S.P. v. Scottish & York, 2019 CanLII 130369

S.P. v. Scottish & York

Citation: S.P. vs. Scottish & York, 2019 ONLAT 18-008307/AABS

Released Date: December 12, 2019

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:

S. P. Applicant

and

Scottish & York Respondent

DECISION AND ORDER

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Paul Irish, Counsel

HEARD: In Writing June 24, 2019

OVERVIEW

1The applicant ("S.P.") was involved in a motor vehicle accident on August 25, 2016 ("the accident"). S.P. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ ("the Schedule") from the respondent, Scottish & York Insurance Company ("Scottish") and applied to the Licence Appeal Tribunal (the "Tribunal") when her claims were denied.

2Scottish argues that S.P.'s injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline ("the MIG").² S.P.'s position is the opposite.

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

4I must, therefore, decide whether S.P.'s injuries are predominantly minor as defined by the Schedule. If they are not, I must then determine whether the disputed medical benefits, and the associated fees and expenses, are reasonable and necessary.

ISSUES

5The issues to be determined are as follows:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the benefit in the amount of $3,245.94 for chiropractic treatment recommended by Brampton Civic Care Centre in a treatment plan ("OCF-18") submitted on December 11, 2017, and denied on December 19, 2017, reasonable and necessary?

iii. Is the benefit in the amount of $1,995.33 for psychological treatment recommended by Brampton Civic Care Centre in an OCF-18 submitted on December 18, 2017, and denied on December 19, 2017, reasonable and necessary?

iv. Is the benefit in the amount of $2,605.32 for chiropractic treatment recommended by Brampton Civic Care Centre in an OCF-18 submitted on January 26, 2018, and denied on January 26, 2018, reasonable and necessary?

v. Is the benefit in the amount of 1,892.20 for chiropractic treatment recommended by Brampton Civic Care Centre in an OCF-18 submitted on March 21, 2018, and denied on March 27, 2018, reasonable and necessary?

vi. Is the benefit in the amount of $2,200.00 for a chronic pain assessment in an OCF-18 submitted by Ontario Independent Assessment Centre on June 28, 2018 and denied on July 3, 2018, reasonable and necessary?

vii. Is the benefit in the amount of $2,294.54 for part 1 of a neuropsychological assessment as submitted in an OCF-18 by Dr. Romeo Vitelli of Ontario Independent Assessment Centre on July 18, 2018 and denied on July 25, 2018, reasonable and necessary?

viii. Is the benefit in the amount of $2,294.54 for part 2 of a neuropsychological assessment as submitted in an OCF-18 by Dr. Romeo Vitelli of Ontario Independent Assessment Centre on July 18, 2018 and denied on July 25, 2018, reasonable and necessary?

ix. Is the benefit in the amount of $3,341.87 for psychological treatment as submitted in an OCF-18 by Brampton Civic Care Centre on July 5, 2018 and denied on July 16, 2018, reasonable and necessary?

x. Is S.P. entitled to interest on any overdue payment of benefits?

FINDING

6I find that S.P.'s injuries fall outside of the MIG due to her chronic pain. S.P. is entitled to all the treatment plans in dispute, including the three treatment plans for chiropractic services, as well as the treatment plans for psychological treatment, the neuropsychological assessments and chronic pain assessment. S.P. is entitled to interest on any overdue payment of benefits.

ANALYSIS

The Minor Injury Guideline

7Section 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."

8Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

Reasonable and Necessary

9An insured in a proceeding, through supportive medical evidence, must persuade the trier of fact that the requested treatment is reasonable and necessary for his or her injuries or impairments sustained as a result of the accident. In addition, an insured must establish that any associated fees or expenses incurred, for said treatment, are reasonable and necessary.

10Section 15 sets out this requirement wherein it states that "medical benefits shall pay for all reasonable and necessary expenses incurred…as a result of the accident." Further, s. 25(1)1–5 sets out the requirements for 'reasonable' as it pertains to fees for an assessment or examination necessary for the purpose of the assessment or examination.

11A treatment plan that is completed in compliance with the Schedule and Guideline³ should set out the reasonableness and necessity of the requested treatment and the proposed fees and expenses. In a proceeding, evidence in support of the requested treatment is helpful, if not necessary, for the trier of fact to determine whether the insured is entitled to the requested treatment. So, too, is the evidence of the insurer to help the trier of fact understand why the insurer takes the position the proposed treatment plan is not reasonable and necessary.

12Once an insured has established that their injuries fall outside of the MIG, he or she must establish that both the treatment and proposed fees or expenses are reasonable and necessary.

13Given the above, the onus is on S.P. to show that her injuries fall outside of the MIG. Once established, S.P. must prove that the treatment plans and their respective fees or expenses are reasonable and necessary.

S.P. did not sustain predominantly minor physical injuries

14S.P.'s evidence and submissions indicate that she has a pre-existing medical condition and has developed a chronic pain condition and exacerbated psychological impairments as a result of the accident. It is on this basis that she argues that her impairments fall outside of the MIG.

15I find that S.P. is removed from the MIG for chronic pain.

16As I have found that she is removed from the MIG for chronic pain, I do not need to address whether she had any pre-existing medical condition or psychological impairments as a result of the accident that would remove her from the MIG.

S.P. has chronic pain which removes her from the MIG

17An applicant can be removed from the MIG for chronic pain. Although I am not bound by previous Tribunal decisions, I agree with the reasoning in 17-002907 and Aviva,⁴ upon which S.P. relies, that minor injuries that have not healed within a normal healing time may be indicative of a chronic pain condition.

18I find that S.P. suffers from chronic pain that would take her out of the MIG. I have come to these findings based on the medical evidence before me, including:

i. I am convinced that S.P. experiences persistent and constant pain. During her assessment with Dr. Erin Langis, Psychologist, on May 17, 2018 (approximately nine months after the accident), S.P. described pain in her left hand, left shoulder blade and neck, with the left shoulder pain as being constant. At her assessment with Dr. Shulamit Mor, Psychologist, on April 18, 2018 (approximately eight months after the accident), S.P. described her left shoulder pain as constant with intermittent neck, left upper arm and left wrist pain. On June 19, 2018 (almost two years after the accident), S.P. had an appointment with Dr. Victor Figurado, Family Physician, during which she presented with worsening lower back pain.

ii. S.P. reported to Scottish's insurer examination ("IE") assessor, Dr. Patrick Tansey, Orthopaedic Surgeon, that she experiences neck pain radiating into the shoulders, and intermittent back pain which did pre-exist, but which has worsened since the accident. Although Dr. Tansey ultimately concluded that S.P. sustained soft tissue injuries, which are minor injuries, his conclusion appears not to be based on an examination of S.P.'s lower back or left arm, the main areas of pain complaints.

iii. Furthermore, S.P. reported to the medical assessors that her sleep is disturbed as a result of her pain. She told Dr. Mor that she has difficulty falling and staying asleep, primarily due to pain. She told Dr. Langis that her sleep remains poor because of physical pain and rumination.

iv. Another indication that S.P. experiences chronic pain is that her pain has worsened without treatment. S.P. told Dr. Mor that she attended physiotherapy sessions once or twice a week for approximately 18 months but, once her benefits ended in April 2018, her pain has worsened. Since April 2018, she has visited Dr. Figurado several times with complaints of back pain.

19I find that all of the challenges listed above point to the fact that the accident caused S.P.'s chronic pain. S.P. is, therefore, removed from the MIG for chronic pain. Nevertheless, I must still determine whether she is entitled to the requested treatment plans.

S.P. is entitled to the chronic pain assessment

20Based on the length and history of S.P.'s pain complaints, an OCF-18 was submitted claiming the cost of a chronic pain assessment. I find the benefit proposed in, and the associated proposed cost of, the OCF-18 to be reasonable and necessary and in compliance with the Schedule and Guideline.

21The OCF-18 for the chronic pain assessment sets out the purpose of the assessment is to aid in establishing the current diagnosis, extent of the injuries, prognoses and recommendations for recovery. The chronic pain assessment is beneficial in determining the exact nature of her condition. I am persuaded by the medical evidence that S.P. has established she is entitled to the chronic pain assessment. Further, the proposed fees and expenses are within the rates set out in both the Schedule and the Guideline.

S.P. is entitled to the chiropractic treatment plans

22S.P. submits that the goal of the OCF-18s is to reduce pain and to facilitate her return to her activities of normal living. The OCF-18s for chiropractic services recommends both chiropractic treatment and physiotherapy treatment with the goals of pain reduction, increase in strength, increased range of motion and return to activities of normal living.

23I find that these OCF-18 are reasonable and necessary for the following reasons:

a. S.P. has submitted medical documentation to establish that she has pain in various parts of her body as a result of the accident. I have found that she suffers from chronic pain as a result of the accident.

b. S.P. told Dr. Mor during her clinical interview on April 18, 2018 that physiotherapy treatment provided relief from her pain but that, since stopping this treatment, her physical pain has progressively increased, particularly in the left arm and lower back. S.P. saw Dr. Figurado on October 29, 2018 presenting with persistent back pain. I find that S.P.'s consistent reports of pain to the IE assessors and her own treating physicians is indicative that, due to S.P.'s chronic pain condition, she continues to suffer from pain as a result of the accident.

24As discussed above regarding fees and expenses and goals proposed in a treatment plan, I find that the fees of the chiropractic OCF-18s are in accordance with the Guideline. These OCF-18s have reasonable and necessary fees for the recommended goals and objectives.

25S.P. is therefore entitled to the payments for these OCF-18s.

S.P. is entitled to the Psychological and Neuropsychological assessments and Psychological treatment

26S.P. has an established history of pre-accident anxiety, which was exacerbated by the accident. S.P. reported to Dr. Langis and Dr. Mor that, although she has returned to driving, she still has anxiety behind the wheel, and on two occasions, had to pull over while driving because of anxiety attacks.

27The psychological assessment will be used to determine the severity of the reported symptoms and to assess the psychological factors pertinent to effective treatment planning. I find the fees laid out in the psychological assessment are within the limits set by the Guideline and, therefore, S.P. is entitled to the psychological assessment.

28Part 1 of the neuropsychological assessment will further investigate S.P.'s ongoing pain and associated symptoms from a chronic musculoskeletal and neurological loss of function standpoint. The proposed fees in the Part 1 neuropsychological assessment are within the parameters set out in the Guideline and, as such, I find the fees to be reasonable and necessary.

29Part 2 of the neuropsychological assessment sets out the same treatment goals as Part 1. The purpose of Part 2 is for "neuropsychological scoring, report writing and completion of OCF-18". I find that Part 2 has similar testing, treatment goals and fees, as set out in Part 1.

30The OCF-18's author, Psychologist Romeo Vitello, referenced a FSCO case⁵ in support of the neuropsychological assessment. I am not bound by FSCO decisions; however, I am persuaded that the circumstances of this proceeding are similar to those in Breadner, the decision referenced.

31In Breadner, the applicant submitted a treatment plan for a neuropsychological assessment that totaled $5,028.50. The insurer agreed to pay $2,200.00 towards the cost of the treatment plan, which was in line with the Guideline. Ms. Breadner applied for arbitration to claim the cost of the second treatment plan. The arbitrator found that the assessment work constituted one assessment within the meaning of the Schedule.

32The Arbitrator noted that the OCF-18 identifies a neuropsychological assessment and the documents/reports themselves had the same purpose identified, the same author of both reports on the same date, the same dates of examination and the same tests administered. It was also noted that the results and information in the second document were incorporated by reference into the first document.

33Arbitrator King concluded that "when these points are considered as a whole, I find that the nature, content, and language of the documents clearly supports a finding that the work done constituted one assessment." I agree. Both Part 1 and 2 of the disputed neuropsychological assessment meet similar criteria as set out in Arbitrator King's decision, and I find the fees are in compliance with the Guideline.

34The goal of the psychological treatment is to reduce the level of anxiety and depressive symptomatology and restore S.P.'s level of pre-accident psychological functioning. However, I find the proposed fee for the 12 sessions of mental therapy is not in compliance with the hourly rate set out in the Guideline. The OCF-18 sets out an hourly rate of $224.42 per session, whereas the Guideline sets the non-catastrophic hourly rate for a psychologist at $149.61. Even if S.P. was catastrophically impaired, the Guideline caps the hourly rate at $179.29.

35There is no evidence that S.P. is catastrophically impaired and, therefore, the applicable hourly rate is $149.61 for psychological treatment. I find that the appropriate rate of $149.61 is reasonable for the proposed sessions of mental therapy. The remaining fees for OCF-18 form completion and progress report follow the Guideline and are therefore reasonable and necessary for the recommended psychological treatment.

36Under section 44 of the Schedule, Scottish conducted assessments as it deemed reasonably necessary for the continued adjustment of S.P.'s file. For S.P., s. 25(3) obligates Scottish to pay "reasonable fees…for a treatment plan under section 38, including any assessment or examination necessary for that purpose…".

37To establish a balance of fairness for an insured to determine the extent of their accident-related injuries, the Schedule allows both an insurer and insured the opportunity to assess injuries sustained as a result of the accident. In the insured's case, this is based on the reasonableness and necessity of the proposed treatment for those injuries, and the reasonableness of fees associated with that proposed treatment.

38As explained above, given the extent and nature of S.P.'s pain complaints and impairments, I find S.P. is entitled to the assessments and treatment. Further, I find the proposed fees, except as determined in paragraph 35, to be reasonable.

CONCLUSION

39For the reasons outlined above, I find that S.P.'s injuries fall outside of the MIG due to her chronic pain. S.P. is entitled to the OCF-18's in dispute, including the three OCF-18's for chiropractic services, as well as the OCF-18's for a psychological assessment, the two-part neuropsychological assessment, a chronic pain assessment and psychological services. S.P. is entitled to interest on any overdue payment of benefits.

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. 3Superintendent's Guideline No. 02/14 Financial Services Commission of Ontario
4. 417-002907 v Aviva Insurance Company, 2018 CanLII 13153 (ON LAT)
5. 5Breadner and Co-operators FSCO A15-005120