Licence Appeal Tribunal
Tribunal File Number: 17-002792/AABS
Case Name: 17-002792 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:
[The Applicant]
Applicant
And
Certas Direct
Respondent
DECISION
ADJUDICATOR: Aggrey Msosa
APPEARANCES:
Devika Maharaj, Paralegal for the Applicant
Sachin Kumar, Counsel for the Respondent
Heard in writing on: October 4, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on September 6, 2014 and he applied for accident benefits to the Certas Direct Insurance Company (“respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant appealed the denial of the income replacement benefit and the treatment and assessment plan to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the Tribunal).
3At the case conference, the parties were unable to resolve the issues in dispute and a written hearing was ordered.
ISSUES TO BE DECIDED
4The applicant withdrew two treatment plans and the claim for attendant care benefit before the hearing and only the following issues are to be decided:
i. Is the applicant entitled to an income replacement benefit (IRB) in the amount of $319.55 per week from May 8, 2015 to September 6, 2016?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,993.42 for mental health therapy recommended by Excel Medical Diagnostics in a treatment plan submitted on February 19, 2016?
iii. Is the applicant entitled to interest for any overdue payment of benefits?
RESULT:
5I find that the applicant is not entitled to income replacement benefits for the period May 8, 2015 to September 6, 2016.
6I find that the treatment plan for psychotherapy is not reasonable and necessary.
ANALYSIS
1. Income Replacement Benefit
7The applicant bears the burden of proving on a balance of probabilities that he is entitled to an income replacement benefit in the amount of $319.55 per week from May 15, 2015 to August 30, 2016.
8At the time of the accident the applicant worked as a security guard. The test for entitlement for an income replacement benefit is set out in section 5(1) of the Schedule which provides that the applicant is entitled to an income replacement benefit if, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment.
9The accident occurred on September 6, 2014. The applicant states that after the accident he did not seek emergency medical care. His first post-accident visit was to his family doctor, Dr. Khan on September 24, 2014 - several weeks after the accident - complaining of anxiety and lack of sleep due to the motor vehicle accident. The applicant returned to work immediately after the motor vehicle accident and did not miss a day of work. He continued to work full time until January 18, 2015. At that time he suffered a fall at work and injured his knee. The applicant states that his physical and psychological injuries as a result of the accident prevented him from continuing to work in his job as a security guard. The respondent paid the applicant IRBs based on the pre-existing psychological injuries that were exacerbated by the motor vehicle accident.
10The applicant received income replacement benefits from January 26, 2015 to May 15, 2015. The benefits were stopped on May 8, 2015 as a result of two insurer examination (IE) assessments: by Dr. Barry Cohen, an Orthopedic Surgeon and Dr. Godwin Lau, a Psychologist. Dr. Cohen found that the applicant did suffer neck pain and low back pain however his physical injuries did not meet the test for IRBs. Dr. Lau’s paper review found that the applicant’s psychological injuries did not prevent him from performing the essential tasks of his pre-accident employment.
11The applicant asserts that he met the test based on both his physical and psychological impairments. The evidence in support of a physical impairment included an ultrasound of the left and right shoulders from January 31, 2012, which shows right shoulder impingement that predates the motor vehicle accident in question. He suffered whiplash-associated disorder, type 1 injuries as a result of the motor vehicle accident. The applicant asserts that the motor vehicle accident exacerbated the pre-existing shoulder injuries.
12The applicant’s evidence in support of psychological injuries includes a diagnosis of generalized anxiety disorder and post-traumatic stress disorder by Dr. Andrew Gotowiec, a Psychiatrist, on December 2, 2014 following a referral by the applicant’s family doctor after the accident. The applicant was prescribed anti-depressants.
13The respondent submits that the applicant’s injuries are soft tissue in nature and maintains the validity of its denials concerning the disputed issues. The respondent states that the applicant’s first post-accident visit to his family doctor, Dr. Khan, occurred on September 24, 2014, several weeks after the accident. The applicant was referred to Dr. Gatowiec, a psychiatrist whom he saw on December 2, 2014. He was diagnosed with “chronic anxiety” on the applicant’s third visit with Dr. Gatowiec, who noted that his mood had improved. The applicant stopped seeing his family doctor for accident-related issues on January 26, 2015 – about 6 months post-accident.
14The respondent submits that the applicant underwent an in-person insurer’s psychological examination with Dr. Lau on March 3, 2015 and was diagnosed with mixed anxiety and depressed mood. Dr. Lau prepared a paper report on May 6, 2015 concerning the applicant’s IRB claim and concluded that the applicant did not meet the IRB test. The applicant also had an orthopedic assessment by Dr. Cayen on May 6, 2015. The applicant advised Dr. Cayen that he worked full time until January 18, 2015. He suffered a fall at work and injured his right knee. The respondent states that Dr. Cayen noted that while there were some complaints of pain he was not able to attribute this to an impairment preventing the applicant from performing the essential tasks of his employment. The applicant’s IRBs were discontinued on May 15, 2015.
15The respondent submits that the applicant underwent a section 44 Physiatry insurer examination by Dr. Oshidari on January 2, 2016 who noted that there was no neuromuscular abnormality and therefore no impairment. The applicant had reached maximum medical rehabilitation.
16There was another insurer’s psychological examination on March 23, 2016 by Dr. Day. Dr. Day noted that there were no psychological barriers to working and that the applicant did not sustain any accident-related psychological impairment. The applicant did not meet the diagnostic criteria for any DSM-V diagnoses, as his prior symptoms had abated.
17The respondent argues that the burden of proof rests with the applicant to prove entitlement on a balance of probabilities that there is a substantial inability to carry out his pre-accident employment duties. By the time the denial was issued, the applicant was no longer taking any prescription medications for his mood or pain, he was not receiving treatment with his OHIP funded psychiatrist and he was not seeing his family doctor for any accident-related complaints. The applicant told Dr. Day that there was no psychological barrier to returning to work and that his anxiety and frustration was due to his inability to secure employment.
18After reviewing the applicant’s evidence, I do not find he has proved on a balance of probabilities that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment as a security guard. The applicant has not met the burden of proving his entitlement. I note from Dr. Day’s psychological report dated April 6, 2016 that the applicant was employed for four months after the motor vehicle accident but he resigned after he suffered a fall at work, which was coupled with anxiety issues he was experiencing as a result of the motor vehicle accident. In his submissions, the applicant does not address the work-related injury, given that he worked for four months after the accident or whether the physical injury suffered as a result of the fall contributed to the decision to resign from his job as a security guard. It is not clear from the applicant’s submissions whether he sought other benefits such as WSIB after the work-related injury.
19I have not been provided with any evidence that the applicant was receiving any treatment for his physical pain as a result of the accident, and if he was, whether his physical injuries prevented the applicant from working as a security guard.
20I find that the applicant has not provided any evidence that he has an ongoing impairment. The applicant has not submitted any updated clinical notes and records from his family doctor with respect to accident-related injuries. The letter written by his family doctor does not indicate whether he assessed the applicant or if it is just his opinion based on previous interactions with the applicant.
21Based on the totality of the evidence before me, I am not satisfied that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment as a security guard.
2. The Treatment Plan for $2,993.42 - Treatment Plan #2
22The applicant claims entitlement to a medical benefit for psychological therapy as submitted in a treatment and assessment plan (OCF-18) dated February 19, 2016 in the amount of $2993.42, recommended by Excel Medical Diagnostics. In order for the treatment plan to be payable by the insurer, it must be reasonable and necessary. The applicant bears the burden of proof that the treatment plan is reasonable and necessary.
23The applicant submits that section 38 (8) of the Schedule requires the insurer to respond within 10 business days after it receives a treatment and assessment plan and give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan. Section 38 (11) sets out rules if the insurer does not comply with subsection (8) noted above; i.e. the insurer shall pay for the goods and services. The applicant submits that the OCF 18 submitted on February 19, 2016 and denied on March 4, 2016 should be approved as the respondent failed to address the OCF 18 or provide notice to the applicant within the 10 days mandated by section 38 of the Schedule.
24The respondent asserts that it complied with s.38 (11) of the Schedule as its March 4 response was issued 10 business days after it received the treatment plan and specifically requested a s. 44 assessment concerning this treatment plan.
25With respect to the applicant’s argument that the treatment plan should be paid because the respondent failed to respond within the ten business days as per s. 38 (11) of the Schedule, I find that the applicant’s argument is without merit. My calculation of the ten business days confirms that the respondent was within the ten business days’ time frame from February 19, 2016, a Friday, the date the application was received by the respondent and March 4, 2016, the date that the respondent provided a response.
26The applicant had earlier been receiving psychotherapy that was approved by the respondent in June 2015. The applicant states that the treatment plan had been exhausted by December 2015. Dr. Cheryl Walker of Excel Medical Diagnostics recommended an additional 10 sessions. On March 14, 2016, the respondent issued a response advising the applicant that a s.44 psychological assessment was required in order to consider the treatment plan. The applicant had an insurer examination done by Dr. Day who noted that he did not identify any psychological barriers to working and that the applicant did not sustain any accident-related psychological impairment. The applicant did not meet the diagnostic criteria for any DSM-V diagnoses as his prior symptoms had abated. On April 13, 2016, the respondent denied funding of the treatment plan.
27In his submission and response, the applicant argues that Dr. Day failed to properly address the applicant’s current condition and pre-existing issues in a comprehensive manner and dismisses any potential sequelae of the stressors that the applicant is suffering from as a result of the motor vehicle accident.
28I note that Dr. Day first saw the applicant in-person on March 22, 2016 and did a s.44 psychological assessment of the applicant in response to the treatment plan at issue. My reading of the report issued by Dr. Day on April 6, 2016 is that he did not find any psychological barriers to working and that the applicant’s psychological injuries had abated and therefore did not find the treatment plan reasonable and necessary. As noted above, the applicant did not meet the diagnostic criteria for any DSM-V diagnoses. The applicant has not submitted any evidence to challenge this finding. Instead, he is dismissive of Dr. Day’s findings.
29The applicant was referred to Dr. Gatowiec, a psychiatrist whom he saw on December 2, 2014. He was diagnosed with “chronic anxiety” on the applicant’s third visit with Dr. Gatowiec, who noted that his mood had improved. The respondent argues that the letter submitted by Dr. Khan, the applicant’s family doctor, should not be given weight because Dr. Khan’s conclusions are undermined by the fact that the applicant had not had an accident-related visit to Dr. Khan or Dr. Gatowiec for years before the preparation of this letter. Dr. Khan’s letter was rooted in a historic diagnosis contained in a disability certificate authored several years earlier rather that an updated personal assessment of the applicant.
30I found Dr. Day’s report more persuasive as it is more current and it made sense that the applicant has made progress since the motor vehicle accident and the fact that he did not meet any DSM-V diagnoses.
31Based on the totality of the evidence before me, the applicant has not adduced any evidence that the treatment is reasonable and necessary
CONCLUSION
32In conclusion, for the reasons set out above, I find that the income replacement benefits and the treatment plan for psychological treatment are not payable. Since the income replacement benefits and the treatment plan are not payable, interest is also not payable.
ORDER
- For the above noted reasons, this application is dismissed.
Date of Issue: April 20, 2018
___________________________
Aggrey Msosa, Adjudicator