Tribunal File Number: 16-000793/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:
C.M.
Applicant
And
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the Applicant: Tom Yen
Counsel for the Respondent: Kimberly Gruetzman
HEARD: Written Hearing: November 16, 2016
Overview
1The Applicant was injured in a motor vehicle accident on January 24, 2014. He applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The Co-Operators General Insurance Company (“Co-Operators”) denied the applicant’s claim for a psychological assessment.
2The applicant appeals to the Licence Appeal Tribunal (the “Tribunal”) for payment for the psychological assessment, interest on the payment, and a determination that his entitlement to benefits is not subject to the Minor Injury Guideline (“the Guideline”).
Issues in Dispute:
3The following issues are in dispute:
Do the applicant’s injuries fall outside the Minor Injury Guideline?
Is the applicant entitled to $1,995.32 for payment for a psychological assessment submitted by Inner Balance Psychological Services Inc. on May 25, 2015? If the applicant is entitled to payment, any payments already made by Co-Operators will be deducted from the total.
Is the Applicant entitled to interest on outstanding benefits?
Result:
4The applicant’s injuries do not fall outside of the Guideline. As a result, the applicant’s entitlement to benefits is capped at $3,500. If the Guideline allows, the applicant is entitled to payment for the psychological assessment and interest on the outstanding portion.
Discussion:
5I will discuss, first, the applicability of the Guideline;1 second, the applicant’s entitlement to the psychological assessment; and, third, whether interest is owing.
1. The applicability of the Minor Injury Guideline
6I find that the applicant’s psychological impairments and physical injuries are predominantly minor and his entitlement to benefits is subject to the Guideline.
7The applicant points to psychological impairments and physical injuries caused by the motor vehicle accident which are not, in his view, predominantly minor. To explain why I disagree, I will discuss the test relating to the Guideline and the applicant’s psychological impairments and physical injuries.
8The onus is on the applicant to prove that his entitlement to benefits is not subject to the Guideline. The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3.
a. Psychological Impairments
9The applicant’s psychological impairments are subject to the Guideline because there is insufficient medical evidence to prove his case.
10The applicant claims that he suffers from Mixed Anxiety and Depressive Disorder, and a Specific Phobia related to vehicular travel. He anchors his claim in a psychological assessment2 conducted by M.F., a social worker, and supervised by Dr. Yeh, a psychologist.
11I am not persuaded by the conclusions drawn in the psychological assessment. M.F. and Dr. Yeh’s conclusions are too far removed from the test results produced during the assessment. The applicant received the following test scores in the assessment:
Beck Depression Inventory (designed to evaluate symptoms of depression): 10/63, indicating a minimal level of symptoms in several domains
Beck Anxiety Inventory (designed to evaluate symptoms of anxiety): 10/63, indicating a mild level of anxiety.
Pain Patient Profile (designated to assess the experience associated with physical pain or health issues): The applicant’s score was not above the average range for pain patients
The above three tests are the only objective measurements taken in the psychological assessments. I do not see how a reasonable person, mindful of the applicant’s test scores, can conclude that the applicant suffers from Mixed Anxiety and Depressive Disorder as well as a Specific Phobia related to vehicular travel.
12I am mindful that the above three test results are not the only data collected by M.F. and Dr. Yeh. The assessors also interviewed the applicant, during which they recorded subjective impressions about his answers, demeanor, and attitude. The assessors’ subjective impressions carry far less weight, in my view, than do the three industry-recognized psychological tests. The failure of M.F. and Dr. Yeh to explain how they reconciled the test results with their conclusions causes me to place very no weight on their opinions.
13The applicant also relies on the Treatment and Assessment Plan that was submitted to Co-Operators for payment for the psychological assessment. The Treatment and Assessment Plan was prepared by M.F. and Dr. Yeh. I am again unable to rely on the conclusions drawn by M.F. and Dr. Yeh. The explanation provided in the Treatment and Assessment Plan is based on an interview between the applicant and M.F. who, again, is a social worker and not a psychologist. From this interview, M.F. (and Dr. Yeh) concluded that the applicant “sounded agitated and depressed”. I am not persuaded that this methodology and the conclusions drawn from it are sufficiently sound for reliance. The methodology appears to be anecdotal and the conclusions almost entirely subjective. In fairness, M.F. and Dr. Yeh may not have foreseen that the applicant would rely on their interview and brief explanation as proof of a psychological injury. However, that has happened, and I am unable to rely on their opinion.
14The applicant has provided affidavits from himself and his girlfriend documenting the applicant’s struggles with psychological issues. I do not doubt the sincerity of the affidavits. However, without a credible medical opinion providing a basis to indicate the existence of a psychological impairment, I am unable to conclude that the applicant suffers from a psychological impairment that is not subject to the Guideline.
15In response to the applicant’s submissions, Co-operators provides a psychological report and addendum from Dr. Hines. I find that the applicant has failed to prove that he suffers from an injury that is not predominantly minor. Although I have considered Dr. Hines’ material, I do not need to discuss it.
b. Physical Injury
16I am not satisfied that the applicant suffers from a physical injury that is not predominantly minor. The applicant submits that he suffers from “chronic mid back pain”. The submission is based on a single clinical note from his new family physician, Dr. Vellathottam. It is unclear whether the note of “chronic mid back pain” is a diagnosis or a notation of what the applicant said. Even if the note is a diagnosis, there is no explanation its foundation. In order to find that the applicant suffers from chronic mid back pain, I need an explanation for the diagnosis. I would then go on to consider whether chronic mid back pain is an injury that is not predominantly minor. I cannot look past Dr. Vellathottam’s note because nothing more is provided.
17Co-Operators provided an orthopaedic report and addendum from Dr. Martin. The report and addendum provide further support for my conclusion, though I do not need to rely on them for my decision.
18In conclusion, the applicant’s entitlement to benefits is subject to the Guideline.
2. The applicant’s general entitlement to the psychological assessment
19The applicant is entitled to payment for the psychological assessment (less any partial payment already made) if there are remaining funds for payment within the Guideline.
20The Applicant’s entitlement to the psychological assessment under the Guideline does not require him to prove that the assessment is a reasonable and necessary expense. If I am wrong in my conclusion that the Applicant’s entitlement to benefits is subject to the Guideline, I would still conclude that the psychological assessment is a reasonable and necessary expense. I base this conclusion on the Treatment and Assessment Plan submitted by M.F. and Dr. Yeh. Although the explanation in the Treatment and Assessment Plan is not enough to prove that the applicant’s entitlement to benefits is beyond the Guideline, it is enough to prove the more limited question of whether the assessment is a reasonable and necessary expense. M.F. and Dr. Yeh’s assessment of the applicant shows that it was reasonable and necessary to assess whether the applicant suffers from a psychological impairment.
3. Interest
21If the Applicant has not used all of the $3,500 to which he is entitled under the Guideline and Co-Operators pays for the psychological assessment, then interest is payable on the outstanding portion in accordance with s. 51 of the Schedule.
Conclusion
22If the Applicant has not used all of the $3,500 to which he is entitled under the Guideline, he is entitled to payment for the psychological assessment with what remains of the unused portion.
Released: June 13, 2017
________________________
Chris Sewrattan
Adjudicator
Footnotes
- It is unclear from the parties’ submissions whether the application of the Guideline is a barrier to payment for the psychological assessment. I will assume that it is not and analyze the Guideline’s applicability as a standalone issue.
- This is the psychological assessment for which payment is in dispute.