Tribunal File Number: 16-002346/AABS
Case Name: 16-002346 v Unifund Assurance 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:
Applicant
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
For the Applicant: Francesco Blasi, Counsel
For the Respondent: Stacey Hsu, Counsel
HEARD: Written Hearing: March 6, 2017
Overview:
1The applicant was injured in a motor vehicle accident on January 19, 2016. He submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act dated August 29, 2016.
2Case conferences were held on November 30, 2016 and February 1, 2017. The resulting Orders outline the issues in dispute:
a. Is the applicant entitled to receive a medical benefit in the amount of $3,129.48 for psychological treatment, recommended by Dr. Pilowsky in a treatment plan dated June 27, 2016 and denied on August 18, 2016?
b. Is the applicant entitled to receive a medical benefit in the amount of $350.10 for medical services, recommended by Vcare Physio & Rehab in a treatment plan dated May 30, 2016 and denied on June 10, 2016?
c. Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Pilowsky in a treatment plan dated April 20, 2016 and denied on July 12, 2016?
d. Is the respondent liable to pay an award under regulation 664 because it unreasonably withheld or delayed payments to the applicant?
e. Is the applicant entitled to interest on any overdue payment of benefits?
3These issues form the basis of this written hearing. I did not comment on whether the applicant’s injuries are subject to the Minor Injury Guideline despite receiving submissions that included a discussion on that issue. I can only assume that if the parties wanted me to contemplate this issue, then it would have been added to the list of issues in dispute at one of the previous case conferences.
Result:
4The applicant is entitled to a payment in the amount of $3,129.48 for psychological treatment, recommended by Dr. Pilowsky in a treatment plan dated June 27, 2016.
5The applicant is entitled to receive a payment in the amount of $350.10 for medical services, recommended by Vcare Physio & Rehab in a treatment plan dated May 30, 2016, with interest payable on any amount incurred.
6The applicant is entitled to a payment in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Pilowsky in a treatment plan dated April 20, 2016.
7The respondent is not liable to pay an award under regulation 664 to the applicant.
Discussion:
8The applicant is 25 years old. At the time of the accident, he was attending Humber College on a part-time basis studying in the accounting program. He drove a taxi in November and December 2015 at a rate of approximately 20 hours per week but stopped so he could attend college.
9On January 19, 2016, the applicant was travelling northbound in the left lane on Hwy 27 at Humber College Boulevard. An accident occurred when a vehicle attempted to merge into the applicant’s lane, striking the passenger side of his vehicle and causing him to strike the centre divider.
10On January 22, 2016, the applicant went to see his family Doctor, Dr. Bibi, who noted the following: “post mva…hit head, no loss of consciousness, bruising now present, pain head, had headache, no n/v, no dizziness.” Dr. Bibi also noted that the applicant looked tired/anxious, decreased neck and recommended Tylenol and reassurance physio.
11On February 22, 2016, an initial Disability Certificate (OCF-3) was submitted by Dr. Saleem (Family Physician) who noted the following injuries and impairments as a direct result of the motor vehicle accident: whiplash neck, PTSD, headaches, and lower back pain.
12A subsequent Disability Certificate (OCF-3) was submitted by Dr. Saleem on May 30, 2016, wherein he noted the following injuries and impairments as a direct result of the motor vehicle accident: neck pain/whiplash, PTSD/Anxiety, headaches, and lower back pain. Dr. Saleem then recommends a psychiatrist.
Psychological Assessment and Treatment Plan
13There are two psychological assessment/reports before me. One is from Dr. Pilowsky, the psychologist who submitted the treatment plan for psychological services. The other is from Dr. Koepfler (which included an addendum), a psychologist retained by the respondent to conduct an independent medical examination in relation to the applicants request for benefits.
14Dr. Pilowsky interviewed the applicant, reviewed relevant medical documents and conducted a number of psychological tests. The tests can be summarized as follows:
The Beck Depression Inventory – II: The applicant scored 25, which is consistent with moderate levels of depression;
The Beck Anxiety Inventory: The applicant scored 30, which reflects severe levels of anxiety;
Pain Catastrophizing Scale: The applicant scored at over the 90th percentile which suggest a significantly elevated score indicative of increased risk to develop Somatoform Disorder and pain chronicity.
15Dr. Pilowsky diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. To treat the applicant’s psychological disorders, Dr. Pilowsky recommended 12 sessions of psychological treatment.
16Dr. Koepfler interviewed the applicant, reviewed relevant medical documents and conducted a number of psychological tests. Of the test results, the following were particularly significant:
Pain Symptoms Ratings: The applicant achieved more elevated scores than 97 percent of the normative sample…which suggests that his self-report of pain and impairment is invalid due to symptom magnification;
Modified Somatic Perceptions Questionnaire: The applicant score of 24 is far above the cut off point for this test reflecting a broad tendency to magnify his difficulties;
Revised Oswestry Functional Assessment Questionnaire: The applicant’s score off 55 percent places him in the severe range of self-perceived limitations due to pain and is inconsistent with his self-reported daily activities.
17Dr. Koepfler concluded that he did not have sufficient, valid or reliable data on which to base a DSM-IV diagnosis due to the applicant’s tendency to broadly magnify his difficulties. He further concluded that he saw no indication that the applicant currently suffers a significant psychological impairment that is significant or compelling enough to require psychological treatment. He therefore, could not confirm Dr. Pilowsky’s diagnosis.
18The respondent submits that I should give more weight to Dr. Koepfler’s report for the following reasons. Firstly, the applicant does not take any medication or receive any psychological treatment for his impairment. Secondly, Dr. Pilowsky does not reconcile her diagnosis with the applicant’s ability to continue to work as a taxi driver. Thirdly, the respondent submits that Dr. Pilowsky’s findings are inconsistent with the applicant’s post-accident functioning, socializing and work schedule.
19I prefer the evidence of Dr. Pilowsky and conclude that the applicant has met his onus in establishing that the psychological assessment and corresponding treatment is reasonable and necessary.
20Firstly, although the applicant has not taken any medication or received any psychological treatment for his impairment, he did submit a treatment plan for psychological treatment approximately 6 months after the accident. This treatment plan was denied by the respondent. Secondly, I do not find it necessary that Dr. Pilowsky reconcile her diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood with the applicant’s ability to continue to work as a taxi driver even if the applicant is working more hours now than he did before the accident. Dr. Pilowsky’s diagnosis clearly takes into account the fact that the applicant returned to work as a taxi driver. It is also clear that at the time of the assessment, Dr. Pilowsky understood that the applicant had returned to work at a rate of approximately 35 hours per week. I do not feel that her analysis was lacking in this regard. Thirdly, although the applicant has returned to work, school and socializing, I find that he does so with difficulties. Dr. Pilowsky’s report outlines those difficulties and the way in which the applicants attempts to cope with those difficulties. Dr. Pilowsky’s report is clear that these aspects of the applicant’s life have been negatively impacted by his psychological condition.
21Finally, it would have been helpful to me if Dr. Koepfler provided a more thorough analysis with respect to his conclusion that the applicant exemplified a tendency to broadly magnify his difficulties with Dr. Pilowsky’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood as it is common for someone with anxiety to magnify their symptoms.
22Again, I prefer the evidence of Dr. Pilowsky and find that the applicant has met his onus in establishing that the psychological assessment and corresponding treatment is reasonable and necessary.
Physical Rehabilitation Plan
23There is sufficient evidence before me to establish that the treatment plan, which was partially approved by the respondent on or about June 10, 2016, is reasonable and necessary. The applicant has submitted medical documentation to establish that the he has pain in his left shoulder, left knee, neck, shoulders and back as a result of the motor vehicle accident.
24The stated goals of the treatment plan are: pain reduction, increase in strength and to return to activities of normal living. The objectives and method for treating the applicant’s physical condition are reasonable.
25As noted in Dr. Koepfler’s report, the applicant has been receiving physical treatment for his injuries for some time now and has reported a 40 percent improvement in his condition.
26Dr. Walters, a general practitioner retained by the respondent to conduct an independent medical examination in relation to the applicants request for benefits, noted some persisting pain in the left knee during his May 30, 2016 assessment.
27As a result, I find that the subject treatment plan is reasonable and necessary and interest is awarded on any amount incurred.
Award under regulation 664
28Section 10 of Ontario Regulation 664, R.R.O. 1990 states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which the an insured person is entitled, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award with interest.
29In this case, the applicant submits that he is entitled to a special award because the insurer’s adjuster erred when it denied the proposed psychological assessment notwithstanding the injuries and impairments noted in Dr. Pilowsky’s report. The test for a special award is whether the insurer gave reasonable consideration to all the information then available to it in assessing a claim. An insurer will not face a special award just because an arbitrator finds that the insurer got it wrong. In this case, I find that the insurer gave reasonable consideration to all the information available to it when it considered the proposed psychological assessment. As a result, an award is not warranted in the circumstances of this case.
Conclusion
30For the reasons outlined above, I find that:
a. The applicant is entitled to receive a medical benefit in the amount of $3,129.48 for psychological treatment, recommended by Dr. Pilowsky in a treatment plan dated June 27, 2016 and denied on August 18, 2016.
b. The applicant is entitled to receive a medical benefit in the amount of $350.10 for medical services, recommended by Vcare Physio & Rehab in a treatment plan dated May 30, 2016 and denied on June 10, 2016 with interest payable on any amount incurred.
c. The applicant is entitled to payments for the cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Pilowsky in a treatment plan dated April 20, 2016 and denied on July 12, 2016.
d. The respondent is not liable to pay an award under regulation 664 because it unreasonably withheld or delayed payments to the applicant.
Released: November 22, 2017
___________________________
Paul Gosio, Adjudicator