M. G. v. Primmum Insurance Company, 2017 CanLII 33672

16-002951 v Primmum Insurance Company

Date: 2017-04-07 Tribunal File Number: 16-002951/AABS Case Name: 16-002951 v Primmum Insurance Company

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:

M. G. Applicant

and

Primmum Insurance Company Respondent

DECISION

ADJUDICATOR: Chris Sewrattan APPEARANCES: For the Applicant: Maka Metreveli, Paralegal For the Respondent: Jennifer Reid, Counsel Written Hearing: March 9, 2017

Overview

1On October 14, 2014, the applicant attempted to cross the intersection of Keele Street and Sheppard Avenue West in Toronto on foot. As she crossed, a vehicle made an improper right turn, hitting her on her knees and knocking her over. The applicant applied for accident benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

2Primmum Insurance Company (“Primmum”) denied two treatment plans related to psychological and physiotherapy services. The reason, according to Primmum, was the applicant suffered predominantly minor injuries as defined in s. 3 of the Schedule and is subject to a treatment cap of $3,500.00 under s. 18. Treatment of minor injuries is subject to the Minor Injury Guideline. The applicant appeals to the Licence Appeal Tribunal for payment of the two treatment plans.

Issues in Dispute:

3Are the applicant’s injuries predominantly minor injuries subject to treatment within the Minor Injury Guideline?

4Is the applicant entitled to a medical benefit in the amount of $1,546.50 for psychological services, recommended by Svetlana Gabidulina of Vital Back Rehabilitation Centre, in a treatment plan dated February 27, 2015?

5Is the applicant entitled to a medical benefit in the amount of $2,837.60 for physiotherapy services, recommended by Aliya Salayeva of Vital Back Rehabilitation Centre, in a treatment plan dated February 13, 2015?

Result:

6The applicant’s psychological impairment takes her treatment outside of the Minor Injury Guideline.

7The applicant is entitled to payment for the psychological services requested in the treatment plan dated February 27, 2015 because it is a reasonable and necessary expense.

8The applicant is not entitled to payment for the physiotherapy services requested in the treatment plan dated February 13, 2015. There is insufficient evidence that the treatment plan is reasonable and necessary.

Discussion:

The applicant’s severe depression takes her out of the Minor Injury Guideline

9There are two psychological assessments/reports before me. One is from Dr. Svetlana Gabidulina, the psychologist who submitted the treatment plan for psychological services. One is from Dr. Shahriar Moshiri, a psychologist retained by Primmum to conduct an independent medical examination in relation to the applicant’s request for $1,546.50 of psychological services. The two psychologists conducted similar tests that elicited similar though not identical results. The doctors differ in the conclusions drawn from the test results. I consider each doctor’s analysis in turn.

10Dr. Gabidulina interviewed the applicant, reviewed relevant medical documents, and conducted a number of psychological tests. Of the test results, the following were particularly significant:

• Beck Depression Inventory – II: the applicant scored 37, which indicates a severe level of depression;
• Beck Anxiety Inventory: the applicant scored 48, which indicates an extremely severe level of general anxiety; and
• The Davidson Trauma Scale: the applicant scored 113, indicating significant posttraumatic symptomatology involving frequent forceful ideation in the forms of nightmares, flashbacks, memories and thoughts about the accident accompanied by a high level of general agitation and psychophysiological reactions and emotional numbing.

Dr. Gabidulina diagnosed the applicant with the following disorders recognized within the psychological community:

• Major Depressive Disorder, Severe; and
• Situational (isolated) Phobias (automobile anxiety- driver/passenger).

To treat the applicant’s psychological disorders, Dr. Gabidulina recommended 12 sessions of psychological treatment. She submitted the treatment plan for psychological services in dispute to Primmum for the payment of these sessions.

11Dr. Moshiri interviewed the applicant, reviewed relevant medical documents, and conducted a number of psychological tests. During the interview and testing, the applicant denied any issues with depression, anxiety, or anger. Of the test results, the following were particularly significant:

• Beck Anxiety Inventory: the applicant’s numerical score was not listed in the report. Dr. Moshiri commented that it reflected an anxiety level within the severe range;
• Burns Anxiety Inventory: the applicant’s score demonstrated a severe level of anxiety;
• Brief Mood Survey: the applicant’s suicidal urges stand at the lowest end of the spectrum;
• Pain Patient Profile: the applicant scored 42 for depression, 48 for anxiety, and 42 for somatization. This reflects sub average levels on the subscales for these conditions; and
• BDI-II (a 21-item questionnaire designed to measure degrees of depression): The applicant’s score demonstrated a moderate level of depression.

12Dr. Moshiri concluded that the applicant’s condition does not relate to a formal psychological diagnosis. Dr. Moshiri deemed the applicant’s psychological injury to be a minor injury and held that her treatment falls within the Minor Injury Guideline. Given his conclusion, he declined to provide an opinion on whether the treatment plan submitted by Dr. Gabidulina is reasonable and necessary.

13I prefer the conclusion drawn by Dr. Gabidulina over the conclusion drawn by Dr. Moshiri. Dr. Moshiri’s conclusion infers that the applicant does not suffer from a major depressive disorder or a situational type phobia related to automobile anxiety. I find this hard to accept based on his test results. Both anxiety inventories indicate that the applicant suffers from severe anxiety. Coupled with the Pain Patient Profile and the BDI-II, it appears to me that the applicant suffers from major depressive disorder and a situational type phobia related to automobile anxiety. I accept Dr. Gabidulina’s conclusions as credible and supported by the test results.

14I appreciate that the applicant indicated to Dr. Moshiri that she does not believe she has any issues with depression, anxiety, or anger. Dr. Moshiri noted that this contrasts with the results of his anxiety inventories. The discrepancy is reconcilable with common sense. The applicant is not expected to reliably self-diagnose her symptoms or issues. While she may not have believed that she had issues with depression or anxiety, the test results of two accomplished psychologists indicate otherwise. I accept the more objective test results over the applicant’s self-report. For the same reason, I am unconcerned that the applicant did not report issues with depression and anxiety to her treating medical practitioners prior to the submission of Dr. Gabidulina’s treatment plan.

15Primmum submits that Dr. Gabidulina’s conclusion is less worthy of reliance because, unlike Dr. Moshiri, Dr. Gabidulina did not address whether the applicant’s psychological impairment brings her outside of the Minor Injury Guideline. In the context of a hearing before the Licence Appeal Tribunal, the determination of whether a psychological impairment brings a claimant outside of the Minor Injury Guideline is a decision for an adjudicator alone to make. Expert reports are helpful to the extent that they provide an opinion upon which an adjudicator can base his or her determination. I do not require an expert report to provide an opinion on whether an impairment brings a claimant outside of the Minor Injury Guideline. Dr. Gabidulina’s psychological assessment explains how and why she arrived at her diagnoses. I am able to assess how she formed her opinions and place weight on it accordingly. That is all the Tribunal demands. That is all I require. And I find convincing Dr. Gabidulina’s testing methods, testing results, and the opinion she formed from those results.

16Major depressive disorder (severe) and a situational type phobia related to automobile anxiety are psychological impairments caused by the motor vehicle accident. I accept that the applicant suffers from a severe psychological impairment based on the compelling medical evidence of Dr. Gabidulina’s psychological assessment. Looking at all of the applicant’s injuries as a whole, I am convinced that, due to the psychological impairment, the applicant does not suffer from predominantly minor injuries.

17The applicant is removed from the Minor Injury Guideline for psychological reasons. There is insufficient compelling medical evidence to convince me that the applicant’s physical impairment contributes to her removal from the Minor Injury Guideline.

The treatment plan for psychological services is reasonable and necessary

18Dr. Gabidulina’s psychological assessment establishes that the reduction of stress will help alleviate the applicant’s depression and anxiety. This is a reasonable and necessary objective.

19The means by which the treatment plan intends to achieve the objective is also reasonable and necessary. The twelve sessions of psychological treatment will focus on the applicant’s depression and anxiety, pain management and sleep restoration interventions, and behavioral activation strategies with a focus on challenging the applicant’s current rumination. The conclusion of the twelve sessions will be followed by a discharge report.

20In all, the psychological services requested in the treatment plan dated February 27, 2015 are reasonable and necessary. The applicant is entitled to payment for this treatment plan.

There is insufficient evidence that the treatment plan for physiotherapy services is reasonable and necessary

21Since the applicant is removed from the Minor Injury Guideline for psychological reasons, she is entitled to payment for the requested physiotherapy services if she can prove that the treatment plan is reasonable and necessary.

22There is insufficient evidence that the treatment plan is reasonable and necessary. The applicant has submitted medical documentation, primarily clinical notes and records, to establish that she has pain in her hip, knees, and lower back as a result of the motor vehicle accident. In addition, Primmum retained a medical doctor, Dr. Lipson, to conduct an independent medical evaluation of the applicant in relation to the requested physiotherapy services. Dr. Lipson concluded that the applicant sustained uncomplicated sprain/strain injuries of her lumbar spine that were partially to almost fully resolved. There is scant information before me to conclude that the disputed treatment plan has a reasonable objective and method for treating the applicant’s physical condition. Without this information, I cannot conclude that the treatment plan is reasonable and necessary. On this basis, the applicant is not entitled to payment for the physiotherapy services requested in the treatment plan dated February 13, 2015.

Conclusion:

23The applicant is no longer subject to the $3,500.00 coverage limit in s. 18 due to her psychological impairment. She is entitled to payment for the psychological services requested in the treatment plan dated February 27, 2015. She is not entitled to the physiotherapy services requested in the treatment plan dated February 13, 2015.