Pottayya v. Unica Insurance Inc., 2021 CanLII 28673

Citation: Pottayya v. Unica Insurance Inc., 2021 ONLAT 19-013326/AABS

Release date: 2021/03/05

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:

Darmanan Pottayya

Applicant

and

Unica Insurance Inc.

Respondent

DECISION AND ORDER

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Yasar Saffie, Counsel

For the Respondent:

Domenic Nicassio, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on October 7, 2019 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”).

2The respondent denied the benefits and took the position that the applicant’s accident-related injuries were minor as defined in the Schedule and therefore subject to the confines of the Minor Injury Guidelines (the “MIG”). The applicant disagreed with the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES TO BE DECIDED

3The issues to be decided in this hearing are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. If the applicant’s injuries are not considered predominantly minor,

a. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Dr. J. Pilowsky as set out in a treatment and assessment plan dated November 5, 2019 and denied by the respondent on November 8, 2019? (psychological assessment)

iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant has met his onus to show that his injuries are not minor as defined in the Schedule. The applicant has also met his onus to show that the disputed treatment plan for a psychological assessment is reasonable and necessary. Therefore, the cost of the assessment is payable with interest as per section 51 of the Schedule. The applicant is not entitled to an award.

ANALYSIS

5The onus is on the applicant to prove on a balance of probabilities that he did not sustain predominately minor injuries as a result of the accident.²

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) 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.” It is recognized that psychological injuries, concussion and chronic pain fall outside the definition of minor injury.

7Section 15(1) of the Schedule provides that, subject to Section 18, the insurer shall pay for all reasonable and necessary medical expenses incurred by or on behalf of the insured person as a result of the accident including expenses for psychological assessment.

8The applicant submits that he has psychological injuries and chronic pain as a result of the accident which fall outside of the definition of “minor injury” under the Schedule. He further submits that the psychological assessment is a reasonable and necessary medical expense.

9The respondent submits the applicant has not provided reliable and compelling medical evidence that he sustained injuries outside of the MIG. The respondent submits that the applicant’s evidence with respect to his psychological injuries or chronic pain is vague and unconvincing. Further the respondent submits that the suggestion that the applicant suffers post-concussive syndrome is also unconvincing. Lastly as there are no psychological injuries as a result of the accident the psychological assessment is not reasonable and necessary.

10A concussion, psychological injuries and chronic pain do not fall within the definition of “minor injury” and are not subject to the MIG.

11The applicant’s family doctor’s clinical notes and records of January 23, 2020 note a diagnosis of “post-concussion”. The applicant made no submissions regarding the concussion, however the respondent did.

12The respondent submits that the applicant has not meet his burden to show a concussion was a true diagnosis as there was no testing done by the family doctor or another specialist. The respondent submits that the note of January 23, 2020 is not reliable evidence of a concussion.

13A concussion is not part of the definition of minor injury. Despite the lack of submissions, I find that the applicant has met his onus to show that he sustained a concussion as a result of the accident. Two days following the accident, on October 9, 2019, the applicant reported the following to his family doctor when describing the accident: “Felt blurry-loss of reality for few min and pain lt [left] side ribs, lt leg and ankle go[t] swollen…”

14The applicant reported to Dr. Pilowsky, his treating psychologist, as noted in her report of December 4, 2019, that he experiences cognitive deficits affecting his memory, concentration and ability to focus.

15On January 23, 2020 the applicant was reporting to his family doctor the following: “Headache when tv or computer…poor concentration and mild memory loss since accident.” At this visit of January 23, 2020, the family doctor diagnosed the applicant with “post-concussion secondary to MVA”.

16As well following the “post-concussion” diagnosis the applicant reported to Dr. Pilowsky on February 20, 2020: “Concerned about cognitive difficulties post-accident. He loses concentration easily and has trouble remembering.”

17The respondent submits that this diagnosis of concussion be rejected because there was no testing done to make this diagnosis. However, the respondent provides no evidence that testing is needed in order for a treating physician to diagnose a concussion. I find that the applicant’s reporting to his family doctor, which led to the diagnosis of post-concussion, is consistent with his reporting to the physiotherapy and psychologist. As well, the diagnosis of (post) concussion is unrefuted. Therefore, on a balance of probabilities the applicant sustained a concussion as a result of the accident.

18As a concussion does not fit the definition of minor injury the applicant on this basis alone has provided compelling medical evidence that he be removed from the confines of the MIG.

19The applicant submits that he sustained psychological injuries as a result of the accident and therefore not only can he not be treated within the confines of the MIG but that the psychological assessment is reasonable and necessary. The applicant relies on the clinical notes and records of his family doctor where he reports his anxiety, driving anxiety, and flashbacks to the accident. He also relies on the notes of Dr. Pilowsky, his treating psychologist.

20The respondent submits that the applicant did not report issues with driver anxiety and mental flashback until May 13, 2020 some seven months post-accident. The respondent submits that this delayed time frame raises questions about the seriousness of the anxiety and reliability of the applicant’s reporting.

21I find that the applicant has met his onus to show that he sustained psychological injuries as a result of the accident. The clinical note of October 10, 2019 notes that the applicant reported that he was scared to drive. At the pre-screen telephone interview done with Dr. Pilowsky on November 5, 2019, the applicant reported flashbacks of the car accident, intrusive thoughts and images of the accident, emotional anxiety, interrupted sleep, etc. In the physiotherapy clinical notes and records dated November 12, 2019, it is noted that the applicant was reporting that he was complaining of not reacting quickly and feeling like he was in a fog but that he was seeing a psychologist.

22On May 13, 2020 his family doctor noted the following in his clinical note from that day: “Still have anxiety while driving and even changing lane [sic] makes him anxious, with any noise while driving or at home feels shock.” The family doctor diagnoses the applicant with anxiety. The respondent has provided no evidence to refute the diagnosis of the family doctor and has pointed to no evidence that would call into question the credibility of the applicant.

23On July 20, 2020 the applicant reported to his family doctor that he is seeing the psychologist which helps him drive easily. On July 30, 2020 the family doctor again confirms the diagnosis of anxiety.

24I disagree with the respondent’s submission that the delayed time frame of seven months post-accident raises questions about the seriousness and reliability of the applicant’s reporting. The applicant has reported his psychological and emotional difficulties consistently since the accident and not for the first time on May 13, 2020 as the respondent suggests.

25Taken together the applicant has met his onus to show that he sustained psychological injuries as a result of the accident. The applicant has also provided evidence to show that the disputed treatment plan for a psychological assessment is reasonable and necessary.

26As per the treatment plan, Dr. Pilowsky states that following a telephone interview with the applicant that she made the following recommendations regarding the need for an assessment:

I recommend an assessment in order to ascertain whether or not psychological intervention would help this patient manage the psychological sequelae elicited by the accident and to prevent his psychological and social functioning from further deteriorating.

27The need to assess the applicant’s psychological difficulties, and the need to make recommendations for psychological treatment is supported in the family doctor’s clinical notes and records. Dr. Pilowsky notes that the assessment is required to determine the need for psychological intervention. Despite the denial of the assessment by the respondent, the applicant commenced psychological treatment and reported his driving anxiety was decreasing following treatment.

28The respondent has provided no evidence to refute the reasonableness and necessity of the treatment plan and has not pointed to any evidence that would suggest that the goals of the assessment or the cost of the assessment is not reasonable or necessary.

29Therefore, based on the evidence above the applicant has met his onus to show that disputed treatment plan is reasonable and necessary.

30As the applicant’s psychological and concussive injuries place him outside of the MIG a further analysis on whether chronic pain places him outside of the confines of the MIG is not necessary.

31The applicant is seeking an award and submits that the respondent unreasonably ignored the medical evidence.

32I find that an award it not warranted. Other than disagreeing with the respondent’s position on the applicability of the MIG, the applicant has not provided the Tribunal with evidence to substantiate the award. The evidence that was relied upon to remove the applicant from the MIG was only provided to the respondent during the course of this hearing. Prior to this, the applicant provided to the respondent very little in terms of compelling medical information to remove the applicant from the MIG. Accordingly, it cannot be said that the respondent unreasonably withheld benefits when information was not furnished to the respondent in a timely manner to assist in the payment of the benefits that were supposedly withheld. Therefore, I decline to order an award as one is not warranted.

CONCLUSION AND ORDER

33The applicant has met his onus and provided compelling evidence to show that the injuries sustained in the accident are not minor injuries as defined in the Schedule.

34The applicant has met his onus to show that the psychological assessment is reasonable and necessary, and the applicant is entitled to interest for this assessment in accordance with the Schedule.

35The applicant is not entitled to an award.

Footnotes

1. 1O.Reg. 34/10, as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.