17-007527 v. Aviva Insurance Canada, 2018 CanLII 110948

17-007527 v Aviva Insurance Canada

Date: 2018-08-15 Tribunal File Number: 17-007527/AABS Case Name: 17-007527 v Aviva Insurance Canada

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

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES: Counsel for the Applicant: Eli Smolarcik Counsel for the Respondent: Aimee Draper

Written Hearing on: June 4, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on September 4, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is the opposite.

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary, as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

4Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and therefore subject to treatment within the MIG?

5If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to receive a medical benefit in the amount of $1,686.40 ($2,512.00 less approved amount of $825.60) for physical treatment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Toronto Healthcare Clinic, submitted on November 6, 2015 and denied on November 6, 2015?

ii. Is the applicant entitled to the cost of examination in the amount of $2,200.00 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Toronto Healthcare Clinic, submitted on January 26, 2016 and denied on January 27, 2016?

iii. Is the applicant entitled to receive a medical benefit in the amount of $3,784.82 for psychological treatment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Toronto Healthcare Clinic, submitted on September 27, 2016 and denied on October 10, 2016?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6For the reasons set out below, I find that:

i. The applicant’s psychological impairment takes her treatment outside of the MIG.

ii. The applicant is entitled to payment for the physical treatment requested in the treatment plan submitted on November 6, 2015 because it is a reasonable and necessary expense.

iii. The applicant is entitled to payment for the psychological assessment requested in the treatment plan submitted on January 26, 2016 because it is a reasonable and necessary expense.

iv. The applicant is entitled to payment for the psychological treatment requested in the treatment plan submitted on September 27, 2016 because it is a reasonable and necessary expense.

v. The applicant is entitled to interest at the prescribed rate.

ANALYSIS

The Minor Injury Guideline

7Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The MIG also defines in detail what these terms for injuries mean.

8Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

9The onus is on the applicant to show that her injuries fall outside of the MIG.

10The applicant’s evidence and submissions indicate that her pre-existing psychological issues were exacerbated by the accident. Furthermore, she submits that she suffers from a pre-existing medical condition that will prevent her from achieving maximal medical recovery from the minor injuries if she is subject to the MIG. It is on this basis that she argues that her impairments fall outside of the MIG.

11I find that the applicant is removed from the MIG for psychological reasons.

12As I have found that she is removed from the MIG for psychological reasons, I do not need to address whether or not she had any other injuries or a pre-existing medical condition that would remove her from the MIG.

The applicant’s worsening psychological state takes her out of the MIG

13The applicant claims that her pre-existing psychological issues were exacerbated as a result of the accident and that places her claims outside of the MIG.

14An applicant can be removed from the MIG if she demonstrates a psychological impairment. Psychological impairments, if established, fall outside the MIG because the MIG only governs “minor injuries” and the definition does not include psychological impairments.

15There are two psychological assessments/reports before me. One is from Dr. Andrew Shaul, the psychologist who submitted both the treatment plan for the psychological assessment and the treatment plan for psychological treatment. One is from Dr. Rhonda Nemeth, a psychologist retained by the respondent to conduct an insurer’s examination (“IE”) in relation to the applicant’s request for a psychological assessment.

16In his report dated April 17, 2016, Dr. Shaul sets out that a clinical interview was conducted and a number of psychological tests were administered. The test results were the following:

i. Beck Depression Inventory – II: the applicant’s score demonstrated a severe level of depression;

ii. Beck Anxiety Inventory: the applicant’s score demonstrated a severe level of anxiety; and

iii. Symptom Checklist-90-Revised: the applicant’s scores demonstrated that she is experiencing severe levels of emotional distress.

17Dr. Shaul diagnosed the applicant with the following disorders:

i. Adjustment Disorder with Anxiety;

ii. Major Depressive Disorder; and

iii. Features of Specific Phobia (travelling in a vehicle).

18Dr. Shaul concluded that since the accident, the applicant’s symptoms of depression and anxiety have become exacerbated. Furthermore, she is now experiencing physical pain and limitations which further impact her psychological and emotional state. To treat the applicant’s psychological disorders, Dr. Shaul recommended 16 counselling sessions, a psychotherapy progress report (as needed) and psycho-educational material (as needed).

19In her report dated June 14, 2016, Dr. Nemeth sets out that a clinical interview was conducted and a number of psychological tests were administered. Of the test results, the following were particularly significant:

i. Personality Assessment Inventory: the validity scores indicated that the applicant did not attend appropriately to test item content. She endorsed a high number of infrequently occurring items, responded inconsistently to some items with similar content and had a tendency towards negative impression management. Dr. Nemeth concluded that regardless of the cause of these findings, the results can only be deemed invalid and no further interpretation is being offered; and

ii. Pain Catastrophizing Scale: the applicant’s score was clinically significant, meaning that she is considered at risk for ongoing disability.

20Dr. Nemeth’s diagnostic impression was that the applicant has Somatic Symptom Disorder with predominant pain. She recommended that the applicant be referred for psychotherapy to address pre-existing issues, but this would not be the responsibility of the insurer. Dr. Nemeth concluded that there were no psychological impairments related to the accident that warranted the proposed psychological assessment.

21I prefer the conclusion drawn by Dr. Shaul over the conclusion drawn by Dr. Nemeth for the following reasons:

i. The applicant reported issues with depression and anxiety to her treating medical practitioners following the accident. The clinical notes and records of Dr. Sadaf Gardizi (family physician) dated October 21, 2015 and November 30, 2015, and of Dr. Monique Mazzuca (family physician) dated June 30, 2016, August 10, 2016 and September 26, 2016 refer to these psychological issues.

ii. Dr. Nemeth concluded that the results of the Personality Assessment Inventory were invalid and did not offer a further interpretation. Therefore, there was no conclusion reached regarding whether the applicant experiences depression and/or anxiety. It is my finding that despite Dr. Nemeth concluding that the results of the Personality Assessment Inventory were deemed invalid, the evidence indicates that the applicant is experiencing genuine symptoms of psychological distress, including depression and anxiety.

iii. Dr. Nemeth’s diagnostic impression was that the applicant has Somatic Symptom Disorder with predominant pain. This diagnostic impression acknowledges that the applicant experiences psychological difficulties with her pain.

iv. Furthermore, Dr. Nemeth recommended that the applicant be referred to psychotherapy to address pre-existing issues, acknowledging that the applicant is in need of psychological assistance, although she is clear to state that this would not be the responsibility of the insurer.

22Furthermore, my finding that the accident exacerbated the applicant’s pre-existing psychological issues is also supported by the applicant’s accounts of how the accident has affected her emotional and psychological well-being. In the interviews with both Dr. Shaul and Dr. Nemeth, the applicant discussed post-accident functional difficulties with her activities of daily living. The following are some of the psychological challenges the applicant has experienced since the accident:

i. She experiences anxiety at times when driving;

ii. She is feeling depressed due to her lasting pain and limitations;

iii. She becomes angry and frustrated more easily because she is constantly in pain and faces more limitations as a result;

iv. She worries about the impact her pain will have on her future functioning and employability;

v. She experiences more difficulty with her sleep because of her pain and anxiety; and

vi. She experiences more frequent frightening dreams.

23I find that all of the challenges listed above point to the fact that the accident caused a worsening psychological state for which appropriate assessment and treatment would be required. The applicant is removed from the MIG for psychological reasons.

The treatment plan for physical therapy is reasonable and necessary

24Since the applicant is removed from the MIG for psychological reasons, she is entitled to payment for the requested physical treatment if she can prove that the treatment plan is reasonable and necessary. This treatment plan was prepared by Dr. Domenic Minnella, a chiropractor.

25The applicant has submitted medical documentation to establish that she has pain in her neck, shoulder and back, as well as migraines, as a result of the accident.

26In response, the respondent retained Dr. Mark Goldstein, family physician, to conduct an IE of the applicant in relation to the requested physical treatment. In a report dated December 23, 2015, Dr. Goldstein diagnosed the applicant with headaches attributed to whiplash, neck and lower back strain. Her impairments include cervical and lumbar muscular tenderness, and decreased shoulder flexion. Dr. Goldstein concluded that the applicant’s injuries were minor and should be treated within the MIG.

27During the IE with Dr. Goldstein, the applicant reported functional impairments affecting her activities of daily living, including: she is working less and at about 50% capacity as a real estate agent; she used to play basketball, do weights at the gym and jog, but she cannot do these activities anymore due to her headaches; and sitting, reading and writing increase her pain. She expressed interest in continuing with the chiropractor and doing acupuncture. She stated that she found the IFC electrical stimulation and the taping on her neck and back as helpful.

28This treatment plan has the objective of reducing pain and increasing the applicant’s range of motion. Functionally, the goal is to reduce scar tissue formation, to allow for an early return to pre-accident function and for patient education. This is a reasonable and necessary objective. I agree with the applicant that this plan for physical therapy, which includes a combination of massage therapy, chiropractic treatment, and acupuncture, would be beneficial in helping to relieve the applicant’s neck, shoulder, back pain, as well as her migraines, which she was experiencing at the time.

29The physical therapy requested in the treatment plan submitted on November 6, 2015 is reasonable and necessary. The applicant is entitled to payment for this treatment plan.

The treatment plan for a psychological assessment is reasonable and necessary

30The goal of Dr. Shaul’s psychological assessment was to evaluate the applicant’s psychological and emotional repercussions following the accident. This is a reasonable and necessary objective. Dr. Shaul’s assessment establishes that the accident exacerbated the applicant’s pre-existing psychological issues.

31The psychological assessment submitted on January 26, 2016 is reasonable and necessary. The applicant is entitled to payment for this treatment plan.

The treatment plan for psychological treatment is reasonable and necessary

32The goal of Dr. Shaul’s treatment plan is to reduce pain and to provide psychological counselling to help the applicant manage her emotional response to the difficulties she is experiencing. This is a reasonable and necessary objective.

33The means by which the treatment plan intends to achieve the objective is also reasonable and necessary. The 16 sessions of psychological treatment will focus on addressing her many symptoms of anxiety and depression. There will also be a focus on alleviating the applicant’s fear and anxiety of travelling in a vehicle, building her confidence as a driver and passenger in a vehicle and helping her to reduce her recurrent distressing thoughts of the accident. These sessions will include, but not be limited to, Cognitive Behaviour Therapy, various relaxation techniques and, if deemed appropriate, a brief course of systemic desensitization. There will also be a psychotherapy progress report (as needed) and psycho-educational material (as needed).

34The psychological treatment requested in the treatment plan submitted on September 27, 2016 is reasonable and necessary. The applicant is entitled to payment for this treatment plan.

CONCLUSION

35For the reasons outlined above, I find that:

i. The applicant is not subject to the $3,500.00 coverage limit, due to her psychological impairment.

ii. The applicant is entitled to payment for the physical treatment requested in the treatment plan submitted on November 6, 2015.

iii. The applicant is entitled to payment for the psychological assessment requested in the treatment plan submitted on January 26, 2016.

iv. The applicant is entitled to payment for the psychological treatment requested in the treatment plan submitted on September 27, 2016.

v. The applicant is entitled to interest at the prescribed rate.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.