D'Silva v. Intact Insurance
Licence Appeal Tribunal File Number: 21-011768/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:
Trevor D'Silva
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR: Ludmilla Jarda
APPEARANCES:
For the Applicant: Francesco Blasi, Paralegal
For the Respondent: Shannon Mulholland, Counsel
HEARD: By Written Submissions
OVERVIEW
1Trevor D’Silva (the “applicant”) was involved in an automobile accident on November 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $3,852.27 for psychological services, proposed by Pilowsky Psychology in a treatment plan/OCF-18 (“plan”) dated August 4, 2021?
iii. Is the applicant entitled to $2,693.00 for physiotherapy services, proposed by Care Plus Physiotherapy in a plan dated November 25, 2020?
iv. Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Pilowsky Psychology in a plan dated May 18, 2021?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. As a result, he remains within the MIG and its $3,500.00 limit on treatment.
ii. The applicant is not entitled to the treatment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.
iii. The applicant is not entitled to interest.
iv. The respondent is not liable to pay an award.
ANALYSIS
The Minor Injury Guideline (“MIG”)
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”
5An insured person 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 from their minor injury 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.
6The applicant submits that his psychological impairment warrants his removal from the MIG. He relies on a Disability Certificate (“OCF-3”) dated April 16, 2021, the clinical notes and records of his family physician, Dr. Maher Atalla, an Addendum to OCF-3 Disability Certificate dated December 4, 2021, and a Psychological Report dated July 27, 2021 completed by Dr. Sandra Sagrati.
7In response, the respondent denies that the applicant sustained a psychological impairment as a result of the accident. Further, the respondent submits that the applicant sustained uncomplicated soft tissue injuries as a result of the accident that meet the Schedule’s definition of minor injury and should be treated within the MIG. The respondent relies on the Musculoskeletal Assessment dated July 30, 2021 completed by Dr. James Kenneth Stewart and the Psychological MIG Assessment dated September 17, 2021 completed by Dr. Charlotte Lynn Gooden.
The applicant did not sustain injuries that warrant removal from the MIG
8I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.
9I am not persuaded by the applicant’s argument or medical evidence that he sustained a psychological impairment as a result of the accident. There is no objective medical support for the applicant’s OCF-3 dated April 16, 2021 regarding his depressive/anxiety symptoms. Although the applicant claims that Dr. Atalla’s records outline his ongoing accident-related complaints and the need for further treatment, the applicant has not specifically identified any complaints, and Dr. Atalla’s handwritten notes are largely illegible. Further, while Dr. Atalla referred the applicant to a psychiatrist in April 2021, there is no information on the referral form indicating a causal connection between the referral and the November 13, 2023 accident.
10Additionally, I prefer Dr. Gooden’s report over Dr. Sagrati’s report primarily because there is no evidence to support the findings in Dr. Sagrati’s report, aside from the report itself. There are no contemporaneous records documenting any psychological complaints or psychological impairments, and there are no regular pain complaints or functional limitations documented to support Dr. Sagrati’s diagnosis. Rather, Dr. Sagrati heavily relies on the applicant’s self-reporting.
11Further, Dr. Gooden’s report included a validity testing which indicated that the applicant responded to psychological testing in an unusually negative manner, and he negatively endorsed items that are rarely endorsed in such an extreme manner, which can be interpreted as “faking bad.” Therefore, I accept Dr. Gooden’s opinion that the applicant did not suffer a psychological impairment as a result of the accident and that the applicant’s reported psychological symptomatology is not of a magnitude or severity to meet the criteria of a DSM-5 psychological diagnosis.
12Moreover, I agree with the respondent that the evidence supports that the applicant sustained uncomplicated soft tissue injuries within the definition of a minor injury under s. 3 of the Schedule. There is no indication that any diagnostic imaging was conducted following the accident. Further, when he was assessed by Dr. Stewart, the applicant reported experiencing neck and low back pain and occasionally left arm pain. The assessment demonstrated only minimal limitation with cervical spine ranges of motion and with shoulder flexion and abduction; otherwise, the applicant had full and pain free ranges of motion in all other regions. Correspondingly, I accept Dr. Stewart’s diagnosis that the applicant sustained a whiplash associated disorder (WAD) I-II cervical sprain/strain and a thoracolumbar spine sprain/strain as a result of the accident, and that his soft tissue injuries meet the Schedule’s definition of minor injury.
13Finally, the applicant did not provide any medical evidence or submissions to support that he was unable to achieve maximal medical recovery within the MIG as a result of a pre-existing condition. Likewise, the applicant did not provide any medical evidence or submissions to support that he developed chronic pain syndrome and that he was precluded from treatment under the MIG.
14Accordingly, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
The Treatment Plans
15Having determined that the applicant is within the MIG, the applicant is not entitled to the disputed treatment plans because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.
Interest
16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
17Pursuant to s. 10 of Reg 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit.
18The applicant submits that the respondent systematically and deliberately denied him access to benefits by ignoring the fact that Dr. Atalla recommended further treatment and referred the applicant for a psychological assessment. In response, the respondent denied that its conduct attracted an award.
19I agree with the respondent. The applicant has not directed me to any evidence demonstrating that the respondent deliberately ignored supporting medical evidence when it denied the applicant’s entitlement to the disputed plans, and the adjuster’s log notes are not part of the evidentiary record. Moreover, there is no evidence that the respondent’s actions arose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
20Accordingly, the respondent is not liable to pay an award.
ORDER
21For the reasons outlined above, I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. As a result, he remains within the MIG and its $3,500.00 limit on treatment.
ii. The applicant is not entitled to the treatment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.
iii. The applicant is not entitled to interest.
iv. The respondent is not liable to pay an award.
Released: November 15, 2023
Ludmilla Jarda
Adjudicator