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:
[The Applicant]
Appellant(s)
And
Certas Direct Insurance Company
Respondent
DECISION AND ORDER
PANEL:
Maureen Helt, Vice-chair
APPEARANCES:
For the Applicant:
[The Applicant]
Lisa Lisa Bishop, Counsel
For the Respondent:
Suzanne Clarke
HEARD:
In Writing on: November 11, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was involved in an automobile accident on January 22, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') .The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for medical and rehabilitation benefits as well as a claim for attendant care benefits.
2During a case conference held in May 2018, the respondent raised a preliminary issue based on the applicant’s non-attendance of insurer examinations relating to the attendant care benefit. A case conference Order was issued setting out the following preliminary issue to be considered with a hearing on the merits. I deal with the preliminary issue first.
PRELIMINARY ISSUE
3Is the applicant barred by s. 55(2) of the Schedule to commence a proceeding to the Tribunal for non-compliance with a s. 44 insurer examination related to attendant care benefits?
RESULT
4I find, that the applicant is not barred pursuant to s. 55(2) from claiming attendant care benefits on the basis of non-compliance with the repeated requests for a scheduled s. 44 insurer examination.
ANALYSIS OF PRELIMARY ISSUE
5The applicant submits that he is entitled to be compensated for the recommended attendant care benefits as “per the recommendations within the Form-1 dated April 4, 2016 in the amount of $261.14.” The respondent denied the claim informing the applicant that it required the applicant to attend an IE.
6The respondent can require an insurer’s examination under s. 44(1) of the Schedule.
7Section 55(2) of the Schedule states that an insured person shall not apply to the Tribunal if the insurer has provided notice of an insurer’s examination under s. 44, but the insured person has not complied with the request for an examination.
8On April 22, 2016 the respondent advised the applicant that it was their position that the applicant’s injuries were minor and he was therefore not eligible for an attendant care benefit. The respondent asked the applicant to attend an Insurers Occupational Therapy Examination on the following dates to determine his entitlement to Attendant Care Benefits:
May 19, 2016 – the applicant failed to attend;
September 27, 2016 – the applicant failed to attend;
December 16, 2016 – the applicant failed to attend;
9The applicant failed to attend all of the above scheduled IEs. A case conference was held on May 14, 2018 at which time the applicant agreed to attend a physical IE as well as an occupational therapy examination.
10The respondent, subsequent to the May 14, 2018 case conference, sent the applicant a notice of IE on May 18, 2018 at the appellant’s new address indicating that the assessment for attendant care benefits would be taking place at the applicant’s previous address. The IE was scheduled for June 19, 2018. The applicant submits that he was willing to participate however the respondent scheduled the examinations at an incorrect address.
11By way of letter dated June 19, 2018 the applicant’s counsel wrote to the respondent advising that the applicant did attend the IE with Dr. Bhangu, Physiatrist, on June 13, 2018 however did not attend the IE scheduled for June 19, 2018 related to attendant care benefits as it was scheduled to take place at the applicant’s previous address. The respondent was provided with the applicant’s correct address.
12The respondent then served a rescheduled appointment for the missed IE with a letter dated July 27, 2018 addressed to the applicant at the applicant’s correct current address. The July 27, 2018 letter, (Applicant’s Reply Submissions Exhibit 2), was faxed to the applicant’s counsel’s office and sent by mail to the applicant’s current address. The applicant, in its reply submission states that while the letter is addressed to the applicant’s correct address, the notice of examination included with the letter references the applicant’s previous address as the place of examination. It is on this basis that the applicant states that the respondent’s notice of examination was deficient.
13In making my decision on non compliance with s. 44 of the Schedule, I must consider all of the evidence before me. It was made clear at the case conference that the applicant was to attend the IE’s failing which, his failure to attend would become a preliminary issue.
14There is no dispute that the applicant did not attend the IE related to attendant care benefits scheduled for September 4, 2018. The issue is whether the applicant’s non-attendance amounts to non compliance with s.44 of the Schedule.
15The applicant states that the incorrect address for the place of examination was set out in the Notice, despite the applicant’s counsel advising the respondent of the correct address. While this is true, the applicant has also not put forward any evidence that it took any steps to ascertain the correct address for the examination. While the applicant’s counsel could have clarified this issue easily by contacting the respondent, the onus remains on the respondent to ensure sufficiency of the Notice. I find it unfortunate that the applicant’s counsel would not have tried to rectify this mistake to ensure his client attended. However, although the failure to provide the correct address may be considered as a “simple mistake” the respondent was previously advised by the applicant’s counsel of the applicant’s current address and as such the applicant should not be penalized for the respondent’s mistake.
16I find that the Notice of Examination for the September 4, 2018 was deficient and as such the respondent can not use it as a bar to the applicant proceeding with its claim for attendant care benefits to the Tribunal.
SUBSTANTIVE ISSUES
17The following are the substantive issues in dispute:
(a) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the Minor Injury Guideline (MIG)?
(b) If the applicant’s injuries are not predominantly minor and not subject to treatment within the MIG,
i. Is the applicant entitled to attendant care benefits in the amount of $261.14 per month from January 22, 2016 to January 22, 2018?
ii. Is the applicant entitled to payment in the amount of $1,364.36 (less $1,100.00 approved) for chiropractic and massage therapy as set out in a treatment and assessment plan by Health Pro Wellness dated May 7, 2016, denied by the respondent on May 17, 2016?
iii. Is the applicant entitled to payment in the amount of $1,804.80 for physiotherapy services as set out in a treatment and assessment plan by Health Pro Wellness dated July 5, 2016, denied by the respondent on July 21, 2016?
iv. Is the applicant entitled to payment in the amount of $3,693.04 for psychological services as set out in a treatment and assessment plan by Health Pro Wellness dated September 7, 2016, denied by the respondent on September 28, 2016?
v. Is the applicant entitled to payment in the amount of $1,997.29 as set out in a treatment and assessment plan by Health Pro Wellness dated July 27, 2016, denied by the respondent on August 12, 2016?
(c) Is the applicant entitled to interest for the overdue payment of benefits?
(d) Is the respondent liable to pay an award pursuant to s.10 RRO1990 Reg.664, because it unreasonably withheld or delayed payments to the applicant?
Result
18For the reasons that follow I find that:
i. The applicant sustained psychological injuries which are not predominantly minor as defined by the Schedule;
ii. The treatment plans for the psychological assessment and psychological treatment are reasonable and necessary;
iii. The applicant is not entitled to the physiotherapy and chiropractic/massage treatment plans in dispute because he has failed to establish that they are reasonable and necessary; and
iv. The applicant is entitled to interest on the assessments and treatment which I have determined are reasonable and necessary.
v. The respondent is not liable to pay an award pursuant to s.10 RRO 1990 Reg.664.
ANALYSIS
The Minor Injury Guideline (MIG)
19The applicant submits that he sustained psychological injuries which fall outside definition of “minor injury” in the Schedule and therefore should be removed from the MIG. I agree.
20The Tribunal is required to determine whether the MIG applies in order to, in turn, determine whether the applicant is entitled to the claimed benefits. If the MIG applies, then, pursuant to s. 18 of the Schedule, the applicant is not entitled to these benefits; if the MIG does not apply, then the applicant might be entitled to these benefits assuming they are “reasonable and necessary” .
21The MIG applies if the applicant sustained predominantly “minor injuries”. Section 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.”
22Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits to $3,500 for impairments that are predominantly minor injuries.
23The onus is on the applicant to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
24The applicant submits he suffers from accident-related physical and psychological impairments. As a result of those impairments, the applicant claims that he should not be subject to the Schedule’s limitations set out under the MIG.
25The applicant also submits that his injuries cannot be considered "minor", as the pain persisted well beyond the acute stage, and have persisted without improvement, which must be considered chronic.
26The respondent argues that if the applicant suffered from accident-related physical and psychological issues in this accident, that those issues are sufficiently minor that they still remain subject to the MIG treatment limits.
27Additionally, s. 18(2) of the Schedule states that the MIG will not apply if there is a medical condition, such as psychological impairment or chronic pain that will hinder recovery of an otherwise minor injury. For analytical purposes, I will divide the applicant’s submission between physical injury and psychological impairment.
Psychological Injury
28The applicant submits that the accident caused psychological impairments that take him out of the MIG. Specifically, some of those impairments include trouble sleeping, social withdrawal, decreased motivation and interest, depression and anxiety. In addition, tests administered by his psychologist demonstrate elevated results on the Beck Depression and Anxiety Inventories, anxiety while driving and feelings of stress.
29The respondent argues that there are validity issues with the applicant’s psychometric test results such that the applicant’s assessor’s psychological diagnosis may be invalid. The question that needs to be determined is whether the applicant should be removed from the MIG on account of a psychological impairment.
30Psychological impairments may, if established, fall outside the MIG, because the MIG only covers “minor injuries,” which definition does not include psychological impairments. Psychological symptoms or sequelae arising from soft tissue injuries, however, are included in the MIG. Therefore, in order to prove that the applicant’s injuries are not predominantly minor in nature, the applicant must show that his or her psychological complaints are not merely sequelae arising from the applicant’s soft tissue injuries but are rather a psychological impairment resulting from the accident.
31I have competing medical evaluations before me. I set these out below.
32After the accident, the applicant was referred for a psychological assessment and assessment of attendant care needs by his chiropractor. He had an initial psychological pre screen interview on July 27, 2016 with Dr. Aghamohseni who found that the applicant presented sufficient psychological difficulty as to warrant a more comprehensive psychological assessment.
33Dr. Aghamohseni concluded her pre screen assessment by saying that “ It Is my firm impression that based on the Information provided through our Interview today, his Injuries/symptoms fall outside of the Minor Injury Guidelines (MIG) and a formal psychological assessment is clearly warranted in order to obtain a thorough understanding of his difficulties and plan reasonable and necessary treatment. The assessment Involves a psychological assessment and Interview, clinical testing, consultation with professionals involved in the client's rehabilitation, external file review and client feedback Interview.”
34In her report, completed after a complete psychological assessment was conducted on September 7, 2019, Dr. Aghamohseni concludes that the results of the tests completed, including the Beck Anxiety Inventory, Beck Depression Inventory-II and PTSD Checklist demonstrate a moderate level of depression, moderate level of anxiety as well as moderate or severe problems with sleep, balance, concentration, dizziness, sadness, headaches and other issues.
35Dr. Aghamohseni reports that the applicant reported emotional issues following the accident in relation to symptoms commonly associated with depression and anxiety. “He experiences symptoms consistent with severe depression stating: "I am so stressed out and upset with everything that has happened" He has associated issues of social withdrawal, and decreased motivation and interest in participating in activities
36The Beck Depression Inventory-II (BDI-II) is a depression test to measure the severity and depth of depression symptoms. Dr. Aghamohseni reports that the applicant reported difficulties with the following issues: sadness, pessimism, past failure, loss of pleasure, punishment feelings, selfdislike, self-criticalness, agitation, loss of interest, indecisiveness, loss of energy, changes in sleep, irritability, changes in appetite, concentration difficulty and tiredness/fatigue. The applicant scored a 24 consistent with a moderate level of depression.
37Another test administered by Dr. Aghamohseni, the Beck Anxiety Inventory (BAI) helps define anxiety attack symptoms. By listing the physical symptoms of anxiety attacks, this test helps separate anxiety from depression The applicant was reported as having difficulties with the following issues: a heightened state of anxiety such as a heightened startle response, wobbliness in his legs, hot flashes, light-headedness, anticipation of danger, difficulty relaxing, muscle tension, fear of the worst happening.
38Overall Dr. Aghamohseni concludes that the applicant displays symptoms that would be consistent with the following identifications based on the criteria of the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition: Major Depressive Disorder, Single Episode, Moderate, with Anxious Distress. The Global Assessment of Function was assessed at 45 suggesting serious and major impairment in several areas including social, occupational (construction), family relationships and mood regulation. The recommendation was made for 12 psychological treatment sessions.
39Dr. Salerno completed an IE on April 22, 2017. During this assessment the applicant noted that he had occasional feelings of sadness, once every three weeks and these episodes were relatively short in duration (2 – 3 hours). In his report, Dr. Salerno concludes that the applicant did have mild psychological symptoms and sustained a minor injury from a psychological perspective.
40Dr. Salerno noted that the applicant complained about occasional feelings of sadness and that while the applicant reported some anxiety while driving, this anxiety did not prevent him from driving.
41Dr. Salerno performed some testing which is specific to identifying individuals as feigning pain and somatic related disability.
42One of the tests administered by Dr. Salerno is called the Millon Clinical Multiaxial Inventory, a self report inventory utilized to assist in the formulation of psychological diagnoses. At page 12 of his report, Dr. Salerno states “Mr. [A.] produced a valid profile. A marked elevation is observed on the Disclosure scale suggesting symptom overreporting. A moderate elevation is observed on the Debasement scale suggesting Mr. [A.] likely portrayed himself in an overly negative light. These test data are therefore interpreted with caution.”
43Dr. Salerno also noted that the appellant does not exhibit clinical elevations but subclinical elevations are observed on the major depression, bipolar, manic and anxiety scales.
44In his conclusion Dr. Salerno finds that on a validity questionnaire for somatic complaints the applicant obtained a score within the range of individuals identified as feigning pain and somatic disability. Dr. Salerno then states (at page 15 of his report). “Note, I am not in any way implying Mr. [A.] is feigning.”
45In considering these two competing reports, there is no doubt that the applicant experiences some depression, and anxiety and sleep disorders. The question is whether these are psychological sequalae to the soft tissue injuries or psychological impairments as a result of the accident. I am persuaded more by the findings of Dr. Aghamohseni than by that of Dr. Salerno for the following reasons:
a) The applicant raised issues of anxiety, fear of driving and difficulty with sleep with Health Pro Wellness as early as February 4, 2016 and on the OCF-1 which was completed February 10, 2016. The OCF 3 signed by Dr. Salayeva dated February 9th, 2016 also recommends a psychological assessment. Dr. Aghamohseni then conducted a psychological pre screen report on July 27, 2016 making several findings relating to anxiety and depression and recommending a full assessment.
b) Dr. Aghamohseni completed a full psychological assessment with three psychological tests during his assessment; the Beck Depression Inventory–II where she scored in the moderate range; the Beck Anxiety Inventory where she scored in the severe range level and the Symptom Checklist – 90 revised, which revealed that she had considerable levels of emotional distress;
c) While Dr. Salerno used psychometric testing to assist in determining the validity of the applicants self reported condition, it is clear from the report that Dr. Salerno himself states that the “accuracy of Mr. [A.]’s cultural nuances may account for validity results on the questionnaires;
d) Dr. Salerno himself acknowledged that he was not implying that the applicant was feigning.
46I find on a balance of probabilities, that the applicant has psychological injuries which removes him from the MIG.
Attendant Care Benefits
47Section 19 of the Schedule states the insurer shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant [Emphasis added].
48Section 3(7)(e)(iii) provides two situations for an expense to be considered incurred:
(iii) the person who provided the goods or services,
a. did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
b. sustained an economic loss as a result of providing the goods or services to the insured person.
49The applicant conceded in his submissions that he has not incurred any attendant care expenses. However, he argued the principle from McMichael v. Belair Insurance Co. (“McMichael”), a decision of Director Delegate Makepeace of the Financial Services Commission of Ontario (FSCO A02-001081, March 2, 2005) which was upheld at Divisional Court, applies and his attendant care benefits should be deemed incurred.
50It is the applicant’s position that he is entitled to be compensated for the recommended attendant care benefits where they are proven to be reasonable and necessary, without the need to prove it was incurred and relies on McMichael for this position.
51McMichael was decided under the previous iteration of the Schedule before the definition of incurred was added and clarified. Therefore, I am not persuaded by the applicant’s argument his attendant care expenses should be deemed incurred.
52I do not find McMichael applies in this case. The facts are vastly different. Mr. McMichael was a catastrophically injured applicant with well-documented requests for funding due to his financial struggles and the life circumstances he found himself in as a result of the accident. In this case the applicant is able to work and live independently. Further, while the applicant has reported some difficulties to complete household chores the evidence provided in this regard does not meet the test to prove attendant care is reasonable and necessary.
53While I have found that the applicant’s psychological injuries remove him from the MIG I do not find that the applicant is entitled to any attendant care benefits.
Psychological Assessment and Treatment Plan
54Considering my finding on the MIG, I need only determine if the applicant has demonstrated that the treatment plans at issue are reasonable and necessary.
55I must now determine whether the treatment plans in dispute are reasonable and necessary. Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of an accident.
56The goal of the plans are to not only assist the applicant with driving anxiety but all to provide him with the skills and education he needs to manage his heightened state of anxiety and low mood and to re-frame mal-adaptive cognitive patterns using cognitive behavioural therapies.
57Having found that the applicant suffers from anxiety and depression as a result of the accident, I find the psychological assessment and treatment recommended to be reasonable and necessary.
Medical / Rehabilitation Treatment Plans
58I do not find that the applicant has established, on a balance of probabilities, that he requires ongoing physiotherapy as a result of the accident. My decision is based on self-reports from the applicant and on the report of the physiatrist, Dr. Bhangu.
59The two plans in dispute recommend the applicant receive massage therapy, passive physiotherapy, chiropractic and functional exercise. These are the same types of treatment the applicant received prior to exhausting the MIG limits. Despite receiving this treatment, the applicant reports that his condition did not improve.
60In his assessment with Dr. Bhangu, on June 13, 2018, the applicant reported having experienced 20% improvement in his headaches and no improvement in his neck, back, left elbow, or bilateral knee pain to date. Dr. Bhangu further noted that there are no diagnostic studies (MRI, CT scan, X-ray, Bone scan or Ultrasound) to indicate any significant pathology that is accident related that might be contributing to the applicant’s musculoskeletal symptoms.
61For these reasons the two treatment plans for medical and rehabilitation plans are not reasonable and necessary.
Interest
62Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
63The respondent is liable to pay interest on overdue payments to the applicant, at the prescribed rate.
Award
64Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has unreasonably” withheld or delayed payments.
65Entitlement to a special award faces a "stringent test". It is only awarded where the delay or withholding of benefits is unreasonable. Unreasonable is “behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate". I do not find anything in the respondent’s conduct to meet this test in this case.
Conclusion
66For the reasons outlined above, I find that:
a. As a result of his psychological injuries, the applicant did not sustain a predominately minor injury.
b. The applicant is entitled to the cost of a psychological assessment and psychological treatment set out in paragraph [17] (iv) & (v) above.
c. The applicant is not entitled to the two disputed treatment plans for physiotherapy and chiropractic therapy.
d. If applicable the applicant is entitled to interest on the assessment and treatment plan I have found to be reasonable and necessary.
Released: October 2, 2019
Maureen Helt
Vice Chair