Tribunal File Number: 17-006460/AABS
Case Name: 17-006460 v Scottish & York
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
Scottish & York
Respondent
DECISION
ADJUDICATOR: Marisa Victor
APPEARANCES:
For the Applicant: Jeffrey Baum, counsel
For the Respondent: Marianne Davies, counsel for the Respondent
HEARD: Written Hearing: April 9, 2018
REASONS FOR DECISION AND ORDER
1This is an Application by the Applicant to the Licence Appeal Tribunal (the “Tribunal”) with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
I. OVERVIEW
2On April 8, 2016, the applicant was driving on Highway 401 when he was rear-ended. As a result of the accident, he sought Statutory Accident Benefits from the respondent, Scottish and York and subsidiary of Aviva Insurance Canada.
3Specifically, the applicant sought coverage for a psychological assessment and for a chronic pain treatment program under the Statutory Accident Benefit Schedule - Effective September 1, 2010 (the Schedule). He was denied coverage in both cases. The denial of these two claims resulted in this appeal to the Licence Appeal Tribunal (the LAT).
4On January 15, 2018, a case conference was held in this matter. As a result of the case conference, the issues to be determined were identified and a written hearing ordered.
II. ISSUES
5The issues are:
a. Is the applicant entitled to receive a medical benefit in the amount of $2,258.88 for the cost of a psychological assessment recommended by All Health Medical Centre in a treatment plan submitted on May 30, 2016 and denied on July 25, 2016?
b. Is the applicant entitled to receive the cost of a medical benefit in the amount of $8,880.24 for the cost of a chronic pain treatment program recommended by All Health Medical Centre in a treatment plan submitted on July 10, 2017 and denied on September 25, 2017?
c. Is the applicant entitled to interest on overdue payment of benefits?
III. RESULT
6Based on a review of the evidence presented, I find that:
a. The applicant is entitled to receive a medical benefit in the amount of $2,258.88 for the cost of a psychological assessment;
b. The applicant is entitled to receive a medical benefit in the amount of $8,880.24 for the cost of a chronic care treatment plan; and
c. The applicant is entitled to interest.
IV. ANALYSIS
a. Psychological Assessment
7The onus is on the applicant to prove that the claimed medical benefits are reasonable and necessary on a balance of probabilities.
8I find that the applicant suffers from psychological symptoms related to the accident and therefore the psychological assessment is reasonable and necessary.
9The applicant sought payment for a psychological assessment on May 30, 2016. In order to complete the assessment plan, a pre-screen was completed which identified the following symptoms:
a. Anger;
b. Frustration;
c. Overwhelming stress due to inability to work;
d. Low mood;
e. Lack of interest;
f. Sad mood;
g. Poor sleep; and
h. Flashbacks.
10The goal of the assessment was to identify impairments and plan a treatment program.
11This claim was initially denied by the respondent and an Insurer’s Examination (IE) was ordered.
12On June 30, 2016, Dr. Christopher Hope, neuropsychologist, conducted the IE (the First Hope Report). At the IE, Dr. Hope noted that the applicant reported:
a. Anger;
b. Frustration;
c. Overwhelming stress due to his inability to work post-accident;
d. Loss in lifestyle and social life;
e. Low mood;
f. Lack of energy and interest in things he used to do;
g. Difficulty sleeping;
h. Pain;
i. Flashbacks;
j. Anxiety; and
k. Feeling sad and down as a result of his current limitations.
13Dr. Hope conducted a number of tests and found that the applicant reported a high number of variable somatic difficulties including malaise/fatigue, gastro intestinal difficulties and head pain.
14Dr. Hope concluded that the applicant suffered from subclinical levels of anxiety and low mood related to is inability to work and related financial difficulties. He declined to make a diagnosis.
15As a result of the First Hope Report, the respondent continued to deny the benefits requested.
16On August 24, 2017, the respondent conducted a multidisciplinary assessment of the applicant. This included a second psychological assessment by Dr. Hope (the Second Hope Report).
17In the Second Hope Report, Dr. Hope reported that the applicant:
a. Was not sleeping well;
b. Was less active and now overweight;
c. Was more angry than normal;
d. Was sad and trying to fight the feeling; and
e. Had problems with memory and attention.
18Again, Dr. Hope conducted a series of psychological tests. This time he found a higher than average number of variable somatic difficulties including malaise/fatigue, general poor health, gastrointestinal and neurological symptoms, and a heightened degree of stress/worry.
19As a result of the testing, Dr. Hope now diagnosed a somatic symptom disorder, with predominate pain related to the accident. He recommended that psychotherapy is warranted and stated that 12, 1-hour weekly sessions was reasonable and necessary.
20I find that the evidence supports the applicant’s position that he was suffering from psychological issues related to the accident. His reported symptoms, both in the pre-screening, and the two IEs remained consistent throughout. He reported significant changes in his life since the MVA (inability to work, sadness, loss of lifestyle) that support this finding. I find that symptoms reported in the first IE and the second IE were very similar except that the applicant reported a slightly better mood at the second IE due to a modified return to work. The fact that only the second IE resulted in an official diagnosis is not determinative of the issue. A psychological diagnosis is not necessary: what is necessary is that the applicant was exhibiting psychological symptoms related to the MVA and that these issues were affecting his life, which I find they were. It is clear that the applicant was suffering from psychological symptoms (from the pre-screen and first IE) and therefore it was reasonable and necessary for the applicant to have had psychological assessment for the purpose of determining the issues and developing a treatment plan. In addition, the second IE concluded that the appellant should receive psychological treatment.
21Therefore, I find that it was reasonable and necessary that the applicant be provided with a psychological assessment to provide a plan for psychological treatment.
22I should note that the issue of whether the applicant’s injuries fall within the MIG was not before me. Nevertheless, at the time of the denials, this was a live issue, the focus of the First Hope Report, and the basis for the respondent’s denial.
23A “minor injury” is defined in 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 MIG does not include in its definition, psychological symptoms at all.
24The applicant argued that the respondent’s denial did not conform with technical requirements in the Schedule and therefore, the denial was improperly denied.
25The respondent countered that the denial stated that they had reviewed the MIG and the IE’s medical opinion and concluded that there was no compelling evidence the impairment sustained was not a predominantly minor injury. This, the respondent argues, follows the reasoning in S.C. v Aviva Canada Inc., 2017 Canlii 70684 (ON LAT) at paras. 14-16 and in Kadia Augustin v. Unifund Assurance Company, 2013 Carswell 15809 (FSCO Arb), FSCO A12-000452 at para 49 (Augustin).
26While the decisions referred to above are not binding on me, I find the arguments persuasive and agree with the respondent that they complied with the technical requirements of the Schedule and the minimum requirements set out by Arbitrator Sapin in Augustin.
27Nevertheless, the question before me is whether the applicant entitled to receive the denied psychological assessment. The answer to that question is yes, the applicant is entitled to the psychological assessment.
b. Chronic Pain Treatment Program
28The applicant applied for a multidisciplinary chronic pain treatment program. It was partially approved by the respondent, in relation to psychotherapy only. The remaining cost ($8,880.24) was denied.
29I find that the applicant suffers from chronic pain related to the accident and therefore the multidisciplinary treatment program proposed is reasonable and necessary.
30In preparation for the recommendation of the chronic pain treatment program, Dr. Inese Robertus produced a chronic pain report dated July 7, 2017. In her report, she noted the applicant saw his family doctor following the MVA and was referred to Dr. Ken Fern, an orthopedic surgeon. Dr. Fern began nerve block injections for pain management. The applicant continued to see Dr. Fern once a week for pain management. Dr. Robertus found ongoing headaches, whiplash injuries, psychological issues and chronic pain disorder. She recommended a comprehensive multidisciplinary chronic pain program with behaviour modification and individual counselling, functional exercise program and seminars to teach the applicant methods of stress and pain management.
31On July 10, 2017, All Health Medical recommended the above disputed, multidisciplinary treatment program to help with pain reduction and increased range of motion. The goal was to return the applicant to his normal living and pre-work activities.
32The respondent then sent the applicant to a multidisciplinary assessment provided by Dr. Jugnundan GP and Dr. Hope, neuropsychologist. Dr. Jugnundan’s assessment was a paper review as he had seen the applicant one month before for a different assessment (Dr. Jugnundan’s August 2017 Report). Dr. Hope’s report is the Second Hope Report discussed above under issue 1.
33Dr. Jugnundan’s section of the report is perfunctory. He states that the applicant has sought treatment, has returned to work and is fit. However, the facts do not support this conclusion. At the time of the report, the applicant had returned to work but with modified duties and reduced hours, and he continued to suffer from various symptoms and chronic pain. Indeed, in Dr. Jugnundan’s August 2017 report, which included an in-person assessment – he found that because of the accident:
a. the applicant has stopped playing basketball, a significant social and exercise aspect of is pre-accident lifestyle;
b. he needs assistance with cutting the grass;
c. he is working half the hours he used to and on modified duties;
d. he has pain almost all of the time;
e. he has neck and back pain and headaches; and
f. his lower back pain has become chronic.
34Due to the inconsistencies in Dr. Jugnundan’s reports, I reject his findings.
35The Second Hope Report, as previously discussed under issue 1, showed that the applicant suffered from psychological symptoms and recommended psychotherapy treatment which was approved.
36In considering the above reports, I prefer the evidence of Dr. Robertus. She conducted an in-person assessment and her conclusions were more in line with the symptoms complained of and the lifestyle changes that the applicant has experienced – most particularly his inability to return to full-time work and his modified duties. Both Dr. Robertus and Dr. Jugnundan concluded that the applicant was suffering from chronic pain. The treatment program suggested was specifically for treating chronic pain.
37Although the applicant has been receiving pain injections from his orthopaedic specialist this has not solved the problem. It is reasonable and necessary that the applicant seek a multidisciplinary program that treats chronic pain to deal with the various facets of his pain condition so that he can return to his normal living a pre-work activities.
38In conclusion, I find the multidisciplinary chronic pain treatment program to be reasonable and necessary.
c. Interest
39Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
40Having allowed the applicant’s appeal, the respondent is liable to pay interest on overdue payments at the prescribed rate.
V. CONCLUSION
41For the reasons outlined above, I find the applicant is entitled to the psychological assessment, the multidisciplinary treatment program, the overdue payment of benefits and applicable interest.
Released: August 28, 2018
Marisa Victor, Adjudicator