Tribunal File Number: 16-001732/AABS
Case Name: 16-001732 v Wawanesa Mutual 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:
Applicant
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Markovits
APPEARANCES:
For the Applicant: Nicole Corriero, Counsel
For the Respondent: Anju Sharma, Counsel
HEARD: Written Hearing: May 8, 2017
Overview
1The applicant, [the applicant], was injured in a motor vehicle accident on December 22, 2015. He applied for accident benefits to Wawanesa Mutual Insurance Company (Wawanesa) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied a claim for a medical benefit on the basis that it found that [the applicant] had reached maximum medical recovery and the treatment plan was not reasonable or necessary.
2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on October 31, 2016, and the matter proceeded to this written hearing.
3The dispute over the medical benefit centres on the nature and extent of the applicant’s injuries. The applicant submits that his injuries are extensive and that he is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to s. 18(3) of the Schedule. The respondent takes the position that his injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. According to Wawanesa, the applicant has exhausted the $3,500 and it has no further liability to the applicant. The persuasiveness of the applicant’s evidence to support his position is what will determine the resolution of this matter.
Issues in dispute
4The following issues are in dispute before the Tribunal:
i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, and if so, is there compelling evidence of a pre-existing condition that would limit his ability to recover if subject to the monetary limit for minor injuries?
5Minor injuries are treated under a protocol known as the Minor Injury Guideline (the MIG). If the injuries are found not to be minor or if there is compelling evidence that a pre-existing condition would limit his recovery if subject to the MIG, is Wawanesa liable to pay the following medical benefits:
i. Is the applicant entitled to receive a medical benefit in the amount of $1,298.46 for chiropractic services, recommended by Finch Healthcare, Inc., in a treatment plan dated March 14, 2016, and denied on April 18, 2016?
ii. Is the applicant entitled to receive a medical benefit in the amount of $1,197.00 for physiotherapy services, recommended by Go T.O. Physio & Rehab in a treatment plan dated March 1, 2016, and denied on April 18, 2016?
iii. Is the applicant entitled to receive a medical benefit in the amount of $3,473.60 for chiropractic services, recommended by Finch Health Centre, Inc., in a treatment plan dated April 4, 2016, and denied on May 2, 2016?
iv. Is the applicant entitled to payments for the cost of examination, in the amount of $2,200.00 for psychological assessment, recommended by Pilowsky Psychological Professional Corporation, in a treatment plan dated July 12, 2016, and denied on June 30, 2016?
v. Is the applicant entitled to medical services in the amount of $2,188.88, recommended by Finch Health Centre Inc., a treatment plan dated July 21, 2016, and denied on August 30, 2016?
vi. Is the applicant entitled to interest in the amount of $210.00 on all overdue payments?
Result
6I find on all of the evidence that:
i. There is compelling evidence of a pre-existing medical condition preventing the applicant from recovering within the minor injury treatment cost limits.
ii. The treatment plans in dispute are reasonable and necessary. The psychological assessment is capped at $2,000.00.
iii. The applicant is entitled to interest on all incurred overdue payments.
Analysis
Minor Injury
7It is the applicant’s view that the injuries he suffered are so significant that they fall outside of the MIG. He argues that his impairments remove him from the MIG for three reasons:
i. He had a pre-existing medical condition to his left elbow that was exacerbated by the accident.
ii. As a result of the accident and the injuries sustained, he has developed features of chronic pain syndrome.
iii. Because of the accident, he has developed psychological impairments. These impairments are not captured within the definition of the MIG and therefore are not considered minor.
8Wawanesa’s view is that the applicant has failed to demonstrate with compelling evidence that the treatments available to him within the MIG have prevented him from achieving maximal recovery. The respondent maintains that:
i. The applicant’s impairments are soft tissue injuries and his pre-existing condition was not worsened by the accident.
ii. The insurer’s orthopaedic and psychological examinations concluded that the applicant’s pre-existing elbow impairment would not prevent him from reaching maximum medical recovery if treated with the monetary limit benefits allowed in the MIG.
9The first question that must be answered is whether the impairments sustained are minor injuries subject to treatment within the MIG. If they are within the MIG then all the other issues in dispute need not be dealt with.
10The definition of a minor injury is a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. Notwithstanding that the injuries are minor, treatment may not fall within the MIG if:
i. The insured person has a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury if subjected to the MIG limit.
A health care professional must provide compelling evidence to demonstrate the two criteria mentioned.
11The decision, Scarlett v Belair Insurance, 2015 ONSC 3635 (“Scarlett”) established that the onus is on the applicant to prove that he is entitled to a higher level of coverage than the $3,500 for minor injuries.
12I have considered all the documents and arguments made by both parties. There is no dispute that the applicant had a pre-existing medical impairment to his left elbow. The applicant is left handed. There is no dispute that prior to the accident, the applicant had limitations to his elbow but managed to cope with the impairment and found ways to compensate for it.
13Both parties submitted reports from medical experts engaged specifically to buttress their claims that the applicant’s impairments are or are not within the MIG limitations for medical benefits. The respondent relies on the examination done by their independent examiner, Dr. Zarnett. The applicant relies on a report done by Dr. Ogilvie-Harris. Both doctors are orthopaedic surgeons but have had a limited relationship with the applicant and only examined him post-accident. Their differing conclusions are not only based on their physical examinations but on a paper review of medical reports and charts prepared by other healthcare providers.
14In this situation it is difficult for me to assign more weight to one expert over another. However, in this case there is an opinion from Dr. Michael McKee, the orthopaedic surgeon who has been treating the applicant for 16 years. Dr. McKee had seen the applicant on January 20, 2016 - four weeks post-accident. The applicant was seen again by Dr. McKee on May 4, 2016. In his report, Dr. McKee observes that the applicant “was significantly symptomatic with his left elbow following his December 22, 2015 motor vehicle accident as compared to his pre-injury.”
15Dr. McKee further states that although the applicant had a deformed elbow prior to the accident, he was functioning well, with minimal discomfort “but the minimally symptomatic condition was exacerbated by the accident”. He goes on to say that the applicant’s elbow is significantly more vulnerable to injury than a ‘normal’ elbow. As such, it would take longer for the vulnerable elbow to heal.
16Although Dr. Zarnett opines that the injuries the applicant suffered are soft tissue and minor in nature, he also states there is a possibility that the accident aggravated his pre-existing elbow injury. The applicant reported to Dr. Zarnett that his ability to perform housekeeping and work duties has been limited because of difficulties to squat, bend, lift and walk. Dr. Zarnett notes that the applicant’s left elbow was re-aggravated and his left arm musculature is atrophying.1 I note that Dr. Zarnett, the insurer’s examiner, acknowledge that the pre-existing injury has been exacerbated. I conclude that the applicant is in need of therapies to deal with the muscular atrophy.
17I find that Dr. McKee is a competent healthcare provider who has knowledge of the applicant’s medical condition pre-accident. I find his observations persuasive and accept his opinion that the applicant’s pre-existing medical condition was exacerbated by the accident and requires treatment beyond the MIG limit. For this reason I find that the applicant would be prevented from reaching maximum medical recovery if treated with the monetary limit benefits allowed in the MIG.
18Having found that the applicant is outside of the MIG limitations because of his pre-existing condition, there is no need for me to separately evaluate if his impairments take him out of the MIG because he is suffering from chronic pain syndrome or for psychological impairments.
Reasonable and Necessary
March 14, 2016 OCF-18 $1,298.46
March 1, 2016 OCF-18 $1,197.00
April 4, 2016 OCF-18 $3,473.60
July 21, 2016 OCF-18 $2,818.88
19The next question that must be answered is whether the treatment plans in dispute are reasonable and necessary.
20According to sections 14 and 15 of the Schedule, an insurer is liable to pay for medical benefits to or on behalf of an applicant so long as the applicant sustains impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of an accident.
21In order to determine whether the treatment plan is reasonable and necessary, the applicant must show adequate medical reasons supporting the plan and the effectiveness of the treatment. The applicant must establish that:
i. The identified treatment goals are reasonable.
ii. The goals are being met to a reasonable degree.
iii. The overall cost (not just financial, but also investment of time, etc.) of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.2
22Each of the treatment and assessment plans (OCF-18) outlines the goals of the treatment plans, the method of evaluating the progress of the treatment, strategies on how to achieve the goals and the need for revaluating and monitoring progress. They also utilize a variety of modalities to treat the impairments.
23The treatment plans specify that the goal for the treatment is reduce pain, increase strength in the back and neck but especially in the left arm which has shown signs of muscular atrophy. Other goals enumerated include returning to pre-accident normal living and work activities. The examination by the chiropractor indicated that the applicant demonstrated difficulty with his spine, left shoulder and left ankle. These impairments contribute to obstacles preventing the applicant from squatting, bending, lifting and walking – activities the applicant relies on to do his work and housekeeping duties.3
24The main goal in the treatment plans is to use chiropractic treatment, massage therapy, exercise and physiotherapy modalities to help decrease pain, and decrease inflammation in and around the vertebral column and increase range of motion once these factors have reached optimum status.
25Dr. Zarnett is of the opinion that the applicant did not require further treatment as specified in the treatment plans in question. He came to that conclusion based on a physical examination and paper reviews. He felt that the applicant would benefit from independent exercise rather that facility based treatment.
26I do not find Wawanesa’s argument persuasive. It relies on Dr.Zarnett’s conclusion based on a limited examination over the recommendations made by health care providers that have known and treated the applicant for a number of years. These professionals are in a better position to assess improvements to the applicant’s impairments and benefits of the treatment plans.
27Based on the analysis above, I find that the treatment and assessment plans are reasonable and necessary and the applicant is entitled to the benefits in dispute.
Cost of Examination Psychological Assessment $2,200.00
28The applicant complained of psychological problems as a result of the accident. The respondent denied the benefit of a psychological assessment based on the section 44 assessment made by its examiner, Dr. Rubenstein. This assessment is in contradiction to the one prepared for the applicant by Dr. Pilowsky on behalf of the applicant.
29Dr. Rubinstein notes that the applicant struggles with stressors in his life, one of which is the applicant’s muscular skeletal injuries and limitations. Both Drs. Rubinstein and Pilowsky make mention of other factors in the applicant’s life that may also contribute to his psychological stress. Both psychologists also make mention of the fact that since the accident the applicant experiences low spirits and has withdrawn from activities that he once enjoyed doing. Dr. Rubinstein notes that the applicant at times feels he is in a dark place and Dr. Pilowsky is of the opinion that the applicant’s diminished ability to work because of the pain he experiences also makes him irritable when he returns home and results in subsequent frustration. He worries about his ability to work and if he were unable to work and provide for his family, his self-worth would be diminished. I note that the other health care providers that completed the treatment plans and wrote reports independently noticed that there were reasons for psychological assessments and treatments.
30The respondent asserts that since Dr. Pilowsky did not recommend psychotherapeutic medication for the applicant, a psychological impairment does not exist. I do not accept that as grounds for finding that the assessment is not reasonable and necessary. Dr. Pilowsky is a psychologist and cannot prescribe medication.
31The respondent also notes that the applicant’s family doctor does not prescribe psychotherapeutic medication as further reasons to doubt the psychological assessment is reasonable and necessary. Treating psychological impairments with medication is one possible modality. It is not the only way or necessarily the best way. I find that the fact that the family doctor has not prescribed any psychotherapeutic medication is not proof that if the impairment exists it is sub clinical.
32I find the cost of the psychological assessment to be necessary and reasonable.
33I find that the psychological assessment is limited to $2,000.00 pursuant to subsection 25(5)(a) of the Schedule. Subsection 25(5)(a) of the Schedule notes that an insurer shall not pay more than $2,000.00 in respect of fees for any one assessment or examination. I also find that pursuant to the Superintendent’s Guideline No. 03/14, $200.00 for completing the OCF-18 deemed to be payable by the insurer. The Guideline establishes the maximum expenses payable by automobile insurers under the SABS related to the services of any of the health care professions or health care providers listed in the Guideline. These maximums are applicable to conducting an examination, assessment or provision of a certificate, report or treatment plan under subsection 25 (1) 3 of the SABS.
34The amount of $2,200.00 ought to be paid to the applicant.
Summary
35The applicant has provided compelling medical evidence that his impairments are outside of the MIG limitations. He has also established that the medical benefits and assessments in dispute are reasonable and necessary.
Conclusion
36Based on the analysis above, I find that the applicant’s impairments remove him from the MIG. I find that the treatment plans in question are reasonable and necessary. I further find that he is entitled to the cost of a psychological assessment fees capped at $2,000.00. Finally, I find that interest is payable to the applicant for all incurred overdue payments.
Released: November 21, 2017
Robert Markovits, Adjudicator