of finding that the applicant does not have a psychological impairment or a pre-existing injury that satisfies the requirements of s. 18(2) of the Schedule to be removed from the definition of the MIG, there is no need to conduct an analysis on whether the treatment plan or the cost of examinations are reasonable and necessary.

ORDER

29As a result of the above, I find that:

iii. the applicant’s injuries fall within the definition of the MIG.

iv. as a result of the MIG limits being exhausted, there is no need to conduct an analysis of whether the treatment plan and the cost of examinations are reasonable and necessary; and

ii. as there are no outstanding benefits, there is no interest that is payable.

Released: May 25, 2020

_________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Written Submissions of the Applicant at Tab 6, page 32. Dr. Asmal clinical notes and records dated June 13, 2018 and September 17, 2018.
4. 4Written Submissions of the Respondent at Tab 5, page 8.
5. 5Ibid.
6. 6Ibid.
7. 7Applicant written submissions at Tabs 6, 7, 11, 12 and 16.