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:
A.M.
Appellant(s)
and
Certas Home and Auto Insurance Company
Respondent
DECISION
PANEL:
Eleanor White, Vice-Chair
APPEARANCES:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Derek Yap, Counsel
HEARD:
In Writing on: November 5, 2018
OVERVIEW
1The applicant was involved in an automobile accident on March 8, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant was the driver of a vehicle when he was hit on the rear passenger side by a car. The applicant was transported to hospital, reporting symptoms of pain in his neck, right shoulder, back and abdomen. He was diagnosed with sprains and strains and whiplash. Injuries of this nature are defined as “minor injuries” in the Schedule and there is a monetary limit of $3500.00 available for treatment under the Minor Injury Guideline (“MIG”).
3The applicant has recently applied for funding in excess of $3500.00 for a psychological assessment. If he is found to have a psychological impairment then he would be entitled to a higher limit of funding for treatment. The applicant was denied benefits that exceeded the payment limits of the MIG and is now disputing the denial and his restriction to the guideline for treatment of impairment he associates with the accident.
4I must decide if (a) the applicant’s physical impairment is such that the $3500.00 limit does not apply or (b) if there are sufficient grounds to suspect the applicant has a psychological impairment such that he is no longer subject to the $3500.00 limit.
ISSUES IN DISPUTE
5The issues as itemized in the Order of the adjudicator issued July 23, 2018 include the following:
Did the applicant sustain predominantly minor injuries as defined under the Statutory Accident Benefits Schedule (the ‘Schedule’)?
Is the applicant entitled to a medical and rehabilitation benefit in the remainder amount of $290.50 (submitted amount $1,345.50 – approved amount $1,055.00) for physiotherapy treatment recommended by Whitby Physiotherapy and Rehab Clinic, in a treatment plan (OCF-18) submitted on May 13, 2016, and denied on May 26, 2016?
Is the applicant entitled to payment for the cost of examination for a psychological assessment in the amount of $2,195.32 recommended by Dr. Andrew Shaul, psychologist, in a treatment plan (OCF-18) submitted on October 27, 2017, denied on November 4, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
The following issue was added in the applicant’s hearing submissions:
Is the applicant entitled to a special award pursuant to s. 282 (10) of the Insurance Act and confirmed within section 10 of Ontario Regulation 664, R.R.O. 1990, because it withheld access to and payment for benefits in dispute?
Is the applicant entitled to reasonable costs for these proceedings?
RESULT
6I find the applicant’s injuries are predominantly “minor” as defined in the Schedule. My finding is based on the clinical notes and records as well as the treatment recommendations of the various healthcare providers who have provided reports throughout the course of the applicant’s recovery, up until the submission of the report of the psychologist, Dr. A. Shaul.
7I find that the denial of the remaining balance amount of $290.50 (submitted amount $1,345.50 – approved amount $1,055.00) for physiotherapy treatment recommended by Whitby Physiotherapy and Rehab Clinic is to be maintained. The insurer approved treatment to the limit of coverage within the MIG, based on the provider’s own clinical support of treatment recommendations within the MIG.
8I find the denial of payment, for the cost of examination for a psychological assessment in the amount of $2,195.32, recommended by Dr. Andrew Shaul, psychologist, to be upheld. There is no compelling evidence of psychological injury throughout the file from any other provider to support the necessity, after an extensive period of time, to investigate the possibility of psychological impairment.
9As there are no benefits awarded, there is no interest to be paid.
10I find no basis for an award pursuant to section 10 of the Ontario Regulation 664, R.R.O. 1990, because the respondent correctly adjusted the file within the MIG.
11No costs are awarded to either party.
ANALYSIS
Are the applicant’s injuries treatable under the Minor Injury Guideline (MIG)?
12The applicant was determined by Dr. T. Visram, chiropractor of Whitby Physiotherapy and Rehabilitation Centre to have minor injuries. The injuries have been consistently reported in the records of attending emergency personnel, hospital records on the day of the accident, family doctor and treatment providers as primarily physical and as injuries of a sprain or strain nature. Whether in the neck, right shoulder, mid- or low back, the diagnoses do not include joint or bony injuries. The WAD II and other soft tissue injuries are also accompanied by headache and sleep disturbance due to pain.
13The Schedule in Section 3 (1) (c) defines “minor injuries” 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 treatment providers at the clinic submitted appropriate treatment confirmation forms, an OCF-23 and one subsequent OCF-18 allowable under the MIG. The applicant consumed the majority of the available treatment under the guideline and had a small credit available that provided an opportunity for him to follow-up after he finished his care.
14The applicant submits that his visit to the local hospital very shortly after he concluded his regimen of care was due to continued lower back pain. He did not follow up further with the treating clinic despite a credit balance on file, nor did he seek any further facility-based treatment that was submitted to the insurer. The insurer’s file was dormant for a period of almost 16 months. There was no evidence presented to the insurer that the applicant’s care had been insufficient. There was no evidence of psychological difficulties.
15The insurer paid for all treatment up to the MIG limit of $3,500.00. The onus lies with the applicant to seek further treatment if needed and to communicate with the insurer if that need exceeds the limits of the MIG. It is also important to note that no treatment was recommended, requested or imposed for any psychological difficulties during the period of treatment offered at the clinic.
Should the treatment plan for physical treatment, submitted by Whitby Physiotherapy and Rehabilitation Clinic have been approved and paid in its entirety?
16No, I do not find the denial of the treatment plan was incorrectly decided. The applicant has presented no compelling evidence that his treatment should have been removed from the MIG. The clinic presented fulsome clinical notes and records including diagnoses consistent with the definition of “minor injuries” and treated the applicant accordingly. Therefore, the treatment plan was approved and paid appropriately, up to the limits of the MIG. The applicant did not fully consume the approved amount, nor did he follow up with the clinic for continued care. The unapproved portion of the treatment plan was not payable under the MIG. The applicant has not provided any additional evidence in support of any ongoing physical impairment
Should the treatment plan for psychological assessment, submitted by Dr. Andrew Shaul, psychologist have been approved?
17In order to approve the treatment plan submitted by Dr. Shaul, the applicant must show on a balance of probabilities that he has a psychological impairment in order to remove the limitations of the MIG’s access to benefits. Once removed from the MIG, any treatment must meet the test of being reasonable and necessary, as required by ss. 14-17 of the Schedule.
18During the course of post-accident treatment with all attending or treating professionals, I find there was no compelling evidence of a psychological injury. The applicant indicated only sleep disturbance due to pain. Only the OCF-1, completed 13 days after the accident and 3 days after a thorough intake consultation, history and examination at the treating clinic, mentioned depression as an injury sustained in the accident. Other than an initial report in the clinical notes and the OCF-3, there is no subsequent reference to depression anxiety or psychologically-related impairment after those entries.
19In his report, Dr. Shaul indicates that the applicant was referred to him for a psychological pre-screening and that as a result of this; a recommendation was made by the examiner for a more thorough psychological assessment. The source of the initial referral was not clarified in his report, nor was it noted in the clinical notes from the treating clinic. The examiner, Aaron Laye, RSW working under Dr. Shaul initiated an interview and completion of a psychological screening checklist which did not reveal compelling psychological problems. The checklist included a short list of questions to which his responses indicated he was still experiencing disturbed sleep due to intermittent pain in his back, and emotionally, he was annoyed and lacked desire for previous activities. He denied thinking about the accident or having flashbacks, stated that he feels fine when driving, has returned to work but is still having pain and is tired.
20As a result of the pre-screening, Mr. Laye recommended a more comprehensive assessment by Dr. Shaul and a treatment plan was submitted, proposing a psychological assessment. The plan was denied as there had been no objective evidence of a psychological injury mentioned to date in the file and no evidence of a pre-existing psychological history that would support the proposal for psychological assessment. There had been a long dormant period in the file during which no treatment of any kind was reported to or requested from the insurer. The treatment plan was not deemed reasonable and necessary in the absence of such evidence.
21From the family doctor’s CNR, I find no record, either pre- or post-accident, of psychological impairment. No evidence from an OHIP summary has supported any referral to a psychologist. The treatment plan seems rather isolated, in my view, by time and in light of all previous medical records. The profile presented in the psychological report seems quite different, in my view, from that offered in the applicant’s responses to the pre-screening checklist and throughout the record as a whole. There is some question regarding unresolved pain that has been substantiated by a hospital visit, but no record of psychological difficulties.
22The onus lies with the applicant to provide compelling evidence that his injuries are not “minor” in nature and I find he has not met that onus. I am persuaded by the entire record that the treatment plan (OCF-18) for psychological assessment is not reasonable and necessary.
Attendant Care
23The applicant raised the issue of attendant care in his submissions. The issue was also used in the applicant’s argument for an award, pursuant to section 10 of O. Reg. 664. In response, the respondent expressed surprise, as this issue was not raised in his application to the Tribunal. The respondent has submitted that there has never been an application for attendant care benefits, nor has there been a denial. The respondent denies any Form 1 or any invoices for this benefit in the file. As there is no denial, this issue is not properly before me, so I have no jurisdiction to address this claim for attendant care at this hearing.
Costs
24The applicant made no submissions on the issue of costs, but finished his conclusion by asking for ‘reasonable costs of the proceedings’. The Tribunal’s Common Rules of Practice and Procedure specify that a request for costs requires the specific amount and include the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, and vexatious or in bad faith. The applicant did not supply either the amount requested or the specifics of the respondent’s conduct that would warrant the award of costs for the proceedings.
Award
25Section 10 of O. Reg. 664 allows the Tribunal to award a lump sum up to 50% of the amount to which the person was entitled at the time of the award, with interest; if the Tribunal finds that an insurer unreasonably withheld or delayed payments The applicant uses an account of interaction regarding attendant care as a significant example of unreasonably withheld payment for medical or rehabilitative benefits and yet the issue of attendant care is not included in this application to the Tribunal. Nor is the respondent aware, from their submissions, of any application for the benefit. My analysis of disputed treatment plans has already been presented. I therefore do not find that the respondent has unreasonably withheld or delayed the payment of the benefits in dispute, and dismiss the claim for an award.
CONCLUSION
26I find that the applicant’s injuries are predominantly minor injuries as defined under the Schedule.
27Because the applicant’s injuries are predominantly minor, he is not entitled to the unapproved portion of a medical and rehabilitation benefit in the remainder amount of $290.50 (submitted amount $1,345.50 – approved amount $1,055.00) for physiotherapy treatment recommended by Whitby Physiotherapy and Rehab Clinic, in a treatment plan (OCF-18) submitted on May 13, 2016, and denied on May 26, 2016.
28I am also not persuaded by the applicant’s submissions that the psychological opinion of Dr. Shaul is supported by any compelling evidence throughout the entire record of the file that would cause the applicant to be removed from the limitations of the MIG. That being my finding, I dismiss the claim for approval of the treatment plan in the amount for $2,195.32, recommended by Dr. Andrew Shaul, psychologist, in a treatment plan (OCF-18) submitted on October 27, 2017, and denied on November 4, 2017.
29As no benefits were found to be payable, there is no payment of interest to be calculated or paid on these claims.
30I do not find the insurer has acted in a manner that warrants an award.
31As I find there has been no evidence of either party acting in bad faith or in a vexatious manner, there are no costs awarded to either party.
ORDER
32As the injuries sustained by the applicant are found to be predominantly minor as defined in the Schedule, the claims in this application for the benefits specified and all associated interest, costs and awards are dismissed.
Released: June 5, 2019
___________________________
Eleanor White
Vice Chair