Released: January 13, 2021
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:
Mathavan Jeyaraam
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Mathavan Jeyaraam, Applicant
Lily Rodriguez, Paralegal
For the Respondent:
Aviva General Insurance, Representative
Nisaa Khan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mathavan Jeyaraam was injured in an accident on September 26, 2014, and sought benefits from the respondent, Aviva General Insurance (“Aviva”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule''). Mathavan Jeyaraam submitted treatment plans for a pain management assessment and a psychological assessment that were denied by Aviva because it determined his injuries were predominantly minor and subject to the Minor Injury Guideline (“MIG”). Mathavan Jeyaraam disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following issues are in dispute, according to the Case Conference Order:
a. Did Mathavan Jeyaraam sustain predominantly minor injuries as defined under s. 3 of the Schedule?
b. Is the payment for the cost of examinations in the amount of $2,200.00 for a Pain Management Assessment, recommended by ALCAT in a treatment plan (“OCF-18”) submitted July 10, 2019 and denied on July 23, 2019, reasonable and necessary?
c. Is the payment for the cost of examinations in the amount of $2,200.00 for a Psychological Assessment, recommended by ALCAT in an OCF-18 submitted July 10, 2019 and denied on July 23, 2019, reasonable and necessary?
d. Is Mathavan Jeyaraam entitled to interest on any overdue payment of benefits?
RESULT
3I find Mathavan Jeyaraam sustained predominantly minor injuries that are treatable within the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary.
ANALYSIS
Applicability of the Minor Injury Guideline
4The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. However, if Mathavan Jeyaraam can demonstrate that he has pre-existing conditions documented by a medical practitioner that prevent maximal medical recovery under the MIG, he may receive treatment outside of the limits. Applying Scarlett v. Belair Insurance, he must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find the medical evidence indicates that Mathavan Jeyaraam sustained minor injuries and has not demonstrated that removal from the MIG is warranted.
Physical Injuries and Chronic Pain
5On the medical evidence, I find little to suggest that Mathavan Jeyaraam’s physical injuries and resulting pain are severe enough to require treatment beyond the MIG. The diagnostic imaging reports revealed no issues or evidence of accident-related injuries. Further, there is no argument that Mathavan Jeyaraam had any pre-existing conditions that would prevent recovery. Even if I accept that Mathavan Jeyaraam has lingering physical pain that can be definitively traced to the accident, I find that he has not demonstrated that recovery from his pain is practically prevented if he is kept within the MIG. Notably, during visits to his own physicians, there is only a single mention of an accident-related visit on September 27, 2014. Mathavan Jeyaraam’s next series of visits between January 14, 2016 and February 1, 2020, contain no mentions of the accident. Other than the clinical notes from Health Plus and Trillium Rehab Centre, Mathavan Jeyaraam provided no persuasive medical opinion to rebut the findings of John Duong, occupational therapist, Dr. Taromi, orthopaedic surgeon, Dr. Levine, general physician or Dr. Gelman, general physician that there was no evidence of any ongoing musculoskeletal impairment requiring further facility-based treatment.
6Similarly, I agree with Aviva that there is no evidence of functionally disabling chronic pain in the medical documentation to justify removal from the MIG on that basis, as Mathavan Jeyaraam alleges. Although not strictly required, the Tribunal was not directed to a diagnosis of chronic pain or chronic pain syndrome from a medical professional to support Mathavan Jeyaraam’s claim. While there is mention of chronic pain, a simple reference, without supportive objective evidence, is not enough to establish that Mathavan Jeyaraam suffers from accident-related chronic pain. On this basis, it is difficult to concur with Mathavan Jeyaraam’s position that he requires treatment beyond the MIG for chronic pain with the reality of the medical documentation that does not support chronic pain. Finally, based on Mathavan Jeyaraam’s self-reporting to s. 44 assessors that he is able to care for himself, drive, watch TV, and perform household chores post-accident, I find no evidence that he “continues to suffer with chronic pain symptoms” as alleged.
Psychological Impairments
7Mathavan Jeyaraam’s claim for removal from the MIG is also rooted in psychological impairments that he claims to have suffered as a result of the accident. He argues that these impairments—anxiety, nervousness, depression, fear of driving in vehicles and headaches/migraines—justify removal from the MIG. To justify removal from the MIG due to psychological impairments, Mathavan Jeyaraam must show that he has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically significant psychological distress. I find that Mathavan Jeyaraam has not provided evidence sufficient to demonstrate that his alleged psychological impairments prevent maximal medical recovery if he is kept within the MIG.
8Under the Schedule, assessments must be reasonable to determine whether an insured person has sustained an impairment. I find Dr. Kershner’s treatment plan is not reasonable or necessary. Based on Dr. Kershner’s opinions of Mathavan Jeyaraam’s numerous accident-related injuries, I do not find that the recommended assessment is reasonable and necessary, to adequately address the barriers to recovery listed in the treatment plan.
9In support of his position, Mathavan Jeyaraam relies on the psychological assessment report from Dr. Kershner, who diagnosed him with Adjustment Disorder with mixed anxiety and symptoms of depression and Sleep Disorder. Mathavan Jeyaraam reports that post-accident he is experiencing sleep issues, irritability, driving anxiety, sadness and depression. The Dr. Kershner report is rebutted by Aviva’s psychological reports from Dr. Moshiri, who opined that Mathavan Jeyaraam does not have a formal psychological condition.
10Aviva submits that Dr. Moshiri’s report concludes that Mathavan Jeyaraam does not suffer from any clinically diagnosable psychological impairment caused by the accident, and as such, the assessment is not reasonable and necessary. I agree.
11Dr. Moshiri concludes that both the initial and addendum reports findings obtained in the insurer examination concur with the claimant’s self-statement in that he denied depression, anxiety, anger and driving phobia. Dr. Moshiri notes that Mathavan Jeyaraam’s profile is reflective of a mild level of anxiety, a severe level of depression and a severe level on the Burns Anxiety Inventory. Despite the severe scoring, Dr. Moshiri opines that these results are “not necessarily indicative of a psychological diagnosis and must be interpreted in view of all the information obtained in the course of the assessment.”
12It should be noted that the evidence shows that Mathavan Jeyaraam’s grandmother passed away the day before the initial insurer examination with Dr. Moshiri. Mathavan Jeyaraam submits that bereavement can constitute major depressive disorder. I agree that the loss of a loved one can contribute to depression, however the loss of Mathavan Jeyaraam’s grandmother is not “an impairment as a result of an accident”, pursuant to s. 14 of the Schedule.
13Due to the conflicting reports of Dr. Kershner and Dr. Moshiri, I take into consideration Mathavan Jeyaraam’s self-reporting to Dr. Moshiri. Mathavan Jeyaraam denied depression, anxiety, anger and driving phobia; that he didn’t need any treatment for driving.
14On the evidence, I prefer the reports of Dr. Moshiri, as I found they were more proportional to the bulk of the evidence and Mathavan Jeyaraam’s self-reporting. As such, the actual severity of Dr. Kershner’s reporting and recommendation of 15 sessions of treatment is questionable because Mathavan Jeyaraam does not appear to desire or need psychological treatment.
15Similarly, there is no corroborating evidence from any other medical practitioner that Mathavan Jeyaraam continues to struggle with psychological impairments. In the post-accident visits documented, neither of his family physician’s notes reflect conversations about post-accident psychological issues and do not make a referral for same or recommend psychological-based treatment. On this basis, Mathavan Jeyaraam’s alleged statements to Dr. Moshiri that he does not need counselling, that “he can overcome his vehicular anxiety on his own”, and denied “anxiety, depression, anger and driving phobia” further undermines Dr. Kershner’s report and diagnosis. As noted, to escape the MIG, a psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically significant psychological distress. On a balance of probabilities, I find Mathavan Jeyaraam has not met his burden of proof.
16As a result, I find that Mathavan Jeyaraam has not demonstrated that his accident-related physical injuries or psychological impairments warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
17It is the Tribunal’s understanding that the limits under the MIG have been exhausted. Having determined that Mathavan Jeyaraam’s accident-related impairments are properly within the MIG, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary under s.15. As no benefits are payable, it follows that no interest is payable under s. 51.
CONCLUSION
18Mathavan Jeyaraam sustained injuries that are treatable within the MIG. As the MIG limits have been exhausted, the treatment and assessment plans are not reasonable and necessary.
Released: January 13, 2021
Derek Grant, Adjudicator