Dulay v. Aviva General Insurance, 2022 CanLII 106440

Citation and File Number

Citation: Dulay v. Aviva General Insurance, 2022 ONLAT 20-005689/AABS

Licence Appeal Tribunal File Number: 20-005689/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.

Parties

Between:

Pavandeep Dulay

Applicant

and

Aviva General Insurance

Respondent

Decision

Vice-Chair: Ian Maedel

Appearances:

For the Applicant: Marc Golding, Paralegal

For the Respondent: Kristofer Angle, Counsel

Heard: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on October 20, 2017. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute are:

i. Are the applicants’ 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 (“MIG”)?

ii. Is the applicant entitled to chiropractic services in the amount of $3,498.91 submitted in a treatment plan (“OCF-18”)?

iii. Is the applicant entitled to psychological services in the amount of $1,920.53 submitted in an OCF-18?

iv. Is the applicant entitled to psychological services in the amount of $3,416,68 submitted in an OCF-18?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the OCF-18s in dispute are not payable;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline

4The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

5Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of a psychological impairment or chronic pain with a functional impairment.

6It is the applicant’s burden² to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

7In the current matter, the applicant has already exhausted the $3,500.00 MIG treatment limit.

Psychological Impairment and the MIG

8Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment.

9Although the applicant alludes to physical and pre-existing injuries, the main thrust of his submission is that he sustained a psychological impairment as a result of the accident.

10The Disability Certificate(“OCF-3”) dated November 29, 2017, by Dr. Farhan Khandwalia, chiropractor, lists a number of impairments as a result of the accident including: chronic post-traumatic headache, sprain and strain of; cervical spine, thoracic spine, shoulder joint, hip, lumbar spine, sacroiliac joint, as well as other sleep disorders, nervousness, and post-traumatic stress disorder (symptomology). The applicant also consistently reported pain in his neck, right shoulder, right hip, mid-back, lower back, and headaches during the post-accident assessments.³

11The applicant relies on the OCF-3 to establish that his impairments are not minor and therefore, beyond the treatment limits of the MIG. However, there must be contemporaneous evidence to establish his impairments cannot be treated within the MIG limits. This document is insufficient on its own, absent compelling evidence, to establish the applicant’s impairments fall beyond the definition of a “minor injury” in section 3(1) of the Schedule.

12The applicant also relies on the clinical notes and records of Dr. Mukesh C. Saini, his family physician in support of this application. The applicant first visited Dr. Saini on November 29, 2017, approximately five weeks post-accident.⁴ This was the sole mention of the accident in the totality of the clinical notes provided by Dr. Saini.

13In total, the applicant provided only three post-accident entries from Dr. Saini between November 2017 and May 2018, and the accident was only mentioned once. Critically, there is no notation in any of the post-accident clinical records of any psychological impairment as a result of the accident. The bulk of the handwritten notes are barely legible, but there was a referral for physiotherapy on November 29, 2017.⁵

14Additionally, there were no specialist referrals, diagnostic imaging, nor any prescriptions related to any accident-related impairments outlined in these records. Unfortunately, the applicant has not provided any other treatment records in support of this application.

15Otherwise, the applicant relied on two psychological assessment reports to support his claim of psychological impairment. The first is a Psychological Intake Screening Report by Sabrina Simmons, psychometrist and Dr. Anna Prudovski, clinical psychologist, dated December 11, 2017. This initial report was based on the applicant’s self-reporting and indicated he felt frustrated, overwhelmed, and angry since the accident. He also suffered from driving anxiety, passenger anxiety, and sleep issues as a result of the accident.⁶ Ms. Simmons and Dr. Prudovski recommended a full psychological assessment and in-depth clinical interview to determine his treatment needs.⁷

16The applicant also relied on the Psychological Assessment Report by Ms. Simmons and Dr. Prudovski, dated May 31, 2018. Both practitioners noted the assessment was consistent with moderate psychological symptomology. They diagnosed the applicant with adjustment disorder with depressed mood and specific phobia related to vehicle travel and recommended 12 sessions of psychotherapy and cognitive behavioural therapy.⁸

17I find neither the Screening Report nor the Psychological Assessment Report provided by Ms. Simmons and Dr. Prudovski persuasive. In the second report, Ms. Simmons is listed as the psychometrist, but neither report indicates the level of supervision provided by Dr. Prudovski in completing the psychological assessment. As a psychometrist, Ms. Simmons lacked the authority or qualifications to provide a psychological diagnosis.

18However, it remains unclear who conducted clinical interview, administered the psychological testing, interpreted the testing results, or critically, who provided the psychological diagnosis. Absent a clear description of Dr. Prudovski’s involvement in this process, I cannot determine how the diagnosis was rendered. This is a critical flaw in these reports, and it goes directly to their reliability, or lack thereof, in support of the applicant’s submissions.

19Conversely, the respondent relies on five expert Insurer’s Examination (“IE”) Reports. The Psychology Assessment Report provided by Dr. Shulamit Mor, psychologist, dated March 22, 2018, examined the applicant’s entitlement to a non-earner benefit.⁹ Following the administration of five separate psychometric tests, Dr. Mor concluded the applicant did not suffer from any clinically significant psychological impairment, and there was no formal psychological diagnosis related to the subject accident. He noted that the accident had occurred only three months prior and some amount of emotional distress in this period was common, including frustration, irritability, sleep disturbances, and heightened awareness of pain.¹⁰

20Dr. Mor provided a second Psychological Assessment Report dated August 16, 2018, specifically related to two OCF-18’s at issue for a mental health assessment and psychotherapy.¹¹ After additional psychometric testing, Dr. Mor noted a significant improvement in the applicant’s mood since the previous assessment. Dr. Mor reaffirmed his previous conclusion, that the applicant was not suffering from any clinically significant psychological impairment, and there was no formal psychological diagnosis related to the subject accident.¹² Dr. Mor noted the applicant may gain some benefit from attending 2-3 additional sessions, but they were not reasonable and necessary as a result of the accident.¹³

21The applicant criticized Dr. Mor’s reports, indicating the results of psychometric testing conducted in his initial assessment demonstrated depressive symptomology, severe anxiety, and nervousness as a driver. The applicant also noted self-self harm and depression as a teenager, all of which was glossed over as “emotional struggles” related to his personal life choices, and not the accident.¹⁴

22I disagree with the applicant. It was clear from the results of specific tests conducted by Dr. Mor, including the Beck Depression Inventory II and Symptom Checklist-90-R (“SCL-90-R”) that the applicant provided invalid profiles for both. Specifically, in the SCL-90-R, he tested above the 99th percentile in obsessive-compulsive, depression, phobic anxiety, and psychoticism.¹⁵ Given the applicant did not display or report any obsessive-compulsive, or psychotic episodes, it is not difficult to understand that Dr. Mor concluded this was an invalid profile. It was also evident from the applicant’s reporting that he was not feeling depressed, and that his emotional issues including self-harm and depression from his teenage years had resolved.

23As a result, I place significant weight on the two reports provided by Dr. Mor and his. As stated above, I place no weight upon the reports provided by Ms. Simmons, and Dr. Prudovski, given the inherent reliability issues raised regarding Dr. Prudovski’s supervision regarding the clinical interview, testing, and diagnosis. Additionally, there is no mention of any psychological symptoms in the post-accident clinical notes and records provided, nor was there any referral for a psychological assessment or treatment.

24The applicant has not met his evidentiary onus on a balance of probabilities standard. He relies on an OCF-3, three post-accident notes of his Family Physician, and two flawed psychological reports. This evidence is uncompelling in relation to any claim of psychological impairment. As a result, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of minor injuries.

Pre-Existing Condition and the MIG

25I am not persuaded the applicant has established on a balance of probabilities that he suffered any pre-existing condition, which would otherwise remove him from the treatment limits of the MIG.

26It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

27Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

28The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

29The applicant states that he has suffered “exacerbation of pre-existing psychological injuries” as a result of the accident.¹⁶ The applicant’s previous issues related to teenage depression or self-harm were not listed in any of the pre-accident clinical notes and records provided by Dr. Saini. In fact, these previous psychological issues were not raised in any of the evidence adduced by the applicant. These issues were only raised as part of Dr. Mor’s psychological assessments conducted on the respondent’s behalf. During his first assessment with Dr. Mor, the applicant reported he was not currently depressed, but was depressed in grade 12, differentiating his post-accident emotional state from his previous bout of teenage depression.¹⁷

30Similarly, in Dr. Mor’s second assessment, the applicant reiterated self-harm between grades 9-10 and how he felt depressed in grade 12 but was helped by his school guidance counsellor.¹⁸

31In the Occupational Therapy In-Home IE Assessment Report by John Duong, occupational therapist, dated Mach 22, 2018, the applicant reported depression between grades 9-10 and it cited he was “recovered” at the time of the assessment.¹⁹ Otherwise, the applicant has provided no evidence linking his previous self-harm or teenage depression to any accident-related psychological impairment. By all accounts, the applicant had recovered and freely admitted to Dr. Mor he was not depressed following the accident.

32Two other sources of potential pre-existing injury were raised, the first being previous wrestling injuries to the applicant’s right leg ligaments in grade 10 and 12. There is only two potential references to any leg injuries in the clinical notes and records of Dr. Saini. The first, on November 20, 2014, where it was noted the applicant suffered a right abductor sprain during warm up exercises²⁰, and a twisted ankle while playing basketball in July 2015.²¹

33Otherwise, there was no reference to any potential wrestling or ligament injuries in any of the clinical notes and records. The previous right ligament injury was only self-reported by the applicant during assessments.

34Similarly, the applicant reported being in a previous accident in May 2016 but reported to Dr. Mor there was no significant injury. In the Occupational Therapy Assessment by Mr. Duong, the applicant indicated he sustained a right foot injury in the accident, but it had previously resolved.²² In the Psychological Assessment report by Ms. Simmons and Dr. Prudovski, the applicant admitted some psychological difficulties following the 2016 accident, but was “fully back to normal within a few months”, prior to the subject accident.²³ Again, there is no additional evidence linking the May 2016 accident to any impairment sustained in the index accident.

35As a result, I am not persuaded the applicant has established he suffered a pre-existing medical condition prior to the accident which prevented maximal recovery within the MIG limits.

OCF-18s at Issue

36Given that the $3,500.00 treatment limit was previously exhausted, no additional analysis is required to determine if the treatment plans are reasonable and necessary pursuant to the Schedule.

Interest

37Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

38The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, the OCF-18s in dispute are not payable;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Applicant’s Book of Documents, Disability Certificate (“OCF-3”), November 29, 2017, Tab 1.
4. 4Applicant’s Book of Documents, Clinical Notes and Records of Dr. Mukesh Saini, November 28, 2017, Tab 4.
5. 5Ibid.
6. 6Applicant’s Book of Documents, Psychological Intake Screening Report by Sabrina Simmons, and Dr. Anna Prudovski, December 11, 2017, Tab 2, pp. 2-3.
7. 7Ibid. pg. 3.
8. 8Ibid. pg. 14.
9. 9Written Submissions of the Respondent, Psychology Assessment Report by Dr. Shulamit Mor, March 22, 2018, Tab 2, pg. 9.
10. 10Ibid. pg. 12.
11. 11Written Submissions of the Respondent, Psychology Assessment Report by Dr. Shulamit Mor, August 16, 2018, Tab 6, pg. 7.
12. 12Ibid. pg. 14.
13. 13Ibid. pg. 14.
14. 14Applicant’s Submissions, pg. 6, para. 17, and pg. 8, para. 24.
15. 15Written Submissions of the Respondent, Psychology Assessment Report by Dr. Shulamit Mor, August 16, 2018, Tab 6, pg. 11.
16. 16Applicant’s Submissions, pg. 1, para. 1.
17. 17Written Submissions of the Respondent, Psychology Assessment Report by Dr. Shulamit Mor, March 22, 2018, Tab 2, pg. 9.
18. 18Written Submissions of the Respondent, Psychology Assessment Report by Dr. Shulamit Mor, March 22, 2018, Tab 2, pg. 7.
19. 19Written Submissions of the Respondent, Occupational Therapy In-Home Assessment Report by John Duong, OT, March 22, 2018, pg. 23.
20. 20Applicant’s Book of Documents, Clinical Notes and Records of Dr. Mukesh Saini, November 20, 2014, Tab 4.
21. 21Ibid. July 28, 2015.
22. 22Written Submissions of the Respondent, Occupational Therapy In-Home Assessment Report by John Duong, OT, March 22, 2018, pg. 23.
23. 23Applicant’s Book of Documents, Psychological Assessment Report by Sabrina Simmons, and Dr. Anna Prudovski, May 31, 2018, Tab 2, pg. 6.