16-002047 v RBC Insurance Company, 2017 CanLII 81606

Date: 2017-11-22

Tribunal File Number: 16-002047/AABS

Case Name: 16-002047 v RBC 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

RBC Insurance Company

Respondent

DECISION

Adjudicator: Sandeep Johal

APPEARANCES:

For the Applicant: Shane LeRoux, Counsel

For the Respondent: Kimberley Tye, Counsel

Heard in-writing on: March 2, 2017

INTRODUCTION:

1The applicant was injured in an automobile accident on September 5, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3The Tribunal held a case conference on November 14, 2016 and the matter proceeded to a written hearing. All submissions and evidence for the written hearing were filed with the Tribunal by February 21, 2017. A review of those documents forms the basis of this decision.

ISSUES IN DISPUTE

1. The November 14, 2016 Case Conference

4The parties could not resolve the issues in dispute and on November 29, 2016, the Tribunal ordered a written hearing scheduled for March 2, 2017 with the following issues to be determined at the hearing:

(i) Did the applicant sustain an impairment within the meaning of the Schedule as a result of the accident?²

(ii) Is the applicant entitled to receive a medical benefit in the amount of $3,621.38 for medical services, recommended by Chinguacousy Physio and Foot Clinic in a treatment plan dated March 16, 2016?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $3,129.38 for psychological services, recommended by Pilowsky Psychological Professional Corporation in a treatment plan dated February 1, 2016?

(iv) Is the applicant entitled to the cost of an exam for a psychological assessment in the amount of $2,200.00 in a report submitted by Pilowsky Psychological Professional Corporation on January 14, 2016?

1. Additional issues

5The applicant added an additional two issues in his submissions which were both addressed in the respondent’s submissions:

(i) Is the applicant entitled to an award under section 10 of Regulation 664 to the Insurance Act³ for unreasonably withholding or delaying the payment of benefits?

(ii) Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

RESULT

6Based on the totality of the evidence before me, I find that the applicant has established on a balance of probabilities that his injuries fall outside of the MIG because of his psychological injuries. The applicant’s depression and anxiety do not fall within the definition of “minor injury.”

7Having found that the applicant’s injuries are outside of the MIG, I addressed the issue of the treatment plans and find that:

(i) The treatment plans listed above in paragraph 4 are reasonable and necessary;

(ii) The applicant is entitled to the cost of an examination for a psychological assessment in the amount of $2,200; and,

(iii) The applicant is not entitled to an award under section 10 of Regulation 664 as I do not find that the respondent unreasonably withheld or delayed the payment of benefits to the applicant.

THE LAW

The Minor Injury Guideline

8The MIG 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. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.

9Sections 14 and 15 of the Schedule require the respondent to pay to the applicant medical and rehabilitation benefits if the applicant sustained an impairment as a result of the accident and the benefits are reasonable and necessary expenses that have been incurred by or on behalf of the applicant as a result of the accident.

10Section 18 creates three tiers of benefits relating to medical and rehabilitation benefits to a maximum of $3,500 for (1) an impairment that is predominantly a minor injury; (2) a maximum of $50,000 if the impairment is not a minor injury and is not catastrophic; and, (3) a maximum of $1,000,000 for an impairment that is catastrophic.

11The applicant has the onus of establishing entitlement. In the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Thus, applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.

ANALYSIS

Do the applicant’s injuries fall outside of the Minor Injury Guideline?

12The respondent submits that the applicant’s injuries are minor injuries that fall within the definition of the MIG; however, I find that the applicant’s psychological injuries are not within the definition of the MIG.

13On January 14, 2016, the applicant submitted a treatment and assessment plan (OCF-18) for psychological services to the respondent from Dr. Pilowsky, a licensed clinical and rehabilitation psychologist. She included a brief psychological interview and intake screening where she notes the applicant has the following difficulties since the accident: “Insomnia, pain interrupted sleep, difficulties falling asleep, sleep disturbances paired with fatigue, depressed mood, sadness and crying spells, stressed and nervous [sic], increased irritability, argumentative and angry, feelings of hopelessness and worthlessness, feelings of inadequacy, disruption of social and family relationships, loss of confidence and control in life, loss of interest, motivation and pleasure, elevated anxiety levels and nervousness, somatic responses such as shaking, fear, heart palpitations, dry mouth, muscle tension, dread and upset.” Dr. Pilowsky recommended a psychological assessment. This treatment and assessment plan was denied by the respondent.

14On February 1, 2016, Dr. Pilowsky completed her psychological assessment of the applicant which included a clinical interview and psycho-diagnostic testing. Dr. Pilowsky’s assessment reveals that prior to the accident the applicant was psychologically well balanced and felt content in all aspects of his life. As a result of the accident, the applicant’s level of functioning is now noticeably restricted. He suffers from constant physical pain which inhibits him from engaging in recreational and social activities or partaking in other pastimes. The applicant was administered a series of psycho-diagnostic testing instruments in order to contextualize the nature of his current presentation.

15Dr. Pilowsky diagnosed the applicant with post-traumatic stress disorder (309.81) with vehicular anxiety, major depressive disorder, single episode severe (296.23) and symptoms of somatic symptom disorder with predominant pain from a series of psycho-diagnostic testing instruments.

16Dr. Pilowsky recommended twelve sessions of psychotherapy to address the applicant’s symptoms of post-traumatic stress.

The respondent’s evidence

17In response, pursuant to section 44 of the Schedule, the respondent required the applicant to be examined for a psychological assessment by Dr. Bacchiochi, a registered clinical psychologist. Dr. Bacchiochi’s report indicates that he conducted certain psycho-diagnostic tests. Dr. Bacchochi concluded that the applicant’s anxiety disorders are slight and, in his opinion, are not causing clinically significant distress or impairment. Dr. Bacchiochi does not explain what testing mechanisms he used or how the results of those tests supported his conclusion.

18Dr. Bacchiochi further concluded that the applicant does not meet the diagnostic criteria for a Major Depressive Disorder. However, Dr. Bacchiochi described the applicant to be experiencing some ongoing depressive symptoms.

19I find Dr. Bacchiochi’s summary that the applicant’s anxiety disorders are slight and not felt to be causing clinically significant distress or impairment to be inconsistent with his finding that the applicant is experiencing some ongoing depressive symptoms.

20I find the evidence of Dr. Pilowsky more persuasive given her objective findings. In her report she confirms which tests were done, what the applicant scored on those tests and how those scores helped her arrive at her conclusion. Furthermore, the symptoms being reported by Dr. Pilowsky are similar to what Dr. Bacchiochi summarises.

21The applicant’s family doctor, Dr. Myat, also notes in her clinical notes and records on March 23, 2016 that the applicant is seeing a counsellor. According to the Disability Certificate (OCF-3) dated April 14, 2016, Dr. Myat notes that the applicant is having post-traumatic stress and chronic post-traumatic headache.

22The respondent submits that the mere mention of psychological injuries or mention of chronic pain syndrome does not automatically mean the applicant is outside of the MIG. I agree with the respondent on that point. However, I am satisfied that the applicant has provided compelling, documented evidence along with the treatment and assessment plan. These documents show that the applicant’s diagnosed psychological injuries are sufficiently serious to remove him from the MIG.

23I accept Dr. Pilowsky’s report that the applicant suffers from a psychological impairment, and that the impairment is not a “minor injury” Based on her conclusion, and my findings mentioned above, I conclude that the applicant’s injuries are outside of the MIG.

24In support of the respondent’s position, the respondent referred me to case law that I find are distinguishable from this application. First, decisions from the Financial Services Commission of Ontario (“FSCO”) are not binding on the Tribunal. Second, in the case law provided by the respondent there was no compelling documentary evidence to take those parties outside of the MIG. I have determined that the applicant in the case before me has provided compelling medical evidence as discussed above of a psychological injury that takes the applicant outside of the MIG.

ARE THE TREATMENT PLANS REASONABLE AND NECESSARY?

25Having found the applicant is out of the MIG because of his psychological impairment, he is able to access benefits greater than the $3,500 limit imposed by the MIG. To do so, however, he must establish that each treatment plan is reasonable and necessary.

26In a treatment and assessment plan dated February 1, 2016, Dr. Pilowsky recommends psychological treatment in the amount of $3,129.38. Dr. Pilowsky indicates the objective of the recommended treatment is to decrease the applicant’s psychological problems and allow for his return to activities of normal living, through a mental health assessment and mental health therapy including psychoeducational material. Having found that the applicant is suffering from psychological impairments, I find this treatment plan to be reasonable and necessary.

27I now turn to the second treatment and assessment plan recommended by Chinguacousy Physio and Foot Clinic on March 16, 2016 in the amount of $3,621.38. The plan recommends treatment for the applicant’s whiplash associated disorder, neck pain, musculoskeletal pain, sprains and strains of the cervical spine, the thoracic spine, lumbar spine, and of the ankle. The suggested treatment is through physiotherapy, physical rehabilitation sessions and massage therapy. The objective of the plan is pain reduction, increased range of motion and increased strength to allow for the applicant’s return to activities of normal living and a return to pre-accident work activities.

28I find the treatment plan to be reasonable and necessary for the following reasons.

29The applicant’s family doctor’s clinical notes and records have several entries subsequent to the accident which support the need for the treatment. For instance, Dr. Myat notes show:

• As a result of the accident, the applicant is experiencing “pain on the right side of his neck, his right foot and back.”
• The applicant has “reduced range of motion on right side of the neck, pain with movement and tenderness is also present.”
• The applicant’s “back is tender and range of motion is reduced and his right foot is tender”.
• On January 7, 2016, the doctor noted the applicant had “lower back pain, muscle tenderness bilaterally, reduced range of motion and musculoskeletal back strain.”

30In other notes from early 2016, Dr. Myat indicates the limitations and pain the applicant was experiencing. On April 14, 2016, Dr. Myat submitted a disability certificate (OCF-3) to the respondent advising of the applicant’s injuries as: sprains and strains of the cervical spine, the thoracic spine, lumbar spine, and of the ankle, whiplash associated disorder (WAD 1) with neck pain, stiffness or tenderness, injury of muscle at lower leg, post-traumatic stress and chronic post traumatic headache.

31The applicant submitted a report from Dr. Benmoftah, an orthopaedic surgeon who diagnosed the applicant with post-traumatic headaches, myofascial strain to the cervical spine, to both shoulders and to the lumbar spine, chronic pain syndrome and an exacerbation of pre-existing right foot pain.

32The respondent submitted an insurer examination report completed by Dr. Taromi. Dr. Taromi diagnosed the applicant’s impairments to be the result of cervical spine, thoracic spine and lumbar spine sprains/strains and associated headaches.

33Both Dr. Benmoftah and Dr. Taromi find similar impairments and injuries to the applicant, yet their prognosis and recommendations are different. Dr. Benmoftah recommends the applicant be referred to a multi-disciplinary rehabilitation facility that specializes in the treatment of chronic pain syndrome as well as a further MRI of the cervical and lumbar spine to determine specific pathology. Dr. Taromi, on the other hand, acknowledges that the applicant has residual symptoms related to the cervical spine sprain/strain, thoracic spine sprain/strain and lumbar spine sprain/strain. However, Dr. Taromi opines that a home based exercise program should be sufficient.

34The respondent also submitted a report by Dr. Esmail, a neurologist. Dr. Esmail diagnosed the applicant with cervical and lumbar myofascial strain and opined that the applicant has reached his maximum medical recovery and no further treatment was necessary.

35I find the recommendations for further treatment by Dr. Benmoftah more persuasive than the recommendations of Dr. Taromi and Dr. Esmail. Dr. Taromi and Dr. Esmail both acknowledge the applicant continues to have sprains and strains as a result of the accident but provide no explanation for the long length of time that has elapsed from the date of the accident to the time of their assessment. They also provide no explanation for why the sprains and strains would not have resolved by now other than to say he has reached maximum medical recovery. According to Dr. Taromi, the applicant reached his maximum medical recovery because the accident was in September 2015, and he has already attended physical therapy sessions. Dr. Esmail notes that the applicant has headaches, dizziness, neck and back pain and his injuries are predominantly a minor injury. I am not directed to any medical explanation as to why the clinical findings are the same and why the injuries continue to linger and have not resolved so long after that accident. I am not provided with any testing that supports the doctors’ positions, and I don’t find their conclusions in line with their clinical findings.

36The objectives of the requested treatment and assessment plan are to reduce pain, increase strength and increase the applicant’s range of motion. All three doctors report he continues to have pain and a decreased range of motion related to the back and neck, even at ten months post-accident. I find the treatment and assessment plan in the amount of $3,621.38 to be reasonable and necessary to treat his continuing physical pain.

COST OF PSYCHOLOGICAL EXAMINATION REPORT

37Having found that the applicant is entitled to the medical benefit for psychological treatment dated February 1, 2016, I find the cost of examination for a psychological assessment to be reasonable and necessary.

AWARD FOR UNREASONABLY WITHHELD OR DELAYED PAYMENTS

38The applicant, as part of his submissions, seeks an award under Section 10 of Ontario Regulation 664 under the Insurance Act⁴, which allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which the applicant was entitled at the time of the award on all amounts owing if the Tribunal finds the respondent unreasonably withheld or delayed payments.

39The onus is on the applicant to establish on a balance of probabilities that the respondent unreasonably withheld or delayed payment. However, I am not directed to any evidence or submissions with respect to a claim for an award, and accordingly the request is dismissed.

CONCLUSION

40I find that the applicant’s injuries are outside the definition of the MIG.

41I find the applicant is entitled to receive a medical benefit in the amount of $3,621.38 for medical services as recommended by Chinguacousy Physio and Foot Clinic in treatment plan dated March 16, 2016.

42I find the applicant is entitled to a medical benefit in the amount of $3,629.38 for psychological services, recommended by Dr. Pilowsky in a treatment plan dated January 14, 2016.

43I find the applicant is entitled to the cost of examination for a psychological assessment in the amount of $2,200 in a report submitted by Dr. Pilowsky on January 14, 2016.

44I find that the applicant is not entitled to an award under section 10 of Regulation 664.

ORDER

45The Tribunal orders the payment of the treatment plans in dispute and for the cost of the psychological assessment.

Footnotes

1. 1O. Reg. 34/10.
2. 2Despite the order from the case conference listing the issue of whether the applicant sustained an impairment within the meaning of the Schedule as mentioned in 4(i) above, the respondent took no issue with the fact that the applicant has sustained an impairment in their written submissions and I accept that this point is conceded.
3. 3R.S.O. 1990, c. I.8.
4. 4RSO 1990, c I.8