Balijepalli v. Aviva General Insurance, 2022 CanLII 154

Citation: Balijepalli v. Aviva General Insurance, 2022 ONLAT 20-002155/AABS

Licence Appeal Tribunal File Number: 20-002155/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:

Shri Balijepalli

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Brendan Sheehan, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Shri Balijepalli, was involved in an automobile accident on June 15, 2018, and sought benefits from the respondent, Aviva General Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The respondent determined that the applicant's injuries fell within the Minor Injury Guideline² and denied him medical benefits outside the $3,500.00 funding limit available under the Schedule. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

b. Is the applicant liable to repay weekly income replacement benefits in the amount of $372.71?

c. Is the applicant entitled to a medical benefit in the amount of $2,786.52 for physiotherapy recommended by Toronto Healthcare Inc. in a treatment plan (OCF-18) submitted on June 29, 2018 that was reportedly never explicitly denied by the respondent?

d. Is the applicant entitled to a medical benefit in the amount of $1,395.98 for physiotherapy recommended by Toronto Healthcare Inc. in a treatment plan (OCF-18) submitted on August 2, 2019, and denied on August 14, 2019?

e. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Psychological Assessment, recommended by Toronto Healthcare Inc. in a treatment plan dated August 2, 2019, and denied by the respondent on August 14, 2019?

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

RESULT

4The applicant has not met his onus in establishing entitlement to treatment outside the Minor Injury Guideline. Because the applicant has exhausted the funds available for the treatment of his minor injuries, it is not necessary to consider whether the medical benefits in dispute are reasonable and necessary as a result of the accident. No benefits are owing to the applicant, and no interest is payable.

5The applicant is liable to repay the respondent $372.21. This is the outstanding amount of the respondent's overpayment of income replacement benefits to the applicant.

ANALYSIS

The Minor Injury Guideline applies

6To be eligible for the medical benefits he seeks in this application, the applicant has the onus of proving, on a balance of probabilities, that his accident-related injuries are not predominantly "minor" as defined in the Schedule. The term "minor injury" is defined in s. 3(1) 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."

7If an applicant's injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident.

8The applicant's accident-related injuries are documented in an ambulance call report prepared on the date of the accident. The injuries included minor bruising and swelling of his right hand and wrist and a minor abrasion on his right hand. The applicant's submissions refer to his right hand being "burnt", but there is no evidence of any burn injuries to the hand, only a minor abrasion.

9The record before me contains no other objective, contemporaneous medical evidence to support a finding that the applicant sustained anything more than minor injuries in the accident. He refers me to a disability certificate prepared by Dr. D. Minnella, a chiropractor, dated June 21, 2018. Dr. Minnella lists diagnoses including a variety of soft tissue sprains and strains, post-traumatic headaches, a superficial injury to the forearm, wrist and hand, nonorganic sleep disorders and symptoms and signs involving emotional state. A treatment and assessment plan (OCF-18) prepared by Dr. Minnella dated August 9, 2018 lists additional diagnoses of state of emotional shock and stress, unspecified behavioural syndrome, limitation of activities due to disability. None of these injuries exceed the definition of a minor injury in the Schedule.

10The applicant submits that he is entitled to treatment outside the Minor Injury Guideline on account of psychological impairments he submits he developed as a result of the accident. He relies on the Psychological Report of Dr. A. Shaul, psychologist, dated December 2, 2018 to establish his psychological injuries. Dr. Shaul diagnosed the applicant with adjustment disorder and specific phobia after his psychotherapist supervisee, Ms. Helen Ilios, interviewed the applicant and administered a set of psychometric tests. The applicant also relies on the Section 44 insurer's examination report of Dr. S. Moshiri, dated November 9, 2018, which refers to the applicant's "mild sadness", overcautiousness in driving, poor sleep, nightmares and flashbacks, a profile Dr. Moshiri described as being "reflective of mild anxiety."

11The Minor Injury Guideline is based on a functional restoration approach to treatment. The Guideline contemplates some psychological symptoms as the clinically associated sequelae (or consequences) of minor, soft tissue injuries. The treatment of minor psychological symptoms is provided for within the $3,500.00 funding cap set out in s. 18(1) of the Schedule. Only severe accident-related psychological impairments requiring additional treatment intervention will remove a person from the Minor Injury Guideline.

12I find that the evidence shows minor psychological symptoms on the part of the applicant that are treatable within the Minor Injury Guideline. Dr. Shaul's report is not supported by objective medical evidence from a treating practitioner. In fact, there is no evidence of any kind to corroborate Dr. Shaul's diagnostic conclusions. The evidentiary record contains no clinical notes of any primary health care provider, and I have no basis to conclude that the applicant sought medical treatment for accident-related psychological concerns from anyone other than Dr. Shaul, whose report is tendered as evidence for an assessment that he proposed to perform.

13Dr. Shaul's report has shortcomings that lead me to attribute limited weight to its conclusions. First, it is unclear whose opinion is advanced as the basis for the report's conclusions. While Dr. Shaul, a psychologist, is qualified to diagnose psychological conditions, Ms. Ilios, a psychotherapist, is not. Ms. Ilios completed the interview and administered the tests. There is no clear explanation of the supervisory relationship between Dr. Shaul and Ms. Ilios, and no indication of who completed which parts of the report. The diagnoses themselves are not framed in a conclusive way; the report simply states that the applicant's presentation "is consistent with the DSM-5 criteria" for the diagnoses listed. Finally, because the report relies only on the applicant's self-reports, a disability certificate, and a treatment plan prepared by the applicant's treating chiropractors, there is little to support the authors' conclusions as to the causation of the applicant's psychological complaints.

14Dr. Moshiri's report does not support a finding of psychological impairment. The complaints he documents, including mild sadness and anxiety, are minor. Dr. Moshiri found no basis upon which to diagnose the applicant with a condition recognized in the DSM-V.

15To conclude, the applicant has established only minor, soft tissue injuries resulting from the accident and their clinically associated consequences. He has not established a basis in evidence for a finding of psychological impairment that would warrant removal from the Minor Injury Guideline. I find that the Minor Injury Guideline applies, the funding available to the applicant under the Schedule has been exhausted, and it is unnecessary for the Tribunal to consider whether the specific treatments and assessment in dispute are reasonable and necessary as a result of the accident. No benefits are owing, and no interest is payable.

The respondent is entitled to repayment of income replacement benefits

16The respondent is entitled to a repayment of income replacement benefits it paid to the applicant in the summer of 2018. The respondent paid a total of $2,550.21 for the period of June 23 to September 21, 2018. However, the applicant resumed full-time work on September 3, 2018, resulting in an overpayment of $532.46. The respondent notified the applicant of the overpayment in a letter dated September 22, 2018. The applicant agreed to repay the overage in installments and sent the respondent three cheques for $53.25. However, the applicant then stopped making payments. A total of $372.21 remains outstanding.

17I accept the respondent's submissions and evidence on this issue. The applicant did not file reply submissions and has not countered any of the respondent's submissions on the issue. The record I am left with clearly establishes that an overpayment of benefits was made by the respondent and that the applicant has not repaid the full amount he owes.

18To conclude, the applicant is liable to pay the respondent $372.21, being the remainder of the overpayment of income replacement benefits from the summer of 2018.

CONCLUSION AND ORDER

19The applicant has failed to establish, on a balance of probabilities, that he is entitled to treatment outside the Minor Injury Guideline. The funding available to him for medical and rehabilitation benefits under the Schedule has been exhausted. It is therefore unnecessary for the Tribunal to consider whether the specific treatments and assessment in dispute are reasonable and necessary as a result of the accident. No benefits are owing to the applicant, and no interest is payable.

20The respondent has proven that it issued an overpayment of income replacement benefits to the applicant, and that it notified the applicant of the overpayment in accordance with the Schedule. The applicant is liable to pay the respondent $372.21, being the remainder of the overpayment owed to the respondent.

Footnotes

1. 1O. Reg. 34/10.
2. 2Superintendent's Guideline No. 01/14.