Applicant satisfies requirement of proving psychological illness- 17-003600 v Aviva General Insurance, 2018 CanLII 76414 (ON LAT)

January 25, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-003600 v Aviva General Insurance, 2018 CanLII 76414 (ON LAT)
 

Date of Decision: April 24, 2018
Heard Before: Adjudicator Marisa Victor

MINOR INJURY GUIDELINES (MIG): cost of psychological assessment denied; applicant used up entire benefits under MIG; applicant proves case; expert witnesses are not ranked on basis of length of time in practice


The applicant was a passenger in a car that was rear-ended on January 13, 2016. She claimed and received accident benefits from Aviva pursuant to the SABs for some of the physical injuries she suffered.     Aviva deemed her injuries to fall within the MIG and her medical and rehabilitation benefits were capped at a value of $3,500. The applicant disputes that her physical and psychological injuries fall within the MIG.

The applicant also applied for a psychological assessment. Aviva denied the request on the basis that the applicant’s injuries are minor injuries and she has used up the $3,500 available. The applicant disputes the denial of the psychological assessment. The applicant is also seeking interest on the overdue benefits and an award for unreasonably withheld payments. She applied to the LAT for resolution of the dispute.

Issues

  1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500 and to treatment within the MIG?
  2. Is the applicant entitled to payment for the cost of examination in the amount of $2,200 for psychological assessment in a treatment plan dated March 30, 2016, denied by Aviva on June 23, 2016?
  3. Is the applicant entitled to interest on any overdue payment of benefits?
  4. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

Result

  1. The applicant has established on a balance of probabilities that the injuries fall outside the MIG, because the extent of her psychological symptoms do not fall within the definition of minor injury
  2. The applicant is entitled to the cost of her psychological examination in the amount of $2,200;
  3. The applicant is entitled to interest on the overdue amount; and
  4. The applicant is not entitled to an award under Regulation 664 because Aviva did not unreasonably withhold or delay payments to the applicant.

The Adjudicator reviewed the Schedule and the MIG and the definitions of minor injury. The Adjudicator then reviewed the medical evidence submitted.

The applicant sought psychological treatment due to the accident. An OCF-18 was submitted and billed in the amount of $2,200 for assessment and completion of the form. The doctor conducted mini-assessment over the phone in order to prepare and support the plan. She found that the applicant was suffering from depression and anxiety and showed symptoms of post-traumatic stress disorder related to motor vehicles. The goal of the plan was to decrease psychological symptoms and return the applicant to activities of daily living. Aviva denied the plan on the basis that the appellant’s injuries are minor injuries.

The Adjudicator reviewed two psychological assessments, the one submitted by the applicant and an IE submitted by Aviva. Both psychologists’ tests produced similar results but different conclusions. Both assessors found that the applicant was forthcoming.

On balance the Adjudicator preferred the evidence of the applicant’s report and accept the diagnosis of adjustment disorder with mixed anxiety and depression and somatic symptom disorder, persistent with predominant pain of moderate severity.

Aviva argued that because the applicant’s psychologist had only been a licensed psychologist for three months, the evidence of the IE should be preferred. There was also no evidence indicating that the applicant’s psychologist’s testing or procedures were flawed, nor that showed the testing or conclusion should be discounted by virtue of that fact that one psychologist has been working for longer. This would lead to an absurd result of expert opinions being supported by the length of time a person has worked, rather than based on an examination of the evidence itself as found in the reports. This submission is rejected.

Since the psychological injuries are outside of the definition of “minor injury”, it is clear the injuries are outside of the MIG. The Adjudicator was also satisfied that the applicant’s injuries were caused by the accident, as both assessors’ conclusions were consistent in this regard.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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