Behl v. Aviva Insurance Canada, 2024 CanLII 6504

Behl v. Aviva Insurance Canada

Citation: Behl v. Aviva Insurance Canada, 2024 ONLAT 21-015320/AABS

Licence Appeal Tribunal File Number: 21-015320/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:

Gaurav Behl Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Kate Barretto, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Gaurav Behl (the “applicant”) was involved in an automobile accident on October 7, 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 Aviva Insurance Canada (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:

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 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to $1,546.14 for physiotherapy services, proposed by Amberlea Physiotherapy and Rehab Clinic in a treatment plan/OCF-18 (“OCF-18”) submitted January 15, 2020?
3. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Excel Medical Diagnostics Inc. in an OCF-18 submitted on October 23, 2020?
4. Is the applicant entitled to $2,629.50 for an orthopaedic assessment, proposed by Excel Medical Diagnostics Inc. in an OCF-18 submitted April 28, 2021?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment. As the full MIG limits on medical benefits have been approved, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. Thus, the applicant is not entitled to interest.

ANALYSIS

The Minor Injury Guideline

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 any accident-related 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.

6In all cases, the burden of proof lies with the applicant.

7The applicant submits that he should be removed from the MIG on the following grounds:

i. He has pre-existing lumbar back pain, which was exacerbated by the subject accident; and ii. The applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood.

8I also take note that the applicant’s submissions provided a summary of pain complaints and diagnoses from medical reports, in particular to his left shoulder. However, the applicant’s submissions were silent on whether he was seeking removal from the MIG on this basis, nor did he address the legal test to do so. As the onus is on the applicant, and he has not advised whether he is seeking removal from the MIG on the basis of his left shoulder injury or chronic pain, I will not be addressing this in my decision.

9In response, the respondent submits that the applicant has failed to meet his onus in establishing that he should be removed from the MIG. It is the respondent’s position that the applicant has sustained nothing more than uncomplicated soft tissue injuries as a result of the accident.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

10I find that the applicant has not provided persuasive compelling medical evidence that his pre-existing lumbar back pain would prevent maximal recovery within the MIG limits. As such, the applicant has not met his onus to establish he should be removed on this basis.

11The applicant submits that he has a history of lumbar back pain, in particular an MRI, dated July 4, 2019, revealed a large left paracentral disc extrusion at L5-S1. The applicant further submits that his pre-existing lumbar condition was exacerbated by the subject accident and prevents him from reaching maximal medical recovery within the MIG. To this end, the applicant relies on a records of his family physician, Dr. Emily Yeung, MRI of his lumbar spine dated July 4, 2019, an OCF-18 completed by Dr. Sherman Mok, physiotherapist, dated January 15, 2020, and a s. 25 Independent Orthopaedic Assessment, dated June 28, 2021, completed by Dr. John Theodoropoulos, orthopaedic surgeon.

12The respondent submits that there is no evidence that the subject accident impacted the applicant’s pre-existing disc herniation, as the applicant did not address this with his family physician, Dr. Yeung. To support its position, the respondent relies on the s. 44 orthopaedic assessment report of Dr. Esmat Dessouki, orthopaedic surgeon, dated August 5, 2020.

13I agree with the applicant that he has met the first part of the test pursuant to s. 18(2) of the Schedule as the records of Dr. Yeung and the MRI of the lumber spine, dated July 4, 2019, demonstrate that he has a pre-existing condition to his lumbar spine. In particular, the record of Dr. Yeung, dated April 15, 2019, notes that the applicant was involved in a car accident and has had lower back pain which radiated into his left thigh and leg as a result. Moreover, approximately three months before the accident, an MRI of the applicant’s lumbar back revealed a left paracentral disc extrusion measuring 11 x 11 x 13mm at his L5-S1. Accordingly, the applicant has established that he had a pre-existing condition and has met the first component of the test pursuant to s. 18(2).

14In my view, however there is no persuasive compelling medical evidence that the applicant’s pre-existing condition would prevent maximal recovery if subject to the MIG limits. As such, I find that he has not met the second component of the test pursuant to s. 18(2) of the Schedule. While I am alive to the applicant’s submission, that the OCF-18 prepared by Dr. Mok demonstrates that his pre-existing condition will prevent recovery within the MIG limits, I am not persuaded. At Part 9. (c) of the OCF-18, there are two boxes, one for yes and one for no, with respect to whether the treatment provider has identified any other barriers to recovery. While Dr. Mok checked the yes box in Part 9. (c) of the OCF-18, due to the applicant’s pre-existing back injury, he provided no explanation or medical rationale on how the condition would prevent maximal medical recovery if the applicant was subject to the MIG limits. This is a crucial requirement pursuant to s. 18(2) of the test, and in my view, a treating practitioner checking a box without a rationale does not constitute as compelling medical evidence.

15The applicant has also not pointed me to an entry from Dr. Yeung, where it was noted that his pre-existing condition worsened as a result of the accident, and he would be prevented from achieving maximal medical recovery if he was subject to the MIG. I note the applicant argues that he was prescribed an additional painkiller following the accident, however I find this is insufficient to warrant removal from the MIG.

16Moreover, the applicant has produced only two entries from Dr. Yeung following the accident. While I note that on October 11, 2019, Dr. Yeung noted that he should start a prescription of cyclobenzaprine, however, there is no reference to his pre-existing lumbar back condition. The applicant did not advise Dr. Yeung that his pre-existing lumbar back condition worsened from this accident, nor did Dr. Yeung provide an opinion of whether the applicant would be precluded from maximal recovery as a result of his pre-existing condition. The other entry provided by the applicant pertains to an unrelated note. As such, the records of Dr. Yeung do not support the applicant’s position that his pre-existing condition would prevent maximal medical recovery if he was subject to the MIG limits.

17I also note that the respondent produced several entries from Dr. Yeung’s records following the accident, and once again there is no reference to the applicant’s pre-existing lumbar back pain, whether it was worsened from the accident, and more importantly whether it prevents him from recovering from his accident-related injuries. Therefore, I assign significant weight to the entries of Dr. Yeung, as she is the applicant’s family physician, so in my opinion, she would have more intimate knowledge than a s. 25 assessor, like Dr. Theorodopoulos.

18I am also not persuaded by the s. 25 report completed by Dr. Theodoropoulos, orthopaedic surgeon for the following reasons. Firstly, while Dr. Theodoropoulos opined that the applicant’s pre-existing discogenic back pain and left leg pain was exacerbated by the accident, he did not provide an opinion of whether this would affect his ability to recover within the MIG limits. Secondly, the applicant self-reported to Dr. Theodoropoulos that he was unable to advise of how much of his symptoms to his lower back were from before the accident and whether the pain became dramatically worst as a result of the accident. In my view, it is unclear how Dr. Theodoropoulos came to his conclusion, when the applicant himself is unsure of whether the accident aggravated his pre-existing lumbar back pain.

19Moreover, Dr. Theoropoulos also undermined his conclusion when he also stated that it was unclear what percentage of the applicant’s current leg/back symptoms were due to a new injury or from his previous back injury.

20Lastly, I prefer the report of s. 44 assessor, Dr. Dessouki, whose conclusions are more consistent with the bulk of the evidence, like the lack of complaints to Dr. Yeung that the applicant’s pre-existing condition was aggravated. I am alive to the applicant’s submission of the alleged failings of the s. 44 report. However, I note that Dr. Dessouki did take into account the applicant’s pre-existing disc extrusion, as he reviewed the medical evidence and concluded that this pre-existing condition would not prevent maximal medical recovery if subject to the MIG limits.

21Contrary to the applicant’s submission, it was his self-reporting, and not Dr. Dessouki who independently determined, that his pre-existing lower back pain had worsened following the accident. In my opinion, this self-reporting is inconsistent with the records of Dr. Yeung, and his self-reporting to Dr. Theoropoulos. As noted above, the applicant and Dr. Theoropoulos stated that it was unclear of how much the applicant’s current symptoms were in relation to before the accident, and whether his pre-existing condition was worsened by the accident.

22In conclusion, the applicant has not presented persuasive compelling medical evidence that his pre-existing lumbar back pain would prevent maximal medical recovery if he was confined to the MIG limits. As such, the applicant has not met his burden of proof to warrant removal from the MIG on this basis.

The applicant has not established that he should be removed from the MIG on the basis of a psychological impairment

23I find that the applicant has not met his burden of proof to demonstrate that he should be removed from the MIG based on a psychological impairment.

24Psychological impairments are not included in the definition of minor injury pursuant to s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.

25The applicant submits that he was diagnosed with an adjustment disorder with mixed anxiety and depressed mood as a result of the accident, which warrants removal from the MIG. To this end, he relies on a s. 25 psychological assessment by Ms. Vanessa Schembri, under the supervision of Dr. Sharleen McDowall, psychologist, dated January 21, 2021. It is unclear what Ms. Schembri’s professional designation is as neither the report nor the applicant provided this information.

26The respondent submits that the accident did not cause the applicant to suffer a psychological impairment and relies upon the s. 44 psychological assessment completed by Dr. David Direnfeld, psychologist, dated February 16, 2021, and on the clinical notes and records of Dr. Yeung.

27I agree with the respondent that the clinical notes and records of Dr. Yeung do not establish that the applicant sustained psychological impairments as a result of the accident. Although the applicant attended Dr. Yeung’s office on several occasions following the accident, the applicant does not direct me to records that show he reported psychological symptoms following the accident. Upon review of the evidence provided, I also note that Dr. Yeung did not diagnose the applicant with a psychological condition, refer him to a psychiatrist or prescribe medication for this.

28I find the s. 25 report completed by Ms. Schembri, under the supervision of Dr. McDowall, to be of limited persuasive value. Firstly, in my opinion, Ms. Schembri/Dr. McDowall’s opinion that the applicant has psychological impairments, is inconsistent with the bulk of the medical evidence. As noted above, from the records provided, the applicant has not presented with psychological symptoms to his family physician.

29The applicant further submits that Dr. Direnfeld reached an inconsistent conclusion of the applicant’s condition, as he concluded that the applicant overstated his symptoms on the questionnaires. The applicant’s position is Dr. Direnfeld’s report is critically flawed, as if the applicant was attempting to overstate his condition, he would not deny symptoms in his interview. Accordingly, the applicant argues that the more likely conclusion was that he was understating his symptoms as noted in the report prepared by Ms. Schembri/Dr. McDowall.

30Both Dr. McDowall and Dr. Direnfeld relied on the applicant’s clinical interview instead of the psychometric testing to arrive at their different opinions. In my view, Dr. Direnfeld’s conclusion that there is insufficient evidence that the applicant meets the DSM-5 criteria for a psychological disorder, is more consistent with the medical evidence I have been pointed to, like the records of Dr. Yeung.

31I prefer the report of Dr. Direnfeld over the report of Ms. Schembri/Dr. McDowall as he provided a thorough and detailed explanation for arriving at his conclusion. For example, while the questionnaire results of the PTSD Checklist for DSM-5, indicated that the applicant met the provisional diagnosis of PTSD. Dr. Direnfeld also noted that the applicant self-reported during the interview that he had not experienced any recent nightmares, yet the applicant endorsed in his questionnaire that he had nightmares in the past month.

32Dr. Direnfeld also noted that the results from the Beck Depression Inventory-II (“BAI”) did not align with what the applicant reported during the diagnostic interview. While the applicant reported in the questionnaire that “he was sad or unhappy that I can’t stand it.” However, during discussions with Dr. Direnfeld about depression, the applicant claimed not to recall any recent episodes of depressed mood. As such, Dr. Direnfeld concluded that the applicant’s responses during the diagnostic interview were notably different than some of the items he endorsed on the BAI questionnaire.

33In addition, Dr. Direnfeld noted that there were questions of whether the applicant was giving the tests serious or honest consideration, as he was observed to have finished the testing faster than average for the psychometric testing and the Personality Assessment Inventory (“PAI”) which led to an invalid result for the PAI testing.

34In contrast, Ms. Schembri/Dr. McDowall, in my view provided a vague rationale of why they were relying on the self-reporting of the applicant rather than the results of the psychometric testing. While they noted that the applicant reported psychological symptoms during the clinical interview, they did not provide a rationale of how these symptoms warranted a psychological diagnosis. Nor did they provide a detailed explanation of how the applicant was underreporting his symptoms, other than to say they believed he was underreporting the symptoms. In conclusion, I assign limited weight to the s. 25 report completed by Ms. Schembri/Dr. McDowall.

35The onus is on the applicant to prove on a balance of probabilities that he should be removed from the MIG on the basis of psychological impairments, and not on the respondent to disprove. Here, the applicant has not met his onus to establish that he has a psychological impairment that would warrant removal from the MIG.

The applicant is not entitled to the OCF-18s in dispute as the full MIG limits have been approved

36Given the entire $3,500.00 funding limit under the MIG have been approved, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

37Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

38For the reasons outlined above, I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG. ii. Given the MIG funding limit have been approved, the OCF-18s in dispute are not payable. iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule. iv. The application is dismissed.