Tribunal File Number: 18-008335/AABS
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:
R. K.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
PANEL:
Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant:
Wojciech Wrobel
For the Respondent:
Annemarie White
HEARD:
In Writing on: May 28, 2019
OVERVIEW
1The applicant, R.K., was injured in an automobile accident on November 17, 2016 and sought benefits from the respondent, Unifund Assurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule). As a result of the accident, R.K. alleges she sustained physical injuries to her left shoulder and arm, her neck and back. She also claims she experiences psychological symptoms including decreased sleep, nervousness, anger, headaches and depression.
2R.K. applied for medical benefits and costs of examinations that were denied by Unifund because it determined R.K.’s injuries were predominately minor and therefore subject to the Minor Injury Guideline (MIG). R.K. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute. The parties participated in a case conference but were unable to resolve the issues and, thus, proceeded to this written hearing.
ISSUES TO BE DECIDED
3The following are the issues to be decided, as per the case conference order dated February 5, 2019:
i. Did the applicant sustain predominately minor injuries as defined under the Schedule?
ii. Is the applicant entitled to a medical benefit in the amount of $3,805.76 for chiropractic treatment recommended by Alexander Yu in a treatment plan submitted on April 26, 2017 and denied don April 27, 2017?
iii. Is the applicant entitled to a medical benefit in the amount of $4,463.96 for psychological services recommended by Harinder Mrahar in a treatment plan submitted on May 29, 2017 and denied on June 12, 2017?
iv. Is the applicant entitled to payment for the cost of an examination in the amount of $1,920.53 for a psychological assessment recommended by Harinder Mrahar in a treatment plan submitted on May 1, 2017, and denied on May 2, 2017?
v. Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
4I find on the evidence that R.K. sustained predominately minor physical injuries because of the motor vehicle accident which are treatable within the MIG. However, I find that she has demonstrated, on a balance of probabilities, that she sustained psychological impairments as a result of the accident that remove her from the confines of the MIG limit.
5As I find that R.K.’s psychological impairments take her out of the MIG, the treatment plans for a psychological assessment and psychological treatment are reasonable and necessary. Interest is payable on amounts overdue.
6R.K. is not entitled to the treatment plan for chiropractic services, as it is not reasonable and necessary.
ANALYSIS
Applicability of the Minor Injury Guideline
7I find that the medical evidence indicates that R.K. sustained physical injuries that are predominately minor injuries that can be treated within the MIG.
8The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Applying Scarlett v. Belair Insurance,2 the applicant must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities.
9The physical injuries documented in the weeks and months after the accident—by both R.K.’s and Unifund’s practitioners—fall within the definition of minor injury, as they are listed as headaches and sprain and strain-type injuries to R.K.’s left shoulder, left AC joint, left bicep and lumbar, cervical and thoracic spine. I find that these injuries, considered alone, fall squarely within the definition of “minor injuries” under the Schedule and agree with the Insurer’s Examination (IE) report of Dr. Greenspoon that these injuries can be treated within the MIG.
10However, R.K. argues that because of the accident, she sustained psychological impairments that remove her from the MIG.
Psychological Impairments
11I find that R.K. has shown, on a balance of probabilities, that she sustained psychological impairments as a result of the accident that require access to treatment beyond the limits of the MIG.
12R.K. provided medical documentation indicating diagnoses and symptoms from the accident, including: a provisional diagnosis of Adjustment Disorder (with anxiety and depressed mood) and Specific Phobia by Dr. Mrahar, and Adjustment Disorder with Depressed Mood by Dr. Cook, psychologist. Due to her sleep issues and driving phobia, Dr. Mrahar recommended a psychological assessment and treatment. Unifund denied the treatment plans, and R.K. incurred the cost of the assessment.
13R.K. attended an IE with Dr. Rockman, psychologist, on July 17, 2017. In her report, Dr. Rockman found that R.K. did not suffer from any significant psychological symptoms as a result of the accident. R.K. contends that she suffers from psychological impairments that remove her from the MIG—primarily sleep issues and anxiety—and that Dr. Rockman’s opinion runs contrary to those of every other doctor, including Drs. Yu, Mrahar, Cook and Unifund’s own, Dr. Greenspoon.
14In response, Unifund submits that there is no continuous evidence of psychological complaints in the clinical notes and records of R.K.’s family physician, Dr. Ahmed, to corroborate R.K.’s alleged impairments and that Dr. Cook’s diagnosis should be discounted because the clinical notes and records were not before him. Further, Unifund argues that Dr. Rockman’s finding that R.K.’s psychological symptoms were “not sufficiently severe to be psychologically impairing or consistent with a diagnosable mental disorder” should be preferred over Dr. Cook’s.
15While corroborating records are always helpful, I find R.K.’s consistent attendance for treatment, her continuous complaints to her assessors and practitioners, the diagnosis provided by Dr. Cook and the fact that she incurred the cost of the psychological assessment (after a denial by Unifund) to be compelling evidence that she sustained a psychological impairment as a result of the accident. I agree with R.K. that she consistently reported her complaints to the practitioners who were assigned to address her complaints—which are documented in two OCF-3’s, a Psychological Status Evaluation, an OCF-24 and Dr. Cook’s Report—and that these complaints should not be disregarded or discounted simply because they were not documented by her family physician. Further, I find Dr. Cook’s report to be more comprehensive than Dr. Rockman’s as it contained more validity testing measures. Contrary to Unifund’s position, I find this impairment has lingered long enough that it requires further exploration and attention beyond the scope of the MIG.
16As a result, I find that R.K. has demonstrated, on a balance of probabilities, that she suffers from a psychological impairment that justifies treatment beyond the MIG.
Are the treatment plans and assessment reasonable and necessary?
17I find R.K. is entitled to the cost of examination for the psychological assessment and the cost of the treatment plan recommending psychological treatment, as both are reasonable and necessary. R.K. is not entitled to the treatment plan recommending chiropractic services.
18First, I find the fact that R.K. incurred the cost of the psychological assessment, in the amount of $1,920.53, despite Unifund’s denial of same, to be evidence of need. The recurring documentation of her psychological impairments in the OCF’s and the diagnoses by Dr. Mrahar and Dr. Cook supporting psychological treatment are, in my view, evidence of the assessment being reasonable. Further, the cost of the assessment was not excessive and the goal of the assessment—identifying the psychological issues impairing R.K.—is entirely reasonable.
19Second, based on R.K.’s consistent reporting to her practitioners, R.K. incurring the cost of the psychological assessment and the reasonable goals outlined in the plan by Dr. Mrahar, I find the treatment plan for psychological services in the amount of $4,463.96 to be reasonable. On the basis of Dr. Cook’s diagnosis and Report, I also find it necessary to address R.K.’s ongoing sleep and psychological impairments.
20Finally, I find R.K. is not entitled to payment in the amount of $3,805.76 for the chiropractic treatment recommended by Alexander Yu. As noted, I find that R.K. sustained predominately minor physical injuries as a result of the accident that are not out of the ordinary scope of MIG treatment and the basis for her removal from the MIG is purely psychological. Further, the evidence indicates that R.K. self-reports as “only” feeling “95% better” from a physical perspective due to her previous treatment. While R.K. argues that her maximal medical recovery should be 100%, I disagree that this renders a full slate of additional chiropractic treatment reasonable and necessary.
INTEREST
21As I have found benefits are overdue, R.K. is also entitled to interest on these overdue amounts, pursuant to s. 51 of the Schedule.
CONCLUSION
22For the reasons outlined above, I find that:
i. R.K. sustained predominately minor physical injuries because of the motor vehicle accident which are treatable within the MIG. However, I find that she has demonstrated, on a balance of probabilities, that she sustained psychological impairments as a result of the accident that remove her from the confines of the MIG limit.
ii. Accordingly, I find she is entitled to the cost of the psychological assessment which she has already incurred and the psychological treatment, as both are reasonable and necessary.
iii. R.K. is not entitled to payment for chiropractic treatment as it is not reasonable and necessary.
iv. R.K. is entitled to interest on any overdue benefits, pursuant to s. 51.
Released: September 6, 2019
Jesse A. Boyce, Adjudicator