Tribunal File Number: 17-005791/AABS
Case Name: 17-005791 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
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Representative for the Applicant: Ardi Deti
Counsel for the Respondent: Monica Pathak
Heard in writing on: March 26, 2018
OVERVIEW
1The applicant was injured in an automobile accident on November 28, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
3The following are the issues to be decided as per the case conference order dated January 2, 2018:
i. Are the applicant’s injuries predominately minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guidelines?, if not then:
ii. Is the applicant entitled to a medical benefit in the amount of $1,418.00 for chiropractic treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Mackenzie Medical Rehabilitation Centre, submitted on June 20, 2016 and denied on July 5, 2016?
iii. Is the applicant entitled to a medical benefit in the amount of $2,027.00 for chiropractic treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Mackenzie Medical Rehabilitation Centre, submitted on May 9, 2016 and denied on November 24, 2016?
iv. Is the applicant entitled to a medical benefit in the amount of $3,129.48 for psychological treatment pursuant to a Treatment and Assessment Plan (OCF18) completed by Pilowsky Psychology Professional Corporation, submitted on July 21, 2016 and denied on July 27, 2016?
v. 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 (OCF18) completed by Pilowsky Psychology Professional Corporation, submitted on April 20, 2016 and denied on May 4, 2016?
vi. Is the applicant entitled to an award for unreasonable held or delayed payments under Regulation 664?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find:
i. The applicant is outside of the MIG because of her psychological symptoms, and I find that these impairments do not fall within the definition of the MIG.
ii. The applicant is entitled to all of treatment plans, the cost of examination and interest that is in dispute for this application.
iii. The applicant is not entitled to an award under Regulation 664.
ANALYSIS
Applicability of the Minor Injury Guideline
5The 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 sprain, strain, 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.
6Section 18(2) of the Schedule provides for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
7In the decision of Scarlett v. Belair Insurance,2 the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
Are the applicant’s psychological injuries outside of the MIG?
8I find that the applicant has established on a balance of probabilities that her injuries are outside of the MIG because her psychological symptoms and impairments are not within the definition of a “minor injury” from the Schedule.
9The applicant was assessed by Dr. Pilowsky, following which a report was issued on June 13, 2016. The report notes that the applicant describes herself as being sad and depressed, socially withdrawn and isolated from friends, irritable and argumentative, emotionally sensitive and cries when alone. She has a reduced appetite, disturbed sleep and difficulty falling asleep, accident-related thoughts and images, intrusive thoughts of being involved in accidents with her family, ruminations of the accident, diminished cognitive acuity, nervous at intersections and anxiety and fear as a passenger.3
10The testing completed by Dr. Pilowsky on the Beck Depression Inventory—II (BDI-II), the Beck Anxiety Inventory (BAI) and the Pain Catastrophizing Scale (PCS) scores in the mild to moderate risk. Dr. Pilowsky diagnosed the applicant as having an Adjustment Disorder (309.0) with Depressed Mood and Symptoms of Post-Traumatic Stress Disorder with Vehicular Anxiety/Avoidance.4
11The applicant’s family doctor’s clinical notes and records also note instances of psychological symptoms such as on November 17, 2016 when she was “very teary today.”5 Then on February 2, 2017 it is noted that it is “difficult to treat asthma/depression? PTSD secondary to MVA several months ago” and a “referral to Dr. Hood and meds as below, supportoive (sic) counselling re PTSD.”6
12The respondent’s insurer examination (“IE”) doctor, Dr. Syed, who is also a psychologist, assessed the applicant and produced a report dated April 14, 2016. Dr. Syed notes that the applicant was narrating the incident and was visibly distressed with indications of it being a psychotraumatic experience for her.7
13Dr. Syed notes the applicant’s symptoms as follows: being sad and depressed, crying spells, anger and irritability, excessive worry, lack of social interest, sleeping difficulties, fatigue, anxiety by having an exaggerated startle response as a passenger, distressing memories, nightmares, nervousness in seeing another accident on the road or on television, anxiety when driving and as a passenger.8
14Dr. Syed notes that the applicant indicated that “these psychological symptoms are significantly affecting her ability to function effectively in her social, occupational or other important areas of functioning.”9 (Emphasis in original) Dr. Syed’s report and Dr. Pilowsky’ s report are similar in terms of the applicant’s self-reporting and in their clinical analysis from the testing that was done. Where they differ are in their conclusions.
15Dr. Syed opined that that the applicant’s clinical psychological test data obtained during the evaluation represented a generally valid estimate of her current psychological status.10 Dr. Syed goes on to state that, in her opinion, the applicant has only subtle indications of a current active depressive and anxiety experience and then goes on to state that the applicant “in general suffers from some symptoms of anxiety with features of depressed mood along with pain being a concern for her.” But the severity is subclinical and it does not warrant a diagnosis and no further treatment or investigations are warranted.11
16Dr. Syed wrote an Addendum Report which was dated November 17, 2016 and at page 5 notes that in her opinion the applicant does have symptoms of Adjustment Disorder (309.0) with Depressed Mood and Symptoms of Post –Traumatic Stress Disorder with Vehicular Anxiety/Avoidance albeit subclinical. However, in my opinion, the fact that the respondent’s IE doctor finds that these symptoms are present, would be sufficient to remove the applicant from the MIG.
17I find the conclusions of Dr. Syed’s report do not correlate with her clinical findings and summary. Both Dr. Syed and Dr. Pilowsky note the applicant to have mild to moderate impairment and risk according to the similar psychodiagnostic testing that was done. Dr. Syed goes on to state the applicant has indications of depression and anxiety, however she finds that no further treatment or investigations are required. Whereas, in Dr. Pilowsky’s opinion, these symptoms are outside of the MIG and require treatment. I agree with Dr. Pilowsky, if psychological symptoms are present, they would be outside the definition of the MIG.
18Based on both doctors’ clinical assessment of the applicant and the applicant’s family doctor’s notes for a referral regarding the applicant’s PTSD (post-traumatic stress disorder), I agree with the conclusion of Dr. Pilowsky that the applicant has symptoms of post-traumatic stress which is not captured within the definition of the MIG and that the applicant needs treatment to prevent further deterioration of her psychological condition.
19Having found that the applicant is outside of the MIG as a result of her psychological symptoms, I will now analyze whether the treatment plans are reasonable and necessary.
Is the applicant entitled to psychological treatment and the cost of the psychological assessment?
20Having already found the applicant to have psychological symptoms sufficient enough to be removed from the MIG I find that the treatment plan with a goal to decrease her psychological problems and the functional goal of having the applicant return to activities of normal living to be reasonable and necessary.
21Furthermore, I find the cost of examination for a psychological assessment to be reasonable and necessary based on Dr. Syed’s IE report that the applicant does present symptoms of Adjustment Disorder (309.0) with Depressed Mood and Symptoms of Post –Traumatic Stress Disorder with Vehicular Anxiety/Avoidance and because of the referral suggested by the applicant’s family doctor for counselling regarding PTSD (post-traumatic stress disorder).12
Is the applicant entitled to payment for the chiropractic and massage therapy treatment plans?
22Both parties’ medical practitioners agree that the applicant has sustained physical injuries as a result of the accident. The respondent’s IE assessor, Dr. Kopyto, states that the applicant has an impairment to her left grip power and soft tissue strain injuries to her neck, left shoulder and low back. The applicant’s family doctor also notes the same injuries and additional injuries such as partial thickness articular surface tear of the supraspinatus tendon. Her doctor has been recommending physiotherapy based on her visits on February 1, 2016 and April 18, 2016 and Dr. Raza Awan from Synergy Sports Medicine and Rehabilitation recommended physiotherapy from his assessment on January 14, 2016. It was shortly thereafter the treatment plans were recommended by Mackenzie Medical Rehabilitation Centre.
23The treatment plan in the amount of $1,418.00 for chiropractic, massage therapy and physical therapy has a goal of pain reduction and increased range of motion. The applicant reports that she has pain in her neck, left shoulder, left arm and low back pain and these were confirmed by the IE assessor although he opines they are injuries captured within the MIG.13
24Having found the applicant to be outside of the MIG, she is entitled to this treatment if it is reasonable and necessary. Based on the evidence from the applicant’s doctor, who has seen her over the course of many months and who has recommended physiotherapy and further treatment, I find that the treatment plans are indeed reasonable and necessary.
Is the applicant entitled to an award for unreasonably held or delayed payments?
25I find that the applicant is not entitled to an award for the following reasons.
26The applicant submits the respondent failed to administer the applicant’s claim for benefits in a good faith, fair or even-handed manner and opted to treat the applicant as an adversary early on and the respondent did not forward updated medical information to its IE assessors. However I was not directed to any evidence to justify the submissions.
27The applicant further submits that the respondent failed to provide updated clinical notes and records from Dr. Philip to its IE assessors to review and provide an opinion on. However, I was not directed to the updated notes and what they may have said or when they were provided to the respondent. Further, I was not provided with any submissions or evidence that the updated notes were not considered by the respondent as part of its adjustment of the applicant’s file.
28In my opinion, with the onus to prove entitlement to the award on the applicant, more is required than to simply state the applicant was treated as an adversary. Without any evidence of the actions on the part of the respondent that the benefits have been unreasonably withheld or delayed, an award cannot be justified even on a balance of probabilities. Furthermore, even if the applicant disagrees with the IE assessor’s opinion and conclusion, such disagreement does not, in my opinion, amount to unreasonably withholding or delaying the payment of benefits.
CONCLUSION
29For the reasons outlined above, I find that:
a. the applicant’s injuries to be outside of the MIG; and
b. the applicant is entitled to the following:
i. a medical treatment for chiropractic services in the amount of $1,418.00
ii. a medical benefit for chiropractic services in the amount of $2,027.00
iii. psychological treatment in the amount of $3,129.48; and
iv. the cost of examination for a psychological assessment in the amount of $2,200.00.
v. interest in accordance with the Schedule on the above approved treatment plans and the cost of examination.
c. the applicant is not entitled to an award under Regulation 664.
Released: September 5, 2018
___________________________
Sandeep Johal, Adjudicator
Footnotes
- O. Reg. 34/10.
- 2015 ONSC 3635.
- Dr. Pilowsky Psychology Report dated June 13, 2016 at pages 7-9.
- Supra note 3 at page 12.
- Clinical notes and Records of Dr. Loraine Philip at page 14.
- Supra note 5, at page 26.
- Dr. Syed Report dated April 14, 2016 at page 9.
- Supra note 7 at page 11 and 12.
- Supra note 7 at page 13.
- Supra note 7 at page 19.
- Supra note 7 at page 20.
- Supra Note 5, at page 26.
- Dr. Kopyto Insurer Examination dated April 8, 2016 at page 6.