Jesuthasa v. Aviva Insurance Canada, 2023 CanLII 40093

Citation: Jesuthasa v. Aviva Insurance Canada, 2023 ONLAT 20-012058/AABS

Licence Appeal Tribunal File Number: 20-012058/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:

Nilakshan Jesuthasa

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Mary Selvanathan, Paralegal

For the Respondent: Danielle Ralph, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Nilakshan Jesuthasa (the “applicant”) was involved in a motor vehicle accident on September 27, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Canada (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that he sustained neck, shoulder, and lower back injuries in the accident that resulted in psychological sequelae including insomnia, post-traumatic stress (“PTSD”), anxiety, and fear of driving. He further submits that the subject accident exacerbated prior injuries sustained in a motor vehicle accident in 2016. For these reasons, the applicant claims that he should not be held within the MIG. The applicant is also seeking entitlement to a treatment plan for a psychological assessment, interest, and an award due to allegations that Aviva unreasonably withheld benefits.

3Aviva responds that the applicant has failed to produce sufficient evidence to warrant removal from the MIG, and that the treatment plan in dispute was not submitted to the insurer before it was incurred. In addition, the respondent argues that the treatment plan has not been demonstrated to be reasonable and necessary. As Aviva denies that any benefits are owing, it rejects the applicant’s claimed entitlement to interest and an award.

4Both parties confirm that the MIG limit of $3,500.00 has been exhausted. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to the treatment plan in dispute.

ISSUES IN DISPUTE

5The following issues are in dispute:

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

2. Is the applicant entitled to $2,180.00 for a psychological assessment, recommended by Community Health and Counselling Services in a treatment plan/OCF-18 dated February 21, 2019?

3. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

4. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

6I find that:

i. The applicant is no longer subject to treatment within the MIG and its $3,500.00 limit, as he has demonstrated that he suffers from psychological sequelae as a result of the accident.

ii. The applicant is not entitled to the treatment plan in dispute, nor interest, pursuant to s. 38(2) of the Schedule, as the treatment was incurred before the treatment plan was submitted to the insurer.

iii. As no benefits are overdue, the respondent is not liable to pay an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7I find that the applicant has demonstrated on a preponderance of the evidence that he suffers from psychological sequelae as a result of the accident. As a psychological condition is not included in the definition of a minor injury in the Schedule, he is removed from the MIG and its $3,500.00 limit on treatment.

8Section 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. 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 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 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.

9The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside the MIG.

10Here, the applicant relies on a Disability Certificate/OCF-3 completed by Amitaben Daxini, physiotherapist, dated September 18, 2018; the clinical notes and records (“CNRs”) of Dr. Rajaratnam Kirubaharan, family physician; the treatment plan in dispute completed by Sathis Kumar Srinivasan, registered psychotherapist, and overseen by Dr. Kenneth R. Keeling, psychologist, dated February 21, 2019; and a psychological report also completed by Mr. Srinivasan under the supervision of Dr. Keeling and dated February 27, 2019 that resulted from a psychological assessment conducted by Dr. Keeling on February 21, 2019.

11In response, Aviva relies on a multidisciplinary insurer’s examination (“IE”) assessment report dated August 19, 2019. This report includes the results of three separate assessments of the applicant, each of which was conducted to assess the applicant’s MIG claim and two treatment plans, including the one in dispute here. Dr. Shahriar Moshiri, psychologist, performed a psychology assessment on May 13, 2019. Dr. Riaz Moolla, family doctor, performed a physician assessment on June 27, 2019. And Vinita Tandon, occupational therapist, conducted an in-home assessment on July 30, 2019.

12There are two non-procedural issues at the core of the MIG dispute: 1.) the applicant’s claim to having developed psychological sequelae as a result of the accident; 2.) his claim that the subject accident exacerbated soft-tissue injuries from a previous motor vehicle accident on December 15, 2016. A finding that the applicant has established the existence of either condition would result in his removal from the MIG, as neither is included in the definition of a minor injury in the Schedule.

Has the applicant sustained psychological and/or physical injuries that warrant removal from the MIG?

13I am persuaded by the argument and evidence of the applicant with regard to his claim of suffering from psychological sequelae, but I am not convinced by his claim that earlier injuries were exacerbated by the subject accident to the point where he could not recover if held within the MIG. Regardless of this mixed decision, the former claim on its own warrants the applicant’s removal from the MIG, as psychological conditions are not included in the definition of a minor injury in the Schedule.

14Essentially, this dispute comes down to differing conclusions offered in the psychological assessments conducted by Mr. Srinivasan and Dr. Moshiri. I prefer the report of Mr. Srinivasan, who diagnosed the applicant as suffering from an adjustment disorder with mixed anxiety and depressed mood consistent with a class 3 (moderate) level of impairment. The applicant scored in the severe range of the Beck Depression Inventory, Beck Anxiety Inventory, and Severity Measure for Specific Phobia (driving) tests, and he also endorsed a significant number of items in the PTSD Check List (PCL 5). In the clinical interview conducted during this assessment, the applicant elaborated on the psychological issues he had been suffering post-accident. He specifically noted a lack of motivation to engage in life, guilt, irritability, difficulties with concentration and memory, and sleep problems including insomnia and nightmares. In all, this report features a comprehensive and convincing assessment of the psychological sequelae that the applicant has encountered as a result of the accident.

15Further, the test results of Mr. Srinivasan are largely echoed in the IE report of Dr. Moshiri—even if the psychologist did not arrive at the same conclusions as the psychotherapist. I find Dr. Moshiri’s report to be contradictory in that his determination that the applicant did not suffer from any psychological conditions did not match testing. Tests administered by Dr. Moshiri revealed similar results as that shown by Mr. Srinivasan, with the applicant scoring in the severe range in the Burns Anxiety Inventory and the Beck Depression Inventory, and at the bottom of the Brief Mood Survey, indicating a clinically significant level of anxiety and depression.

16Granted, the applicant scored average results in the Pain Patient Profile and Beck Anxiety Inventory applied by Dr. Moshiri. The physician also wrote that the applicant told him that he did not require any counselling or psychological treatment. This would to me indicate a mixed result that should have been reflected in the final conclusions of the report. But Dr. Moshiri ignored the “severe” test results, not commenting on them at all in the process of diagnosing that the applicant is not psychologically impaired and therefore should be subject to the MIG. Dr. Moshiri mentioned these results only in passing when reviewing test results as a whole and then never referred to them again, not even to explain why he set them aside. To me, this undercuts the thoroughness of the assessment as a whole, especially given the contrasting example provided in the report of Mr. Srinivasan. As a result, I find it difficult to accept Dr. Moshiri’s diagnosis, and prefer the conclusion in the report of Mr. Srinivasan.

17I am not persuaded by the argument of the respondent that the psychological assessment conducted by Mr. Srinivasan should be assigned limited weight because it is not supported by other medical evidence. I concur with the respondent’s assertions that psychological conditions are not mentioned in the CNRs of Dr. Kirubaharan. I also agree that the OCF-3 should be accorded minimal weight when it comes to its notations of the applicant experiencing nervousness and sleep issues, as this form was completed by a physiotherapist without any claimed psychological training. However, the psychological assessment written by Mr. Srinivasan can and should be looked at on its own when it comes to the MIG determination. The conclusions of this assessment are what matter here, not how the assessment came to be recommended. And these conclusions are quite definitive in demonstrating that the applicant suffered from psychological sequelae as a result of the accident, at least in my view, that moreover are at least partially supported by the report of Dr. Moshiri.

18For the reasons regarding psychological sequelae noted above, I find that the applicant is removed from the MIG.

19Although my decision on the psychological claim resolves the applicant’s MIG status, I will add that I do not agree with his argument that the subject accident exacerbated prior injuries that precluded his recovery within the confines of the MIG. I accept that the applicant has substantiated the existence of such earlier injuries through the CNRs of Dr. Kirubaharan, which show that the applicant was complaining of chronic back pain for years right up until a week before the subject accident. But Dr. Kirubaharan did not connect the two accidents and their injuries. There is no medical support for the applicant’s claims that his earlier injuries were affected by the subject accident in any way, let alone in such a significant fashion as to interfere with the applicant’s recovery within the MIG. In addition, Dr. Kirubaharan did not refer the applicant to other physicians for treatment, did not issue prescriptions for medication, and the only x-rays that he ordered revealed unremarkable images of the applicant’s back.

20In short, the applicant does not meet his burden when it comes to his claim that his physical injuries warrant treatment outside of the MIG due to the exacerbation of a prior condition. The physical medical evidence that he has submitted demonstrates only that he sustained soft-tissue injuries in the accident, all of which fall within the MIG.

The Treatment Plan for a Psychological Assessment Dated February 21, 2019

21I find that the applicant is not entitled to the treatment plan for a psychological assessment in the amount of $2,180.00 dated February 21, 2019, as the treatment recommended therein was incurred before the plan was submitted to the insurer. As a result, the insurer is not liable to pay this expense, in accordance with s. 38(2) of the Schedule.

22Section 38(2) of the Schedule reads as follows:

(2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates;

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(i) drugs prescribed by a regulated health professional, or

(ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost of $250 or less per item; or

(d) the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in clause 15 (1) (h) or 16 (3) (l) with a cost of $250 or less per item or service, as the case may be. O. Reg. 34/10, s. 38 (2); O. Reg. 251/15, s. 13 (1, 2).

23The respondent submits that this treatment plan was completed on the same day as the psychological assessment itself was conducted, namely February 21, 2019. Aviva further asserts that this plan was not submitted to the insurer until February 27, 2019, some six days after the expense was incurred. It also holds that none of the exceptions noted in s. 38(2)(a) through (d) apply here. Consequently, the respondent concludes that it is not liable to pay for the expense of this treatment plan.

24I agree with the respondent. The applicant confirms in submissions that the treatment plan was not sent to Aviva until February 27, 2019. However, the psychological assessment itself was conducted on February 21, 2019, as is noted on the cover page of the subsequent report dated February 27, 2019. It seems self-evident, to me at any rate, that the assessment was incurred before the treatment plan was submitted to the insurer.

25Further, the applicant also does not provide any rationale for why this plan was submitted late. He does not refer to this argument of the respondent in his initial or reply submissions, leaving the assertions uncontested.

26For the reasons explained above, I find that this treatment plan was submitted by the applicant after the treatment was incurred. In accordance with s. 38(2) of the Schedule, the respondent is not liable to pay this expense.

Award

27As no benefits are owing, it follows that the respondent is not liable to pay an award.

ORDER

28I find that:

i. The applicant is no longer subject to treatment within the MIG and its $3,500.00 limit, as he has demonstrated that he suffers from psychological sequelae as a result of the accident.

ii. The applicant is not entitled to the treatment plan in dispute, nor interest, pursuant to s. 38(2) of the Schedule, as the treatment was incurred before the treatment plan was submitted to the insurer.

iii. The respondent is not liable to pay an award.