Licence Appeal Tribunal File Number: 20-013218/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:
Dosta Sopkic
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Shivani Mehta, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dosta Sopkic (“D.S.”), the applicant, was injured in an accident on November 5, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Aviva denied the treatment plan on the basis that D.S.’s impairments were in the Minor Injury Guideline (the “MIG”).
2D.S. brought a previous application on March 13, 2020. In her application, D.S. disputed whether her injuries fell within the MIG, as a well as entitlement to the balance of a treatment plan and interest. The parties attended a case conference on August 17, 2020 but were unable to reach an agreement; the matter was set down for a written hearing. A written hearing proceeding and a decision was issued on April 20, 2021. In the decision, I found that D.S. suffered predominantly minor injuries. Further, as the MIG limits had been exhausted, she was not entitled to the treatment plan or interest.
3The subject proceeding is as a result of Aviva maintaining its determination that D.S. suffered predominantly minor injuries and that the disputed treatment plan is not reasonable and necessary. D.S. has again applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
MOTION
Exclusion of Evidence
4On October 29, 2021, Aviva filed a motion requesting an order from the Tribunal that the clinical notes and records of Dr. Teplinsky relied upon by D.S. in substantiating her claim that her impairment falls outside the MIG be excluded as it has been previously adduced and considered for the same issue in a related application filed in Tribunal File No. 20-003460/AABS.
5The Tribunal issued an order dated December 3, 2021 Motion Order, stating that the matter would be dealt with by the hearing adjudicator.
6D.S. made no submissions addressing the evidence of Dr. Teplinsky. Aviva also made no submissions on the issue however, I note that Aviva’s submissions were made prior to D.S.’s submissions, which were filed late. Aviva did not make a request to file additional submissions after D.S.’s late, initial submissions.
7I allow Dr. Teplinsky’s clinical notes and records as the disputed treatment is for psychological services, and not physical therapy as in the first Tribunal application. However, I place little weight on the records, as I find they are unhelpful in in supporting the applicant’s claims.
ISSUES
8The issue(s) in dispute is/are:
i. Are D.S.’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?
ii. Is the cost of examination expense in the amount of $1,949.50 for a psychological assessment, proposed by Promed Rehabilitation Clinic in a treatment plan dated September 4, 2020, reasonable and necessary?
iii. Is D.S. entitled to interest on any overdue payment of benefits?
RESULT
9D.S. has not demonstrated that she did not suffer predominantly minor injuries as a result of the accident. The MIG limits have been exhausted, therefore, there is no entitlement to the disputed treatment plan or interest.
10The application is dismissed.
ANALYSIS
D.S. suffered predominantly minor injuries
11Under s. 18(1) of the Schedule, medical benefits are limited to $3,500.00 if the insured sustains impairments that 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. Alternatively, under s. 18(2), if they have a documented pre-existing injury or condition combined with compelling medical evidence which states that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. At all times, the burden of proof rests with the applicant.
12D.S. relies on the records of her family physician, Dr. Teplinsky, however, I find these records unpersuasive in determining whether D.S. suffered psychological impairments that require further investigation. Further, having already relied on the same records for her first claim before the Tribunal addressing the MIG determination, I find there is no new evidence from Dr. Teplinsky that would require further analysis to determine that D.S.’s accident-related impairments warrant removal from the MIG.
13I find D.S. made the same argument (MIG determination) with for her claim for a psychological assessment and relied on the same evidence that I already determined was not persuasive.
Dr. Krstich letter
14In support of this application, she relies on a letter from psychiatrist Dr. Krstich dated December 2, 2017. I find this letter failed to establish that she suffered a psychological impairment that requires removal from and treatment beyond the MIG.
15In her letter, Dr. Krstich notes that D.S. self-reports numerous pain complaints. As far as any psychological complaints, D.S. reports that her mood varies but is mainly low. There is no further reporting of any psychological history, there is no indication that Dr. Krstich reviewed of any medical records, particularly that of Dr. Teplinsky, which is largely silent on any psychological complaints. Lastly, Dr. Krstich does not discuss any objective testing that was performed, and yet diagnoses D.S. with depression. Dr. Krstich’s letter fails to provide any explanation as to how she came to her conclusion that D.S. suffers from depression. Further, the medical records are silent regarding any psychological issues for three-years post-accident. For these reasons, I give the doctor’s opinion little weight.
16I find D.S. has not proven that her injuries fall outside the MIG. Further, as the MIG limits have been exhausted, an analysis of whether the disputed treatment plan is reasonable and necessary is not required.
ORDER
17D.S. has not met her burden to demonstrate that treatment beyond the MIG is required. She is not entitled to the disputed OCF-18 or interest. This application is dismissed.
Released: April 12, 2023
__________________________
Derek Grant
Adjudicator