Licence Appeal Tribunal
Tribunal File Number: 17-006927/AABS
Case Name: 17-006927 v Co-operaters 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
and
Co-operaters General Insurance Company
Respondent
DECISION
ADJUDICATOR: Craig Mazerolle
APPEARANCES:
For the Applicant: Michael Wentzel, Paralegal
For the Respondent: David Raposo, Counsel
Held by Written Hearing: April 16, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on October 18, 2015. She applied for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The respondent declined to pay for a psychological assessment and a chronic pain assessment, because it determined that her injuries fell within the Minor Injury Guideline (the “MIG”).
2The applicant applied to the Tribunal for resolution of these issues. For the reasons to follow, I find the applicant is not entitled to receive these disputed medical benefits. Further, she is not entitled to interest or an award under O. Reg. 664.
ISSUES
3The medical benefits in dispute are as follows:
$2,200.00 for a psychological assessment, recommended by Dr. Judith Pilowsky in a treatment plan submitted on February 18, 2016; and,
$2,260.00 for a chronic pain assessment, recommended by Dr. Ines Robertus in a treatment plan denied by the respondent on July 25, 2016.
The applicant is also requesting interest and an award under O. Reg. 664.
ANALYSIS
Entitlement to Medical Benefits and Parties’ Positions
4Entitlement 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.
5In the present case, the applicant also has the onus of demonstrating that her injuries do not fall within the MIG, because s. 18(1) places a $3,500.00 limit on the medical benefits that an insured person can request from her insurer. According to the respondent, the applicant has not used the full amount available under s. 18(1), but the remaining amount is insufficient to cover either of the disputed plans1.
6Removal from the MIG can happen one of two ways. First, according to s. 18(1), an insured person can demonstrate that she or he 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”.
7Further, s. 18(2) states that this cap on benefits will not apply if there is a pre-existing medical condition that will prevent maximal recovery of an otherwise minor injury. In order to meet this standard, the applicant must provide evidence of a medical condition that was documented by a health practitioner before the accident took place. Further, there must be evidence that the pre-existing condition will prevent maximal recovery from a minor injury if the insured person is subject to the MIG’s financial and treatment limit2.
8The applicant submits that her injuries are not predominately a minor injury because she suffers from a psychological impairment and chronic pain as a result of the accident. Specifically, the assessments from Drs. Pilowsky and Robertus support these diagnoses.
9Further, the applicant highlights how the clinical records from her family physician demonstrate that she had symptoms of depression and shoulder pain in the months leading up to the accident. Therefore, considering how long the post-accident pain has persisted, limiting her treatment to the benefits cap under s. 18(1) has prevented maximal recovery of otherwise minor injuries.
10The respondent contends that the reports from its assessors do not support the applicant’s submissions, nor is there any evidence that her pre-existing conditions have prevented maximal recovery of otherwise minor injuries.
Psychological Impairment
11The applicant claims that she sustained a psychological injury that places her outside of the MIG, as the definition of “minor injury” does not include psychological impairments. While the applicant relies on the diagnosis from Dr. Pilowsky (i.e., Somatic Symptom Disorder and symptoms of Post-Traumatic Stress Disorder), the respondent contends that its assessor, Dr. John Lee, did not support these findings. Rather, during this assessment, the applicant denied experiencing psychological distress (a self-report that the applicant denies in her submissions).
12I find the applicant does not have a psychological injury that would take her out of the MIG. I base my analysis mainly on the timing of the assessments and the lack of corroboration for psychological distress, complaints, or impairment in the clinical notes and records of the family physician.
13First, while Dr. Lee’s assessment took place on May 30, 2016, Dr. Pilowsky’s assessment was broken up over two days, i.e., May 16 and June 8, 2016. These assessments took place within days of each other, yet painted dramatically different pictures of the applicant’s psychological functioning. That is, while Dr. Lee found the applicant was experiencing minor hindrances in her day-to-day activities (with the most notable change being a marked decrease in the number of her recreational walks), Dr. Pilowsky’s assessment found she suffered from functional impairments that “adversely impacted [her] life in all respects.”
14I would also note that the applicant received significantly different results on the psychometric tests that were used during each assessment. Specifically, Dr. Lee’s testing found no evidence of psychological distress; and Dr. Pilowsky’s testing resulted in scores suggestive of heightened distress—most notably, a “significantly elevated score” on a scale testing for “catastrophizing with respect to pain.” It is true that Drs. Lee and Pilowsky did not use the same psychometric tests; but, once again, significantly different results were found within a short period of time.
15These differing accounts can “cut both ways”; that is to say, an inconsistency in reporting raises doubts about the conclusions in both assessments. However, when these characterizations are then compared to the lack of psychological distress noted in the family physician’s notes, I am satisfied that Dr. Lee’s account is a more accurate representation of the applicant’s condition. That is, save for an entry describing feelings of depression on January 4, 2013, there is no record in the physician’s notes that describe psychological distress during either the period immediately before or the period after the accident.
16The applicant does suggest that the note from January 2013 is actually from October 2, 2015, i.e., several days before the accident. The applicant highlights this note as evidence of a pre-existing condition, due to the close proximity to the accident.
17Upon review of the January 2013 note, it appears that “October 2, 2015” refers to the date that a collection of medical observations (made between October 2012 and August 2015) were consolidated. Regardless, a single entry in the family physician’s clinical notes is insufficient evidence to support the existence of a pre-existing condition that would prevent maximal recovery. Further, both Drs. Pilowsky and Lee noted that the applicant reported no pre-accident mental health issues.
Chronic Pain
18The applicant also submits that she suffers from chronic pain, which, again, falls outside the MIG. She relies on the assessment from Dr. Robertus, who found that she suffers from Pain Disorder Associated with a General Medical Condition. Specifically, since the applicant had “disabling pain for 10 months… she has shifted from an acute pain state to a chronic pain state.” Additionally, the assessor noted how this pain caused significant impediments to the applicant’s day-to-day activities, e.g., she now relies on her child to assist with housekeeping tasks.
19The applicant also highlights the findings from Dr. Pilowsky, namely the applicant’s score on the scale measuring catastrophizing about pain. Specifically, Dr. Pilowsky made the following comment about her elevated score and how it is indicative of developing pain chronicity: “… the patient perceives very little control over her pain, leaving her functioning hampered in each facet of life.”
20The respondent counters this diagnosis of chronic pain by submitting that its physiatry assessor, Dr. Michael Ko, found soft tissue injuries. The assessor further found that she remained independent in her day-to-day activities, though her return to work was a result of financial responsibilities, as opposed to a complete recovery. This latter finding was reflected in Dr. Robertus’ assessment as well.
21Though there is some agreement about her functional limitations, I am again faced with competing medical assessments conducted during the same period, as both assessments took place in August 2016. Therefore, turning once more to the clinical notes and records provided by the applicant, I find that there is insufficient evidence to support a finding of chronic pain such that the applicant should be removed from s. 18(1).
22Save for a reference to lower back pain on September 6, 2016, the final, post-accident references to pain appear in the family physician’s notes on November 24, 2015—one month post-accident—and in a note from [a health centre], dated December 2, 2015. Further, the note from September 2016 references back pain that started one week before the visit, as opposed to a continuation of post-accident pain. Considering the accident took place in October 2015, this relatively short timeline is not consistent with Dr. Robertus’ findings, nor is it in line with Dr. Pilowsky’s comments about the applicant’s ability to manage pain.
Pre-existing Shoulder Issue
23In addition to the aforementioned reference to pre-accident mental health issues, the applicant raises tendonitis and a partial thickness tear of the supraspinatus tendon as a pre-existing condition. This condition was documented in an ultrasound of her right shoulder that took place on July 30, 2015, i.e., several months before the accident. Further, in the treatment plan submitted for the chronic pain assessment, Dr. Robertus made the following entry in the section addressing the applicant’s medical condition before the accident: “occasionally experiencing stiffness in both shoulders after sitting for prolonged periods of time at work.” This stiffness “worsened” as a result of the accident.
24The respondent contends that there is “no evidence that any alleged pre-existing conditions would preclude recovery within the minor injury limit”. Further, while her assessors noted some pre-existing stiffness in her shoulders, the applicant informed Dr. Pilowsky that this condition was “nothing restrictive”.
25In order to meet the standard for a pre-existing condition under s. 18(2) of the Schedule, there must be documented evidence of a pre-existing medical condition that will prevent maximal recovery from a minor injury if the insured is subject to the benefits cap under s. 18(1).
26I find the applicant has not met her onus of demonstrating, on a balance of probabilities, that this pre-existing condition will prevent maximal recovery.
27The applicant’s medical records document the existence of pre-existing tendonitis and a partial thickness tear of a tendon in her right shoulder. In addition to the ultrasound from July 2015, there is consistent documentation of shoulder pain leading up to the accident on October 18, 2015.
28However, as noted above in my discussion about chronic pain and the lack of references in the clinical notes after several months, any pain from the accident appears to have dissipated soon after the accident. I imagine that this pre-existing condition may have added to the pain that the applicant experienced after the accident, but this pain still appears to have resolved.
29Additionally, other than the aforementioned comment from Dr. Robertus in the disputed treatment plan, I have not been provided with a convincing account of why this pre-existing shoulder issue will prevent maximal recovery.
30Taken together, the evidence I have been provided does not reach the standard under s. 18(2) to remove the financial and treatment limit under s. 18(1).
Award under O. Reg. 664 and Interest
31Section 10 of O. Reg. 664 permits the Tribunal to “award a lump sum of up to 50 per cent of benefits and interest” if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments”. Since there is no outstanding payment of benefits, there can be no award or interest.
CONCLUSION
32As detailed above, the applicant has not demonstrated that she should not be subject the financial cap of s. 18(1). As such, there is no need to determine whether the disputed treatment plans are reasonable and necessary. Further, there is no overdue payment of benefits that can form the basis of an award or interest.
Released: June 22, 2018
___________________________
Craig Mazerolle, Adjudicator
Footnotes
- As of November 10, 2015, the applicant had used $2,802.74 in treatment
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8, pg. 5, heading 4, “Impairments that do not come within this Guideline”.```