D.P. v. Aviva General Insurance Company, 2015 CanLII 153650

Licence Appeal Tribunal

Tribunal File Number: 17-004947/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:

D.P. Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Heather Trojek

Counsel for the Applicant: Victoria Tchilikova, Paralegal for the Applicant Counsel for the Respondent: Paul Omeziri, Counsel for the Respondent

Heard in writing on: May 1, 2018

OVERVIEW

1D.P. {the “applicant”) was involved in an automobile accident on June 26, 2015 and submitted an application for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'') to the respondent.

2The respondent denied the applicant’s entitlement to medical treatment and examination expenses on the basis that she sustained a minor injury and was subject to the $3,500.00 cap for treatment under the Minor Injury Guideline (the “MIG”). The respondent also found the treatment plans were not reasonable and necessary.

3The applicant disagreed with the respondent and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The applicant seeks a determination that her injuries are not predominately minor because she has a pre-existing medical condition, sustained a psychological injury and developed chronic pain as a result of the accident.

4The applicant has exhausted the $3,500.00 available to her for treatment under the MIG.

5This matter proceeded by way of written hearing. The hearing was delayed pending the reconsideration of a motion decision I rendered regarding the admittance of certain medical reports into evidence. The applicant’s request for reconsideration was dismissed. I proceeded accordingly with the hearing.

ISSUES TO BE DECIDED

6I have been asked to decide the following issues:

i. Did the applicant sustain a predominantly minor injury?

7If the applicant’s injuries are not predominately minor, then:

ii. Is the applicant entitled to payment for physiotherapy recommended by Dr. O.P. of [Healthcare Inc.] in the following treatment and assessment plans (OCF-18’s)?

(a) OCF-18 dated September 21, 2015 in the amount of $1,861.00.

(b) OCF-18 dated October 27, 2015 in the amount of $1,361.60.

(c) OCF-18 dated March 21, 2016 in the amount of $1,151.20.

iii. Is the applicant entitled to the payment for the following assessments and treatment plan recommended by [Healthcare Inc.]?

(a) OCF-18 dated September 19, 2015 a psychological assessment in the amount of $1,855.39?

(b) OCF-18 dated June 3, 2016 for psychological treatment in the amount of $1,540.62?

(c) OCF-18 dated November 6, 2015 for a chronic pain assessment in the amount of $2,000.00?

(d) OCF-18 dated December 29, 2015 for a neurological assessment in the amount of $2,000.00?

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

RESULT

8I find:

i. The applicant sustained psychological injuries which are not predominantly minor as defined by the Schedule;

ii. The treatment plans for a psychological assessment, psychological treatment and chronic pain assessment are reasonable and necessary;

iii. The applicant is not entitled to the three physiotherapy treatment plans in dispute or the cost of the neurological assessment because she has failed to establish that they are reasonable and necessary; and

iv. If applicable, the applicant is entitled to interest on the assessments and treatment which I have determined are reasonable and necessary.

Minor Injury Guideline

9The term “minor injury” is defined in section 3(1) 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.”

10The amount of funding for medical and rehabilitation benefits for applicants who sustain a predominantly minor injury is capped at $3,500.00.

11Based on my review of the evidence, I find that the applicant has proven, on a balance of probabilities, that she sustained psychological injuries which remove her from the MIG.

ANALYSIS

Did the applicant sustain a predominately minor injury?

Psychological Injuries

12The applicant submits that she sustained psychological injuries which fall outside definition of “minor injury” in the Schedule and therefore should be removed from the MIG. I agree.

13I accept the reports of Dr. S, registered psychologist, dated September 14, 2015 and March 22, 2016, upon which the applicant relies. Dr. S. finds that, as a result of the accident, the applicant suffers from adjustment disorder with anxiety, major depressive disorder and a phobia of driving in a vehicle. I accept Dr. S’s diagnosis of the applicant for the following reasons:

i. It is supported by psychometric tests completed by the applicant. The applicant attended a full psychological assessment supervised by Dr. S. on March 7, 2016. The applicant completed three psychological tests during her assessment; the Beck Depression Inventory–II where she scored in the moderate range; the Beck Anxiety Inventory where she scored in the severe range level and the Symptom Checklist – 90 revised, which revealed that she had considerable levels of emotional distress;

ii. The applicant was consistent in the reporting of her somatology. The applicant reported the same symptoms to Dr. S. and as she did to the psychologists (Dr. A.S. and Dr. M.) who assessed her on behalf of the respondent. The applicant complained to all assessors of being irritable, frustrated, depressed and anxious. In December 2015, for instance, the applicant complained to Dr. A.S. of irritability in terms of yelling at her husband and daughter when she was in pain. The applicant also complained of sleepiness, fatigue, being in constant pain and of excessive worry.

iii. The frequency and continuity of the applicant’s complaints of physical pain and depression to her family doctor after the accident support Dr. S’s diagnosis. From June to December 2015, the applicant visited her family doctor on eleven occasions and complained either of back pain, left leg pain, headaches and/or dizziness. The respondent argues that I should not put significant weight on this evidence because the applicant made similar complaints to her family doctor prior to the accident. I do not agree. The record shows that the applicant’s complaints of pain to her family doctor in 2014, the year prior to the accident, were less frequent than they were after the accident.

iv. The applicant also advised her family doctor that she was experiencing psychological distress. According to his clinical notes and records (CNRs), the applicant told Dr. P. on June 16, 2016 that she feels sad and cries all the time. Dr. P. believed that the applicant might have mild depression and discussed cognitive behavioural therapy and supportive counselling with her. The complaints made to the her family doctor and his advice in terms of treatment, supports that the applicant sustained a psychological impairment as a result of the accident and would benefit from treatment;

v. The applicant’s inability to perform her activities of daily living - including not returning to her full-time employment² after the accident supports that she sustained a psychological impairment requiring treatment beyond that available under the MIG. The applicant returned to her part-time job working as a hostess immediately after the accident but did not the return to her full-time job as a cook until February or March of 2016.

14The respondent argued that the applicant did not sustain psychological injuries as a result of the accident. It relied on the December 11, 2015 report of Dr. A.S., to refute the applicant’s claim. Dr. A.S. found the applicant’s psychological distress to be sub-clinical. I was not persuaded by Dr. A.S’s report. I found that Dr. A.S. gave little consideration in her assessment to the applicant’s complaints of pain and her inability to return to her full-time employment following the accident. Dr. A.S’s failure to address the applicant’s pain symptoms and inability to return to her full-time employment significantly undermined the weight I gave to her findings.

15In addition, Dr. A.S’s opinion is not supported by the psychometric testing she conducted as part of her assessment of the applicant. For instance in the Pain Catastrophizing Scale, the applicant scored at high risk for rumination and helplessness. In the Survey of Pain Attitude (SOPA), the applicant scored as impaired in the areas of control, emotion, disability and harm. I was not persuaded by Dr. A.S’s report because she failed to explain why, despite the findings of a number of psychometric tests, she still found the level of the applicant’s psychological distress to be sub-clinical.

16I find on a balance of probabilities, that the applicant has psychological injuries which would remove her from the MIG. Having made this finding, I do not need to address the applicant’s other submissions regarding her pre-existing medical condition and chronic pain.

DISPUTED TREATMENT PLANS

Psychological Treatment, Psychological and Chronic Pain Assessment

17I must now determine whether the treatment plans in dispute are reasonable and necessary. Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of an accident.

18Having found that the applicant suffers from anxiety and depression as a result of the accident and has struggles to perform her activities of daily living, I find the psychological assessment and treatment recommended by [Healthcare] to be reasonable and necessary.

19Due to the applicant’s consistent and ongoing complaints of pain since the accident, I find it reasonable and necessary for her to have a chronic pain assessment. In making this determination I gave significant weight to the continuity, consistency and frequency of the applicant’s complaints of diffuse body pain to her family physician and the other medical practitioners who have assessed her since the accident. The applicant attended an IE conducted on October 12, 2017, by Dr. G., a physician. Despite three years having elapsed since the accident, the applicant reported to Dr. G. that her pain has not improved and, in fact, has increased since the accident.

Physiotherapy and Neurological Assessment

20I do not find that the applicant has established, on a balance of probabilities, that she requires ongoing physiotherapy or a neurological assessment as a result of the accident. My decision is based on self-reports from the applicant and on the opinions of two orthopedic surgeons, Dr. K. and Dr. D.. Based on this evidence I find, on a balance of probabilities, that the treatment/assessment in dispute will not result in any improvement or progress, including the reduction of pain, and are therefore not reasonable and necessary.

21The three physiotherapy treatment plans that are in dispute recommend the applicant receive massage therapy, passive physiotherapy, acupuncture (laser) and functional exercise. These are the same types of treatment the applicant received at [Healthcare] prior to exhausting the MIG limits. Despite receiving this treatment, the applicant reports that her condition did not improve. On August 6, 2015, the applicant told Dr. P. that massage and acupuncture have not been helpful in alleviating her pain. She also reported to Dr. G., in October, 2017 that the six months of treatment she received at [Healthcare] was not helpful and did not result in any improvement. In light of the applicant’s statements, I find that the three treatment plans in dispute would not reduce or eliminate the applicant’s pain, and as such are not reasonable and necessary.

22My finding is supported by the medical opinions of orthopedic surgeons, Dr. K. and Dr. D., who assessed the applicant on August 20, 2015 and November 27, 2015, respectively. Both doctors opined that the applicant sustained uncomplicated soft tissue injuries in the accident and concluded that additional physiotherapy treatment was not reasonable and necessary. I accept the opinions of Dr. K. and Dr. D., who are both orthopedic specialists, over that of Dr. P., who completed the treatment plans in dispute, and is a chiropractor. I find that the evidence does not indicate that the applicant would experience a reduction in pain or an increase in function by continuing to participate in passive treatments, such as massage and acupuncture, which she has already received and reports to have gained little, if any, benefit from.

23The results of diagnostic imaging and the lack of neurological symptoms reported by the applicant do not support, in my view, that a neurological assessment is reasonable and necessary.

24In her submissions, the applicant argues that she requires a neurological assessment because she struck her head in the accident and experiences headaches. In order to investigate her headaches and complaints of dizziness and blurry visions, Dr. P. referred the applicant to an optometrist in July 2015. Her examination was unremarkable. Dr. P. also referred the applicant for a CAT scan of her head. The results of the applicant’s November 6, 2015 CAT scan were normal.

25In addition, the physical examinations of the applicant conducted by Dr. K. and Dr. D. revealed no signs or symptoms that would suggest that there is a neurological component to her injuries.

INTEREST

26If the expenses have been incurred, the applicant is entitled to interest in accordance with s. 51 of the Schedule at the prescribed rate for the treatment and assessment plans I found to be reasonable and necessary: a psychological assessment, a chronic pain assessment and psychological treatment.

CONCLUSION

27For the reasons outlined above, I find that:

a. As a result of her psychological injuries, the applicant did not sustain a predominately minor injury.

b. The applicant is entitled to the cost of a psychological assessment, chronic pain assessment and psychological treatment.

c. The applicant is not entitled to the three disputed treatment plans for physiotherapy or for the cost of neurological assessment.

d. If applicable the applicant is entitled to interest on the assessment and treatment plan I have found to be reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10.
2. 2Psychological Report of Downsview Health dated March 22, 2016, page 4, Tab 2 of Applicant’s Hearing Brief.