Release date: 08/30/2021
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:
Justin Thevathasan
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Sandra Driesel
APPEARANCES:
For the Applicant: Rajwant Bamel, Counsel
For the Respondent: Kevin Lin, Counsel
HEARD by Videoconference: July 27, 2021
OVERVIEW
1This proceeding, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), arises out of a motor vehicle accident (“MVA”) which occurred on April 13, 2017. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”).
2The parties participated in a case conference on August 13, 2020 and were unable to settle issues in dispute at that time and the matter was scheduled to hearing for July 27 – 30, 2021. In a letter of May 19, 2021, approximately 2 months before the hearing was to proceed, the applicant received notice from the insurer that:
- The applicant was removed from within the Minor Injury Guideline (“MIG”) and advised he is subject to the Medical, Rehabilitation & Attendant Care limit of $65,000.
- The following treatment plans were approved: (i) $1,830.08 for chiropractic services, originally denied February 12, 2018 (ii) $2,546.89 for physiotherapy, originally denied May 18, 2017 (iii) $1,232.00 for physiotherapy, originally denied September 1, 2017 (iv) $2,000.00 for a chronic pain assessment, originally denied July 14, 2000
3The applicant takes the position that he is entitled to an award because the insurer removed him from the MIG too late. The respondent states the applicant was removed from the MIG because of updated medical information received after the LAT application.
ISSUES IN DISPUTE
4The issues to be decided at this hearing are:
- Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to costs in the amount of $1,000.00 pursuant to Rule 19 of the Tribunal Rules?
RESULT
5After reviewing the submissions by both parties, I find:
- The respondent is not liable to pay an award.
- The applicant is not entitled to costs.
ANALYSIS
Section 10 Award
6Under s. 10 of O. Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. An award should be proportionate and take into consideration of whether the insurer was blameworthy, whether the insured was vulnerable, and whether the insurer wrongfully gained advantage from its misconduct.
7The applicant’s position is that there was sufficient medical evidence to support his need for physical treatment beyond the MIG limits, specifically:
- The OCF-3 completed April 17, 2017 by Dr. O. Pivtoran1
- The OCF-3 completed July 17, 2017 by Dr. D. Minella2
- The chronic pain assessment report of July 21, 2020 by Dr. G. Karmy3
8The applicant also claims the insurer failed to consider a pre-existing carpal tunnel condition that was aggravated by the subject MVA which should have removed him from the MIG.
Adjuster log notes
9The applicant believed the adjuster notes confirm that injuries sustained by the applicant as a result of the MVA were those that would most likely have removed him from the MIG.
10The applicant questioned Ms. Nurith Gadkar, the handling adjuster of record, from the date of loss to May 6, 2019. Referring to the adjuster log notes4 the applicant questioned why Ms. Gadkar did not remove the applicant from the MIG despite the injuries listed in the notes that would most likely have taken the applicant out of the MIG. Ms. Gadkar stated that injuries listed are merely those that are listed in the submitted treatment plan(s) and are not those confirmed by the insurer through any other medical evidence.
11Ms. Gadkar concluded that she relied on the medical records available to her. She was questioned on the chronic pain report of Dr. Karmy. Ms. Gadkar was unable to respond because this report was received after the applicant’s file was transferred to adjuster Percy Laryea. Unfortunately, the applicant failed to summon Mr Laryea and had requested a brief adjournment to do so. After discussing this request the applicant agreed to proceed without Mr. Laryea as his adjuster notes were available.
Medical Records
12The clinical notes and records of the family physician, Dr. M.R. Bekhit5 show that on August 17, 2017 the applicant complained of neck and lower back pain, with no radiating pain. There are several visits by the applicant following this initial visit but none for complaints related to the subject MVA.
13The applicant was involved in 2 subsequent MVA’s: March 14, 2018 and April 24, 2018. Dr. Bekhit’s records show that the applicant reported right lower limb pain following the third accident.
14The April 17, 2017 OCF-3 completed by Dr. Pivtoran, Chiropractor, reports the applicant is able to perform essential tasks of his employment and that he returned to regular employment. This OCF-3 also states there is no prior or other concurrent conditions and that the applicant was not taking medications for injuries related to the subject MVA. It is reported that the applicant suffers a substantial inability to perform housekeeping and home maintenance services that he performed prior to the MVA. Dr. Pivtoran recommends an attendant care assessment to address injuries reported by the applicant. It is noted that the applicant suffers from stress, nervousness and anxieties and a psychologist consultation is recommended.
15July 17, 2017 The OCF-3 completed by Dr. Minnella, Chiropractor, reports the applicant is able to perform essential tasks of his employment and that he returned to regular employment. On this OCF-3 it specifies that the applicant is taking unspecified pain medication for injuries related to the MVA. It is reported that the applicant suffers a substantial inability to perform housekeeping and home maintenance services that he performed prior to the MVA. Dr. Minnella recommends a functional impairment examination.
16The clinical notes and records from Downsview Healthcare6 show that the applicant received physiotherapy, from April 22, 2017 to January 29, 2018, only related to back, neck and shoulder complaints.
17Dr Manhas, who conducted an insurer’s examination on May 20, 2018 reports: the applicant returned to work and performed his regular pre-accident duties and worked his regular pre-accident hours. The applicant reported headaches, bilateral shoulder pain, mid-low back pain, and an inability to perform some housekeeping duties. The applicant did not report suffering from any prior medical conditions and denied any involvement in any prior or subsequent MVA’s. Dr. Manhas notes that he is aware of two subsequent MVA’s that occurred prior to his examination. Dr. Manhas concluded the applicant’s injuries were minor as defined by the Schedule. Dr. Manhas conducted an additional review and created an addendum of his initial report on December 28, 2018 maintaining his position on MIG.
18The insurer relied on the following for their opinion of the MIG status and in determining treatment plans as reasonable or necessary (these reports were included for review by Dr. Karmy):
- Psychology Assessment report dated November 13, 2018 by Dr. Terra Seon
- IE GP report dated November 13, 2018 by Dr. Ahmad Belfon
- IE GP Addendum report, dated December 28, 2018 by Dr. Inderdeep Manhas
Chronic Pain report
19The applicant takes the position that, failing any other evidence, the chronic pain assessment by Dr. Karmy, report released July 21, 2020, should have provided sufficient basis for the applicant to be removed from the MIG. The applicant believes that this is the best evidence of the applicant’s injuries incurred by the subject MVA.
20The respondent suggests assessment by Dr. Karmy confuses the injuries that may have been incurred in the subject MVA of April 2017 and those that may have been incurred or exacerbated by two subsequent MVA’s (March 14, 2018 and April 24, 2018) especially with three years elapsed from the subject MVA to this assessment.
21On page 6 of Dr. Karmy’s report current symptoms related to the subject MVA to be: headaches, neck pain, bilateral shoulder pain, lower back pain, sleep disturbances and mood problems.
22Dr. Karmy reports that following the subject MVA, the applicant was unable to resume his pre-accident functioning at work. It states that after the March 14, 2018 MVA the applicant stopped work for a few days and then returned to modified duties. Then after the April 2018 MVA, which also aggravated his physical injuries, the applicant continued modified duties for a few more months. However, this is contradictory to Dr. Manhas’ assessment conducted May 30, 2018, while also noting awareness of two subsequent MVA’s, Dr. Manhas states under “OCCUPTATIONAL STATUS”, the applicant continued to be employed, performing his regular pre-accident duties and working in his regular pre-accident hours. Also, the two OCF-3’s (noted above) also report the applicant returning to work to his normal duties.
23Dr. Karmy concludes that physical, cognitive and/or psychological injuries and impairments are a direct result of the subject accident and that physical rehabilitation treatments, as well as multidisciplinary treatment plan of chronic pain, are reasonable and necessary.
Pre-existing condition
24The applicant submits that the Ultrasound report of February 13, 20167 is evidence of a pre-existing injury (carpal tunnel) that has been exacerbated by the subject MVA.
25Dr. Karmy’s report, page 7, “Specific Questions”, paragraph 2 reports: “The claimant had bilateral carpal tunnel syndrome prior to the subject accident. However, it seems that the subject accident on April 13, 2017 did not aggravate this condition. He developed right hand numbness after his 2nd accident in March 2018.”
Conclusion regarding medical reports
26The family doctor records indicate there was no referral for x-rays, diagnostic imaging or to any medical specialists. The applicant does not make continuing complaints related to the subject MVA.
27I do not find that the OCF-3’s on their own provide evidence that the applicant’s injuries could not be treated within the MIG.
28I did not find Dr. Karmy’s report compelling in establishing that any symptomology reported to him could be specifically determined to be as a result of the subject MVA, only, when there were two subsequent MVA’s that happened before his assessment.
29The insurer’s decision to withhold payment of benefits was based on its s.44 examinations. This conduct is permissible as per the Schedule.
30Based on the above submissions, I am not convinced the insurer ignored medical evidence that would remove the applicant from the MIG.
Conclusion regarding Section 10 Award
31An award is not granted merely because the insurer made an incorrect decision or a decision contrary to that of an applicant. Case law will show that the test for an award must consider if the insurer’s conduct has been “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”8. I found no such evidence of this behaviour by the insurer.
32The fact that the insurer later removed the applicant from the MIG and approved treatment plans, does not make the initial refusals “unreasonable”. I find this to mean the insurer has met its obligation to continually assess the file on receipt on new information (in this case updated medicals).
33The applicant is not entitled to a s.10 award.
Costs
34The applicant seeks an order for costs in the amount of $1,000.00. The applicant suggests this request is a consequence of the request for a s.10 award. Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017), a cost award may be granted where a party is found to have engaged in conduct that is unreasonable, frivolous, vexatious, or in bad faith.
Conclusion regarding Costs
35The applicant makes no submissions on how the test for costs set out in Rule 19 has been met in this case. The applicant has not met his onus of establishing unreasonable, frivolous, vexatious, or in bad faith conduct on the part of the respondent.
36The applicant is not entitled to costs.
Date of Issue: August 30, 2021
Sandra Driesel, Adjudicator
APPENDIX A
EXHIBIT LIST from 19-005345/AABS Videoconference Hearing
[APP]=Applicant’s hearing brief received 06/28/2021
[RES]=Respondent’s hearing brief received 07/27/2021
EXHIBIT
ENTERED
DESCRIPTION
01
APP
[APP] TAB E, page 259-269 Adjuster log notes
02
APP
[APP] TAB D, page 128 -OCF-3 by Dr. O. Pivtoran, dated Apr-17-2017
03
APP
[APP] TAB D, page 135 – OCF-3 by Dr. D. Minnella, dated Jul-17-2017
04
APP
[APP] TAB D, page 212 – KEELE & LAWRENCE ULTRASOUND dated Feb-13-2016
05
APP
[EMAILED BY APP DURING HEARING] AVIVA letter (EOB) dated May 19, 2021
06
RES
[APP] TAB D, page 202–205 – CNR’s of family physician Dr. M.R. Bekhit
07
RES
[APP] TAB D, page 146-153 – Downsview Healthcare, physiotherapy CNR’s
08
RES
[APP] TAB D, page 243 – Chronic Pain Assessment report by Dr. G. Karmy, dated Jul-21-2020
09
RES
[APP] TAB C, page 109 – Insurer’s Examination report by Dr. I. Manhas, dated Jun-13-2018
10
RES
[RES] page 20 - 18-011171, reference: Paragraph 34
11
RES
[RES] page 26 – 18-005677, reference: Paragraph 9
12
RES
[RES] page 36 – 19-008197, reference: Paragraph 13
13
RES
[RES] page 52 – 17-008268, reference: Paragraph 22 & 23
14
APP
[APP] page 273 – Downsview Healthcare Inc. Account summary as of 2021-06-21
Footnotes
- Exhibit #02 – OCF-3 Dr. O. Pivtoran
- Exhibit #03 – OCF-3 Dr. D. Minnella
- Exhibit #08 – Chronic pain assessment by Dr. G. Karmy
- Exhibit #01 - Adjuster log notes
- Exhibit #-6 – Family doctor records
- Exhibit #07 – Downsview Healthcare physiotherapy records
- Exhibit #04 – Keele & Lawrence Ultrasound
- Plowright and Wellington Insurance Company, OIC File No.: A-003985, 1993 CarswellOnt 4786, [1993] O.I.C.D. No. 62) [“Plowright”]. See also: S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT); Applicant v. Aviva Insurance Canada, 2018 CanLII 39473 (ON LAT); and Applicant v. State Farm, 2017 CanLII 85692 (ON LAT)