Tribunal File Number: 18-000549/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:
H.I.
Appellant
and
Aviva General Insurance
Respondent
DECISION
PANEL: Raj Sharda, Adjudicator
APPEARANCES:
For the Applicant: H.I., Applicant Jeton Memeti, Paralegal
For the Respondent: Patrick M. Baker, Counsel
HEARD In Writing on: September 4, 2018
OVERVIEW
1The applicant was involved in an automobile accident on September 15, 2016, (“the accident”) and sought medical benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)1. The applicant was denied medical benefits and cost of examinations by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
2The applicant’s position is that the recommended treatment plans for chiropractic therapy and the unpaid portions of the psychological assessment are reasonable and necessary. She relies on medical evidence that, she submits, supports her position that she requires continued facility based treatment in the form of physiotherapy to achieve maximum recovery.
3The respondent’s denial is based on its position that the applicant’s physical injuries are minor and subject to the restrictions on recovery of $3,500 as specified in the Minor Injury Guideline (the “MIG”). Although the respondent removed the applicant from the MIG due to the applicant’s psychological impairment, the applicant has not proven the treatment plans are reasonable and necessary.
4The respondent submits that the applicant is therefore not entitled to payment for the treatment plans, interest or an award under section 10 of Regulation 664, Automobile Insurance (“Regulation 664”).
ISSUES IN DISPUTE
5The issues before the Tribunal are:
i. Is the applicant entitled to payment for the cost of examination in the amount of $503.90 for the balance of a psychological assessment recommended by Dr. P. in a treatment plan (OCF-18) for $2,200.00 submitted on February 22, 2017, that the respondent partially approved in the amount of $1,696.10 on April 4, 2018?
ii. Is the applicant entitled to a medical benefit in the amount of $895.33 for psychological services recommended by Dr. P. in a treatment plan (OCF-18) for $3,129.48 submitted on May 15, 2017, that the respondent partially approved in the amount of $2,234.18 on April 3, 2018?
iii. Is the applicant entitled to a medical benefit in the amount of $3,939.43 for chiropractic treatment recommended by [Rehab] in a treatment plan (OCF-18) submitted on December 9, 2016, and denied on December 12, 2016?
iv. Is the applicant entitled to a medical benefit in the amount of $2,625.11 for chiropractic treatment recommended by [Rehab] in a treatment plan (OCF-18) submitted on March 21, 2017, and denied on March 22, 2017?
v. Is the applicant entitled to a medical benefit in the amount of $2,267.98 for chiropractic treatment recommended by [Rehab] in a treatment plan (OCF-18) submitted on May 18, 2017, and denied on June 2, 2017?
vi. Is the applicant entitled to a medical benefit in the amount of $2,042.36 for chiropractic treatment recommended by [Rehab] in a treatment plan (OCF-18) submitted on July 5, 2017, and denied on July 18, 2017?
vii. Is the applicant entitled to a medical benefit in the amount of $1,750.98 for chiropractic treatment recommended by [Rehab] in a treatment plan (OCF-18) submitted on September 12, 2017, and denied on September 20, 2017?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ix. Is the applicant entitled to an award under Regulation 664 on the basis that the respondent unreasonably withheld or delayed the payment of benefits?
Background
6The applicant was involved in a motor vehicle accident on September 15, 2016. She was a passenger with her husband driving their car which was rear-ended on highway 410.
7As a result of the accident she visited her family doctor, Dr. K. Dr. K’s notes confirmed that she suffered from neck strain and pain as well as back pain. The pain was noted in Dr. K’s medical notes from September 27, 2016 to October 4, 2017, the last dated medical note provided. Dr. K ’s notes confirm neck, back and TMJ pain throughout this period. He prescribed physiotherapy and Tylenol 3 for the neck and back pain.
8Although the applicant suffered from pain, she continued to work following the accident as she was the only one bringing in income as her husband was also injured in the car accident.
9The applicant’s psychological diagnosis of depression and post traumatic anxiety was confirmed by the insurer examination (IE) of Dr. D. when he confirmed the partial approvals for a psychological assessment and psychological treatment sessions.
10The respondent takes the position that there is little medical evidence that the applicant should be removed from the MIG limits for physical treatment, and its IE reports confirm that she has only suffered minor injuries and as such is not entitled to the benefits requested in issues numbered 5 (iii) – (vii) above. Further, that in the event the MIG limits do not apply then the medical benefits requested are not reasonable and necessary.
11The respondent takes the position on issues 5 (i) and (ii), that other than what has been approved by the respondent based on its psychological IE reports the remaining psychological benefits requested are not reasonable and necessary.
RESULT
12For the reasons that follow, I order that:
a. The applicant’s injuries are not within the MIG;
b. I find that the unapproved portions of the treatment plans in issues 5 (i) to (vii) are reasonable and necessary;
c. The applicant is entitled to interest on any overdue amounts payable; and
d. The applicant is not entitled to an award.
ANALYSIS AND FINDINGS
Do the applicant’s injuries fall within the MIG?
13The respondent’s position is that the applicant’s entitlement to the medical benefits for physical treatment falls within the MIG even though the respondent has approved psychological services in excess of the MIG limits.
14I find that the respondent’s argument that the MIG limits are applicable separately for psychological services and physical therapy benefits is not supported by sections 14, 15 and 18 of the Schedule.
15Section 3 of the Schedule provides the following definition of a minor injury:
“minor injury” means 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”.
16The Schedule prescribes:
i. Section 14 states that, except as otherwise provided in this regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
(a) Medical and rehabilitation benefits under sections 15 to 17.
ii. Section 15(1) states that, subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on the behalf of the insured person as a result of the accident for, among other things, chiropractic, psychological, occupational therapy and physiotherapy services.
iii. Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence documented by a health practitioner before the accident that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments (e.g. a diagnosis of chronic pain or a psychological impairment) can remove an individual from the MIG in certain circumstances.
17The applicant was diagnosed with a psychological impairment and as such would be removed from the MIG due to this impairment which is not predominately a minor injury under s. 18(1).
18The respondent acknowledges that the applicant was removed from the MIG on the extent of the applicant’s psychological injuries given her diagnosis of depression and post traumatic anxiety as confirmed in the IE. As such, the application of the MIG is not available as a ground for denying the medical benefits claimed. Therefore, the appropriate test is whether the treatment plans claimed are reasonable and necessary.
Are the medical benefits requested in 5 (iii) to 5 (vii) reasonable and necessary?
19The remaining issue is whether the treatment plans sought by the applicant are reasonable and necessary.
20I find for reasons given below that the treatment plans listed in issues 5 (iii) to (vii) are reasonable and necessary.
21The applicant’s family doctor’s notes at tab 21 of the applicant’s submissions show that the applicant visited her family doctor as and when needed prior to the accident. From the accident up until October 4, 2017, the applicant continued to complain of neck and back pain. The goal of the treatment plans for chiropractic services is to reduce the applicant’s complaints of pain and assist in her pain management.
22These notes also indicate that the applicant is the sole income earner for her household and hence required the pain management to continue to work. The applicant has continued to work as a result of the services requested.
23I find that pain reduction is the main purpose of the treatment plans in dispute. The family doctor’s notes did confirm that the applicant’s range of motion was not hindered; however, her neck and back pain persist.
24Dr. M., who conducted an IE, insists that the applicant’s injuries in his opinion should support the finding of minor injuries and that therefore the applicant should remain within the MIG. Dr. S. in his IE report states that based on Dr. M.’s IE report and Dr. Ma’s psychological IE report, the applicant did suffer from minor injuries as a result of the accident and had recovered from them. However these reports all predate the IE by Dr. D. finding that the applicant does suffer from a psychological impairment that removes her from the MIG.
25Furthermore, the applicant’s pain has continued for over a year and Dr. D’s finding that the applicant suffered from a psychological impairment contradicts the IE’s findings the applicant has only minor injuries and therefore should be held within the MIG with respect to her physical impairments.
26I find that the applicant has continued to suffer from neck and back pain. The applicant continually reported neck and back pain to her family doctor through 2017 to late 2018, which was well past the date of the denial of the treatment plan referred to in issue 5 (vii).
27This finding is based in part on the fact that the applicant incurred the treatment plans and benefited from the services received to the extent that she could continue to work and support her family.
28I therefore find that the issues in dispute in paragraph 5 (iii) to (vii) are reasonable and necessary.
Are the remaining psychological services referred to in issues 5 (i) to (ii) reasonable and necessary?
29Dr. D. conducted an IE of the applicant on March 22, 2018 and concluded that she was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
Psychological Assessment
30Dr. D. partially approved the cost of examination referred to in issue 5 (i) for the purpose devising a plan well-tailored to the applicant’s accident-related psychological symptoms.
31Dr. D. then suggested that the psychological treatment referred to in issue 5 (ii) is partially reasonable and necessary. He further concluded that psychological treatment is warranted with the goal of reducing the applicant’s accident-related psychological symptoms.
32Dr. D. also concluded that on depression and anxiety scales, the applicant is likely to cope poorly with her pain. Notwithstanding this conclusion, Dr. D. does not explain why a partial approval would better achieve the creation of a “plan well-tailored to the applicant’s accident related psychological” as opposed to the full assessment requested by the applicant.
Psychological Treatment
33Dr. D. found that the applicant is likely to cope poorly with pain on the depression and anxiety scales, based upon which he made his diagnosis above. Having made this finding Dr. D., did not explain how the partial treatments he approved were reasonable and necessary, as opposed to the full treatment plan which he found were not reasonable and necessary particularly since he concludes that the applicant would cope poorly due to her pain.
34I find that Dr. D’s failure to explain why the partial approval for the psychological treatment sessions would benefit the recovery of the applicant as opposed to the full number of treatments requested.
35Therefore, I conclude that the total assessment and treatment sessions requested by the applicant would have a better likelihood to permit the applicant recover from her accident-related psychological injuries. I therefore find that the outstanding amounts for the cost of examination for a psychological assessment and the medical benefit for psychological services are reasonable and necessary.”
Award
36I do not find any facts to suggest that the respondent unreasonably withheld or delayed payments such that an award would be warranted, the respondent acted reasonably on the basis of the IE reports it received.
CONCLUSION
37Based upon the reasons and findings above, I conclude that the applicant continued to suffer from neck and back pain as a result of the accident up to October 2017. The applicant further continued to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood diagnosed in March of 2018, for which psychological assessment sessions and treatments were partially approved.
38The Tribunal therefore approves the assessment and treatments sought by the applicant under issues 5 (i) to (vii), and the applicable interest on these benefits as requested in issue 5 (viii).
39Based upon my findings above, the award sought in issue 5 (ix) is denied.
ORDER
40I therefore approve the assessment and treatments sought by the applicant under issues 5 (i) to (vii), and the applicable interest on these benefits as requested in issue 5 (viii).
41I deny the applicant’s request for an award.
Released: May 29, 2019
Raj Sharda
Adjudicator