Citation: Karr v. Aviva General Insurance Company, 2022 ONLAT 20-006406/AABS

Licence Appeal Tribunal File Number: 20-006406/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:

Delroy Karr

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Arshdeep Malhi, Paralegal

For the Respondent:

Mohamed R. Hashim, Counsel

HEARD: In Writing

OVERVIEW

1Delroy Karr, ("the Applicant"), was involved in an automobile accident on September 17, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) ("the Schedule").

2Aviva General Insurance Company, ("the Respondent"), denied the Applicant's claims because it determined that all of the Applicant's injuries fit the definition of "minor injury" as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline ("MIG").¹ As a result, the Applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

ISSUES

3The issues to be decided in this hearing are:

a. Are the Applicant's injuries predominantly minor as defined in section 3 of the Schedule and subject to treatment within the $3,500.00 funding limit and in the MIG?

b. Is the Applicant entitled to medical benefits recommended by Complete Rehab Centre as follows;

i. $1,299.74, less $1,074.12 approved by the Respondent, for a physiotherapy treatment plan dated January 16, 2019;

ii. $1,816.74 for a physiotherapy treatment plan dated April 27, 2019;

iii. $2,794.20 for a psychological treatment plan dated July 10, 2019;

iv. $2,460.00 for a psychological assessment plan dated June 11, 2019?

c. Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed the payment of benefits to the Applicant?

d. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the accident.

5The Applicant is not entitled to the disputed treatment and assessment plans because he has exhausted the $3,500.00 funding limit provided for minor injuries.

6No Interest or an award is payable.

BACKGROUND

7The Applicant was the driver of a vehicle which struck the passenger side of another vehicle which made an improper left turn at a highway intersection. He sought no medical attention at the scene of the accident and went to work after.

8The next day, the Applicant met with Dr. A. Sebastian, family physician, and complained of neck, shoulder, and thigh pain. Dr. Sabastian examined the Applicant and diagnosed him with musculoskeletal pain, and prescribed pain medication and physiotherapy.

9The Applicant commenced physiotherapy and massage therapy approximately one week later, pursuant to the MIG.

10The Applicant claims that he sustained a psychological injury as a result of the accident. Psychological injuries are not included in the minor injury definition and thus, would remove the Applicant from the MIG and the $3,500.00 funding limit on treatment. The onus is on the Applicant to prove that he sustained a psychological injury.

THE MINOR INJURY GUIDELINE

11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant's heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

12If an insurer deems an Applicant's injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

13The medical evidence shows that, from a physical perspective, the Applicant sustained predominantly sprain and strain injuries, which are rightfully characterized as a minor injury, as supported by Dr. S. Taylor, physician. Dr. Taylor assessed the Applicant and issued a report dated October 21, 2019. Dr. Taylor noted that the Applicant suffered strains to the lumbar spine, left shoulder, and left wrist, which fall within the minor injury definition. While it was noted that the Applicant experienced a mild loss of normal range of motion in his left shoulder, there is no indication that it caused any meaningful functional impairment. The Applicant returned to work immediately following the accident and complained of accident-related injuries to his family physician on only two occasions. Further, no pre-existing medical conditions were noted as a barrier to the Applicant's recovery.

Psychological Injuries

[14] I find no compelling evidence to show that the Applicant sustained a psychological injury as a result of the accident.

[15] There are no documented reports of any symptoms of a psychological injury in Dr. Sabastian's clinical notes and records ("CNRs"). The CNRs before me show that the Applicant met with Dr. Sebastian on, September 19, October 24, 2018, and January 11, 2019. None of the entries include complaints of a psychological nature. At most, the Applicant complained of chest pains with deep breaths during the visit on October 24, 2019, which is not evidence of a psychological injury which would remove the Applicant from the MIG. Likewise, although the CNRs from Complete Rehab Centre note issues reported in initial intake forms such as stress or difficulty initiating and maintaining sleep, the treatment records do not include reference to these complaints.

[16] I prefer the opinion of Dr. C. Goodfield, psychologist, over Dr. Bhardwaj, psychologist. Dr. Goodfield concluded that the Applicant sustained no psychological injury as a result of the accident and required no psychological treatment. Dr. Goodfield issued two insurer's examination ("IE"), reports dated April 10, and October 21, 2019. Both of which included a review of Dr. Sabastian's CNRs. The report dated April 10, 2019 noted that the Applicant complained of some increased sadness due to pain and financial stress, trouble initiating sleep, and a slight decline in energy. It also noted that the Applicant denied trauma-related symptoms such as vehicular anxiety and was coping well. Dr. Goodfield concluded that the Applicant's impairments are mild in severity and warrant no formal psychological diagnosis as they are a normal response to ongoing pain and the changes in circumstances. The second assessment and report noted that the Applicant described his mood as positive and found that he was coping well, needed no psychological intervention, and did not meet the criteria for a DSM 5 diagnosis. Psychometric testing scores in the second assessment were in the minimal range for depression and anxiety.

[17] The assessment for the report by Dr. M. Bhardwaj, psychologist, dated June 11, 2019, was conducted by M. Kaur, psychotherapist, under Dr. Bhardwaj's supervision. The report concluded that the Applicant developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and chronic pain. Unlike Dr. Goodfield's report, there is no evidence that a medical document review was conducted as part of this assessment. Psychometric testing conducted for this assessment scored the Applicant in the mild range for anxiety and mild to moderate range for depression. The psychometric testing conducted by Dr. Goodfield about three months later, found that the Applicant scored in the mild range for both anxiety and depression, despite never engaging in any psychological treatment.

[18] Dr. Bhardwaj's report is less consistent with the balance of the evidence. Dr. Bhardwaj finds that the Applicant suffers from chronic pain and an ongoing psychological disability which impairs the Applicant's ability to perform his essential tasks of employment due to the possibility of intensifying injuries and prolonging his recovery. Yet, there is virtually no evidence to support this finding. The Applicant made only two accident-related complaints to his family physician and was never diagnosed with chronic pain by a physician. He also returned to full-time work following the accident. The disability certificate of September 26, 2018 is the only document commenting on his ability to work, other than Dr. Bhardwaj's report. That document noted an anticipated disability period of 9-12 weeks and that the Applicant is able to work with modified duties. There is no independent evidence to show a reduction in hours benefitted the Applicant and no medical records indicate that the Applicant is disabled from working as a cabinet maker/installer from a psychological perspective. In fact, the Applicant secured new employment in the same field in the summer of 2019.

19From the evidence, I conclude that the Applicant has not suffered a psychological injury which would remove him from the MIG and the $3,500.00 funding limit on treatment.

Award and interest

20I find that the Applicant is not entitled to an award or interest.

21Pursuant to section 10 of Regulation 664, the Applicant may be entitled to an award if the Respondent unreasonably withheld or delayed payment of a benefit. Similarly, the Applicant may be entitled to interest on the overdue payment of benefits pursuant to section 51 of the Schedule. Here, there is no evidence that the Respondent withheld or delayed payment of any benefits. Thus, the Applicant has not met his burden and is not entitled to an award.

22Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION

23The Applicant was involved in an accident and sustained sprain and strain injuries as a result. The psychological symptoms noted in the reports discussed above do not rise to the level that warrant removal from the MIG. Thus, the Applicant's injuries are rightfully characterized as falling within the minor injury definition.

24The Applicant is not entitled to the disputed treatment and assessment plans because he has exhausted the $3,500.00 finding limit available to him pursuant to the MIG. No interest or award is payable because no payments went overdue.

25The 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.