17-005218 v RBC General Insurance, 2018 CanLII 81889

Date: 2018-05-28

Tribunal File Number: 17-005218/AABS

Case Name: 17-005218 v RBC 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:

Applicant

Applicant

and

RBC General Insurance

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant Michael Wentzel, Paralegal

For the Respondent: Robert Bowman, Counsel

Heard In Writing: February 22, 2018

OVERVIEW

1The applicant claims that as a result of the accident on September 30, 2015 she experiences significant psychological issues. The applicant applied for medical benefits, specifically a psychological examination and psychological treatment, which the respondent denied based on the report of Dr. Rubenstein following an insurer examination.

2The respondent denies the applicant has established her injuries fall outside of the Minor Injury Guideline (MIG) and treatment plans are reasonable and necessary.¹

ISSUES

The issues ² identified in the Order of November 28, 2017 are as follows:

3Is the applicant entitled to $2,200.00 for a psychological examination by Pilowsky Psychology that was submitted to the respondent on June 7, 2016 and denied June 1, 2017?

4Is the applicant entitled to receive a medical benefit in the amount of $3,129.48 for psychological treatment that was recommended by Pilowsky Psychology submitted to the respondent on June 30, 2016 and denied on June 1, 2017?

5Is the applicant entitled to an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664?

6Is the applicant entitled to interest for any overdue payment of benefits?

RESULT

7The applicant is entitled to $2,200.00 for a psychological examination and for $3,129.48 for psychological treatment recommended by Pilowsky Psychology as both are reasonable and necessary. The applicant is entitled to interest for any overdue payment of benefits.

8The applicant is not entitled to an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664.

OVERVIEW

9The applicant at the time of the accident lived with her parents. She worked at a fast food restaurant. She was off work a few weeks after the accident and returned to work but on modified hours. She returned to working 20 hours per week in March 2016. ³ At the time of the accident she was also a student at university completing a Bachelor of Applied Science program. She was off for three months after the accident to assist her mother. She completed the program ⁴ and indicated to Dr. Rubenstein, the IE assessor that she intends to pursue further university studies.⁵ She attended physiotherapy treatment and massage to assist with her physical injuries.

10The applicant claims that as a result of the accident she has developed chronic pain throughout her body ⁶ and she continues to experience pain in her neck, shoulders, and back. On June 2, 2017, Dr. Singh, the applicant’s family doctor diagnosed her with chronic pain syndrome.⁷

11The issue under consideration involves the claim by the applicant that she suffered a psychological impairment as a result of the accident and to determine entitlement to medical benefits for a psychological examination and treatment.

Applicant’s Evidence

12On June 7, 2016, Dr. Pilowsky completed a preliminary psychological interview with the applicant, Dr. Pilowsky in an OCF 18 ⁸ noted the applicant reported insomnia and pain interrupted sleep, had a depressed mood, irritability, difficulty focussing and elevated levels of anxiety and nervousness. Dr. Pilowsky diagnosed the applicant with an adjustment disorder. She found the accident had resulted in a significant psychological toll on the applicant and affected her daily functioning and routine.

13Dr. Pilowsky requested authorization to complete a psychological assessment to evaluate the applicant’s psychological problems and to decide whether psychological intervention would help the applicant manage her psychological condition and prevent further deterioration.⁹ In her opinion, the psychological condition sustained by the applicant is significant and did not fit into the MIG.

14On June 30, 2016, Dr. Pilowsky proceeded with the psychological assessment of the applicant. and in her August 24, 2016 report ¹⁰ Dr. Pilowsky noted that as a result of the accident the applicant’s psychological impairment included depression, memory deficits, social withdrawal, insomnia, flashbacks of the accident, anxiety and panic attacks. She administered several psychological tests comprised of the BDI (Beck Depression Inventory), the BAI (Beck Anxiety Inventory) and the PCS (Pain Catastrophizing Scale). The tests revealed severe levels of depression and moderate levels of anxiety. Dr. Pilowsky concluded the applicant suffers from a Major Depressive Disorder and Post-Traumatic Stress Disorder with Phobic Avoidance to driving. As these conditions are not covered by MIG, the applicant’s impairment was out of the MIG. Dr. Pilowsky found the applicant’s injuries and impairment have had a significant impact on all important aspects of her life including employment, educational activities, housekeeping, family and social responsibilities.¹¹

15On June 30, 2016, Dr. Pilowsky also recommended psychological treatment to decrease the applicant’s psychological symptoms and return her to activities of normal living. In her report of August 24, 2016, Dr. Pilowsky recommended 12 sessions of therapy.¹² The objective of the recommended treatment was to prevent further deterioration of the applicant’s psychological condition and aimed to facilitate the applicant’s re-integration with her family, society and the labour market. The applicant maintains these goals are consistent with the requirements of treatment set out in section 16 of the Schedule¹³ and obligation of the respondent to rehabilitate the applicant.¹⁴

16In response to the treatment plan for the psychological assessment and treatment an Insurer Examination (IE) was scheduled by the respondent to assess these benefits as well as income replacement and MIG. The applicant was assessed by Dr. A. Rubenstein, psychologist, on April 27, 2017 and his conclusions outlined in his report dated May 10, 2017.¹⁵

17Dr. Frank Loritz, general practitioner also assessed the applicant on January 24, 2017 with respect to the claim for income replacement, which is not in dispute. He noted the applicant from a psychological perspective reported driver anxiety as a result of the accident. ¹⁶

18Dr. Pilowsky and Dr. Rubenstein arrived at completely different conclusions on the issue of psychological impairment and whether the applicant’s impairment is outside of MIG. The doctors both reviewed depression, anxiety and pain complaints of the applicant but applied different tests and criteria to assess the applicant’s psychological impairment. The assessments contain major differences in the medical opinions of Dr. Pilowsky and Dr. Rubenstein and the conclusions reached. These are reviewed below.

RESPONDENT’S EVIDENCE

IE Assessment by Dr. Rubenstein

19Dr. Rubenstein assessed the applicant in April 2017 and administered the pain patient profile (P3) and the Structures Inventory of Malingered Symptomatology (SIMS). He found that the applicant was subdued and complained of anxiety and feeling overwhelmed. He noted “average level scores in all domains of depression, Anxiety and Somatization” ¹⁷ when compared to the average pain patient population. He states that while this could suggest significant levels of affective and somatic distress, “symptom magnification appears to be markedly contributory”. He noted the applicants SIMS scores were also elevated across several validity scales and he found it difficult to assess the validity of other test scores.

20Dr. Rubenstein reported that the applicant’s approach to SIMS showed a high frequency of reported symptoms which he states is highly atypical in patients with genuine psychiatric or cognitive disorders. He states this is common in personal injury circumstances in which the individual is claiming a broad range of physical and mental health problems in order to portray disability.¹⁸ He found as well that the claimant endorsed a high rate of symptoms rarely found in individuals with bona fide neurological disorders. Moreover her symptoms of memory impairment are infrequently seen and inconsistent with impairment seen in brain dysfunction or cerebral injury. He concluded, the applicant “compromised the validity of objective psychological testing apparently based on symptom amplification.”

21Dr. Rubenstein found no evidence which would warrant any psychological diagnosis according to the criteria set out in the DSM-IV. He concluded that the applicant had not sustained any diagnosable psychological impairment as a direct result of the accident.¹⁹ He found no accident related mental impairment providing a barrier to her ability to carry on her normal daily activities. He found no objective evidence of a psychological injury arising from the accident.

ANALYSIS

22Under s.14 of the Schedule, an insurer is liable to pay medical and rehabilitation benefits under sections 15 to 17, to or on behalf of an insured person who sustains an impairment as a result of an accident.” To be entitled to the payment of the psychological assessment and treatment, the applicant bears the burden to prove the treatment plans are reasonable and necessary. I find the applicant has met this burden.

23Dr. Rubenstein acknowledges the applicant is experiencing pain, anxiety including driver anxiety and feels overwhelmed but despite this acknowledgment, he concludes the applicant’s approach to the testing was to magnify her symptoms. Based on “symptom magnification”, he concludes it is difficult to assess the validity of other test scores and finds there is no basis for any diagnosis of a psychological impairment. I find this conclusion difficult to accept as in light of her reported symptoms on driver anxiety, for example, which was is also acknowledged by Dr. Lortiz who assessed the applicant and noted that the applicant had mentioned that she was anxious about driving but this had improved over time.²⁰

24I also prefer the assessment by Dr. Pilowsky over that of Dr. Rubenstein because Dr. Rubenstein in his report acknowledges the applicant complaints of anxiety and feelings of being overwhelmed as a result of the accident but then he discounts the impact of any of these symptoms. He concludes the applicant has magnified her symptoms to portray disability. It is difficult to accept the position that the applicant magnified her physical pain complaints in light of her ongoing visits to physiotherapy and pain complaints with are well documented in her family doctors notes. The applicant also outlined the impact her condition had on her studies, work and social and family life and activities. There is evidence that time away from her studies was to assist her mother following her mother’s surgery. I find there is evidence that the reported symptoms impacted the applicant’s normal life activities and even if they are “subjective”, they are all not “magnified” to the point where they can be wholly ignored or discounted.

Also, Dr. Rubenstein applied a different criterion to assess depression. He applied the DSM-IV criterion whereas Dr. Pilowsky applied a more current version of the criteria in her analysis, the DSM-V. The respondent maintains that although Dr. Pilowsky uses the DSM-V criteria, based on the American Psychiatric Association bulletin, using the criteria in the DSM-IV by Dr. Rubenstein is proper criteria for assessing depression. ²¹ The bulletin from the American Psychiatric Association²² indicates that the criterion for assessing depression in the DSM-V is identical to that as it appeared in the DSM-IV. The bulletin outlined the changes between the DSM-V and DSM-IV criteria in addressing certain psychiatric disorders. I agree with the respondent that the criteria applied by Dr. Rubenstein appears satisfactory but I prefer Dr. Pilowsky’s report however in that she applied a more recent version of the criteria outlined in the DSM-V.

25Lastly, I prefer Dr. Pilowsky’s report because Dr. Rubenstein did not review Dr. Pilowsky’s report in delivering his report and findings. He reviewed the OCF 18 of Dr. Pilowsky dated June 7, 2017, and although the August 24, 2016 report of Dr. Pilowsky was available to the insurer, he did not review it nor did the insurer request that he provide an addendum report in which he could have commented on her findings. I find this is an important flaw in his report. I find that a review of Dr. Pilowsky’s report was essential in light of fact that both psychologists arrived at completely different conclusions on the issue of psychological impairment. Dr. Rubenstein could have reviewed Dr. Pilowsky’s report and provided comments on the report and outline why or why not it may or may not be consistent or inconsistent with his findings. For this reason, Dr. Pilowsky’s August 24, 2016 report is more credible and I assign it more weight.

26I agree with the respondent that the family doctors notes make no reference to psychological impairment however the applicant made it a priority to see a psychologist for an assessment of that condition.

27I also note that Dr. Pilowsky outlined the impact the accident had on the applicant’s ability to carry out her work, studies and household responsibilities. Dr. Pilowsky also noted the applicant was saddened by the changes in her life since the accident and this impacted her motivation and incentive to engage in activities of a normal life.

28I find based on Dr. Pilowsky’s findings that the applicant suffers from a psychological impairment as a result of the accident and this is sufficient to take her out of the MIG on that basis.

29I also find that the psychological assessment and psychological treatment are both reasonable and necessary. The evidence which I accept established the accident had a significant impact on the applicant’s psychological condition and it did affect her work, studies, family and social activities, driving and being able to perform her activities of normal life. These are well documented in the August 24, 2016 report of Dr. Pilowsky.

30As I have accepted the evidence that the treatment plan for the psychological assessment is reasonable and necessary, I find the recommended psychological treatment to address this condition is also reasonable and necessary. It is difficult to find there is a psychological impairment but then find that the recommended treatment to address this condition is not reasonable and necessary. One of the goals of treatment was to prevent further deterioration of the applicant’s condition and enable her to be re-integrated back to the activities of her normal life. I find the treatment goal is achievable to assist the applicant to return to her normal activities of life. The recommended treatment for psychological services is reasonable and necessary.

Claim for an Award under Section 10 for Unreasonably Held or Delayed Payments

31The applicant claims she is entitled to an award for unreasonably held or delayed payments due to the respondent’s failure to provide its assessor with the complete medical file of the applicant and failure to carefully review the medical evidence that suggested the applicant had a serious psychological impairment that required treatment.

32Under section 10 of Ontario Regulation 664, if the Licence Appeal Tribunal finds an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled to under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts owing to the insured at a rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

33There is evidence that Dr. Rubenstein did not review the August 24, 2016 report by Dr. Pilowsky.

34Is the absence of the review of one report, being Dr. Pilowsky’s report, sufficient to establish the applicant is entitled to this award? Neither party outlined any Tribunal decision or jurisprudence to establish that failure to review one report is a sufficient ground to grant the award. I find this is not a sufficient reason based on the circumstances of this case to establish the applicant in this matter is entitled to an award.

35I find the insurer took appropriate steps to evaluate the condition of the applicant.

The family doctor’s clinical notes, two OCF 3s (disability certificates) and the findings by Dr. Loritz were considered by the respondent. The doctor’s notes and OCF 3 signed by the family doctor referred to physical pain complaints following the accident.

36Further, I have outlined the reasons why I prefer Dr. Pilowsky’s report over that of Dr. Rubenstein. The respondent is however entitled to rely on the report and findings of its expert even if it is contradictory to the findings of the applicant’s expert. I find the applicant in this matter is not entitled to an award.

CONCLUSION

For the reasons outlined, I find that:

37The applicant is entitled to a medical benefit for $2,200.00 for the psychological examination and $3,129.48 for the psychological treatment, both recommended by Pilowsky Psychology and denied by the respondent on June 1, 2017. As the benefits are reasonable and necessary, the applicant is entitled to interest on the payment of overdue benefits incurred.

38There is insufficient evidence for an award under section 10 of Ontario Regulation 664.

Released: May 28, 2018

Thérèse Reilly, Adjudicator

Footnotes

1. 1Written submissions of the respondent, paragraphs 25, 26, 27 and 28.
2. 2The issue of whether the applicant’s impairment falls within the Minor Injury Guideline (MIG) is not listed as an issue in the case conference order. The applicant in her submissions does not list this as an issue. No reply was filed. The respondent identified MIG as an issue and the submissions on MIG by the respondent are that the applicant must establish her injuries fall out of the MIG. The applicant refers to the findings by Dr. Pilowsky on June 30, 2016 and in her report of August 24, 2016 that the applicant’s psychological injuries are not within the MIG. The respondent refers to the findings stated in the reports of Dr. Rubenstein, and Dr. Loritz, the insurer assessors, who found the applicant’s injuries fall within the MIG. The insurer asserts the onus is on the applicant to establish that the proposed treatment plans which are beyond the MIG, are reasonable and necessary.
3. 3Report of Dr. Pilowsky, August 24, 2016, at page 13.
4. 4IME of Dr. Loritz, dated January 24, 2017, tab 6 of the written submissions of the respondent, paragraph 12.
5. 5April 27, 2017 Report of Dr. Rubenstein, page 3 and 4.
6. 6Written submissions of the applicant, paragraph 4.
7. 7Written submissions of the applicant, paragraph 4, tab 3.
8. 8Written submissions of the applicant, paragraph 3, tab 2. OCF 18 by Dr. Pilowsky, at page 7.
9. 9Written submissions of the applicant, paragraph 3, tab 2. OCF 18 by Dr. Pilowsky, at page 7.
10. 10Written submissions of the applicant, paragraph 7, tab 4.
11. 11Report of Dr. Pilowsky, at page 13.
12. 12Written submissions of the applicant, paragraph 11, Dr. Pilowsky, August 24, 2016 report, at page 18.
13. 13Statutory Accident Benefits Schedule, Ontario Regulation 34/10, effective September 1, 2010.
14. 14Written submissions of the applicant, paragraph 12.
15. 15Written submissions of the applicant, Report of Dr. Rubenstein, tab 5.
16. 16Written submissions of the respondent, paragraph 14. Dr. Loritz’s report, Tab 6. I also note the applicant was assessed by Diana Velikonja, psychologist on March 6, 2017. Neither party presented any evidence about this assessment by Diana Velikonja.
17. 17Written submissions of the applicant, paragraph 9. Report of Dr. Rubenstein, page 3.
18. 18Report of Dr. Rubenstein at page 5.
19. 19Report of Dr. Rubenstein, at page 5.
20. 20Written submissions of the respondent, paragraph 14.
21. 21Written submissions of the respondent, paragraph 22 and tab 8.
22. 22Written submissions of the respondent, tab 8.