Tribunal File Number: 18-000007/AABS
Case Name: 18-00007 v. Cooperators General Insruance 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:
J. S.
Applicant
and
Cooperators General Insruance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Victoria Gorbenko, Representative
For the Respondent: Shelby Chung, Counsel
HEARD in writing on: July 23, 2018
OVERVIEW
1The applicant was injured in an automobile accident on January 5, 2016 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:
Is the applicant entitled to receive a weekly income replacement benefit (“IRB”) in the amount of $290.85 from August 3, 2016 to July 6, 2017?
Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the Minor Injury Guideline (“MIG”)?
Is the applicant entitled to the costs of an examination in the amount of $1,770.91 for a psychological assessment recommended by Dr. H. Mrahar, psychologist, in a treatment plan dated May 9, 2016?
Is the applicant entitled to a medical benefit in the amount of $3,517.60 for chiropractic, massage, and physiotherapy treatment recommended by Dr. A. Salayeva, chiropractor, in a treatment plan dated April 22, 2016?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant is not entitled to a weekly IRB for the period August 3, 2016 to July 6, 2017.
4The applicant sustained injuries which fall outside the MIG and the applicant is not bound by the MIG funding limit.
5The applicant is entitled to the psychological assessment submitted in a treatment plan dated May 9, 2016.
6The applicant is entitled to the treatment plan for chiropractic, massage, and physiotherapy treatment dated April 22, 2016.
7The applicant is entitled to interest on the disputed psychological assessment and chiropractic, massage, and physiotherapy treatment plan as payment of the benefits are overdue.
BACKGROUND
8The applicant was the driver of a car which was struck from behind while waiting at a red light. The applicant did not seek medical attention at the scene of the accident. The car was towed away and the applicant was taken home from the scene of the accident.
9The applicant attended Scarborough Medical Centre following the accident and complained of neck, shoulder and back pain. The applicant engaged in physiotherapy, massage, and chiropractic treatment with Scarborough Medical Centre.
10The applicant was later referred for a psychological assessment with Dr. H. Mrahar, psychologist, on account of emotional difficulties which, according to the pre-screening notes, were interfering with the applicant’s psychological functioning. Funding for the assessment was denied by the respondent as is listed as issue 3.
11The applicant claimed and received an IRB for the period from January 20, 2016 to April 20, 2016 and from June 21, 2016 to August 3, 2016. The respondent suspended the applicant’s IRB effective April 21, 2016 citing grounds that the applicant had failed to attend a properly scheduled insurer’s examination (“IE”). The applicant later attended the IE and the benefit was reinstated on June 21, 2016 and paid until August 3, 2016.
12Although the issue of entitlement to an IRB during the period from April 20, 2016 to June 21, 2016 was not listed as one of the issues in dispute for this hearing, I will address this issue because it remains in dispute and the parties made submissions on it.
DID THE APPLICANT FAIL TO ATTEND AN INSURER’S EXAMINATION?
13The respondent holds the position the applicant failed to attend a properly scheduled IE and is not entitled to any IRBs as a result. The applicant claims the notice was never received and submits this is a reasonable excuse for not attending the assessment.
14Section 44(1) provides the respondent the authority to subject the applicant to an in-person assessment. Section 44(9) requires the applicant to cooperate with the examination and submit to all reasonable examinations requested by the examiner. When determining ongoing entitlement to a specified benefit such as IRBs, an applicant’s failure to attend a properly scheduled IE allows the respondent to use the remedy outlined in section 37(7). The remedy provides the respondent may either determine the applicant is no longer entitled to the benefit (section 37(7)(a)) or suspend the benefit until the applicant attends the IE (section 37(7) (b). Section 37(8)(b)(ii) requires the respondent to pay all withheld amounts if the applicant subsequently complies with section 44(9), is still entitled to the benefit, and provides a reasonable explanation for not attending the IE.
15The applicant claims to have not received notice of the IE and advised the respondent of this by fax on April 29, 2016, after the applicant discovered the IE was scheduled and missed. The applicant provided a copy of the April 29, 2016 letter but did not include a copy of the fax transmission report to confirm delivery of the letter.
16The respondent submits that on March 9, 2016 it provided the applicant with notice of two in-person IEs scheduled for April 12 & 20, 2016. The notices were mailed to the applicant and faxed to the applicant’s representative. The respondent has provided the fax transmission report which confirms delivery of the notices to applicant’s representative. The fax transmission statement confirms the applicant’s representative received the March 9, 2016 correspondence. This is all the notice required pursuant to section 64(2) (a).
17The applicant claims to have not received the notice; however, the respondent has provided evidence to confirm it was sent by fax. I would have to completely discount this evidence in order to accept that the applicant’s representative never received the notice. I see no reason to do so.
18The respondent communicated with the applicant through the applicant’s representative as requested by the applicant in the OCF-1 dated January 11, 2016. Additionally, the respondent states by way of the affidavit of an accident benefit claims representative, that the assessment company contacted the applicant and confirmed the assessments on the day prior to each assessment.
19Considering the evidence before me, I find the respondent provided the applicant with proper notice of the in-person IEs and the applicant failed to attend the examinations without reasonable explanation.
20For the reasons above, I find the applicant is not entitled to IRBs for the period from April 21, 2016 to June 20, 2016.
IS THE APPLICANT ENTITLED TO AN IRB BEYOND AUGUST 3, 2016?
21During the first 104 weeks after an accident, an IRB is payable to an insured who is substantially unable to perform the essential tasks of his or her pre-accident employment as a result of an impairment.
22The applicant was a collector at a collection agency at the time of the accident. The applicant claims entitlement to an IRB from the stoppage date of August 3, 2016 to July 6, 2017, when the applicant returned to work. The applicant claims physical and psychological injuries as a result of the accident and I infer the applicant submits these injuries prevented the applicant from completing the essential tasks of employment. The applicant goes on to submit that the applicant’s employer terminated the employment relationship following the accident because the applicant could not complete the required tasks of employment.
23The respondent formally denied entitlement to an IRB effective August 3, 2016 on the opinion of Dr. O. Gharsaa, orthopaedic surgeon, and Dr. J. Jeffries, psychiatrist. The respondent submits the applicant does not qualify for an IRB beyond August 3, 2016 because, according to the respondent, the applicant did not have a substantial inability to perform the pre-accident employment tasks required of the applicant. I agree.
24I find the applicant is not entitled to any IRBs beyond August 3, 2016 because there is no evidence of an impairment which would render the applicant unable to complete the essential work tasks of a collector. Dr. Gharsaa and Dr. Jeffries agree the applicant sustained some injuries as a result of the accident but the injuries did not impair the applicant’s functioning to a degree that made the applicant unable to complete the essential tasks of a collector for the relevant period from August 3, 2016 when IRB stopped to July 6, 2017 when the applicant returned to work.
25Further, the applicant’s evidence does not outweigh the opinions of Dr. Gharsaa and Dr. Jeffries. The clinical notes and records of Dr. M. Chako, family physician, lack any recommendation to limit, avoid, or cease any work-related activities. The OCF-3 completed by Dr. Salayeva and dated January 15, 2016 notes a disability from completing the essential work tasks; however, the estimated period of disability is only 9-12 weeks and therefore, does not support the applicant’s claim for the period in dispute.
THE MINOR INJURY GUIDELINE
26The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.
27Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
28If the applicant’s injuries are determined to be minor and fall within the MIG, there are two avenues for the applicant to obtain medical treatment outside the MIG:
Establish the accident-related injuries fall outside the MIG – showing proof of a fracture, for example; or
Establish the applicant has a documented pre-existing medical condition which would preclude maximal recovery within the confines of the MIG.
Did the applicant sustain any accident-related injuries which fall outside the MIG?
29The applicant claims a psychological injury as a result of the accident. The applicant reports increased anxiety, irritability, symptoms of depression and post-traumatic stress disorder. The applicant submits these injuries fall outside those defined in the MIG.
30The respondent acknowledges the applicant’s psychological symptoms; however, the respondent holds the applicant has not suffered a psychiatric condition as a result of the accident. The respondent’s position, based on the IE report and addendum by Dr. Jeffries, is that the applicant’s driving and passenger anxiety is minor and the stress the applicant was under was due more to caring for an ailing parent and the loss of employment and not as a result of the accident.
31Considering the evidence before me, on a balance, I find the applicant has suffered psychological injuries which fall outside the MIG.
32I am compelled by the psychological pre-screening note by T. Kecman, MA, the section 25 reports by Dr. H. Mrahar, psychologist, and Dr. A. Azadian, psychiatrist, and the records of Dr. Chacko. The applicant’s psychological complaints of anxiety while driving and as a passenger are consistent throughout the medical record and the service providers generally share the same diagnosis that the applicant suffers from driver and passenger phobia as well as a depressive disorder. Further, Dr. Jeffries’ divergent opinion that the applicant’s psychological injuries are consistent with the MIG does not outweigh the evidence and shared opinions of Dr. Mrahar, Dr. Azadian, and T. Kecman.
Does the applicant have a documented pre-existing medical condition which would preclude maximal recovery within the confines of the MIG?
33An analysis of the applicant’s pre-existing condition is not required because I have found the psychological injury sustained by the applicant as a result of the accident is not predominantly a minor injury and accordingly have found that the applicant is not bound by the funding limits in the MIG.
THE PSYCHOLOGICAL ASSESSMENT
34Based on the evidence and submissions, I have found that the applicant suffers from psychological injuries as a result of the accident. Considering my finding and the need to establish the course of psychological treatment for the applicant, I find the psychological assessment is reasonable and necessary.
THE TREATMENT PLAN DATED APRIL 22, 2016
35This treatment plan proposes chiropractic, massage, and physiotherapy treatment to deal with the applicant’s soft tissue injuries. The applicant submits this treatment plan was incurred and claims entitlement to payment for the services because the medical record demonstrates the applicant required the treatment.
36The respondent’s position on the chiropractic treatment plan is twofold. First, the applicant is not entitled to the treatment because it exceeds the funding limits provided in the MIG. Second, the respondent holds the applicant has not demonstrated that the treatment is reasonable and necessary.
37Based on the submissions and considering my finding on the applicability of the MIG, I need only determine if the applicant has demonstrated that the treatment plan is reasonable and necessary.
38Although the applicant’s submission on this treatment plan is minimal, on a balance, I find the applicant has demonstrated the treatment plan dated April 22, 2016 is reasonable and necessary.
39The treatment plan has goals of pain reduction, increased strength, and increased range of motion and proposes chiropractic, massage therapy, and physiotherapy as a means to achieve those goals. The applicant’s medical record, namely the clinical notes and records of Dr. Chako and of Scarborough Medical Centre, note the applicant’s ongoing pain complaints, with the latter also indicating that massage therapy increased the applicant’s limited range of motion in the neck, back, and shoulders. I find this evidence, the applicant’s ongoing complaints of pain, and the pain relief and increased range of motion it provides, supports the need for this treatment.
INTEREST
40The applicant is entitled to interest on the disputed psychological assessment and the chiropractic, massage, and physiotherapy treatment plan pursuant to section 51 of the Schedule as payment of the benefits are overdue.
CONCLUSION
41I find the applicant is not entitled to a weekly IRB for the period August 3, 2016 to July 6, 2017.
42I find that the applicant sustained injuries which fall outside the MIG and the applicant is not bound by the MIG funding limit.
43The applicant is entitled to payment for the psychological assessment submitted in a treatment and assessment plan dated May 9, 2016.
44The applicant is entitled to payment for incurred treatment related to the plan dated April 22, 2016.
45The applicant is entitled to interest on the disputed psychological assessment pursuant to section 51 of the Schedule as payment of the benefit is overdue.
Released: January 14, 2019
________________________
Brian Norris
Adjudicator