Citation: Patel v. TD General Insurance Company, 2022 ONLAT 19-013817/AABS

Licence Appeal Tribunal File Number: 19-013817/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:

Hiralben Patel

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Thamara Jeyakumar, Paralegal

For the Respondent:

John Lykos, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, H.P., was involved in an automobile accident on August 7, 2016 and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“the “Schedule”). TD denied her claims based on its determination that she sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (the “MIG”). H.P. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

a. Are H.P.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

b. Is the medical benefit in the amount of $3,123.60 for psychological services, recommended by Alexmuir Wellness in a treatment plan (“OCF-18) submitted March 4, 2017, denied April 20, 2018, reasonable and necessary?

c. Is H.P. entitled to interest on any overdue payment of benefits?

FINDING

2I find that H.P. has not demonstrated that her accident-related injuries warrant removal from the MIG. Accordingly, the disputed OCF-18s are not reasonable and necessary.

ANALYSIS

Applicability of the MIG

3Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

4An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). In this case, the evidence does not support a removal from the MIG as a result of psychological impairment, which, as the evidence indicated, was not a result of the accident. In H.P.’s case she argues that she should be removed from the MIG due to an accident-related psychological impairment.

Did H.P. suffer a psychological impairment that justifies removal from the MIG?

5In order to be removed from the MIG due to psychological impairments, H.P. must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology or clinically significant psychological impairment. I find that H.P. has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

6H.P. relies on a psychological report from a January 8, 2018 assessment done by Dr. Steiner, psychologist, who diagnoses her with adjustment disorder with mixed anxiety and depressed mood. Despite her reliance on this report, I find there is no supportive evidence that she suffered any significant psychological impairment as a result of the accident. The records from her family physician are completely silent on psychological complaints. Her family physician, Dr. Purewal specifically noted at a December 7, 2016 visit “no sad feelings or anxiety, no unusual fears, do not hear or see things.”

7The remaining medical records show that in the approximately five years since the accident, she has not received any psychological treatment or referrals for same to date. In my view, Dr. Steiner’s report completed two-years post-accident on its own is insufficient evidence to support the applicant sustained an accident-related psychological impairment.

8H.P. has failed to point me to any supporting evidence that she suffered more than just psychological sequelae as a result of the accident.

9TD relies on the report of its insurer examination assessor, Dr. Mandel, psychologist, who opined that H.P. did not meet any of the DSM criteria for a clinical diagnosis. Dr. Mandel noted that many of the test results were inconsistent and invalid. Specifically, the results were more than double the acceptable threshold which indicate symptom magnification and malingering. Further, testing indicated a lack of validity as H.P.s responses were inconsistent with various sections with similar questions.

10Dr. Mandel provided an addendum report, in response to the report from Dr. Steiner, noting that Dr. Steiner relied only on subjective reporting from H.P. Dr. Mandel’s opinion remained unchanged due to a lack of objective evidence.

11For these reasons, I find that H.P. has not met her burden to establish on a balance of probabilities, that her accident-related psychological impairment warrants removal from the MIG.

Are the OCF-18s reasonable and necessary?

12Having found that H.P.’s injuries are properly within the MIG, an analysis of whether the disputed OCF-18 is reasonable and necessary pursuant to s. 15 of the Schedule is not necessary.

13Despite this, the MIG limit is not exhausted, with TD paying $2,820.72 in medical benefits since the date of loss. Having noted her complaints of physical pain to her family physician, H.P. may be able to seek further treatment up to the MIG limit should she decide to. As the disputed OCF-18 is not payable, no interest is payable under s. 51.

CONCLUSION

14H.P. suffered predominantly minor injuries that are treatable within the MIG limits. The disputed OCF-18 is not reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.