Licence Appeal Tribunal File Number: 20-003490/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:
Cuong Kha
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Jessie V. Tran, Paralegal
For the Respondent: Farid Mahdi, Counsel
HEARD: By way of written submissions
OVERVIEW
1Cuong Kha ("the Applicant") was involved in an automobile accident on November 15, 2016 and sought benefits from Security National Insurance Company ("the Respondent") 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 the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2This is the Applicant's second application to the Tribunal with respect to this accident and the characterization of his injuries as a minor injury. In C.K. v Security National Insurance Company, 2020 CanLII 51280 (ON LAT), the Applicant unsuccessfully sought a determination that his injuries are not predominantly a minor injury and was denied entitlement to certain treatment and assessment plans as a result.
3The Respondent, in response to this new application to the Tribunal, acknowledged that the characterization of the Applicant's injuries is not static and that the Applicant is not barred from proceeding with the Application because the issue was previously litigated. However, the Respondent noted that the Applicant was precluded from relying on evidence produced at the initial hearing and that this current hearing must focus on the new evidence only. This was endorsed in a Motion Order, dated December 2, 2022,
4The result of the Motion Order dated December 2, 2022 is that the Applicant is permitted to proceed to this hearing only on the evidence contained within the report of Dr. N. Belyakova, psychologist, dated October 8, 2020. Further, the adjudicator stated in the Motion Order dated December 2, 2022 that an analysis of the evidence previously submitted would be tantamount to relitigating the issues and is covered by the doctrine of res judicata.
5As a result of the Motion Order, dated December 2, 2022, the parties proceeded to this hearing. From my perspective, this matter turns on the persuasiveness of Dr. Belyakova's report. For the reasons that follow, I find that Dr. Belyakova's report is unpersuasive, and I conclude that the Applicant sustained a minor injury as a result of the subject accident.
ISSUES
6The issues in dispute are:
Are the Applicant's injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 funding limit and in the Minor Injury Guideline ("the MIG")?
Is the Applicant entitled to a medical benefit in the amount of $2,600.00 for massage, adjustments, modalities, IFC, Acup, exercises recommended by York Medical Centre in a treatment plan submitted on April 13, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,600.00 for massage, adjustments, modalities, IFC, Acup, exercises recommended by York Medical Centre in a treatment plan submitted on September 10, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,600.00 for massage, adjustments, modalities, IFC, Acup, exercises recommended by York Medical Centre in a treatment plan submitted on February 12, 2019?
Is the Applicant entitled to a medical benefit in the amount of $4,230.00 for social work counselling recommended by York Medical Centre in a treatment plan submitted on January 29, 2019?
Is the Applicant entitled to a cost of examination in the amount of $2,200.00 for an orthopaedic assessment recommended by York Medical Centre in a treatment plan submitted on September 16, 2019?
Is the Applicant entitled to a cost of examination in the amount of $2,200.00 for an orthopaedic assessment recommended by York Medical Centre in a treatment plan submitted on September 16, 2019?
Is the Applicant entitled to a cost of examination in the amount of $2,200.00 for a psychiatric assessment recommended by York Medical Centre in a treatment plan submitted on August 10, 2020?
Is the Applicant entitled to a medical benefit in the amount of $200.00 for preparation of a Disability Certificate submitted on March 12, 2018?
Is the Applicant entitled to a medical benefit in the amount of $200.00 for preparation of a Disability Certificate submitted on September 10, 2018?
Is the Applicant entitled to a medical benefit in the amount of $200.00 for preparation of a Disability Certificate submitted on February 12, 2019?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury. He is not entitled to the treatment and assessment plans in dispute, nor interest.
BACKGROUND
8The Applicant was the driver of a vehicle which struck the rear end of another vehicle while travelling on a major highway. He sought no medical attention at the scene the accident and drove himself away after exchanging information with the other driver. It appears that the Applicant sought no care from a physician at anytime immediately following the accident but continued his facility-based rehabilitation related to an accident in January 2015. He initiated a claim for accident benefits, and the Respondent characterized his injuries as a minor injury as defined in section 3 of the Schedule.
ANALYSIS
9To be successful in this hearing, the Applicant must demonstrate that he sustained a psychological injury as a result of the accident. For the reasons that follow, I find that the evidence does not demonstrate that the Applicant sustained a psychological injury as a result of the accident and the application is dismissed.
Minor Injury Guideline ("MIG")
10The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
11The Applicant's position is that he sustained psychological injuries as a result of the accident based on Dr. Belyakova's report. He contends that he should no longer be subject to the MIG and the $3,500.00 finding limit for minor injuries.
Dr. Belyakova's Report is Unpersuasive
12I find that Dr. Belyakova's report dated October 8, 2020 is unpersuasive and, as a result, does not compel me to conclude that the Applicant sustained a psychological injury as a result of the accident.
13Dr. Belyakova's report concluded that the Applicant suffers from an Adjustment-like disorder with a prolonged duration of more than 6 months as a result of the subject accident. Dr. Belyakova recommended that the Applicant engage in 12 sessions of cognitive-behavioural therapy, a driving evaluation assessment, and a treatment manual.
14However, Dr. Belyakova's report is unpersuasive because it does not include a review of the Applicant's medical records in order to confirm the accuracy of his self-reports and the origin of his current presentation. Dr. Belyakova's report, and the diagnosis of an Adjustment-like disorder contained in it, is based on a clinical interview, administration of psychological tests, and a feedback review with the Applicant. The report makes no indication that any medical records were reviewed or considered when determining whether the Applicant suffers from a psychological injury as a result of the subject accident. I find that relying entirely on the Applicant's account of his medical care and his self-reported symptoms in order to make a diagnosis – considering that the accident occurred nearly four years prior to the assessment – is unpersuasive and insufficient to determine that the Applicant's current psychological presentation.
15The Applicant's self-reports to Dr. Belyakova fail to include any reference to his psychiatric history and should not be the sole basis to determine the cause of his psychological symptoms. The Applicant sought no care from his family physician, Dr. K. Vo, for the first five months following the accident. At that fist visit on April 11, 2017, the Applicant reported to Dr. Vo that he was feeling depressed and "up and down" the last few years but made no reference to the subject accident. Dr. Vo. suspected the Applicant suffered from a mood disorder and referred him to Dr. P. Tran for a psychiatric consultation. The records from the consultation with Dr. Tran clearly demonstrate that the Applicant's depressive symptoms are related to a sensitive personal matter, which is unrelated to the subject accident. Dr. Belyakova's report is unpersuasive in light of the fact that it does not address the Applicant's documented psychiatric history, which is unrelated to the subject accident.
16The origins of the Applicant's depressive symptoms were an issue at the initial hearing, prior to the consultation with Dr. Belyakova, but the origins remain unaddressed in Dr. Belyakova's report. The adjudicator for the first hearing concluded that the evidence supports that the Applicant's complaints of depression seem to be based on personal circumstances and not the accident. I agree with the adjudicator and find nothing in the evidence that changes this view. As a result, Dr. Belyakova's failure to review medical records and consider that the Applicant's reported depressive symptoms may be rooted in issues unrelated to the accident is fatal to the overall persuasiveness of the report.
17I find that the report by Dr. A. Syed, psychologist, outweighs Dr. Belyakova's report. Dr. Syed's assessment and report included not only a review of the Applicant's medical records but also included a summary of relevant information contained in various reports and records. Dr. Syed noted that the Applicant denied any personal history of medical or psychological illnesses and reported that his family also has an unremarkable history for any psychological illness. However, a review of the medical brief by Dr. Syed indicated that at last one of the Applicant's direct family members has depression and another has delusional disorder. The medical records also indicated brief details of seasonal affective disorder with some anxious and/or depressive episodes in the past.
18The methodology in Dr. Syed's assessment and report appears to be sound. Dr. Syed conducted a clinical interview, psychometric testing, and a comprehensive review of the Applicant's medical records. Dr. Syed was unable to reliably conclude that the Applicant's current status can be attributed to the subject accident. Further, Dr. Syed noted that there appears to be a gap in time between the subject accident and the Applicant's current psychological presentation. Dr. Syed's report finds that, as it stands the Applicant's status can only be explained by his pre-existing complications as well as the Seasonal Affective Disorder especially given that it was the winter season along with ongoing pandemic restrictions. Dr. Syed's findings are persuasive in that they are consistent with the Applicant's medical record and acknowledges the multifactorial nature of the Applicant's psychological symptoms and the overall insignificance of the accident.
19Considering my preference for Dr. Syed's report over Dr. Belyakova's, I agree with Dr. Syed and find that the Applicant has not suffered a psychological injury as a result of the subject accident. As a result, I find that his injuries are rightfully characterized as a minor injury and subject to the minor injury guideline.
The Treatment and Assessment Plans and Disability Certificates in Dispute
20The treatment and assessment plans and disability certificates in dispute propose goods and services which fall outside the minor injury guideline and/or beyond the $3,500.00 funding limit for minor injuries. Having found that the Applicant remains subject to the MIG, it follows that he is not entitled to the treatment and assessment plans in dispute.
Interest
21Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is not entitled to any additional benefits, it follows that he is not entitled to interest.
Award
22The Applicant sought an award under s. 10 of Reg. 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Having found that the Applicant is not entitled to any benefits claimed, it follows that no benefits were unreasonably withheld. Thus, no award is payable.
CONCLUSION AND ORDER
23I find Dr. Belyakova's report unpersuasive in light of the other evidence. As a result, I conclude that the Applicant sustained a minor injury as a result of the subject accident.
24The Applicant is not entitled to the benefits claimed, interest, or an award.
25The Application is dismissed.
Released: September 13, 2023
Brian Norris
Adjudicator