Tribunal File Number: 17-005189/AABS
Case Name: 17-005189 v Allstate Canada
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
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Jamelah Hersh, Counsel
For the Respondent: Andrew McKague, Counsel
HEARD: In writing on March 26, 2018
OVERVIEW
1The applicant was involved in an automobile accident on November 19, 2014. She was driving a motor vehicle which was stopped at a red light when it was rear-ended by a third party. Following the accident, the applicant sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
i. Is the applicant entitled to a medical benefit in the amount of $3,353.60 for chiropractic treatment from ProCare Health, in a treatment plan (OCF-18) submitted to the respondent on July 25, 2015 and denied on August 11, 2015?
ii. Is the applicant entitled to a medical benefit in the amount of $2,593.75 for psychological treatment from Recovery Rehab, in an OCF-18 submitted to the respondent on August 6, 2015 and denied on August 26, 2015?
iii. Is the applicant entitled to interest on the overdue payment of benefits?
3The applicant withdrew her claim for attendant care benefits which was outlined in the order of Adjudicator Sharma, dated December 21, 2017.
RESULT
4I find that the applicant has not proven her entitlement to the disputed treatment plans. The appeal is dismissed.
ANALYSIS
5The applicant drove home after the accident, and a few days later she saw her family doctor with complaints of pain in her neck, right shoulder, and upper back. The applicant was removed from the treatment protocol of the Minor Injury Guideline [“the MIG”] in January 2015 following a diagnosis of depression and anxiety as a result of the accident.
Issue (i) – Chiropractic Treatment from ProCare Health
6The applicant submits that she had ongoing issues with pain in her neck, shoulder and back as well as headaches. She was diagnosed with whiplash associated disorder (WAD 2) and sprain and strain of her shoulder.
7The applicant submits that she saw her family physician, Dr. Lau, repeatedly throughout 2014 and 2015 for pain in her neck, shoulder and back. However, the records of the family physician actually indicate that she was initially seen five days after the MVA, and then again on December 15, 2014. On that date, Dr. Lau noted “pain on and off but decreased”. The clinical notes and records of Dr. Lau were provided for the period up to May 2016. The remaining 7 entries do not contain any accident related complaints. Therefore, I do not accept the applicant’s submission that she saw her family physician repeatedly for accident related complaints.
8The applicant submits that her complaints are consistent throughout the records, including the physiotherapy clinic where she attended for over a year after the accident. In fact, the clinical notes and records of ProCare Physio indicate that the applicant attended treatment on only 4 occasions, having last attended for treatment on January 6, 2015, some six weeks after the accident. The evidence does not support the applicant’s submission that she attended physiotherapy for over a year.
9The applicant submits that she paid out of pocket for massage therapy until 2017. The records from Zen Health Centre indicate that the applicant received massage therapy in May and June 2015, May 2016, and January 2017. This evidence suggests that the applicant paid for sporadic massage therapy treatment.
10Having reviewed the evidence and submissions, I find that the applicant has not met her burden of proof, and the treatment plan for further chiropractic and massage therapy treatment from ProCare Health is not reasonable or necessary. There is no evidence to suggest that the applicant was prescribed any medication, referred to any specialists or recommended any treatment by her family physician. No prescription evidence was submitted. There is no evidence the applicant had any diagnostic imaging that would provide objective evidence of her injuries. The evidence before me does not support the applicant’s position that she suffered from ongoing physical impairments as a result of her injuries.
11The applicant submits that pain relief is a legitimate goal of treatment. However, there is a paucity of evidence to suggest that the applicant actually experienced relief of her ongoing symptoms with chiropractic treatment, particularly since the evidence indicates that she only attended a total of four treatment sessions at the physiotherapy clinic.
12The respondent denied the treatment plan on the basis of a physiatry assessment completed by Dr. F. Ismail.1 The applicant self-reported ongoing but intermittent low back and right shoulder/neck pain. The applicant reported having returned to her full time job as a mortgage broker. She was independent with her self-care post-accident, and had resumed light shopping, laundry and using the dishwasher. She had hired a cleaning lady post-accident to tidy her home. Dr. Ismail’s physical examination did not reveal any musculoskeletal or neurological impairment. From a physiatric perspective, he diagnosed the applicant with soft tissue injuries to her cervical spine (WAD II), right shoulder and lumbar spine. Dr. Ismail concluded that the applicant did not have any functional limitations or physical restrictions to perform the essential tasks of daily living as a result of the soft tissue injuries she sustained in the accident. Dr. Ismail opined that the applicant had reached maximum medical recovery and that she did not require further treatment.
13The evidence indicates that the applicant did not see her family doctor regularly for accident related complaints, she only attended physiotherapy on four occasions, returned to her full time job and resumed most of her activities after the accident, and no musculoskeletal or neurological impairments were identified by Dr. Ismail. In light of the foregoing, I am not satisfied that the proposed chiropractic treatment is either reasonable or necessary.
14I also considered the applicant’s submissions regarding the sufficiency and timing of the denials of the treatment plans. Having reviewed the submissions and evidence, I am satisfied that the denials were compliant with the SABS.
Issue (ii) – Psychological Treatment from Recovery Rehab
15I find that the applicant has failed to prove that the treatment plan for psychological treatment is reasonable or necessary.
16In support of her claim for psychological treatment, the applicant relies on an assessment completed by Ms. Qi Mao, social worker -- supervised by Ms. F. Aghamohseni, psychologist -- on January 24, 2015.2 The applicant’s scores on the Beck Depression Inventory and Beck Anxiety Inventory testing revealed scores consistent with severe depression and moderate anxiety. No diagnosis was made and no validity testing was completed by the assessors. It doesn`t appear that the assessors reviewed any documentation in preparation of their report. They recommended that the applicant participate in psychotherapy to help her increase her activity level and improve her psychological function. The respondent approved a treatment plan for psychotherapy and the applicant was withdrawn from the MIG.
17The applicant also relies on a psychological progress report completed by Ms. Mao dated August 10, 2015. She noted that the applicant was benefitting from counselling. The applicant’s symptoms of depression and anxiety decreased, she was meeting with her friends and her mood had improved. Ms. Mao noted that the applicant had not yet fully recovered, and she recommended further psychotherapy sessions (the disputed treatment).
18The applicant submits that the respondent has failed to consider objective ongoing functional limitations of the applicant. The applicant submits that she has provided medical evidence proving the efficacy of the claimed expenses; however she did not direct me to such evidence.
19The respondent relies on an insurer’s examination with Dr. G. Ilacqua, psychologist, with respect to the disputed treatment plan. The applicant had initially attended on September 24, 2015; however, there were significant inconsistencies in her presentation, and towards the end of the assessment the applicant requested assistance from an interpreter. As a result, there were serious doubts about the reliability of her responses and the assessment was terminated.
20A new assessment was completed on April 12, 2016 with the assistance of a Mandarin-speaking interpreter. Dr. Ilacqua reviewed the assessment and progress reports by Ms. Aghamohseni and Ms. Mao. The applicant denied meeting with Ms. Aghamohseni or knowing who she is, and was not aware that a treatment plan was submitted on her behalf. The applicant reported that she was attending massage sessions once a week which were covered by her employment insurance. The applicant reported that she continued to work full time as a mortgage specialist after the accident, and denied any specific difficulties with her employment. She continued to live alone, but had hired a cleaner to help with the housekeeping.
21Dr. Ilacqua concluded that, although the applicant presented with some symptoms of depressed and anxious affect, it was not significant enough to meet the criteria for any DSM-V diagnosis. The applicant presented as highly resourceful and resilient who did not engage in self-limiting behaviours.
22I prefer the report of Dr. Ilacqua over the reports of Ms. Mao and Ms. Aghamohseni. Dr. Ilacqua completed validity testing in the course of his assessment while Ms. Mao did not. Dr. Ilacqua administered six psychological screening assessments, while Ms. Mao administered two assessments and two “checklists”. Dr. Ilacqua also appears to be more qualified to complete this assessment since he is a registered psychologist with a doctoral degree in applied psychology, while Ms. Mao has her master’s in social work, and her supervisor, Ms. Aghamohseni, is a psychologist with a master’s degree in education.
23It is significant that there are no references to any psychological issues or complaints to the applicant’s family physician in the records spanning a period of over a year and a half post-accident. The clinical notes and records from the counselling sessions the applicant attended were not submitted as evidence in support of her impairments. There is no indication that the applicant was prescribed any medication for her psychological issues. I would anticipate that an individual with psychological issues requiring treatment would have raised the issue with their family doctor.
24Considering the submissions and evidence, I find that the proposed psychological treatment is not reasonable or necessary.
CONCLUSION
25For the reasons set out above, I find that the applicant has failed to prove her entitlement to the treatment plans in dispute.
26The applicant’s appeal on all issues is dismissed.
Released: August 07, 2018
___________________________
Kate Grieves
Adjudicator