Tribunal File Number: 16-004675/AABS
Case Name: 16-004675/AABS v Certas Direct Insurance Company
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
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the applicant: Jono Schneider
Counsel for the respondent: Kayley Richardson
HEARD: Written Hearing: June 26, 2017
Overview
1The applicant was involved in a motor vehicle accident on April 18, 2015. She applied for a number of automobile accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). Certas Direct Insurance Company (“Certas”) denied payment for some of the benefits. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for the payment of those benefits.
Issues in Dispute:
2The following issues are in dispute before the Tribunal:
Did the applicant sustain injuries that fall within the Minor Injury Guideline and are subject to a $3,500.00 cap on treatment under s. 18 of the Schedule?
Is the applicant entitled to a $2,825.00 cost of examination for a general practitioner’s assessment, recommended by Allied-Med Trauma Evaluations in a Treatment Plan dated November 23, 2015?
Is the applicant entitled to receive a $2,932.71 medical benefit for psychological services, recommended by Allied-MedTrauma Evaluations in a Treatment Plan dated November 23, 2015?
Is the applicant entitled to interest on overdue benefits?
Result:
3The injuries sustained as a result of the accident fall within the Minor Injury Guideline. The applicant has not demonstrated that she suffers from an injury that is not “predominantly minor” as defined in the Schedule.
4The applicant is not entitled to payment for the general practitioner’s assessment or psychological services. The benefits are not reasonable and necessary, nor are they automatically payable as a function of ss. 38(8) and (11) of the Schedule.
5Since no payment is outstanding, the applicant is not entitled to interest.
Discussion
1. Did the applicant sustain injuries that fall within the Minor Injury Guideline?
6The applicant’s injuries sustained as a result of the motor vehicle accident fall within the Minor Injury Guideline. The term “minor injury” is defined in section 3 of the Schedule. Section 18 of the Schedule provides, with certain exceptions, that injuries which are deemed “minor injuries” are subject to treatment limit of $3,500 and treatment within the Minor Injury Guideline. The applicant submits that the Minor Injury Guideline does not apply because she suffers from an injury that is not predominantly minor. She submits that she suffers from (1) a psychological impairment and (2) chronic pain syndrome, either of which are in her opinion considered more than a predominantly minor injury.
(a) The applicant’s psychological symptoms fall within the Minor Injury Guideline.
7The applicant’s claim of a psychological impairment is based on a psychological assessment conducted on September 22, 2015, almost five months after the accident. The assessment was conducted with L. Thomas and reviewed by Dr. Vitelli. The applicant advises that Ms. L. Thomas is a regulated health professional and Dr. Vitelli is a clinical psychologist. The assessment appears to be a consultation, in which the applicant reported pain, difficulty sleeping, stress, frustration, difficulty focusing and concentrating, remembering her sister’s death in a previous car accident, and anxiety in a vehicle.
8The September 22 assessment fails to demonstrate that the applicant suffers from a psychological impairment of any sort. All that the assessment tells me that, as a result of the accident, the applicant reports suffering from accident related psychological symptoms. Ms. L. Thomas did not conduct any psychometric tests nor did she provide a cogent analysis of the applicant’s self-reported difficulties.
9Certas commissioned a psychological assessment on December 22, 2015 by Dr. Jeffrey Goodman in relation to the Treatment Plan in dispute. Dr. Goodman conducted a number of psychometric tests, among other methods of analysis. In a report dated January 20, 2016, Dr. Goodman concluded that the applicant does not suffer from a psychological impairment as a result of the motor vehicle accident. Dr. Goodman does not dispute that the applicant has some accident related symptoms, but he opines that any accident related psychological symptoms that the applicant may experience are minor in nature.
10The applicant reported the same type of psychological symptoms to Dr. Goodman as she did to Ms. L. Thomas. The practitioners differ in the conclusion drawn based on these symptoms. I prefer Dr. Goodman’s conclusion over Ms. Thomas’ because Dr. Goodman’s conclusion is based on self-reports and psychometric tests. The inclusion of psychometric tests produces a more sustained analysis.
11The applicant challenges the soundness of Dr. Goodman’s analysis because Dr. Goodman did not consider whether the applicant suffers from a psychological impairment that falls within the Minor Injury Guideline. The challenge is misplaced. Dr. Goodman did not need to consider this issue because he did not find that the applicant suffers from a psychological impairment as a result of the accident.
(b) The applicant has not established that she suffers from chronic pain syndrome to remove her from the Minor Injury Guideline
12The applicant claims that she suffers from chronic pain syndrome, which according to her is not a predominantly minor injury. She bases her claim on documents authored by Doctors Barchan, Bath, and Kostovic, respectively.
13Dr. Barchan is a general practitioner who submitted the Treatment Plan for the general practitioner assessment in dispute. Dr. Barchan spoke with the applicant sometime around November 23, 2015. The applicant told Dr. Barchan that she was suffering from constant pain in her back, neck, and hands. Dr. Barchan concluded that the applicant appears to be “developing features of chronic pain” and recommended her removal from the Minor Injury Guideline.
14Dr. Bath is the applicant’s family doctor. In a letter dated November 2, 2016, Dr. Bath commented on the applicant’s neck and back pain and treatment by a chronic pain management physician. Dr. Bath referred the applicant to the Centre for Pain Management.
15Dr. Kostovic is the applicant’s chronic pain management physician. In a letter dated November 11, 2016, Dr. Kostovic acknowledged that he had been servicing the applicant since April 2016 and recommended ongoing acupuncture and physiotherapy. Dr. Kostovic provided a medical note dated March 22, 2017 further recommending physiotherapy, chiropractic treatment, acupuncture, massage therapy, and participation in a chronic pain rehabilitation program.
16The documents created by Doctors Barchan, Bath, and Kostovic are not sufficient proof of chronic pain syndrome. The information provided by the respective doctors is elliptical, rotating around the real issue: does the applicant suffer from chronic pain syndrome? The question is not answered by a referral to the Center for Pain Management, or from the applicant receiving treatment from a chronic pain management physician. Receiving treatment for alleged chronic pain syndrome does not prove the applicant’s actual medical need to the receive treatment. Likewise, receiving treatment from a chronic pain management physician is not proof that the applicant suffers from chronic pain syndrome. I appreciate the intuitive inference I am implicitly encouraged to make: if the applicant does not have chronic pain syndrome she would not describe pain to Dr. Barchan, receive a referral for treatment, and attend treatment. However, the highest I am comfortable inferring from this evidence without more objective testing is that the applicant might have chronic pain syndrome. The law requires the applicant to prove that she suffers from chronic pain syndrome on a balance of probabilities. I cannot infer that far.
17I also take into account the report of Dr. Williams, dated January 20, 2016. Dr. Williams was retained by Certas to conduct a physiatry assessment. Dr. Williams diagnosed the applicant with minor injuries only:
cervical spine strain/sprain WAD2
lumbar spine sprain/strain
right shoulder no diagnosis (as an unsatisfactory exam was performed secondary to lack of effort and participation)
bilateral knee sprain/strain which is likely exacerbation of preexisting degenerative changes
right wrist no impairment.
Dr. William’s report reinforces my conclusion that the applicant suffers from a predominantly minor physical injury.
18I am not satisfied that the applicant can be removed from the Minor Injury Guideline if I consider her psychological and physical condition together.
19In conclusion, I am not satisfied the applicant suffers from a psychological impairment or a physical injury that is not predominantly minor.
2. Is the applicant entitled to a $2,825.00 general practitioner’s assessment and/or a $2,932.71 medical benefit for psychological services?
20The applicant is not entitled to a $2,825.00 general practitioner’s assessment or a $2,932.71 medical benefit for psychological services. The applicant’s submissions on this issue can be divided into two categories:
a) The benefits are payable as a result of ss. 38(8) of the Schedule
b) The benefits are reasonable and necessary
(a) Are the benefits payable as a result of s. 38(8) of the Schedule?
21The benefits are not payable as a result of s. 38(8) of the Schedule. The applicant submits that Certas failed to provide medical reasons for denying the general practitioner’s assessment and psychological services, respectively. Under ss. 38(8) and (11) of the Schedule, the failure to provide medical reasons can result in an obligation to pay for the Treatment Plan in dispute.
22Certas provided medical reasons for the denial of the practitioner’s assessment and psychological services. Certas responded to the Treatment Plans for the assessment and services in the same Explanation of Benefits, dated December 1, 2015. For each Treatment Plan, Certas stated that it was denying the benefit, in part, because of a lack of objective, compelling, supporting medical documentation. The Explanation of Benefits stated that an Insurer’s Examination would be conducted in relation to each Treatment Plan. This is sufficient to satisfy the medical reasons requirement of ss. 38(8).
(b) Are the benefits reasonable and necessary?[^2]
23I find that neither benefit is reasonable and necessary.
24The psychological services are not reasonable and necessary because, as discussed above, I agree with Dr. Goodman that the applicant does not suffer from a psychological impairment.
25The general practitioner’s assessment is not reasonable and necessary. Dr. Barchan, who prepared the Treatment Plan, did not explain why the Treatment Plan is reasonable and necessary. Under Part 9 of the Treatment Plan, which describes the Treatment Plan’s goals, outcome evolution methods and barriers to recovery, Dr. Barchan selected “other”. Yet Dr. Barchan did not specify in Treatment Plan what he means by “other”. I do not know what the Treatment Plan’s goals are or how those goals will be met. As a result, I cannot conclude that the expense is reasonable.
3. Interest
26As there are no outstanding payments, the applicant is not entitled to interest.
Conclusion:
27The applicant’s injuries fall within the Minor Injury Guideline. She is not entitled to payment for the general practitioner’s assessment or psychological services. The benefits are not reasonable and necessary and are not payable as a function of ss. 38(8) and (11) of the Schedule. Since there are no outstanding payments, no interest is owing.
Released: January 8, 2018
Chris Sewrattan, Adjudicator
Footnotes
- O. Reg. 34/10.
- The parties did not state whether they want this issue to be decided if I find that the applicant is within the Minor Injury Guideline.