Shamsukha v. Novex Insurance Company, 2022 CanLII 120022

Citation: Shamsukha v. Novex Insurance Company, 2022 ONLAT 20-012736/AABS

Licence Appeal Tribunal File Number: 20-012736/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.

Between:

Himanshu Shamsukha

Applicant

and

Novex Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Yanira E Monterroza, Paralegal

For the Respondent: Danielle Malone, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Himanshu Shamsukha, ("applicant"), was involved in an automobile accident on January 3, 2019, and sought benefits from Novex Insurance Company, ("respondent"), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").

2The respondent denied the applicant's claims, including medical benefits for a psychological assessment, because it determined that the applicant's injuries fit the definition of a "minor injury". As prescribed by s. 3(1) of the Schedule, the respondent taken the position that this claim was subject to the Minor Injury Guideline ("MIG") and the $3,500.00 funding limit for minor injuries,¹ These limits have been exhausted and as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") for resolution of this dispute.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are as follows;

1. 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 MIG?
2. Is the applicant entitled to a medical benefit in the amount of $1,995.33 for psychological services, proposed by Brampton Civic Centre Inc. in a treatment plan submitted on January 8, 2020?
3. Is the applicant entitled to a medical benefit in the amount of $2,681.88 for a chiropractic services, proposed by Roger Singh in a treatment plan submitted June 24, 2019?
4. Is the applicant entitled to a medical benefit in the amount of $3,245.94 for a physiotherapy services, proposed by Roger Singh in a treatment plan submitted April 23, 2019?
5. Is the applicant entitled to a medical benefit in the amount of $111.04 for assistive devices, proposed by Roger Singh in a treatment plan submitted March 26, 2019?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that:

1. The applicant's injuries are predominantly a minor injury as defined in the Schedule. He is subject to the $3,500.00 funding limit for minor injuries.
2. The applicant is not entitled to treatment and assessment plans in dispute because they propose treatment outside of the MIG and beyond the $3,500.00 funding limit.

ANALYSIS

5The 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.

6Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. The Applicant may be entitled to receive benefits beyond the $3,500.00 cap if he 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 an injury that is not included in the minor injury definition in s. 3 of the Schedule, such as a psychological impairment or chronic pain with a functional impairment. It is the Applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

7The applicant's sole submission is that he suffers from a psychological impairment which is outside the scope of the MIG. The respondent submits that the treatment and medical records contain no evidence of injuries outside the MIG.

Psychological Injuries

8This claim benefits from evidence of a clear and continuous clinical relationship between the applicant and Dr. O. Elahi, Family Physician. This relationship started on April 22, 2016 and appears to have continued through to the date of submissions for this hearing. There is evidence of regular and routine visits by the applicant both concerning the injuries sustained in the accident and unrelated issues. There is also a clear continuity of care from one appointment to the next.

9As this set of clinical notes and records provides such a complete picture of the applicant's medical history, I will be assigning a high degree of weight to these clinical notes and records.

10From the outset of the relationship with Dr. Elahi, the applicant has presented with symptoms of "L thigh MSK pain"³ and advised to consider physiotherapy. This was noted on at least 4 occasions from the beginning of the relationship in April 22, 2016 through to the date of the accident.

11The applicant saw Dr. Elahi on January 4, 2019 the day after the accident where Dr Elahi noted "BLR shoulder pain, R lower back pain and R knee pain."⁴ In a follow-up on February 26, 2019, Dr. Elahi noted that the applicant "Feels his … BLR Shoulder, R. Lower back pain has diminished but not quite per his baseline. Is currently attending PT/MT 1x a week now."⁵ This record shows that there has been improvement and progression.

12The first record dealing with the applicant's psychological state was made on July 4, 2019 during an annual physical where Dr. Elahi wrote, "Psych: Appropriate Mood and Affect, Good Judgement."⁶ . Six months following the accident, in the first glimpse into the psychological state of the applicant by his family doctor shows no issues.

13It is also important to note that in July and September 2019 during visits for issues unrelated to the subject accident, notations are made regarding pain from the accident. However, these notations do not detail any progression of injuries in either the positive or the negative. There is no associated imaging provided and these are the last references made by Dr. Elahi to the specific physical injuries noted from the accident.

14The applicant first reported anxiety while driving to Dr. Elahi on December 5, 2019. This is the only notation of a psychological issue by Dr. Elahi which references the accident. Dr. Elahi referred for psychotherapy.

15On January 23, 2020 Dr. Elahi notes, "CO anxiety symptoms, as well as sexual dysfunction due to performance anxiety."⁷ The applicant was again referred for psychotherapy. It should be noted that there was no causal relationship documented that linked this anxiety to the accident.

16On April 13, 2020, the applicant met with Dr. Elahi and who noted "Panic attacks, sweating, trembling, dizziness, palpitation, nausea, tingling, derealization, chills, choking, chest pain, fear of death, going crazy."⁸ However, Dr. Elahi does not provide a nexus between this visit and the accident. As this visit occurred more than a year post accident, without any documented link to the accident, I am unable, on the balance of probabilities to attribute this psychological episode to an injury sustained in the accident.

17Dr. Elahi notes in both May and June that the applicant is still presenting anxiety and panic attacks though the frequency appears to be diminishing. There is no linkage made between these and the accident.

18On September 23, 2020 the applicant called Dr. Elahi's office to request a follow-up it was noted during this call "Currently he is feeling good with normal mood, effort and sleep pattern."⁹ During the visit on September 30, 2020 Dr. Elahi wrote, "Known to have anxiety on SSRI, [d]oing well with good [control] of his symptoms"¹⁰ These comments hold significant weight in my decision. While I haven't been convinced that the applicant's symptoms referred to here were a result of the accident, had they been, this entry shows that they are resolving.

19The applicant was assessed by two other physicians, Dr. R. Gupta (general practitioner), and Dr. H. Ali (general practitioner). They were each respectively seen for a single visit in April and June of 2019. During these visits, psychological symptoms were discussed, and treatment was provided. However, their records don't correlate with the notes from Dr. Elahi, where psychological issues didn't present until Dec 2019. As Dr. Elahi has noted, the applicant's psychological issues were showing signs of improvement and control in September of 2020.

20The applicant submits an expert report completed by Dr. K. Papazoglou, a Clinical and Forensic Psychologist. This report was completed on June 27, 2021 from a consultation completed on June 24, 2021. I must assign minimal weight to this report for the following reasons:

i. This report only assesses the applicant as he appeared before Dr. Papazoglou during the assessment. The report does not include a review of the applicant's medical records; as a result, it is not clear whether Dr. Papazoglou was aware of the applicant's medical history.

ii. There are inconsistencies between this report and what the applicant has reported to Dr. Elahi, notably Dr. Papazoglou writes that the applicant reported "No physical health problems." This is in direct contradiction to the records of Dr. Elahi which reference the applicant's right thigh issues over multiple visits for a period of almost 3 years prior to the accident.

iii. There is also a contradiction between the expert report and the last record available from Dr. Elahi where it is noted that that the applicant is "Known to have anxiety on SSRI, Doing well with good controls of his symptoms" [sic] ¹¹ I find this notation by Dr. Elahi holds significant weight, as it is the last time the applicant's psychological state was mentioned to his family physician. Despite numerous visits in the following months, there was no further mention of the applicant's psychological state.

21The applicant attended a Section 44 Psychological Assessment with Dr. R. Ratti, Clinical Psychologist, on July 27, 2020 and a Section 44 Medical Assessment with Dr. I. Mohammed (general practitioner) on June 5, 2019. Neither of these assessments show any evidence that the applicant suffers from a psychological impairment that is outside the definition of a minor injury as per the guideline.

22Given my analysis of the submissions and evidence provided, on a balance of probabilities, I find the applicant has not established the applicant suffers from a psychological impairment as a result of accident.

23As the applicant's injuries fall within the MIG limits which have been exhausted, I will not address the disputed treatment plans, and the applicant is not entitled to interest.

CONCLUSION AND ORDER

24I order the following:

1. The applicant's injuries fall within the MIG and are subject to the $3,500.00 funding limit for minor injuries.
2. As the applicant has exhausted the MIG funding limit, he is not entitled to any of the disputed treatment plans.
3. The applicant is not entitled to interest.
4. The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Clinical notes and records of Dr. O. Elahi
4. 4Clinical notes and records of Dr. O Elahi, Jan 4, 2019
5. 5Clinical notes and records of Dr. O Elahi, Feb 26, 2019
6. 6Clinical notes and records of Dr. O Elahi, Feb 26, 2019
7. 7Clinical notes and records of Dr. O Elahi, January 23, 2020
8. 8Clinical notes and records of Dr. O. Elahi, April 13, 2020
9. 9Clinical notes and records of Dr. O Elahi, September 23, 2020
10. 10Clinical notes and records of Dr. O Elahi, September 30, 2020
11. 11Ibid