Released: May 22, 2020
Tribunal File Number: 18-009024/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
K.S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Jeanie Theoharis, Vice Chair
APPEARANCES:
For the Applicant: Gunath Pirapakaran, Representative
For the Respondent: Michael Silver, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant, K.S., was involved in a car accident on April 15, 2017. He claimed accident benefits from the respondent, Aviva Insurance Canada (“Aviva”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”).
2Aviva refused to pay for certain benefits and deemed his injuries to be predominantly minor and subject to a cap of $3,500 for medical and rehabilitation benefits. Minor injuries are administered under the Minor Injury Guideline (“MIG”).
3K.S. disputed Aviva’s decisions and on September 21, 2018 he filed an application with the Tribunal.
4The Tribunal held a case conference and the matter, with the consent of the parties, proceeded by way of written hearing. A review of the written submissions filed by the parties forms the basis of this decision.
ISSUES
5A review of the written submissions and the case conference order dated March 12, 2019, indicate that the following issues are in dispute:
- Are K.S.’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500 and to treatment within the MIG?
- Is K.S. entitled to a medical benefit in the amount of $3,948.91 for physiotherapy treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on August 24, 2017, and denied on December 14, 2017?
- Is K.S. entitled to a medical benefit in the amount of $3,416.68 for psychological treatment recommended by Inline Rehabilitation Centre Inc. in a treatment plan submitted on October 12, 2017, and denied on November 2, 2017?
- Is K.S. entitled to payments for the cost of examinations in the amount of $1,920.53 for a psychological assessment, recommended by Inline Rehabilitation Centre Inc. in a treatment plan dated July 24, 2017, and denied on November 2, 2017?
- Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to K.S.?
- Is K.S. entitled to interest on any overdue payment of benefits?
- Is K.S. entitled to the costs of the proceeding under Rule 19.1 of the Common Rules of Practice and Procedure?
RESULTS
6Based on a review of the evidence presented, I find as follows:
- K.S. sustained predominantly minor injuries that are treatable within the MIG.
- Since the MIG limits have been exhausted, the treatment plans in dispute and cost of examination are not reasonable and necessary.
- K.S. is not entitled to an award under Regulation 664.
- K.S. is not entitled to interest since no benefits are payable.
- K.S. is not entitled to the costs of the proceeding.
ANALYSIS
7K.S.’s musculoskeletal injuries fall within the definition of ‘minor injury’ and he has not met his onus to show that he has sustained psychological injuries as a result of the motor vehicle injury.
8Section 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.” It also defines what these terms for injuries mean.
9The limit for medical and rehabilitation benefits entitlement for minor injuries is $3,500.
10K.S. has the onus to show that his injuries fall outside the MIG.
K.S.’s injuries are predominantly minor injuries as defined in the Schedule, and subject to a treatment cap of $3,500 and to treatment within the Minor Injury Guideline
11Following the accident on April 15, 2017, K.S. attended the hospital and saw his family doctor, Dr. Chaudhri, on April 18, 2017. He sustained injuries to his head, neck, back, knee and shoulder. The doctor’s notes from the April 18, 2017 visit indicate that the plan was to be off work for an estimated time of 6 weeks and to obtain physiotherapy. K.S. received treatment totalling $3,587.75 under the MIG and has therefore exhausted the $3,500 limit.
K.S. failed to establish that he has suffered physical injuries, such that his injuries would fall outside of the Minor Injury Guideline
12On July 11, 2017, K.S. attended the office of Dr. Ferase Rammo as a new patient. On this visit the clinical notes and records indicate being treated for pain to his foot and a prescription for orthotics was provided. The notes further indicate that K.S. did not raise any musculoskeletal concerns; and the doctor, following a physical examination, indicated that K.S.’s mobility, strength and reflexes were normal. On August 1, 2017, K.S. went to the doctor and complained of back pain. Dr. Rammo noted that there was mild tenderness but otherwise the exam of K.S.’s back was normal. Dr. Rammo directed K.S. treat his back pain with warm compressions, and Tylenol or robaxacet. On a further visit on August 8, 2017, the doctor’s notes indicate that K.S. felt ready to return to regular work duties and, as noted on a follow up visit on August 15, 2017, K.S. continued to be doing well.
13K.S. attended an insurer’s examination with Dr. Ijaz Choudhry on November 6, 2017. The purpose of the evaluation was to determine whether K.S.’s injuries fall within the MIG. The doctor met and assessed K.S. and reviewed a number of documents related to his medical history. The doctor, purely from a musculoskeletal perspective, determined that K.S. did not have any underlying present or past medical issue that would inhibit his recovery. He observed that there was some limitation to K.S.’s bilateral shoulder range of motion, but that overall K.S. suffered soft tissue injuries, as defined in the MIG as ‘minor injuries’. He further indicated that any treatment over and above the MIG $3,500 limit would not be reasonable or necessary.
14Further appointments with his family doctor indicate that K.S. was being monitored for his hypertension and possible fibromyalgia, as opposed to the injuries sustained from the motor vehicle accident.
15On a balance of probabilities, I find that the applicant has not met the onus to show that his physical impairments are not minor injuries.
K.S. failed to establish that he has suffered psychological injuries, such that his injuries would fall outside of the Minor Injury Guideline.
16K.S. submits that as a result of the motor vehicle accident he sustained psychological injuries. He relies on a Psychological Assessment Report dated September 25, 2017, to support this assertion. In the report, Dr. Valery Kleiman’s diagnosis of K.S. is that as a result of the accident, K.S. has Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia. The doctor recommended 12 sessions of psychotherapy over a period of 2-3 months.
17Aviva asserts that K.S. did not meet his onus to show that as a result of the motor vehicle accident he suffered psychological impairment. In support of this assertion Aviva relies on a psychology assessment by Dr. Amena Syed, dated October 16, 2017 and a psychology paper review report dated October 24, 2017. Both reports indicate that K.S.’s subjective self-reporting responses to the psychometric measures do not support a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood because K.S.’s atypical responses were indicative with someone feigning psychological impairment.
18On a balance of probabilities, I find K.S. has not met his burden to show he sustained psychological injuries or impairments because of the accident for the following reasons.
19Dr. Kleiman’s assessment took place on August 14 and 28, 2017. The assessment included a clinical interview and the administration of psychological self-report questionnaires. Based on the interview and testing, K.S. was found to be more anxious than average and have a severe level of depression. The results also indicated his pain inventory to be in the range of 8 to 10 out of 10, indicating that the pain interferes with his general activity, walking ability, normal work, and ability to concentrate. The appellant also indicated that his self-perceived functional disability affects his activities and daily living.
20In contrast, the family doctor clinical notes and records indicate a very different understanding of K.S.’s current abilities and state of mind. When reviewing the family doctor’s clinical notes and records, there was little to support a finding that K.S. was suffering psychological distress. On April 18, 2017, the clinical notes and records do not indicate any psychological distress; on July 11, 2017, the family doctor indicates that K.S.’s mood is euthymic and notes there are no concerns. K.S. also saw his family doctor on July 25, 2017 and August 1, 2017, and the notes again do not indicate any mention of psychological issues being raised.
21Of particular note were K.S.’s visits to his family doctor in August, the same time he was assessed with Dr. Kleiman. During K.S.’s August visits with his family doctor, the doctor’s notes indicate that K.S. felt ready to return to work duties and that K.S. was doing well overall. There is no mention of any psychological distress or emotional complaints.
22K.S.’s self-reporting of his current health conditions to his doctors was contradictory. As such, I find it more probable than not that K.S. was not forthright in his discussions with his doctors or in his self-reporting responses. On one hand, he is indicating that he is doing well and is ready to return to work; whereas, on the other hand, he indicates that his current emotional state is such that he is unable to engage in his normal and daily activities. The contradictory assertions are supportive of Dr. Syed’s observations that K.S.’s answers were atypical responses indicative of feigning psychological impairment in an attempt to circumvent the outcome. I place little weight on Dr. Kleiman’s report because of the unreliability of K.S.’s self-reporting responses.
23On a balance of probabilities, I find that the applicant has not met the onus to show he sustained any psychological or emotional issues or impairments resulting from the accident.
The treatment plans and costs of examination are not reasonable and necessary.
24It is the Tribunal’s understanding that K.S. has exhausted his treatment under the MIG by having received more than $3,500 in treatment. Having found that K.S.’s accident related impairments are minor injuries properly within the MIG, any further treatment is not reasonable and necessary under s. 15.
Aviva is not liable to pay an award under Regulation 664 because it did not unreasonably withhold or delay payments to K.S.
25Section 10 of Ontario Regulation 664 states in part that if this Tribunal finds that an insurer has unreasonably withheld or delayed payments to an applicant, the Tribunal may award an additional lump sum of up to 50 percent of the amount to which the person was entitled to at the time of the award together with interest at 2% per month compounded monthly on any outstanding amounts.
26Given my determinations on the previous issues, I do not find the insurer unreasonably withheld or delayed the payment of benefits to K.S.
K.S. is not entitled to interest.
27As no benefits are payable, no interest is payable under s. 51.
K.S. is not entitled to costs of the proceeding under Rule 19.1.
28Rule 19 of the Tribunal’s Common Rules of Practice and Procedure indicates that costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith.
29I decline to order costs of the proceeding. There was no evidence that Aviva had acted unreasonably, frivolously, vexatiously or in bad faith.
ORDER
30The application is dismissed.
Released: May 22, 2020
Jeanie Theoharis
Vice-Chair