17-005285 v RBC General Insurance Company, 2018 CanLII 83512

Date: 2018-03-26

Tribunal File Number: 17-005285/AABS

Case Name: 17-005285 v RBC General Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

Applicant

Applicant

and

RBC General Insurance Company

Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

For the Applicant: Michael S. Wentzel, Paralegal

For the Respondent: Monica Pathak, Counsel

Held by Written Hearing: January 22, 2018

OVERVIEW

1On October 10, 2015, the applicant was involved in an automobile accident. Soon after, the applicant started to experience pain and discomfort in his neck, shoulders, back, hands, and legs.

2The applicant applied for statutory accident benefits from the respondent payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The respondent declined to pay for certain medical benefits on the basis that his accident-related injuries fell within the Minor Injury Guideline (the “MIG”). As a result, the applicant applied to this Tribunal.

ISSUES

3The issues in dispute are as follows:

1. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

2. Is the applicant entitled to receive medical benefits, recommended by Pilowsky Psychology Professional Corporation, as follows:

a. $2,250.00 for a psychological assessment, in a treatment plan submitted to the respondent on April 21, 2016; and,

b. $3,129.48 for psychological services, in a treatment plan submitted to the respondent on July 18, 2016?

3. Is the applicant entitled to interest on any overdue payment of benefits?

4. Is the applicant entitled to an award under O. Reg. 664, because the respondent unreasonably withheld or delayed payments?

RESULT

4I find that the applicant has sustained predominately minor injuries as defined under the Schedule. As such, the above benefits are not payable. There can be no overdue payments entitling the applicant to interest or an award under O. Reg. 664.

ANALYSIS

5Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.

6In the present case, the applicant also has the onus of demonstrating that his injuries do not fall within the MIG, because s. 18(1) of the Schedule places a $3,500.00 limit on the medical benefits that an insured person can request from her or his insurer. The respondent has already approved treatment up to this limit.

7Removal from the MIG can happen one of two ways. First, according to s. 18(1), an insured person can demonstrate that he or she has sustained an impairment that is not “predominantly a minor injury”. A “minor injury” is defined in the Schedule as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”.

8Additionally, s. 18(2) states that the MIG will not apply if there is a documented, pre-existing, medical condition that will hinder recovery of an otherwise minor injury.

Parties’ Positions

9The applicant submits that the accident caused psychological impairments that should remove him from the MIG. Specifically, he highlights symptoms found by both his assessor and the respondent’s assessor: e.g., trouble sleeping, elevated results on the Beck Depression and Anxiety Inventories (the “Beck Inventories”), etc. Taken together, the applicant submits that there is sufficient evidence to support his assessor’s diagnosis of an accident-related, psychological impairment. The applicant also argues that he suffers from “chronic pain”, another impairment that would remove him from the MIG.

10The respondent contends that there are validity issues with the applicant’s psychometric test results, such that the applicant’s assessor’s psychological diagnosis is invalid. Further, there is insufficient and inconsistent evidence of chronic pain.

Should the applicant be removed from the MIG on account of a psychological impairment?

11As noted above, I have found that the applicant has not demonstrated that his injuries are not predominately minor in nature. Briefly, I have reached this conclusion because, as the parties’ submissions focus primarily on their competing, psychological assessments, I find respondent’s report to be more persuasive.

12The applicant relies on a psychological assessment conducted by Dr. Judith Pilowsky (report dated August 22, 2016). Dr. Pilowsky diagnosed the applicant with “Symptoms of Post-Traumatic Stress Disorder” and “Somatic Symptom Disorder (300.82), Persistent, Moderate, with Predominant Pain and Secondary Depression”. With this diagnosis, she concluded that the applicant fell outside of the MIG.

13The respondent relies on a psychological assessment from Dr. Annette Lorenz (report dated July 5, 2016). While she found that the applicant exhibited “adjustment reactions”, Dr. Lorenz concluded that these “mild” symptoms did not remove him from the MIG.

14Dr. Lorenz relied on seven psychometric tests: the two Beck Inventories; the Structured Inventory of Malingered Symptomatology; the Trauma Symptom Inventory-2; the Pain Patient Profile; the Cornell Medical Index; and the Basic Personality Inventory.

15Dr. Pilowsky used the two Beck Inventories and the Pain Catastrophizing Scale.

16I would add that Dr. Lorenz’s report was issued in conjunction with a physical assessment by Dr. Frank Loritz. Dr. Loritz concluded that the applicant’s physical injuries were predominately minor injuries, as he found: “There is no evidence of a radiculopathy, myelopathy, osseous fracture or complete tendon tear… .” Instead, the applicant’s accident-related injuries were limited to soft tissue injuries.

17Dr. Lorenz’s assessment found validity issues with the applicant’s answers on two of the three psychometric tests that she used with a corresponding validity index. These validity issues allowed Dr. Lorenz to conclude that the applicant’s responses demonstrated “potential over-reporting of symptoms”.

18The applicant’s responses on the Structured Inventory of Malingered Symptomatology were particularly problematic:

[The applicant’s] SIMS total score of 38 was significantly (extremely) elevated above the recommended cut-off score (14). He endorsed a high frequency of symptoms that are atypical in individuals who report genuine psychiatric or cognitive disorders. As such, a further evaluation of potential data distortion is warranted.

A similar—though less striking—issue was found with his responses on the Trauma Symptom Inventory-2.

19Though this test did not include a corresponding validity index, atypical answers were also found in the applicant’s responses on the Cornell Medical Index. Specifically, Dr. Lorenz found that the applicant “endorsed a significant number of items that are unusual, and, endorsed a significant number of items across the biological body systems…” These self-reported issues included the following bodily systems: skeletal joint system; gastrointestinal system; respiratory system; neurological system; and the urogenital system.

20I would also contrast this wide scope of self-reported issues during the respondent’s assessment on June 20, 2016 against the relative lack of complaints he expressed to his family doctor less than a month earlier. That is, during an annual checkup on May 27, 2016, the applicant only reported issues with his gastrointestinal system.

21Dr. Lorenz’s use of tests with validity indices can then be contrasted with the lack of validity measures for the tests used by Dr. Pilowsky. As noted in a follow-up report from Dr. Lorenz (dated October 31, 2016):

The comment is made that Dr. Pilowsky has based her findings almost exclusively on self-report and standardized measures that do not contain any major validity indices. The Beck series of inventories are based on self-report only, and may or may not be taken at face value; the Pain Catastrophizing Scale is also a self-report measure.

22Instead, for Dr. Pilowsky, the validity of the applicant’s responses appears to have been determined through his level of participation during the assessment: “[The applicant] participated freely in all aspects of the assessment and responded to all of the interviewer’s questioning; thus, I have no reason to assume that this man was anything but truthful in his responses.”

23I have no doubt that the credibility of a client’s presentation can be a useful tool for estimating the validity of his or her responses. However, I still place more weight on Dr. Lorenz’s assessment, as her use of validity indices provides me with a greater sense of certainty regarding her conclusion. Further, at a more basic level, I find Dr. Lorenz’s psychometric tests to have been more comprehensive than Dr. Pilowsky’s testing regime.

24The applicant also directed my attention to a consultation report prepared by Dr. Jagtaran Dhaliwal, a psychiatrist that he was referred to by his family physician. In his report dated January 17, 2017, Dr. Dhaliwal stated that the applicant “has symptoms of PTSD (posttraumatic stress disorder)… [and] symptoms of depression.” The report does not detail the methods that were used to reach this conclusion, but it appears that the consultation mainly involved an interview with the applicant (as there were references to his appearance and expression).

25While I accept that this reference to “symptoms” of PTSD and depression adds credibility to the diagnosis reached by Dr. Pilowsky, I am again faced with a report that appears to be premised solely on subjective self-report. Therefore, I still place greater weight on Dr. Lorenz’s use of psychometric testing that includes validity indices.

26In summary, I find that the applicant has not met his burden of demonstrating, on a balance of probabilities, that he has a psychological impairment that would remove him from the MIG.

Should the applicant be removed from the MIG on account of chronic pain?

27I find that the applicant has not demonstrated that he should be removed from the MIG on account of chronic pain.

28In support of his position, the applicant highlights consistent reports of chronic pain in his family physician’s notes and records. He also directed my attention to his results on the Pain Patient Profile. As opposed to the other tests with validity indices, his results in the Pain Patient Profile did not raise validity issues. Therefore, Dr. Lorenz concluded that his “well above average” score was “… indicative of a potentially present or developing pain disorder, and, is consistent with chronic pain.”

29Additionally, his “significantly elevated” score on the Pain Catastrophizing Scale allowed Dr. Pilowsky to conclude that his results are:

… indicative of increased risk to develop Somatoform Disorder and pain chronicity, as the patient is responding to pain with dysfunctional and catastrophic thoughts. Evidently, this patient perceives his pain as a frightening experience as he is vulnerable psychologically, and chronic pain significantly hampers all facets of his life.

30The respondent contends that references to chronic pain are both sparse and inconsistent in the applicant’s clinical notes and records. For instance, while chronic back pain was discussed during a visit with the family physician on May 11, 2016, there is no mention of any pain, save for gastrointestinal discomfort, during the annual checkup two weeks later on May 27, 2016.

31Further, even if the applicant does suffer from chronic pain, the respondent submits that [emphasis in original]: “… the burden of proving that chronic pain and psychological impairments are not any clinically associated sequelae lies upon the Insured.” In other words, the applicant must demonstrate that this long-standing pain is not a related symptom of accident-related, minor injuries.

32First, I will address the applicant’s reliance on the references to chronic pain in the psychological assessments, specifically his results on the psychometric tests. Though not fatal to the applicant’s case, my analysis of this issue is complicated by the fact that neither assessor went so far as to diagnose the applicant with Chronic Pain Syndrome. Rather, they noted that the psychometric test results were either “indicative” or “consistent” with chronic pain.

33As such, the Tribunal’s decision in 16-001997 v. Aviva Insurance, 2017 CanLII 33668 is instructive. Adjudicator Mather found “the statement that ‘symptoms are compatible with the development of chronic pain’ is not sufficient to support a diagnosis of chronic pain.”

34This finding was based on a similar conclusion reached by Vice Chair Flude in 16-000045 v. Aviva Canada, 2016 CanLII 60728. In this matter, Flude found a medical professional’s reference to the link between the cervical facet joint and chronic pain symptoms was not the same as an actual diagnosis of chronic pain.

35In the present case, the assessors’ statements are closer to a standalone diagnosis than in these earlier decisions. However, the applicant has still failed to demonstrate that this long-standing pain is not clinically associated sequelae to the soft tissue injuries noted during Dr. Loritz’s physical assessment.

36I base this finding on the disparity between what I am being asked to accept from the psychometric test results and the family physician’s clinical notes and records. That is, while there are references in the physician’s records to long-standing pain, the applicant also self-reports pain reduction stemming from physical treatments. For example, physiotherapy, chiropractic services, and massage therapy were said to provide “10-14 days” of “relief” during a visit with his family physician on July 21, 2016. This relief was again noted during a visit on March 23, 2017.

37I highlight these comments as the references to chronic pain in the psychological assessments characterize chronic pain as an inappropriate, psychological reaction to pain, not a physical phenomenon that can be remedied through primarily physical forms of therapy.

38For instance, in her description of the importance of the Pain Patient Profile, Dr. Lorenz stated: “This assessment is especially important because psychological problems, left untreated, can interfere with and prevent the successful completion of a physical treatment program.” Dr. Pilowsky’s description of the Pain Catastrophizing Scale would again suggest that chronic pain has a psychological basis: “Individuals who score in the elevated rage [sic] of this measure are thought to be responding in a psychologically dysfunctional manner to their pain…”

39Second, the applicant’s reliance on the clinical notes and records from the family physician also fails to demonstrate that this long-standing pain is not clinically associated sequelae to the soft tissue injuries caused by the accident. I appreciate that the applicant has been struggling with pain since the accident, and that he has (with few exceptions) consistently complained about this pain to his family physician. However, I have not been provided with sufficient evidence to demonstrate that it is not a by-product of his accident-related injuries. That is, on a balance of probabilities, I am satisfied that the pain is a clinically associated sequelae to his soft tissue injuries.

40Taken together, the applicant has not demonstrated that he should be removed from the MIG on account of chronic pain.

CONCLUSION

41Since I have determined that the applicant has not demonstrated that his injuries are not predominately minor in nature, there is no need to determine whether the disputed treatment plans are reasonable and necessary. Accordingly, these medical benefits are not payable, and there is no entitlement to interest or an award under O. Reg. 664.