Released: June 12, 2020
Tribunal File Number: 18-008602/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:
K. H.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Lisa Bishop
For the Respondent:
Aimee M. Draper
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on December 9, 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, as a result, 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:
(i) Did the applicant sustain predominantly minor injuries as defined by the Schedule?
(ii) Is the applicant entitled to receive medical benefits recommended by Health Pro Wellness as follows;
(a) $2,805.12 for a physiotherapy treatment plan dated May 10, 2017;
(b) $2,738.00 for a physiotherapy treatment plan dated October 10, 2017; and
(c) $3,693.04 for a psychological treatment plan dated December 18, 2017?
(iii) Is the applicant entitled to the costs of examinations recommended by Health Pro Wellness as follows;
(a) $2,189.00 for a chronic pain assessment plan dated July 26, 2018; and
(b) $2,197.29 for a psychological assessment dated April 9, 2017?
(iv) Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
(v) Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is unsuccessful on all issues.
BACKGROUND
4The applicant was the driver of a car which was struck on the passenger side by a vehicle exiting a commercial property. She did not seek medical attention at the time. However, she was taken to a collision reporting centre by a tow truck driver, as her car was considered undrivable and was eventually written off. Afterwards, she drove a rental vehicle from the reporting centre to her workplace, advised her workplace of the accident, then drove home. Several days later, on December 13, 2016, she visited Health Pro Wellness and commenced treatment pursuant to the MIG. Notable, however, is the MIG treatment plan dated December 13, 2016, which states that the facility submits treatment pursuant to the MIG “in order to get compensated for treatment incurred,” and likewise that the facility maintains the position “that our patient does not belong in the MIG.”
5The applicant incurred treatment with Health Pro Wellness beyond the $3,500.00 funding limit provided for persons with predominantly minor injuries. She disputes the characterization of her injuries as being predominantly minor and claims entitlement to the treatment and assessment plans above (‘the disputed treatment plans”).
THE MINOR INJURY GUIDELINE (MIG)
6There 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 section 3 of the Schedule and includes 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.
7If the applicant’s injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
8The applicant submits that she suffers from pre-existing medical conditions such as diabetes, hypertension, and osteoarthritis which, I infer, are submitted as evidence that shows she has pre-existing medical conditions which preclude her from achieving maximal recovery within the $3,500.00 funding limit. She also claims to suffer from accident-related psychological injuries that remove her from the MIG and the $3,500.00 funding limit.
9The respondent submits the applicant failed to show how her pre-existing medical condition would preclude maximal recovery within the MIG, that she denied any psychological symptoms during examinations, and concludes she sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit.
Pre-existing medical condition and on-going pain
10The applicant’s evidence is absent of any compelling proof of a pre-existing medical condition which would preclude maximal recovery within the MIG and the $3,500.00 funding limit. The clinical notes and records (“CNRs”) from her family physician, Dr. D. Black, indicate she suffers from hypertension and diabetes which is controlled by medication. There is no record indicating that Dr. Black is concerned about the impact of this on her recovery from accident-related injuries. The applicant saw Dr. Black a week following the accident for a follow-up related to her diabetes care and reported she was experiencing upper and lower back pain from the motor vehicle accident and was already engaged in physiotherapy. Dr. Black examined her and found only soft tissue injuries. Dr. Black referred the applicant for physiotherapy to address her soft-tissue injuries. Dr. Black has an ongoing relationship with the applicant and is in the best position to address the impact of the applicant’s pre-existing health condition on her recovery. Yet, Dr. Black’s CNRs note no such impact.
11I acknowledge the applicant’s pain complaints during the months following the accident, but I find the complaints are consistent with the definition of a minor injury. The applicant’s pain has been described as stable and intermittent. She is not consistently impaired by pain – she continues to attend church regularly and has resumed work and provides no evidence of a requirement for accommodations in the workplace. It is notable that Dr. Black’s CNRs include record of the applicant disclosing that she was not exercising at home, despite Dr. Black’s recommendation to do so.
12The applicant saw an OHIP-funded orthopaedic surgeon who concluded she suffered a minor injury. Dr. J. Kwok, orthopaedic surgeon, examined the applicant on November 15, 2018 at the request of Dr. Black. Dr. Kwok concluded “there is nothing ominous going on” with the applicant and that she suffered myofascial soft tissue injuries superimposed on pre-existing degenerative changes. Dr. Kwok recommended physiotherapy to deal with the pain and discharged her from care. Dr. Kwok never considered the applicant’s condition to be chronic, nor is there any recommendation for treatment of a chronic condition. A recommendation for additional physiotherapy to address intermittent pain from soft tissue injuries, despite having exhausted the $3,500.00 funding limit, does not upset the predominance of her minor injuries, nor does it entitle her to the treatment.
Psychological injuries
13On a balance of probabilities, I find the applicant has not suffered psychological injuries removing her from the MIG and the $3,500.00 funding limit.
14The applicant’s psychological assessment report is uncompelling and I prefer the psychological insurer’s examination over it. The psychological assessment was completed by social worker S. Sheikh, who concludes the applicant suffers from a major depressive disorder, somatic symptom disorder, and vehicular phobia. However, social worker Sheikh is not qualified to render an opinion on the applicant’s psychological health. In addition, the report rates the applicant’s psychometric test scores as consistent with a severe level of depression, yet there is no other evidence indicating the applicant suffers from severe depression. For example, following the accident there is only one note in the entirety of Dr. Black’s CNRs in which the applicant exhibited symptoms of a psychological injury – she was noted to “appear stressed” in the first visit following the accident on December 16, 2016. Otherwise, there is no other evidence of a psychological injury in Dr. Blacks records.
15The report of Dr. S. Moshiri, psychologist (“the psychological IE report”) is compelling and found the applicant sustained no psychological impairments as a result of the accident. The report is compelling in that it was conducted by a qualified professional and the findings in it are consistent with the balance of the applicant’s medical record. Dr. Moshiri noted the applicant reported her psychological symptoms have little impact on her daily activities, she continues to regularly attend church, and her memory and concentration remain intact. Dr. Moshiri conducted psychometric tests and found the applicant’s scores were evidence of only a mild level of anxiety and a clinically insignificant level of depression. The applicant submits Dr. Moshiri’s report should be discounted because it did not include a review of the applicant’s decoded OHIP summary or Dr. Black’s CNRs. I disagree. Dr. Moshiri’s report included a few documents for prereview, but the Sheikh report included none. Further, the OHIP summary lacks the requisite detail to document specific symptoms and, as noted above, I find Dr. Black’s CNRs include very little record of any psychological symptoms.
16The applicant’s decoded OHIP summary is not evidence of a psychological injury. The applicant notes that, on several occasions, the decoded OHIP summary shows she met with Dr. Black in 2016 and 2017 under the OHIP code description for “depressive or other nonpsychotic disorders” or “anxiety neurosis, hysteria, neurasthenia, obsessive compulsive, neurosis”. However, the corresponding entries in Dr. Black’s CNRs fail to indicate any record of accident-related psychological symptoms or treatment.
17The applicant submits her situation is similar as that in 17-005791 v Aviva Insurance Canada (“17-005791”)1. She claims the result of this decision is that psychological symptoms and impairments are not within the definition of a minor injury and should remove the applicant from the MIG and the $3,500.00 funding limit. While I agree that psychological impairments are not within the definition of a minor injury, I find the applicant’s matter is distinguishable from 17-005791. Unlike the applicant in 17-005791, the applicant’s test scores vary between the Sheikh Report and the IE, and her family doctor’s CNRs do not corroborate the reported complaints. That is different from what happened in 17-005791, in which case there was a record of psychological injuries in the family doctor’s CNRs and the psychometric test scores were consistent – it was only the assessor’s conclusions which were different.
18The applicant’s psychological symptoms are clinically insignificant and have little or no impact on her day-to-day life. She returned to work, driving, and her religious practices. Considering the evidence and submissions, I conclude she has not suffered a psychological injury as a result of the accident.
RECEIPT OF THE PSYCHOLOGICAL ASSESSMENT PLAN
19The applicant claims the respondent failed to reply to the treatment and assessment plan dated April 9, 2017 which proposes a psychological assessment. The respondent submits it never received the treatment and assessment plan and further submits the document was sent to a different insurance company. The applicant did not respond to this submission.
20I find the applicant’s evidence does not support her claim. The document she submitted, titled “Paperwork Summary”, includes an OCF-18 for a psychological assessment created April 9, 2017, sent April 20, 2017, and replied to on April 21, 2017. Its status is “not approved”. To me, it appears the treatment plan was submitted and responded to according to the Schedule.
AWARD and INTEREST
21An award may be payable in the event the respondent is found to have unreasonably withheld or delayed payment of a benefit. Likewise, Interest is payable on the overdue payment of benefits pursuant to section 51 of the Schedule.
22Having found the applicant suffered predominantly minor injuries and is not entitled to the disputed treatment plans, I can conclude no benefits were unreasonably withheld, delayed, or overdue. As a result, no award or interest is payable.
CONCLUSION
23The applicant’s injuries are predominantly minor injuries as defined in the Schedule. As a result, the applicant is bound by the funding limit of $3,500.00 provided by the MIG.
24The applicant is not entitled to the disputed treatment plans because she has exhausted the $3,500.00 funding limit provided by section 18 of the Schedule.
25The applicant is not entitled an award pursuant to section 10 of Regulation 664.
26The applicant is not entitled to interest as no payments went overdue.
Released: June 12, 2020
Brian Norris
Adjudicator