M.K. v. Certas Direct, 2018 CanLII 130842

Date: 2018-10-19 Tribunal File Number: 17-006932/AABS Case Name: 17-006932 v Certas Direct

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:

M. K. Applicant

and

Certas Direct Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Loreto Scarola, Paralegal For the Respondent: Shelby Chung, Counsel

HEARD: by way of Written Hearing: April 3, 2018

OVERVIEW

1The applicant (“M.K.”) was injured in an automobile accident (“the accident”) on November 25, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When his claims for benefits were denied by the respondent (“Certas”), M.K. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2Certas denied M.K.’s claims because it determined that all of his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). M.K.’s position is that he suffers psychological impairments from the accident, which remove him from the MIG, and that his requested psychological assessment and treatment are reasonable and necessary.

3Having considered the parties’ submissions, I conclude M.K.’s impairments are subject to the treatment within the MIG, and that M.K. is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule. To the extent that any funds are remaining under the $3,500 limit, I also find that M.K.’s request for treatment was not reasonable and necessary, but that the psychological assessment was reasonable and necessary when undertaken, even though that assessment did not establish that M.K.’s psychological issues are accident related.

ISSUES

4Did M.K. sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to medical benefits limited by the MIG?

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

i. Is M.K. entitled to receive the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted on June 15, 2017 and denied on June 29, 2017?

ii. Is M.K. entitled to receive a medical benefit in the amount of $3,129.48 for psychological treatment recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted on July 7, 2017 and denied on August 26, 2017?

iii. Is M.K. entitled to interest on any overdue payment of benefits?

iv. Is M.K. entitled to an award pursuant to section 10 of Regulation 664, RRO 1990, for unreasonably withheld or delayed payments by the respondent?

RESULT

6Based on a review of the evidence before me, I find the following:

i. I find that M.K.’s injuries are subject to treatment within the MIG, and thus, he is bound by the $3,500 treatment limit.

ii. To the extent that any funds of the $3,500 treatment limit remain, M.K. has established the cost of the psychological assessment is reasonable and necessary, and payable up to the amounts of the MIG limits;

iii. M.K. has not established that the psychological treatment is reasonable and necessary.

iv. M.K. is not entitled to an award under Section 10 of Regulation 664.

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.”

8Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

9The onus is on M.K. to show that his injuries fall outside of the MIG³.

10To be more specific, in this case, M.K. has the onus to establish that he suffered psychological impairments from the accident, and that they are not considered sequelae of the accident-related injuries. For the reasons that follow, I find that M.K. did suffer from some psychological impairment; he has not established that those issues are accident-related, and therefore he remains subject to the $3,500 treatment limit of the MIG.

Positions of the Parties

11M.K. submits he suffers from accident-related psychological impairments. As a result of those impairments, M.K. claims that:

(1) he should not be subject to the Schedule’s limitations set out under the MIG,

(2) his psychological assessment was necessary, and

(3) the requested treatment is reasonable and necessary.

12Certas’ position is if M.K. suffers any significant psychological issues, they are not related to the accident but rather to his marital situation and other issues. Thus, Certas argues, that if M.K. suffered from accident-related psychological issues in this accident, that those issues are sufficiently minor that they still remain subject to the MIG treatment limits. Certas also submits that regardless of the whether or not the $3,500 treatment limit applies, neither treatment plan was necessary and also do not necessitate further treatment.

ANALYSIS

13The parties focused their submissions on opposing psychological expert reports, the family doctors records, and the applicant’s self-reporting. As discussed below, both psychological experts agree that the applicant suffers from at least some “somatic” issues, but the real underlying argument is the cause and severity. Interestingly, both experts conducted testing, reviewed medical documents, and considered the subjective complaints from M.K., yet reach almost completely different opinions on M.K.’s psychological well-being.

14M.K. relies on the expert report of Dr. Sandra Sagrati, Psychologist with Toronto West Psychology, dated August 15, 2017. Her report suggested that M.K. receive psychological treatment.

15From his submissions, it also appears M.K. is advocating for his removal from the MIG due to psychological impairments. While he does not explicitly state this, M.K. reproduced portions of Dr. Sagrati’s report, which advocates for M.K.’s removal from the MIG due to his psychological impairments.

16Dr. Sagrati’s report provides the diagnosis of depression and post-traumatic anxiety within his submissions. Dr. Sagrati diagnosed M.K. with Symptoms of Post-Traumatic Stress Disorder, phobic avoidance to motor vehicles and Somatic Disorder with Predominant Pain, persistent, moderate with secondary depression. She opined that a claimant diagnosed with a predominately psychological impairment cannot be treated within the MIG. Therefore, Dr. Sagrati concluded M.K.’s psychological impairments do not fall within the limits of the MIG.

17Certas’ psychological assessor, Dr. Michael Schwartz, in contrast to Dr. Sagrati, noted that M.K. does not feel depressed about the accident. Dr. Schwartz does note that M.K. has relationship issues and feels lonely. Dr. Schwartz’s report indicates M.K. continues to drive, albeit more cautiously and no longer “speeds” as he used to do. Dr. Schwartz’s testing results indicated M.K. scored within a minimal range for depression and anxiety. Dr. Schwartz concluded that M.K. presented as an individual who did not warrant psychological treatment outside of the MIG.

18M.K. argues that there appears to be a “disconnect between the actual interview and testing of the applicant and the conclusions brought forth by the assessor….” based on several points. First, Dr. Schwartz’s report confirms that M.K. endorsed a statement reflective of depression for only a handful of areas but that this would confirm M.K. is experiencing a depressive condition. Second, Dr. Schwartz’s report confirms the “applicant did not show any biases toward underreporting or denying symptomatology”. Based on these and similar reports results, M.K. argues, and I agree, that the concluding opinion Dr. Schwartz arrives at appears to be contradictory to his objective testing results.

19In his summary, Dr. Schwartz stated, “the results from the psychometric tests indicated some concerns to do with somatic functioning.” This is, in actuality, similar to Dr. Sagrati’s conclusion in her report regarding M.K.’s somatic function, where she diagnosed M.K. with somatic symptom disorder.

20The issue remains, however, that M.K. must establish that those somatic functioning “concerns” according Dr. Schwartz, or the somatic symptom “disorder” according to Dr. Sagrati, are accident-related injuries, and establish that any accident-related injuries remove him from the MIG.

21While M.K. emphasized portions of Dr. Sagrati’s reports, given the conflicting report of Dr. Schwartz, I find that M.K.’s submissions and evidence are insufficient to establish that they are accident related.

22My review of the rest of M.K.’s evidence, such as M.K.’s self-reporting, leads me to the same conclusion. From the evidence and self-reporting of M.K., it would appear that seeking psychological help was not something he was ever inclined to pursue. M.K. advised Dr. Schwartz during the assessment, that he (M.K.) had recently undergone a psychological assessment. M.K. said he was not sure whether psychological treatment would be helpful for him. Further, M.K. indicated he had found physiotherapy for his back to be beneficial and would like to resume that type of treatment.

23The only evidence of ongoing psychological “stressors” were self-reported by M.K. to Dr. Sagrati and Dr. Schwartz and did not relate to the accident. Rather, they relate to the health issues of M.K.’s mother and the related challenges of caring for her; the breakdown of M.K.’s marriage and the pressure of owning/operating two small businesses; all of which I find to indicate that accident-related psychological treatment was not required, as none of these psychological stressors are accident-related.

24As noted above regarding his personal life, activities and work, M.K. appears to still participate in the regular pre-accident activities that he engaged in pre-accident. Any change noted with his personal life, appears to be a result of marital discord and other family challenges, none of which are accident-related. I agree with Dr. Schwartz’s conclusion that M.K. “did not currently present with psychological issues directly related to the accident which would require psychological…..treatment……outside…the MIG.” (Emphasis added.) As a result, I find that there is no clear indication that M.K.’s reported psychological complaints are accident-related or not accident-related sequelae, and thus he is subject to the treatment limit of the MIG.

25I note that the somatic functioning conclusions by both Dr. Sagrati and Dr. Schwartz speak to the physical injuries suffered by M.K. Further, based on the medical assessors’ opinions and M.K.’s self-reporting, it would appear that M.K. may find benefit in physical treatment, however, those types of treatment plans are not before me.

Are the requested treatment plans reasonable and necessary?

26As I have found that M.K.’s impairments are subject to the MIG and the MIG’s $3,500 limit, any entitlement to the treatment, if reasonable and necessary, is payable within the MIG framework of $3,500.

27Regarding the July 7, 2017 Treatment Plan for psychological treatment in the amount $3,129.48, I find that plan is not reasonable and necessary for the reasons above, i.e. I don’t find that on the evidence, M.K. established that his psychological symptoms stem from the accident.

28Regarding the July 15, 2107 Treatment Plan for a psychological assessment, I find that the psychological assessment was reasonable and necessary when M.K. had it completed, as M.K. was exhibiting psychological symptoms that reasonably called for exploration – for instance, Certas’ own IE established some somatic issues. However, as stated above it is only payable to the extent of any remaining funds under the MIG.

Award under Regulation 664:

29Section 10 of Regulation 664 (“the Regulation”) permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. M.K.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Certas) has “unreasonably” withheld or delayed payments.

30I find that M.K. is not entitled to an award based on Certas’ denial of the treatment plans. It was not unreasonable for Certas to deny the treatment plans based on its interpretation of its medical assessors reports.

CONCLUSION

31For the reasons outlined above, I find that:

i. M.K.’s injuries are subject to treatment within the MIG, and thus, he is bound by the $3,500 treatment limit;

iii. M.K. has not established that the psychological treatment is reasonable and necessary; and