17-006967 v Certas Home and Auto Insurance Company, 2018 CanLII 95582

Date: 2018-07-03

Tribunal File Number: 17-006967/AABS

Case Name: 17-006967 v Certas Home and Auto Insurance Company

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

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Licensed Paralegal for the Applicant: Francesco Blasi

Counsel for the Respondent: Jennifer N. Marquis

Written Hearing on: May 7, 2018

OVERVIEW

1[The applicant] was injured in an automobile accident (“the accident”) on June 30, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is exactly the opposite.

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

4Did the applicant sustain predominantly minor injuries as defined by the Schedule?

5Is the applicant entitled to payment for the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended in a treatment plan (OCF-18) dated September 19, 2016 and denied by the respondent on October 4, 2016?

6Is the applicant entitled to a medical benefit in the amount of $3,129.48 for psychological services recommended by Pilowsky Professional Corporation in a treatment plan (OCF-18) submitted on May 10, 2017 and denied by the respondent on May 26, 2017?

7Is the respondent liable to pay an award under Regulation 664, Automobile Insurance³ (“the Regulation”) because it unreasonably withheld or delayed payments to the applicant?

8Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9I find that the applicant’s injuries fall outside the MIG. In addition, I find the following:

i. The applicant is entitled to payment for the cost of an examination in the amount of $2,200.00 for a psychological assessment;

ii. The applicant is entitled to a medical benefit in the amount of $3,129.48 for psychological services;

iii. The respondent is not liable to pay an award under Regulation 664, Automobile Insurance and;

iv. Interest is payable in accordance with s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline

10Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”.

11Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

12The onus is on the applicant to show that her injuries fall outside of the MIG. However, an applicant can also be removed from the MIG if the insurer fails to comply with the prescribed requirements for explaining its denial of claimed benefits.

Notice Requirements and the MIG

13Under s.38 (8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and all other reasons why the insurer considers any proposed goods, services, assessments and examinations—or the cost of them—not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan. The notice is commonly referred to as an Explanation of Benefits (EOB).

14Under s. 38 (11) of the Schedule, if the insurer fails to provide the insured person with notice in accordance with s.38 (8), the following rules apply:

i. The insurer is prohibited from taking the position that the MIG applies to the insured person – the insured person is, in effect, removed from the MIG.

ii. The insurer must pay for all goods and services set out in the OCF-18 starting on the 11th day after the insurer received the application for benefits until the day the insurer issues a notice that complies with s.38.

15The onus is on the insurer to establish that the applicant has received the proper notice of denial and that the denial was clear and unequivocal.

16The applicant submits that the respondent’s EOB dated October 4, 2016, denying an OCF-18 for a psychological assessment is insufficient as it did not provide a medical reason for the denial of the benefit.

17If I find that the notice provided by the respondent did not comply with s.38 of the Schedule, the applicant will be removed from the MIG and the cost of this assessment will be payable.

Is the applicant removed from the MIG because the EOB was deficient?

18On September 19, 2016 the applicant underwent a psychological intake screening by telephone with Dr. J. Pilowsky (Psychologist). An OCF-18 requesting a psychological assessment was submitted to the respondent on September 20, 2016. This was denied by the respondent through an EOB dated October 4, 2016.

19The applicant underwent a psychological assessment with Dr. Pilowsky on March 16, 2017. An assessment report dated May 10, 2017 and an invoice were submitted to the respondent on this date.

20The EOB dated October 4, 2016 provided this as the reason for refusing to pay the applicant’s claim:

“There is no compelling evidence that you have sustained non-minor psychological impairments as a result of the accident, therefore we find that the OCF-18 dated 09/19/2016 proposing a psychological assessment is not reasonable or necessary”.

21The applicant argues that the notice she received from the respondent did not comply with the Schedule. To support her argument, the applicant submits:

i. The respondent’s EOB dated October 4, 2016 was too vague to constitute a valid medical reason for refusing to pay the claimed benefit. She relies on the Tribunal’s decision in 17-004357 and Aviva General Insurance,⁴ in which the adjudicator found the respondent’s EOB did not provide medical reasons for the denial of a psychological assessment. The adjudicator concluded that s. 38(8) of the Schedule had not been complied with as the respondent’s EOB was too vague to constitute medical reasons for their denial.

ii. The EOB from the respondent dated May 30, 2017 fails to rectify the deficiency of the previous EOB of October 4, 2016 because it merely acknowledges receipt of Dr. Pilowsky’s assessment report and invoice. It notes simply that the invoice is not payable as the OCF-18 was not approved.

22To rebut the applicant’s claim, the respondent contends that it had no evidence of non-minor psychological injury, and this is a valid medical reason to refuse a treatment plan. It relies on O.M. and Certas⁵ in which the adjudicator found that the Schedule does not require an insurer to obtain expert medical opinion or conduct insurer’s examinations (IEs) to substantiate its medical reasons for denial.

23The respondent notes the following in support of its claim that the October 4, 2016 EOB which noted “no compelling evidence” was sufficient for denying the OCF-18 for a psychological assessment:

i. The applicant’s disability certificate (“OCF-3”) dated July 27, 2016 noted soft tissue injuries, and did not note psychological conditions.

ii. The September 20, 2016 OCF-18 issued by Dr. Pilowsky which requested a psychological assessment was based upon a telephone interview with the applicant. The respondent submitted that Dr. Pilowsky would not have had enough time, or sufficient information to make a “reliable determination on causation and treatment in this pre-screening report”. At the time the October 4, 2016 EOB was issued, the respondent submitted they had not been provided with any of the applicant’s pre or post-accident medical records to support the need for psychological treatment.

iii. An IE for an in-home functional assessment was completed by Tony Jung, Occupational Therapist (“O.T.”) on October 15, 2016. The respondent submitted the applicant did not mention any psychological issues relating to the accident.

iv. The applicant attended an IE for a physiatry assessment with Dr. R. Williams on October 29, 2016. The respondent submitted the applicant did not report any ongoing psychological issues, except for a disruption in her sleep since the accident.

24I find that the respondent failed to comply with s. 38 (8) of the Schedule as it did not provide medical reasons for the denial of the OCF-18 for a psychological assessment. While the respondent’s information above provides an explanation for this hearing, it was not provided as part of the actual denial. As a result:

i. The applicant is no longer governed by the MIG and the $3,500.00 cap on benefits for medical treatment or assessment.

ii. The OCF-18 dated September 19, 2016 in the amount of $2,200.00 is payable in accordance with s. 38 (11) of the Schedule.

25I reached my conclusion that the notice provided by the respondent was defective for the following reasons:

i. I am persuaded by 17-004357 and Aviva. I find in this case the reasons provided by the respondent in their EOB dated October 4, 2016 were too vague to constitute medical reasons for their denial of the psychological assessment. The respondent noted in their EOB that there was “no compelling evidence that you have sustained non-minor psychological impairments as a result of the accident...” I find this explanation is vague and lacks medical reasons for the denial.

ii. The respondent’s October 4, 2016 EOB which denied the OCF-18 for a psychological assessment provided a conclusion which noted there was no compelling evidence the applicant sustained non-minor psychological impairments as a result of the accident. I find this information did not constitute valid medical reasons as required by s. 38 (8) of the Schedule as the EOB did not provide the applicant with what information was relied on by the respondent in reaching their conclusion that there was no compelling evidence. In the absence of medical reasons, the applicant is left not knowing what information has formed the basis for the conclusion reached by the respondent and whether the applicant should or should not dispute the denial.

26As a result of my findings, it is not necessary for me to determine whether the applicant’s injuries were predominantly minor. I will proceed to determine whether the remaining treatment plan in dispute is reasonable and necessary.

Is the Applicant entitled to Psychological Treatment in the amount of $3,129.48?

27I find the applicant is entitled to the psychological treatment in the amount of $3,129.48 as proposed in the OCF-18. In the absence of competing medical evidence from the respondent, I find this treatment plan is reasonable and necessary.

28The applicant relies on the following in support that the OCF-18 for psychological treatment is reasonable and necessary:

i. The OCF-18 requesting psychological treatment submitted on May 10, 2017 by Dr. Pilowsky requesting psychological treatment noted the applicant suffered from “persistent somatoform pain disorder and major depressive episode” and twelve sessions of psychological treatment were recommended to return the applicant to her activities of normal living. The psychological assessment completed on March 16, 2017 by Dr. Pilowsky submitted to the respondent on May 10, 2017 diagnosed the applicant with Major Depressive Disorder and Somatic Symptom Disorder, Persistent, with Predominant Pain.

ii. It is the applicant’s position that the respondent has no medical evidence of a psychological nature to contradict the findings of Dr. Pilowsky.

iii. The applicant submitted that she became pregnant prior to the motor vehicle accident and a majority of her visits to her family doctor were related to her pregnancy and that is the reason there were no complaints of a psychological nature noted within the clinical notes and records of the family doctors.

29The respondent submits that the applicant has failed to provide any evidence to support her claim. It notes that:

i. The applicant’s disability certificate (“OCF-3”) dated July 27, 2016 noted soft tissue injuries, and noted no pre-existing conditions.

ii. The OCF-18 dated September 20, 2016 for a psychological assessment proposed by Dr. Pilowsky was based upon a telephone interview with the applicant. The respondent submitted that Dr. Pilowsky would not have had enough time or sufficient information to make a “reliable determination on causation and treatment in this pre-screening report”. Thus, the basis for the treatment plan is weak.

iii. An IE for an in-home functional assessment was completed by Tony Jung, O.T. on October 15, 2016. The respondent submitted the applicant did not demonstrate any physical impairment or mention any psychological issues relating to the accident.

iv. The applicant attended an IE for a physiatry assessment with Dr. R. Williams on October 29, 2016. The respondent submitted the applicant did not report any ongoing psychological issues, except for a disruption in her sleep since the accident.

v. None of the clinical notes and records (CNRs) provided by the applicant to the respondent noted any psychological health issues or complaints. The records included: CNRs from a treating clinic (Spinal Touch Wellness Centre) who provided physical treatment to the applicant post-accident, and the CNRs from two family doctors; Dr. I. Chaudhary (pre and post-accident) and Dr. J. Pereira whom the applicant saw post-accident. The updated CNRs of Dr. Chaudhary note a post-accident miscarriage and a subsequent pregnancy in 2017. The last clinical note in the file is dated September 13, 2017 from Dr. Pereira and noted the applicant is doing well 7 days post-partum.

vi. The respondent submitted the applicant provided a different description of her psychological health to the IE assessors from what she described to Dr. Pilowsky. The respondent relies on the decision, 17-004793 and Allstate⁶ in which the adjudicator found a psychological treatment plan was not reasonable and necessary due to: unexplained discrepancies in the applicant’s self-reporting to the different psychological assessors and a lack of supporting evidence in the CNRs from the applicant’s family doctor. I find this case distinguishable from 17-004793 and Allstate. In this case before me, there was no psychological IE assessment.

30I find the OCF-18 for psychological treatment is reasonable and necessary for the following reasons:

i. The psychological assessment of March 16, 2017 relied on results obtained through the applicant’s self-reporting and three psycho-diagnostic tests. The results yielded two diagnoses: Major Depressive Disorder, Single Episode, Mild, and Somatic Symptom Disorder, Persistent With Predominant pain, Mild. While there is nothing noted in the applicant’s CNRs reporting any psychological complaints, there is no competing medical evidence from a psychological perspective on behalf of the respondent which challenges the conclusion reached by the applicant's psychological assessment and if the OCF-18 for psychological treatment is reasonable and necessary.

ii. The respondent provided no evidence which challenges the information from Dr. Pilowsky other than relying on the absence of a psychological impairment being noted within the applicant’s CNRs, a physiatry IE report, and an O.T. IE report to conclude there was insufficient medical documentation to support a psychological diagnosis or psychological treatment. I find this was an insufficient basis for the respondent to reach their conclusion that the applicant did not suffer from a psychological impairment.

iii. I find the O.T. IE report in which no stressors were noted has very little probative value in assessing whether an OCF-18 for psychological treatment is reasonable and necessary. The respondent has relied on the absence of a psychological impairment being noted within the applicant’s clinical notes and records, a physiatry IE report, and an O.T. IE report.

iv. I find 17-004793 and Allstate Canada to be distinguishable from this case. That case had two competing psychological reports and the adjudicator in that case found the respondent’s IE report more reliable and the lack of evidence contained in the family doctors records did not support the psychological treatment plan was reasonable and necessary. In the case before me, the IE’s were conducted by a physiatrist and an occupational therapist that are not qualified to provide opinions on a psychological impairment. Therefore, I find that the absence of the applicant’s reporting of information of a psychological impairment to these assessors does not equate to an inconsistency in what the applicant reported to Dr. Pilowsky.

v. For the above noted reasons and in the absence of a competing medical opinion to challenge the diagnoses and conclusion reached within the applicant’s psychological assessment report of March 16, 2017, I find on a balance of probabilities, the applicant has met her burden of proof that the OCF-18 for psychological treatment is reasonable and necessary.

Is the applicant entitled to an award under Ontario Regulation 664?

31Section 10 of Regulation 664 (“the regulation”) permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that an insurer has “unreasonably” withheld or delayed payments.

32I find that there is no evidence of an unreasonable withholding or delay of payment by the respondent. The respondent relied on their reasons for their denials as noted in their EOBs. I do not find this has equated to an unreasonable withholding or delay of payment by the respondent.

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

33Interest is payable for the cost of the OCF-18’s for the psychological assessment and the psychological treatment as set out in paragraphs 5 and 6 in accordance with s. 51 of the Schedule.

CONCLUSION

34The applicant is removed from the MIG based upon the respondent’s non-compliance with the prescribed requirements of s. 38 (8) in their EOB dated October 4, 2016.

35The applicant is entitled to payment for the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended in a treatment plan dated September 19, 2016 and denied the respondent on October 4, 2016.

36The applicant is entitled to a medical benefit in the amount of $3,129.48 for psychological services recommended by Pilowsky Professional Corporation in a treatment plan (OCF-18) submitted on May 10, 2017 and denied by the respondent on May 26, 2017.

37The applicant’s claim for an award is without merit and is dismissed.

38Interest is payable in accordance with s. 51 of the Schedule.

Released: July 3, 2018

___________________________

Kimberly Parish, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3R.R.O. 1990, Reg. 664
4. 417-004357 and Aviva General Insurance, 2018 CanLII 13152 (ONLAT), at 4
5. 5O.M. and Certas Home and Auto Insurance Company, 17-004519, March 2018, at 4-5
6. 617-004793 and Allstate Canada, 2018 CanLII 13189 (ON LAT)