Citation: Thangavadivel v. Certas Home and Auto Insurance Company, 2023 ONLAT 21-003277/AABS

Licence Appeal Tribunal File Number: 21-003277/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:

Haran Thangavadivel

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Golan Mergui, Counsel

For the Respondent:

Danielle Ralph, Counsel

HEARD: by Teleconference:

March 24, 2023

OVERVIEW

1Haran Thangavadivel, the applicant, was involved in an automobile accident on October 21, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Certas Home and Auto Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was T-boned while stopped at an intersection. He alleges that he suffers from a psychological impairment and chronic pain syndrome.

3The applicant sought funding for assessments, chiropractic services, and for the cost of exercise equipment and other items. The respondent refused to provide funding on the grounds that he sustained a predominantly minor injury as defined in s. 3 of the Schedule, and was therefore limited to $3,500 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline.

4The applicant seeks determinations that he is not limited to $3,500 in benefits and that he is entitled to the benefits in dispute with interest.

ISSES

5The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit and in the Minor Injury Guideline?

2. Is the applicant entitled to the following medical benefits proposed by 101 Physio:

i. $1,946.12 for exercise equipment, proposed in a treatment plan/OCF-18 (“plan”) submitted on February 22, 2021;

ii. $198.79 ($1,298.79 less $1,100.00 approved) for chiropractic services, proposed in a plan submitted on August 6, 2020;

iii. $198.79 ($1,298.79 less $1,100.00 approved) for an unspecified medical benefit; and

iv. $876.92 for education and documentation, proposed in a plan submitted on July 22, 2021?

3. Is the applicant entitled to the following assessments proposed by 101 Assessments:

i. $2,460.00 for a psychological assessment, proposed in a plan submitted on January 24, 2020;

ii. $2,460.00 for an occupational therapy assessment, proposed in a plan submitted on July 19, 2021;

iii. $2,460.00 for a neurological assessment, proposed in a plan submitted on October 12, 2021; and

iv. $2,460.00 for a neurological assessment, proposed in a plan submitted on October 19, 2021?

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

RESULT

6The applicant has not established that he sustained a non-minor injury. Consequently, he has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits. As he has exhausted that limit, he is not entitled to the benefits in dispute.

DID THE APPLICANT SUSTAIN A PREDOMINANTLY MINOR INJURY?

7Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500 in medical and rehabilitation benefits. A minor injury is defined in s. 3 of the Schedule 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.

8Section 18(3)(a) of the Schedule provides that an insured person who sustains a non-minor injury is entitled to up to $65,000 in benefits. The onus is on the applicant to establish that he sustained a non-minor injury: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

9The applicant’s family doctor diagnosed his injuries as strains of his neck and back. These are minor injuries as defined in s. 3 of the Schedule. He argues that he suffers from two non-minor injuries: a psychological impairment and chronic pain syndrome.

Psychological Impairment

10I find that the applicant has not established that he suffers from a psychological impairment due to the accident.

11The applicant relies on a psychological assessment conducted by Dr. L. Grinberg, who diagnosed him with three mental disorders listed in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (“DSM-V”): somatic symptom disorder with predominant pain – severe, chronic adjustment disorder with depressed mood, and specific phobia – situational – vehicular.

12The respondent notes that the applicant never reported any mental health issues to his family doctor. It argues that Dr. Grinberg’s assessment should not be accepted because she relied entirely on the applicant’s self-reported symptoms and her observations, and because she did not test the validity of his answers on diagnostic tests even though there was no medical evidence corroborating his complaints.

13I do not accept Dr. Grinberg’s opinion for the following reasons.

14Dr. Grinberg conducted her assessment on June 4 and 8, 2021, more than 18 months after the accident. The applicant saw his family doctor many times before then, but never reported any mental health issues.

15Dr. Grinberg relied on the applicant’s self-reporting of his symptoms in her interview and in the diagnostic tests. She did not refer to the results of any validity testing.

16In the Symptom-Checkist-90-Revised test, the applicant endorsed a variety of psychological symptoms including in the areas of Obsessive-Compulsive, Paranoid Ideation, and Psychoticism. On three of the scales, including Psychoticism, the applicant’s scores were so high that they had to be plotted against the norms for psychiatric outpatients. Dr. Grinberg did not diagnose the applicant with obsessive-compulsive disorder or conditions involving paranoia or psychosis. However, she opined that the applicant’s endorsement of these symptoms was consistent with her findings. It is unclear to me how this conclusion follows.

17For example, Dr. Grinberg stated that the applicant’s endorsement of symptoms was consistent with his clinical presentation, but she observed no evidence of thought blocking, flight of ideas, loosened associations, or other signs of significant mental disturbance, delusions or hallucinations, or abnormal insight or judgment. There is no mention of issues such as obsession-compulsion, paranoia, or psychosis in the applicant’s medical records, nor did he report any such issues in the interview portion of the assessment.

18In another example, Dr. Grinberg opined that the applicant’s high score on the Psychoticism scale “in no way represents a psychiatric psychosis” but was “quite consistent with his injured status.” Without further explanation, it is unclear to me how this score is consistent with conditions other than psychosis but not psychosis itself.

19Other than Dr. Grinberg’s report, the applicant did not refer me to any evidence indicating that he suffers from a psychological impairment. As I do not accept Dr. Grinberg’s opinion, I find that the applicant has not met his burden of proof.

Chronic Pain Syndrome

20I find that the applicant has not established that he suffers from chronic pain syndrome.

21The applicant argues for the first time in his reply submissions that he meets the criteria for a diagnosis of chronic pain syndrome under the sixth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. This submission falls outside the permissible scope of reply. In any event, the applicant does not identify which criteria he meets or any evidence demonstrating that he meets those criteria.

Conclusion

22As the applicant has not established that he sustained a non-minor injury, he has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

IS THE APPLICANT ENTITLED TO THE BENEFITS IN DISPUTE AND INTEREST?

23As the applicant has exhausted the benefits available to him, he is not entitled to the benefits in dispute or interest.

ORDER

24The applicant has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

25As the applicant has exhausted the $3,500 limit, he is not entitled to the benefits in dispute or interest.

26The application is dismissed.