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:
D. G.
Appellant(s)
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Appellant: Francesco Blasi, Paralegal
For the Respondent: Ken Yip, Counsel
HEARD in writing on: January 7, 2019
OVERVIEW
1The applicant was injured in an automobile accident on May 26, 2017 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain 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:
Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to the funding limit provided by the Minor Injury Guideline (“MIG”)?
Is the applicant entitled to payment for the costs of examinations in the amount of $2,200.00 for a psychological assessment recommended by Toronto Assessment Centre in a treatment and assessment plan dated September 14, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $3,940.31 for a psychological treatment plan recommended by Toronto Assessment Centre in a treatment and assessment plan dated November 30, 2017?
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant sustained injuries which fall outside the MIG and the applicant is not bound by the MIG funding limit.
4The applicant is entitled to the costs of the psychological assessment submitted in a treatment plan dated September 14, 2017.
5The psychological treatment plan dated November 30, 2017 is reasonable and necessary. The applicant may incur the goods and services proposed in it and the respondent is liable to pay for same once properly invoiced.
6The applicant is not entitled to an award.
7Pursuant to section 51 of the Schedule, the applicant is entitled to interest on the incurred costs of the psychological assessment proposed in the treatment plan dated September 14, 2017.
BACKGROUND
8The applicant was the driver of a car which was struck from behind while travelling on a suburban street. The applicant visited Dr. S. Nessim, family physician, immediately following the accident and was diagnosed with myofascial strain of the cervical, thoracic and lumbar spine with strain/contusions to the left and right shoulders. The applicant was off work for about 6 weeks following the accident and returned on modified duties for a few weeks and regular duties after that.
9The applicant commenced physiotherapy treatment within a few days of the accident. The treatment was provided pursuant to the MIG. The applicant now seeks a finding the injuries as a result of the accident are not predominantly minor and the disputed treatment plans are reasonable and necessary.
THE MINOR INJURY GUIDELINE
10There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
11If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
12The applicant claims to suffer from psychological injuries as a result of the accident and submits those injuries are not covered by the MIG and the $3,500.00 funding limit should not apply. The respondent argues the applicant has failed to provide evidence of a psychological injury and, as a result, is subject to the MIG and the $3,500.00 funding limit.
PSYCHOLOGICAL INJURY
13The applicant claims a psychological injury as a result of the accident. The applicant provides the following evidence: the clinical notes and records (“CNRs”) of Dr. Nessim, the disability certificate dated May 30, 2017 and the psychological report by Dr. T. Toneatto, psychologist, dated October 19, 2017. The applicant submits Dr. Nessim diagnosed post-traumatic stress disorder (“PTSD”), which is noted in the CNRs and disability certificate, and Dr. Toneatto diagnosed PTSD with adjustment disorder with mixed anxiety and depressed mood, which is noted in Dr. Toneatto’s psychological assessment report dated October 19, 2017.
14The respondent relies on the insurer’s assessment report by Dr. T. Dumitrascu, psychologist, dated November 17, 2018. In it, Dr. Dumitrascu opines that the applicant may have a personality disorder but found the applicant did not have any accident-related psychological injuries.
15In considering these reports and evidence, I find the applicant has sustained psychological injuries as a result of the accident and is not subject to the MIG and the funding limit it provides. My reasons are as follows.
16The May 18, 2018 entry in Dr. Nessim’s CNRs is compelling. It shows the applicant was expressly identified as feeling depressed since the accident and Dr. Nessim prescribed antidepressant medication to address the applicant’s condition. Although this is slightly more than a year following the accident, I find it is evidence of a psychological injury as a result of the subject accident. This is supported by the entry of May 29, 2017 where the applicant was noted as feeling anxious and suffering from PTSD, as well as the OCF-3 dated May 30, 2017, in which Dr. Nessim lists PTSD as an injury as a result of the accident.
17Dr. Nessim’s findings are supported by the psychological assessment report by Dr. Toneatto dated October 17, 2017. The report concludes the applicant is suffering form an adjustment disorder with mixed anxiety and depressed mood, PTSD, amongst other psychological injuries.
18I note the respondent argues I should place little weight on Dr. Toneatto’s report because Dr. Toneatto’s role was only supervisory, the assessment did not include any validity measures, and the assessment was conducted by an associate who was not qualified to perform the psychometric tests. While the concerns have merit, this does not alter my finding that the applicant has suffered psychological injuries. This is because my finding is rooted in the information contained in the CNRs of Dr. Nessim, which Dr. Toneatto’s report echoes, and Dr. Dumitrascu’s report, as explained below.
19I find the conclusion of the insurer’s assessment report by Dr. Dumitrascu does not have the same strength as the applicant’s evidence. Although the Dumitrascu report determines the validity testing shows applicant is magnifying symptoms, it also notes the presence of a personality disorder which can cause emotional distress. The report concludes this is a life-long issue and unrelated to the accident however, I find the report fails to appreciate that such a disorder can be a pre-existing condition which would preclude maximal recovery within the MIG. I find the combination of a personality disorder and the PTSD and depressive symptoms exhibited by the applicant and documented by Dr. Nessim are sufficient evidence to establish the applicant will not reach maximal recovery within the MIG.
THE DISPUTED TREATMENT PLANS and INTEREST
20I find the disputed treatment plans are reasonable and necessary to address the applicant’s psychological injuries. There is sufficient evidence of a psychological injury to warrant an investigation in the form of a psychological assessment. I find the cost of the Toneatto assessment is in accordance with the Professional Services Guideline, as does Dr. Dumitrascu, and see no evidence the fees proposed for the assessment are not reasonable. The evidence shows the applicant incurred the cost of the psychological assessment and, as a result, is entitled to interest pursuant to section 51.
21I find the psychological treatment plan reasonable and necessary considering the applicant’s vulnerable psychological state and the psychological injuries suffered as a result of the accident. The applicant has not incurred the costs of this treatment plan but may do so following this decision and the respondent is liable to pay for the costs once properly invoiced.
AWARD
22Pursuant to section 10 of Regulation 664 the applicant may be entitled to an award because the respondent unreasonably withheld payment of a benefit. The applicant submits the respondent failed to properly address all available medical documentation when determining whether the MIG applies and seeks an award because of this.
23I see no evidence the respondent unreasonably withheld payments. The disputed psychological assessment was proposed at a time when there was little evidence of a psychological injury and the respondent’s reply to the proposed assessment was to request an insurer’s examination. This is pursuant to the Schedule and not unreasonable. Further, the respondent followed the advice of the insurer’s examination assessor when it denied entitlement to the benefit, which I also find not unreasonable.
CONCLUSION
24The applicant suffers from a psychological injury which removes the applicant from the MIG. The MIG funding limit no longer applies. The disputed treatment plans are reasonable and necessary. The applicant is entitled to the incurred costs of the psychological assessment, plus interest, and may incur the services proposed in the psychological treatment plan and the respondent is liable to pay for same once properly invoiced. The applicant is not entitled to an award because no payments were unreasonably withheld.
Released: October 10, 2019
___________________________
Brian Norris
Adjudicator