Tribunal File Number: 17-003600/AABS
Case Name: 17-003600 v Aviva General Insurance
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:
[The Applicant]
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Marisa Victor
APPEARANCES:
For the Applicant: Michael Wentzel, paralegal
For the Respondent: Cary Schneider, counsel
HEARD: Written Hearing: November 8, 2017
REASONS FOR DECISION AND ORDER
I. OVERVIEW
1The applicant was involved in a car accident on Jan 13, 2016. She was a passenger in a car that was rear-ended. The applicant claimed she was injured in the accident and received accident benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule") for some of the physical injuries she suffered.
2The respondent deemed her injuries to fall within the Minor Injury Guideline (the "MIG"), which means the medical and rehabilitation benefits were capped at a value of $3,500. The applicant disputes that her physical and psychological injuries fall within the MIG.
3The applicant also applied for a psychological assessment. The respondent denied the request on the basis that the applicant's injuries are minor injuries and she has used up the $3,500 available. The applicant disputes the denial of the psychological assessment.
4The applicant is also seeking interest on the overdue benefits and an award for unreasonably withheld payments. She submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute. The matter proceeded to a Case Conference on August 2, 2017, and the parties were unable to resolve the issues. The matter then proceeded to this written Hearing to determine the following issues in dispute.
II. ISSUES
5The issues are:
a. Are the applicant's injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500 and to treatment within the MIG?
b. Is the applicant entitled to payment for the cost of examination in the amount of $2,200 for psychological assessment, recommended by Dr. Judith Pilowsky in a treatment plan dated March 30, 2016, denied by the respondent on June 23, 2016?
c. Is the applicant entitled to interest on any overdue payment of benefits?
d. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
III. RESULT
6Based on a review of the evidence presented, I find that:
a. The applicant has established on a balance of probabilities that the injuries fall outside the MIG, because the extent of her psychological symptoms do not fall within the definition of minor injury;
b. The applicant is entitled to the cost of her psychological examination in the amount of $2,200;
c. The applicant is entitled to interest on the overdue amount; and
d. The applicant is not entitled to an award under Regulation 664 because the respondent did not unreasonably withhold or delay payments to the applicant.
IV. EVIDENCE AND ANALYSIS
A. The applicant's injuries fall outside the MIG
7Under s. 3 of the Schedule, "minor injury" means 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.
8There were some medical reports submitted with regard to the applicant's physical injuries, including headaches.
9The applicant sought psychological treatment due to the accident. Dr. Judith Pilowsky prepared an OCF-18 Treatment and Assessment Plan dated March 30, 2016. The plan recommended an assessment in the amount of $2,200 for assessment and completion of the form. Dr. Pilowsky conducted what she called a mini-assessment over the phone in order to prepare and support the plan. She found that the applicant was suffering from depression and anxiety and showed symptoms of post-traumatic stress disorder related to motor vehicles. The goal of the plan was to decrease psychological symptoms and return the applicant to activities of daily living. The respondent denied the plan on the basis that the appellant's injuries are minor injuries.
10There are two psychological assessments before me:
a. Dr. Syed's report, June 7, 2016;
b. Dr. Padda's report, October 18, 2016.
11Both psychologists' tests produced similar results but different conclusions.
12I will first deal with the psychological injuries in order to determine if the injuries fall within the MIG.
Dr. Syed's report
13After the applicant's request for psychological assessment and treatment, the respondent had the applicant complete a section 44 independent medical examination with Dr. Amena Syed. Dr. Syed produced a report on June 7, 2016.
14Dr. Syed reviewed the available documentation, conducted an interview and performed several psychological tests.
15Dr. Syed reported that the applicant reported the following symptoms:
a. Sadness at the time of the accident which has decreased;
b. Anger/irritability, particularly as a result of pain which has affected her relationship with her husband;
c. Excessive worry about her finances and job security as a result of the accident;
d. Decrease in lifestyle activities and social interest as compared to before the accident;
e. Difficulty sleeping and fatigue;
f. Traumatic stress caused by the accident, including distressing memories and nervousness when travelling by car (passenger phobia); and
g. Painful headaches, and ringing in her ears.
16Dr. Syed had a technician perform a number of tests on the applicant. These included the following and their results:
a. The Beck Depression Inventory-II test – moderately impaired;
b. The Beck Anxiety Inventory – mildly impaired; and
c. The Pain Catastrophizing Scale test – high risk.
17In addition, Dr. Syed found that the applicant scored "moderately impaired" during the post-traumatic stress test. The M-Fast test, designed to assess likelihood of feigning illness, showed that the applicant was genuinely responding.
18During the interview, the applicant advised that she was not yet back at work as a result of the accident.
19In conclusion, Dr. Syed stated that the symptoms exhibited by the applicant were caused by the accident. Nevertheless, she concluded on the above evidence that the psychological impairments found did not warrant a diagnosis and were minor in nature. As a result of Dr. Syed's report, the respondent denied the proposed plan.
Dr. Padda's Report
20Even though the respondent denied the assessment, the applicant underwent her own assessment with Dr. Padda, psychologist. Dr. Padda produced her report on October 18, 2016. She reviewed the documentation provided to her, interviewed the applicant and conducted several psychological tests.
21Dr. Padda noted that the applicant complained of the following since the accident:
a. Onset of sudden painful headaches;
b. Fear of losing her job;
c. Emotional distance from her husband and son; and
d. Panic and anxiety when riding in a car.
22Dr. Padda conducted three of the same tests as Dr. Syed. These are the tests and results:
a. The Beck Depression Inventory-II test – score of 19, moderate depression;
b. The Beck Anxiety Inventory – score of 22, moderate anxiety; and
c. The Pain Catastrophizing Scale test – score of 87%, significantly elevated score.
23Based on the scores, Dr. Padda diagnosed:
a. Adjustment disorder with mixed anxiety and depressed mood; and
b. Somatic symptom disorder, persistent with predominant pain of moderate severity.
24During the interview, the applicant advised that she had returned to work due to financial pressures but that she was unable to resume her full-time hours due to her injuries.
25Dr. Padda concluded that since the applicant had no pre-existing psychological conditions (other than hyper-tension controlled by medication), the injuries were caused by the accident. She also found that the psychological symptoms caused the applicant work stress and disrupted her family and social life.
Psychological Symptoms Analysis
26The applicant's test results from both assessments were relatively similar. In addition, both assessors found that the applicant was forthcoming. Nevertheless, Dr. Padda's and Dr. Syed's conclusions were significantly different.
27I prefer the evidence of Dr. Padda and accept the diagnosis of adjustment disorder with mixed anxiety and depression and somatic symptom disorder, persistent with predominant pain of moderate severity.
28Dr. Syed's tests produced very similar results to those reached by Dr. Padda, and yet in her conclusion, she found that the moderate impairments exhibited by the applicant were minor. There was no reasonable explanation as to why the results of the tests showing moderate impairment were discounted. I find this conclusion hard to accept.
29The respondent also argued that because Dr. Padda had only been a licensed psychologist for three months, the evidence of Dr. Syed should be preferred. There was also no evidence before me indicating that Dr. Padda's testing or procedures were flawed. There was no evidence before me that showed that Dr. Padda's testing or conclusion should be discounted by virtue of that fact that Dr. Syed has been a psychologist for longer. This would lead to an absurd result of expert opinions being supported by the length of time a person has worked, rather than based on an examination of the evidence itself as found in the reports. This submission is rejected.
30Since the psychological injuries are outside of the definition of "minor injury", it is clear the injuries are outside of the MIG. I am also satisfied that the applicant's injuries were caused by the accident, as both assessors' conclusions were consistent in this regard.
31The psychological injuries sustained by the applicant are not predominantly minor injuries, and as a result, the applicant's treatment is not subject to the MIG.
32Given my decision, I do not need to consider whether her physical injuries render the MIG inapplicable.
B. The applicant is entitled to payment for the cost of examination in the amount of $2,200.00 for a psychological assessment
33Under sections 14, 15 and 38 of the Schedule, the insurer is liable to pay for reasonable and necessary medical and rehabilitation benefits to or on behalf of an insured person who sustains an impairment as a result of an accident, including costs of assessments or examinations. The onus is on the applicant to prove on a balance of probabilities that the treatment and assessment plans claimed are reasonable and necessary.
34Dr. Pilowsky's mini-assessment was conducted for the purpose of supporting the plan. The mini-assessment showed preliminary findings that the applicant was suffering from psychological symptoms and that an assessment was reasonable and necessary under those circumstances. The further assessments conducted by Dr. Syed and Dr. Padda showed that the applicant was suffering from psychological issues, thus confirming that an assessment was a reasonable request in the first place.
35Based on Dr. Pilowsky's mini-assessment and my findings above, I find that the applicant is entitled to the $2,200 for the psychological assessment, recommended in the treatment plan dated March 30, 2016 and denied by the respondent on June 23, 2016 because it is reasonable and necessary.
C. The applicant is entitled to receive interest on the overdue amounts
36Based on the findings above, the applicant is entitled to the applicable interest for the incurred cost of the examination for her psychological symptoms, pursuant to section 51 of the Schedule.
D. The respondent is not liable to pay an award under Regulation 664 because it did not unreasonably withhold or delay payments to the applicant
37Section 10 of Ontario Regulation 664 states that if this Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award an additional lump sum of up to 50 percent of the amount to which the person was entitled to at the time of the award together with interest.
38There were two psychological assessments conducted which produced different conclusions. The respondent relied on the conclusion of its independent medical examiner, Dr. Syed, to deny the assessment.
39While I disagree with the position taken by the respondent, I do not find that the position it took was unreasonable considering the conclusion of the report it relied on. In this case, the applicant provided very little other evidence to support her assertion that the respondent was being unreasonable or withheld payments.
40As such, I do not find that the payment was unreasonably withheld and decline to grant an additional award under this section.
V. ORDER
41I order the following:
a. The applicant is no longer subject to the MIG due to her psychological impairments.
b. She is entitled to payment for the cost of examination in the amount of $2,200.00 for a psychological assessment;
c. She is entitled to interest on the above amount, pursuant to section 51;
d. There is no award under Regulation 664.
Released: April 24, 2018
___________________________
Marisa Victor, Adjudicator